ORDER
D.P.S. Chauhan, J.
1. Feeling aggrieved by the order of the State Government dated 19-2-96, which is Annexure-P-1 to the petition, the petitioners Badri Prasad Chikwa and Smt. Satanhai have approached this Court under Article 226 of the Constitution, seeking relief for issuance of a writ in the nature of certiorari, quashing the order dated 19-2-96 and for direction in the nature of mandamus, to the respondents for permitting the petitioners being continued as councillors of the Nagar Panchayat, Amarpatan, District Satna, Madhya Pradesh.
2. Since in the petition, the return has been filed and this Court on 3-3-97 passed an order for final disposal this petition is being finally disposed of with the consent of the learned counsel for the parties.
3. Both the petitioners i.e. Badri Prasad Chikwa and Smt. Satanhai were the members of Nagar Panchayat Amarpatan and in a special meeting convened for their removal, a resolution was passed for their removal on 16-9-95 and the same was sent to the State Government, whereupon the State Government passed the impugned order, in exercise of its power under Section 41 (1)(b) of the Madhya Pradesh Municipalities Act, 1961(hereinafter referred to as the Act).
4. Heard the learned counsel for the petitioners Shri Govind Patel as the learned counsel for the respondents Nos. 1 and 2 who are represented by Shri A. S. Gaharwar and also the learned counsel for the respondent No. 3 Nagar Panchayat, Amarpatan, who is represented by Shri R. N. Singh.
5. Learned counsel for the petitioners made two-fold submissions:–
(1) That no resolution as contemplated under Clause (b) of Sub-section (1) of Section 41 of the Act was passed in the special meeting and for this reason the order of the State Government is bad.
(2) The petitioner was not supplied material for submitting his explanation and according to him there has been violation of requirement under Section 41 (3) of the Act and as such the impugned order is liable to be quashed being null and void.
6. Second submission is being taken first in which context Section 41 is relevant which is as extracted below :–
“41. Removal of Councillor.–.(1) The State
Government may, at any time, remove a Councillor–
(a) ifhis continuance as a Councillor is not, in the opinion of the State Government desirable in the interest of the public or of the Councillor;
(b) If the council, recommends his removal by a resolution passed at a special meeting convened for the purpose.
(2) The State Government may, at any time, remove a councillor if he, being a legal practitioner, acts or appears on behalf of any other person against the Council in any legal proceeding or against the State Government in any such proceeding relating to any matter in which the council is or has been concerned, or acts or appears on behalf of any person in any criminal proceeding instituted by or on behalf of the Council against such person.
(3) No order under Sub-section (1) or Sub-section (2) shall be passed until the reasonable opportunity has been given to the person concerned to furnish an explanation.
(4) Removal from office under Sub-section (1) or Sub-section (2) shall disqualify the person so removed for further election, selection or appointment to the office from which he is removed as may he specified by the State Government.”
7. Under this section, the power vests with the State Government to remove any councillor. Councillor can be removed by the State Government under Clause (b) of Sub-section (1) of Section 41 of the Act if his continuance as a Councillor, is not, in the opinion of the State Government desirable in the interest of the public or of the Councillor; and can also be removed on the recommendation of the council made by a Resolution passed in a special meeting convened for the purpose by the Nagar Panchayat.
8. There is no dispute that in the present case, the power under Clause (b) of Sub-section (1) of Section 41 of the Act was exercised but the dispute is that the same has not been according to law.
9. Learned counsel for the petitioners submitted that it is the statutory obligation of the State Government that before removing a councillor and before passing an order for removal from the office, to give a reasonable opportunity to the person concerned for furnishing an explanation. According to him the word “explanation” as contained in Sub-section (3) of Section 41 means that the person to explain the charges levelled against him and the findings recorded in the Resolution of the Nagar Panchayat. It is pointed out that the State Government issued notice so to comply with the requirement under Sub-section (3) of Section 41 of the Act. The notice for furnishing explanation, which is Annexure-P-5 dated 7-11-96 is in exercise of the power, as stated above.
10. This notice does not specify any charge or the finding, if any recorded in the resolution of the Nagar Panchayat against the petitioners. It also does not contain any comments or any letter in respect of charges enclosed to it. The petitioners submitted their reply to it, which is Annexure-p-6 to the petition, wherein in paras 7, 8, 9 and 10 a prayer was made for the supply of the documents so that explanation may be given. In para 7 of the reply-Annexure-p-6, it is stated that neither the Chairman of the Nagar Panchayat, nor the Vice-Chairman nor the Chief Executive Officer nor any other competent Officer wrote or told as to what were the disparaging statements alleged to have been made and what obscene words were alleged to have been spoken and against whom and did not receive any letter for furnishing explanation in relation to the facts as staled above and it was on account of malice that the resolution was passed so to shield the misdeeds of all the councillors who participated in the meeting. In para 8 of the reply it was stated that they were not aware as to what decision was taken by the councillors and what are the charges levelled in the meeting heldon 16-9-95. State Government was requested for supplying a copy of the resolution passed by the Nagar Panchayat so that proper explanation point-wise to the show-cause notice in regard to removal may be given. All detailed information regarding the facts on the basis of which show cause notice was issued and all such facts were requested to be disclosed. It was also mentioned that the show-cause notice dated 7-11-95 does not contain any charges. It was staled that no such act, as alleged, was committed so to warrant removal under the law and if any act has been committed, then the charges may be made known to him.
11. It is not disputed that in pursuance to this letter/reply, no reply was given to the petitioners nor any material was supplied to them.
12. Learned counsel for the respondent submitted that it is a case where sufficient compliance has been done as the petitioner in pursuance to the notice dated 7-11-95, submitted his reply Annexure-p-6 and it is a case where the facts and the material as to what was against the petitioner was known to him; and as such, no prejudice is caused to the petitioner so to warrant interference under Article 226 of the Constitution. It was further submitted that the petitioner is a person who participated in the resolution and in the meeting convened for his removal.
13. Annexure-p-5 dated 7-11-95 which is show-cause notice purported to be under Sub-section (3) of Section 41 of the Act and Annexure-p-6, which is reply to the show-cause notice dated 7-11 -95, taking together, go to indicate that it was a violation of requirement under the provisions of law which was not permissible. The word “explanation” has got relevance which means that the person must know the material on the record and he must know the allegations against him and discussions recorded in pursuance of such resolution by way of writing. In the present case nothing has been done. So far as the knowledge to the person concerned, is concerned the fact that he participated in the meeting has no relevance. In the exercise of the power by the State Government, the State Government is obliged to do justice and fair play in seeking explanation, in respect of which a person has a right under the law, the State Government cannot be allowed to say that it has made the compliance of Sub-section (3) of Section 41 of the Act. When a proper opportunity is not given to a person, then he is certainly prejudiced.
14. In view of the above, I am of the view that the impugned order of the State Government dated 19-2-96 is laconic, as it has not been passed after giving opportunity to the concerned councillor, who was having a vested right for holding the office as councillor.
15. So far as the other argument advanced by the learned counsel regarding the fact that no meeting took place is concerned, that has no substance. The record specifies that the said meeting was convened for the purpose and therefore this submission deserves to be rejected,
16. In view of the above, the writ petition succeeds and the impugned order dated 19-2-96 is quashed and the petitioner’s status that of a councillor of Nagar Panchayat Amarpatan, Dist. Satna is restored. However, if the State Government chooses to proceed against the petitioners, then this order will not come in the way of the State Government, provided the requirements of Sub-section (3) of Section 41 of the Act are properly complied with. In view of the facts and circumstances of the case, no order as to costs.