GAYA PRASAD MODI Vs. STATE OF M P

JUDGEMENT

(1.) THE petitioner President of Nagar Panchayat, Bhitarwar, District Gwalior, has called in question the proceedings initiated for his recall under Section 47 of the M. P. Municipalities Act, 1961. According to the petitioner he was elected as President of Nagar Panchayat and notification in this regard was issued on 23rd January, 2002. On 7-1-2002 vide Annexure P-4 certain councillors moved an application to the Collector under the provision of Section 47 of the M. P. Municipalities Act, 1961 asking for recall of the petitioner. It is the case of the petitioner that Collector without following the procedure contemplated under Section 47 and in cross violation there of made a proposal to the State Government for initiating action for recall, the State Government forwarded the same to the State Election Commission and the Commission has notified election for recall of the petitioner which is to be held on 6th May, 2002. The prayer made in the petition is that entire action be quashed, as the same is in violation of the statutory provisions, rules and therefore cannot be sustained. The respondents have refuted the contention made by the petitioner. The respondents have submitted that action is being taken in accordance with Section 47 and the rules made thereunder.

(2.) THE respondents have raised a preliminary objection with regard to maintainability of the present petition. Inviting my attention to the provisions of Article 243-ZG of the Constitution of India, it is putforth by the learned Counsel for the respondents that there is a total constitutional bar to interfere in election matter pertaining to municipalities and therefore the petition is not maintainable. My attention has also been invited to the provision of M. P. Nagar Panchayat Nirvachan Niyam, 1994 (hereinafter referred to as 'election Rules'), Rule 2 (d) defines an election and reads as under :--

(3.) ACCORDINGLY, it is averred that election in relation to recall of a President of a Municipality or Nagar Panchayat is also an "election". Section 20 of the Municipalities Act provides for filing of an election petition and it contemplates that no election held under the provision of Act shall be called in question except by a petition presented under the said provision. Section 22 of the Act further provides the grounds on which election or nomination can be declared as void. Sub-section 1 (d) (iii) provides that non-compliance of the provision of Act, rules or orders made thereunder arc grounds on which election can be declared void. On the basis of the aforesaid it is submitted by the learned Counsel for respondents that as an election petition is maintainable with regard to violation of the provisions of Act and rules and in view of the constitutional bar created by Article 243-ZG and the statutory bar provided for under Section 20 of the Act present petition is not maintainable. Reliance is placed on judgment in the case of Nanhoo Hal and Ors. v. Hira Mal and Ors. , AIR 1975 SC 2140. In the aforesaid case the Supreme Court has held that election to the office of President of a Municipal Council has to be challenged in accordance with the provision prescribed in the statute and writ petition under Article 226 is not permitted. Similar provisions in the Constitution, akin to Article 243-ZG has been considered in various judgments of the Supreme Court wherein the Supreme Court has clearly held that the constitutional bar created by these provisions debars entertaining a petition under Article 226 of the Constitution. Reference in this regard can be made as under:--