PRITHI CHAND Vs. LIEUTENANT-GOVERNOR

JUDGEMENT

(1.) This petition under Article 226 of the Constitution of India is directed against the Lieutenant-Governor Himachal Pradesh and arises in the following circumstances:

(2.) Theog was at first a notified area under the Punjab Municipal Act, 1911, hereinafter to be referred as 'the Municipal Act', as applied to Himachal Pradesh. Subsequently, it was declared to be a small town under the Punjab Small Towns Act, 1921, hereinafter to be referred as 'the S. T. Act' as applied to Himachal Pradesh. In accordance with Section 4 of the S. T. Act a small town committee of Theog was established on 25-4-1953. The committee consisted of six elected and two nominated members. Election to the small town committee was held in August 1960 and the petitioner was elected as a member from Ward no. 5 and a notification dated 4-10-1960 was issued by the Himachal Pradesh Administration notifying the names of six elected members. The Sub- Divisional Officer Public Works Department Theog and the Medical Officer Civil Hospital Theog were the ex-officio nominated members. On 15-12-1960 the petitioner was elected as President and one Shri Ram, Pratap as Vice-President of the committee and the election of the petitioner as President was notified by the Himachal Pradesh Administration : vide Annexure 'B' to the petition. The petitioner was also a member of the District Congress Committee and alleged to have criticized the Himachal Pradesh Administration and the respondent in particular at more than two public meetings held at various places in district Mahasu. This was not liked by the respondent. Two criminal cases had been pending against the petitioner in the Court of Magistrate first class Theog since about 1957 and in July 19.61 he moved an application before the Hon'ble Supreme Court for the transfer of those two cases to some Court situate Outside the Himachal Pradesh territory and in the affidavit filed in support of that application allegations were made against the respondent The application was rejected on 28-8-1961. By a notification dated 21-9-1961 the respondent in the exercise of powers conferred by Section 7 of the S. T. Act removed, the petitioner from the membership of the small town committee Theog on the ground of unfitness. A copy of the order was served on the petitioner on 23-9-1961 at 5 P. M. As a result of the aforesaid notification the petitioner has been deprived not only, of performing his duties as an elected representative of his constituency but also incurred the disqualification of seeking election to any Municipal Committee, Territorial Council, Legislative Assembly arid Parliament for a period of five years. The gravamen of the petitioner is that the action taken by the respondent was arbitrary mala fide and was against the principles of natural justice inasmuch as no opportunity was afforded to him to show cause against the proposed action. According to the petitioner Section 7 of the S. T. Act was violative of Article 14 of the Constitution and was unconstitutional and ultra vires. The petitioner has accordingly prayed for the issue of a writ of mandamus directing the respondent to restore him to the office of the President and membership of the small town committee Theog and for the quashing of the order removing him from membership of the aforesaid committee.

(3.) The application is opposed on the following main grounds:--The order sought to be quashed is entirely administrative and is not justiciable in a Court of law and as such the writ petition is not competent. There is no infringement of any fundamental right of the petitioner and on that score also the petition is not maintainable. It is denied that the respondent bore any ill-will against the petitioner or that the order of removal was actuated by bias or malice. The said order is stated to have been made in the public interest on the basis of reports submitted by the departments concerned. It has been admitted that the petitioner had criticized the administration of the Lieutenant-Governor on 17-91959 at a meeting held at Arki and on 28-9-1959 at another meeting held at Parala. It is, however, denied that the political views and activities of the petitioner were not liked by the respondent. The speeches made by the petitioner were political and there was no occasion for taking any action against him for the expression of views concerning the Administration. The petitioner had alleged in the petition that two criminal cases were pending against him and particulars of those cases have been given in the written- statement. One of those cases viz. FJR No. 43 dated 8-5-1958 was registered for offences under Sections 420 read with 511 and 468 read with 471, IPC, and the other i. e., FIR No. 51 dated 17-1-1959 for offences under Sections 420 read with 511, 203, 182 and 109, IPC. On 17th April 1961 the petitioner was arrested by ike Special Police Establishment of the Government of India, Ministry of Home Affairs in connection with a criminal case of cheating, forgery and criminal conspiracy registered against him and others at Ambala for offences under Sections 420, 468, 471 and 102, IPC. A case under Sections 408 and 416, IPC., was registered at P. S Theog against the members of the Executive Committee of the Tehsil (Jo-operative Union Theog for misappropriating a sum or Rs. 50,000/- entrusted to the committee by the Himachal Pradesh Co-operative Department. The petitioner also figured as an accused to that case. The petitioner is the manager and general attorney of the Mahasu Trading Company the partners of which firm are Pritam Chand and the petitioner's wife Smt. Jogendra Devi and his minor son, Hem Raj, has been admitted to the benefits of that partnership. The aforesaid company owns trucks Nos. Him1202, 1897 and 1898 which were engaged by the Himachal Government Transport department and during tne period of engagement the company committed various breaches) of the provisions of Motor Vehicles Act and the rules made thereunder and several of the drivers in the employ of the aforesaid company were convicted and sentenced. The Himachal Government Transport department ceased to engage the trucks of the company but on a representation made and oral and written apology submitted by the petitioner the respondent by an order dated 10-10-1959 directed that the aforesaid trucks be again engaged by the Transport Department : vide Annexure 'A' to the affidavit sworn by Shri C. L. Rajput. Firms controlled by the petitioners near relatives are stated! to be indebted to the various co-operative societies to the tune of Rs. 2,84,463.77 np. The reply submitted by the; respondent is supported by two affidavits sworn by Shri Joseph Dina Nath, Superintendent of the Law Department Himachal Pradesh Secretariat and Shri C. L. Rajput Private Secretary to the respondent. The affidavits which were sworn in reply to the application made by the petitioner for the transfer of the two criminal cases pending against him have been annexed to the affidavit sworn by Shri Joseph Dina Nath.