BALESHWAR DAYAL JAISWAL Vs. STATE OF M P

JUDGEMENT

(1.) BYthis writ petition, petitioner has challenged the order dated 6th June, 2 J08 passed by the Principal Secretary, Department of Urban Administration & Development, Government of Madhya Pradesh, Bhopal in exercise of the powers under Section 41-A of the M. P. Municipalities Act, 1961 (for short "the Act") removing the petitioner from the post of the President, Municipality Nagda and debarring him from contesting the election for a period of next 5 years.

(2.) Petitioner was elected as President of the Municipality Nagda in the election held on 04.11.2005. He was elected as an independent candidate; whereas in the election of Councilors for 36 Wards, 27 seats were won by the Bhartiya Janta Party, 7 by Indian National Congress and 2 by independent candidates. On the complaint of some of the Councilors, the Minister, Urban Administration & Development Department had got the enquiry conducted through the Secretary of the Department who submitted the ex- parte Enquiry Report on 5th September, 2005. The State Government issued show-cause notice dated 10th October, 2005 to the petitioner Jo Jemove him from the post of the President under Section 41-A of the Act. Petitioner filed reply to the show-cause notice. Thereafter another notice dated 17,04.2006 was given containing some additional charges for taking action under Section 41-A of the Act. The petitioner submitted reply to the additional charges on 04.07.2006. The Respondent No. 1 passed the order dated 29.07.2006 removing the petitioner from the post of President, Municipal Council, Nagda exercising the powers under Section 41-A of the Act. Petitioner had earlier approached this Court by filing Writ Petition No.4644 of 2006 challenging the order of removal and the Single Bench of this Court by the order dated 9th October, 2007 allowed the writ petition on reaching to the conclusion that the order of removal was not authored by the Competent Authority himself; the order of removal was based upon the findings recorded in the Preliminary Enquiry Report which was held behind the back of the petitioner; the order was based upon the non application of mind and that some of the findings in the order were not based upon any evidence. Learned Single Judge set-aside the order dated 29.07.2006 and directed reinstatement of the petitioner as President, Municipal Council, Nagda for the rest of his term. The Writ Appeal No.605 of 2007 filed by the Respondents was dismissed by the learned Division Bench by observing that any expression contained in the order of the learned Single Judge on merits of the case will not preclude any party from taking resort to the provisions of the Act.

(3.) It is relevant to mention here that when the petitioner was removed from the post of the President by order dated 29.07.2006, to fill up the casual vacancy, initially one Mr. Raj Narayan was appointed under Section 37 (2) of the Act and thereafter election was held and the Court at that stage had made explicit that the Election Commission shall inform all the contesting candidates that the election will be subject to the result of the writ petition. In the election one Gopal Yadav was elected. The issue of the status of Gopal Yadav came up before the Division Bench in Writ Appeal No.605 of 2007 and the Division Bench held that once the order under Section 41-A of the Act is quashed, the parties would be relegated to the position obtaining on the date of the order and the incumbent who had suffered the order under Section 41-A of the Act becomes entitled to restoration of his Office/Post after the order of removing was struck down. Consequently the petitioner was restored back to the Office of the President, Municipal Council, Nagda, and election of Gopal Yadav being conditional, no right accrued in his favour.