SENA Vs. MINISTRY OF URBAN AND HOUSING DEVELOPMENT

JUDGEMENT

(1.) The present petition is filed under Article 226 of the Constitution of India challenging the order dtd. 23/12/2020 passed by respondent No.1 u/S.41-A of M.P. Municipalities Act, 1961 (hereinafter referred as "Act of 1961"?) directing to remove the petitioner from the post of President of Alirajpur Municipality in respect of tenure between 2017-2022 on the ground that in her earlier tenure falling between 2012-2017 (6/8/2012 to 8/7/2017) there was an irregularity in an auction carried out by the Municipality, Alirajpur in respect of Shop No.2, Bus Stand near Buniyadi Shala, Alirajpur and it was the responsibility of the petitioner who was then President u/S.51 of the Act to watch over the financial and executive administration of the Council. The petitioner has been further disqualified from holding the office of President, Vice President or the Chairman as the case may be for the next term.

(2.) The facts of the case are that the petitioner had contested and won the election for the post of President, Alirajpur Municipality in the year 2012 for the tenure falling between 2012-2017. It is submitted that Alirajpur Municipality is the owner of shop situated at Shop No.2, Bus Stand near Buniyadi Shala, Alirajpur. The then Chief Municipal Officer, Alirajpur informed that the shop in question is lying vacant and in the year 2011 also the Municipality tried for auction but despite that there was no one to occupy the same and, therefore, the same was to be auctioned. The Chief Municipal Officer has put the shop in question to auction on right to occupancy (for business) basis and an auction notice was issued in the daily newspaper in the year 2016. Thereafter the Chief Municipal Officer had conducted an auction and the shop was allotted to the highest bidder for Rupees Nine lakhs. The tenure of the petitioner as the President of Alirajpur Municipality has concluded in the year 2017 and a fresh election was conducted in respect of the same Municipality by the State. The petitioner had again contested the election for the post of President, Alirajpur Municipality held in the year 2017 and won the election and became the President of Alirajpur Municipality for the period falling between 2017-2022. The respondents had initiated a departmental enquiry against the then Chief Municipal Officer, Alirajpur for some alleged irregularities committed by him for auctioning the shop in question in the year 2016 and has issued a charge sheet to him. A departmental enquiry was conducted against him and he was held responsible for the aforesaid irregularities and has failed to discharge duties cast on him u/S.92 of the Act, 1961 and Rules made under the Act 1961 and has passed an order of punishment against the then Chief Municipal Officer and withheld two increments without cumulative effect and for the loss caused to the Municipality an amount of Rupees Ten lakh was ordered to be recovered from him. The said order was passed on 27/5/2020. After passing of the said order, the respondent No.1 issued a show cause notice on 29/7/2020 alleging the same charges against the petitioner and stated that the petitioner has acted in contravention of the provisions of Rule 7 of M.P. Nagar Palika (Achal Sampati Ke Antaran) Niyam, 1996 (hereinafter referred as "? "Niyam 1996") and Sec.51(b) of the Act, 1961 which is amounting to misconduct and, therefore, the State Government has taken a decision for initiating action against the petitioner u/S.41-A of the Act 1961. The petitioner filed detailed reply to the said show cause notice and categorically stated that the alleged charges levelled against the petitioner were the duties of the Chief Municipal Officer under the Act 1961 and the Rules made thereunder and the petitioner being President is not responsible for the alleged irregularities. It was further stated that the petitioner has not acted in contravention to the provisions of Rule 7 of Niyam, 1996 and Sec.51-B of the Act 1961 which would amount to misconduct and for which no action can be taken against the petitioner. Thereafter the respondent No.1 passed the impugned order dtd. 23/12/2020 and has thereby directed for removal of the petitioner from the post of President of Alirajpur Municipality in respect of tenure between 2017-2022 on the ground that on her earlier tenure between 2012-2017 (6/8/2012 to 8/7/2017) there was an irregularity in an auction carried out by the Municipality, Alirajpur in respect of Shop No.2 Bus Stand, near Buniyadi Shala, Alirajpur and, therefore, her continuance on the post of President, Alirajpur Municipality is not in public interest. It was further ordered to disqualify the petitioner from holding the post of President or Vice President or Chairman as the case may be for the next term.

(3.) The impugned order has been mainly challenged on the ground that the so called alleged lapse is in respect of her tenure which had already come to an end in the year 2017 and, therefore, her removal from the office after re-election for the said lapse is illegal. The petitioner could not have been removed for the lapse of earlier tenure because the removal u/S.41-A of the Act 1961 is on the ground when the continuation of the person holding the post of President or Chairman is in the opinion of the State government not desirable in public interest or in the interest of the Council or it is found that he is incapable of performing duties or is working against provisions of the Act or any Rules made thereunder or if it is found that he does not belong to reserved category for which the seat was reserved. Thus, the removal of the petitioner does not fall within the grounds enumerated u/S.41-A. The petitioner has successfully completed the first term and was re-elected in the second term and, therefore, if the petitioner would not have been re-elected for the second term then the respondents could not have removed the petitioner as President of the Council for the lapse of the previous term. The misconduct is not a ground for removal of a President u/S.41-A of the Act, 1961. It is further submitted that Sec.41-A of the Act 1961 does not empower the State government to remove the present President of the Municipality on the ground that there were irregularities committed by the Chief Municipal Officer in an auction proceedings in respect of Shop No.2 Bus Stand near Buniyadi Shala, Alirajpur which has resulted into loss to the Council when the petitioner was the President of the Council for the period 2012-2017. The power u/S.41-A of the Act could not have been invoked for trivial/minor irregularities and more particularly the same cannot be invoked when the alleged irregularities where the duties cast on the Chief Municipal Officer. The power u/S.41-A of the Act 1961 can be invoked only under grave and exceptional circumstances and the provisions sought to be construed in a strict manner because holder of the office occupies it by election and is being deprived by an executive order in which the electorate has no chance of participation. It is further submitted that the allegation against the petitioner and the Chief Municipal Officer are same. As per the alleged charges, it was the duties and responsibilities of the Chief Municipal Officer u/S.92 of the Act 1961 and the Rules made thereunder for which the Chief Municipal Officer has already been punished in a departmental enquiry and the loss caused to the Municipal Council has already been recovered. There is no complaints or allegations or material available which demonstrates that petitioner is incapable of performing her duties on the post of President and the petitioner is undesirable for the public interest or she is acting against the interest of the Council.