SHARDA DEVI Vs. NOORJAHAN

JUDGEMENT

(1.) BY this writ appeal, the appellant assails the order dated 17-11-06 of the learned Single Judge in W. P. No. 3991/06 by which the order dated 6-7-06 passed by respondent No. 2, Secretary, Nagriya Prasashan Avam Vikas Vibhag, govt. of M. P. Bhopal, respondent No. 1 Noorjahan w/o Mohd. Hussain had been removed from the post of President of Nagar Panchayat, Badaud. The power exercised by the respondent under Section 41-A of M. P. Municipalities act, 1961 (for short 'the Act'), can be exercised if her continuance as President, in the opinion of the State Govt. , was not desirable in public interest or in the interest of the Council or if it is found that she is incapable of performing her duties or is working against the provisions of the Act or any rules made thereunder. The candidature of respondent No. 1 was challenged on the ground that by claiming that she belonged to O. B. C. (other backward class) for which the seat of President was reserved, she had illegally been elected to the said post while she was, in fact, not a member of the O. B. C. On such ground the power could not have been exercised under Section 41-A of the Act, which as stated above can only be exercised if the continuance of President is not in the 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.

(2.) IN the impugned order Anx. P-11 to the W. A. , it is stated that the respondent No. 1 furnished wrong information with regard to her status as OBC, and such a ground does not fall within the domain of Section 41-A and the only remedy in such cases is under Section 20 of the Act of filing the election petition.

(3.) WE are, therefore, satisfied that learned Judge in holding that section 41 - A of the Act was not attracted in the facts of the case, did not commit any error or illegality. Though learned Counsel submits that in view of the decisions in K. Venkatachalam Vs. A. Swamickan and another [air 1999 SC 1723] and Ravindra Kumar Nayak Vs. Collector, Mayurbhanj Orissa and others [air 1999 SC 1120] there is no bar to invoke the extra-ordinary jurisdiction of this court under Art. 226 of the Constitution of India. In the Scheme of the Act when election petition is provided as the only remedy to challenge the election and provisions of Section 41-A of the Act were not attracted as rightly held by the learned Single Judge, we find that cases relied upon by the learned Senior counsel do not apply to the facts and circumstances of the present case and the law involved.