SATYA PRAKASH AGARWAL Vs. STATE OF M P

JUDGEMENT

(1.) BY this petition, the petitioner has prayed for invoking the "quo-warranto writ jurisdiction" of this Court calling upon the respondent No. 3 to establish his legal entitlement for holding the office of Mayor, municipal Corporation, Bhopal. Petitioner has also prayed for a declaration that respondent No. 3 has usurped that office by illegally occupying it despite his disqualification under Section 17 (1) (b) of the Municipal Corporation act (hereinafter referred to as "the Act" ).

(2.) THE petitioner is voter in Bhopal town. His case is that on 13-1-2000, respondent no. 3 was first elected as Councillor from ward No. 5 Bhopal and then as Speaker, municipal Corporation, Bhopal. On 20-2-2004, the State Government issued a show cause notice to respondent No. 3 as to why he should not be removed from the office of speaker and ultimately removed him as speaker by order dated 17-3-2004, Annexure P-3, in exercise of its powers under Section 19-B of the Act. The respondent No. 3 challenged the order of his removal before this Court by filing Writ Petition No. 1320/ 2004 on 22-3-2004 which is still pending and the order of removal has not been stayed. On 5-11 -2004, respondent No. 3 filed his nomination form Annexure-P2, for contesting the election of the office of Mayor, municipal Corporation, Bhopal. Election of the Mayor was held on 20-11-2004 and the respondent No. 3 was notified elected as mayor on 7-12-2004. He assumed the charge of Mayor on 20-12-2004. According to the petitioner, respondent No. 3 made a wrong declaration in his nomination form, annexure-P2, that he was not disqualified under any law for being elected to the office of Mayor as the order of his removal above mentioned was in operation on the date of his filing the nomination form.

(3.) THE submission of the learned counsel for the petitioner is that respondent No. 3 on being removed as Speaker, Municipal corporation, Bhopal, under Section 19-B of the Act becomes automatically disqualified under Section 17 (b) to hold the office of mayor, Municipal Corporation, Bhopal. Placing reliance upon the decision of the Supreme court in K. Venkatachala v. Swamickan, (1999) 4 SCC 526 : AIR 1999 sc 1723 and Division Bench decision dated 15-11-2006 of this Court in W. A. No. 87/ 2006 (Atar Lal Verma v. Suresh Choudhary), the learned counsel for the petitioner has argued that bar of Article 243zg of the constitution does not restrict the powers of this court under Article 226 for issuing a writ in the nature of quo-warranto. He further submitted that in the admitted fact situation of this case, the respondent No. 3 must be declared disqualified to hold the office of mayor.