JUDGMENT
D.M. Dharmadhikari, J.
1. The petitioner was elected President of Nagar Panchayat, Badi which is a local authority constituted under M.P. Municipalities Act, 1961 (hereinafter referred to as ‘the Act’).
2. She was served with a show cause notice under Section 41-A of the Act (Annex. P.1) proposing her removal from the office of President on the alleged misconduct and irregularities committed by her in discharge of her duties. She submitted a reply to the show cause notice and tried to meet each and every charge or allegations made against her. After her reply, by the impugned order dated 1-4-1998 (Annex.P.10) she has been removed from the office of President against which this petition under Article 226 of the Constitution of India has been filed.
3. Section 41-A under which the impugned action has been taken was introduced in the Act by amendment Act No. 18/97 w.e.f. 21-4-1997 and provision reads as under :-
“41-A. Removal of President or Chairman of – (1) The State Government may, at any time, remove a President, Vice President or a Chairman of a Committee, if his continuance as such is not, in the opinion of the State Government desirable in public interest or in the interest of the Council or if it is found that he is incapable of performing his duties or is working against the provisions of the Act or any rules made thereunder.
(2) The State Government may, while ordering the removal under sub- section (1), also order that such President, Vice-President or Chairman of any Committee shall be disqualified to hold such post for the next term:
Provided that no such order under this section shall be passed unless a reasonable opportunity of being heard is given.”
4. From the provision quoted above it is noteworthy that it confers an extra ordinary and overriding power on the State Government to remove an elected office bearer of a local authority or committee under it on formation of an opinion that continuance of such office bearer is “not desirable in public interest” or “in the interest of the council” or that “he is incapable of performing his duties or is working against the provisions of the Act or any Rules” made thereunder. Similar power of removal of a councillor is vested in the Collector under Section 41 of the Act against which there is an appeal provided. For taking action under Section 41-A of removal of President, Vice President or Chairman of any Committee, power is conferred on the State Government with no provision of any appeal. The action of removal casts a serious stigma on the personal and public life of the concerned office bearer and may result in his disqualification to hold such office for the next term. The exercise of power, therefore, has serious civil consequences on the status of an office bearer. The nature of power is such that it has to be exercised on an opinion objectively formed by the State Government. The misconduct or incapacity of the office bearer should be of such magnitude as to make his continuance undesirable in the “interest of council” or “in public interest”. There are no sufficient guidelines in the provisions of Section 41-A as to the manner in which the power has to be exercised except that it requires that reasonable opportunity of hearing has to be afforded to the office bearer proceeded against. Keeping in view the nature of the power and the consequences that flow on its exercise it has to be held that such power can be invoked by the State Government only for very strong and weighty reason. Such a power is not to be exercised for some trivial or minor irregularities in discharge of duties by the holder of the elected post. The material or grounds on which the action is taken should be such as to justify the exercise of drastic power of removal of the office bearer with consequence of his disqualification for another term. The provision has to be construed in a strict manner because the holder of office occupies it by election and he is deprived of the office by an executive order in which the electorate has no chance of participation.
5. With the above background in mind about the nature and extent of power and the consequences that flow from it, this Court proceeds to examine the facts of this particular case and the grounds on which the action is founded.
6. The first charge (charge No. 1) alleged against the petitioner is that she got demolished a public toilet near the bus stand and in its place constructed a row of shops. The council incurred expenditure in the sum of Rs. 22,498/- and the shops were let out by accepting highest offer in auction in the sum of Rs. 14,500/-, thus causing loss to the council.
7. The petitioner in her reply has explained that the work of demolition and construction of shops was done in the best interest of the council.
8. In holding the petitioner guilty of such a charge of causing loss to the council, the State Government, acting through its Secretary in the Local Self Government Department, failed to consider the relevant aspect that the row of shops constructed at the cost of Rs. 22,498/- is property of the council and only lease hold rights were granted to the shopkeepers by accepting the amount of premium in an auction. A highest bid was given – may be by some relation of the petitioner – but the leases were granted by the method of auction which was the prescribed mode to transfer municipal properties. The lease money obtainable from the shops could not have been compared with the costs of construction of the shops. The charge, therefore, is not made out.
9. The second charge (charge No. 2) levelled against the petitioner was that she used land of her own field in setting up a water hand pump and thus tried to derive some personal advantage to her field. In her reply the petitioner stated that there are about 12 poor families living near the place where hand pump was installed. Adjoining field was of one Suraj Jhanwar who was not interested in providing any facility of drinking water to the families living near the field. The petitioner’s own field was nearby and it is only to provide the families living nearby the facility of drinking water that the hand pump was installed. It is stated that she derived no personal benefit. She has already given an undertaking in writing that the small portion of land on which hand pump has been fitted would be donated to the council. The Secretary of the concerned department in the impugned order has not accepted the explanation of the petitioner stating that in the absence of a government land available in the vicinity, the hand pump could have been installed only after acquiring the land. It cannot be lost sight of that acquisition of land and thereafter installation of hand pump would have taken an unreasonable long time and the facility of drinking water could not have been provided within a reasonable period. On the explanation given by the petitioner the action taken by her to make available a small place of her own land for installing hand pump cannot be said to be any action against the “interest of the council” or “against public interest”.
10. The third charge (charge No. 3) against the petitioner is that she settled certain plots by accepting premium and composition fee, in anticipation of the sanction of the council. The explanation of the petitioner is that such settlement and sanction was granted by the President in respect of long pending cases of the concerned parties and in anticipation of the approval of the council. According to the Secretary who has passed the impugned order the amount of premium charged was not fixed after due assessment of the value of the land.
11. Looking to the nature of the charge it was such that the matter should have been left to be discussed and debated in the meeting of the council for grant of consequent approval or disapproval to the same. The action of the President was taken subject to approval of the council. The matter, therefore, can still be reconsidered by the council and if necessary the State Government can issue necessary directions with regard to the same under the provisions of the Act.
12. The fourth charge (charge No. 4) levelled against the petitioner was that certain construction material for repair of a well with cement bags instead of being near the work site were found to have been stored in her house.
13. The explanation submitted by the petitioner was plausible and acceptable that near the work site there was no sufficient place for storage and the nearest place was the residence of the President where the cement bags were stored for safety. It is not the charge that, the material or cement was misutilised by the petitioner.
14. The fifth charge (charge No. 5) that the petitioner took services of a Peon of the office as Telephone attendant is too trivial a charge to form any basis of such drastic action of removal. The petitioner as a President was legitimately entitled to some services of a peon at her residence.
15. The sixth charge (charge No. 6) against the petitioner is that a bogus bill of Rs. 8,280/- was paid to one Deepak Jain for construction of boundary wall. The charges states that the previous Chief Municipal Officer Shri B. D. Thakur had got the boundary wall constructed with public co-operation and, therefore, no bill was payable for the construction of boundary wall.
16. In holding the charges as proved in the impugned order, it has not been stated that any enquiry was made from Deepak Jain as to whether he had made any supplies or done any work for which he had submitted his bill. It is likely that although some co-operation of public was obtained by the ex-CMO but some expenditure might have been incurred by the council as well.
17. The seventh charge (charge No. 7) against the petitioner is that in a conference of Sahu Samaj for arranging mass marriages certain electrical installations for lighting were made by the council. The material for providing facility of electricity was purchased by the council without inviting quotations. The electrical installations to some extent were damaged in the course of the conference and the remaining material first was deposited at the residence of the President and thereafter it was lodged in the store of the council.
18. In holding the above charge as proved it is not stated in the order as to what was the financial limit upto which the President could have incurred expenditure without calling quotations. When function was organised in a city by public, providing facility of light is one of the duties of the council. It is submitted that some electric bulbs got fused. The remaining property might have been first taken to the residence of the President but later on it was kept in the store room and was duly recorded. There is no charge-against the petitioner that any such material purchased by the council was utilised or retained by her personally.
19. The last charge (charge No. 8) against the petitioner is that she has utilised a truck registered in her name and got it engaged in the work of the council and the bills were paid in the name of one Shambhoo Khan, driver. In the impugned order the charge is held to have been proved on the statement of truck driver Shambhoo Khan who has stated that the truck belongs to the President and the bills were prepared in his name but he never received any payment.
20. In this petition the petitioner has filed affidavit of Shambhoo Khan and the registration certificate of the truck involved. It has been shown that the registered owner of the truck is one Anees Brothers. Driver Shambhoo Khan has stated on affidavit that some rival group of councillors by practising fraud and deceit obtained some writing from him. He has stated on affidavit that he was engaged on the truck MPI-3302 and for work done for the council he had received payment.
21. This court, therefore, finds that none of the charges is fully proved against the petitioner and is of such a serious nature as to warrant drastic action of her removal from office under Section 41-A of the Act. As has been observed above the extraordinary power conferred on the State to remove an elected office bearer from office has to be exercised sparingly and on very strong, cogent and weighty grounds because it has not only an immediate adverse effect on the personal and political life of the holder of the elected office but disqualifies him for the next term to seek election. It may also be mentioned that State did not submit any return to controvert any of the averments made in the petition.
22. Consequently, the petition succeeds and is hereby allowed. The impugned order (Annex.P. 10) dated 1.4.1998 communicated on 4-4-1998 is hereby quashed. The respondent is directed to allow the petitioner to assume office and function as President of the Nagar Panchayat, Badi in accordance with law.