Appeals Nos
300 302 of 1964
Appeals from the judgment and order dated March 16 1962 of the Punjab High Court in Civil Writ Nos 1194 to 1198 of 1961
WITH Writ Petition No 126 of 1964
Under article 32 of the Constitution of India for enforcement of the fundamental rights
NC Chatterjee V section Sawhney section section Khanduja section K Manchanda B R Kohli and Ganpat Rai for the appellants in the appeals the petitioner in the Writ Petition
J N Kaushal Advocate General for the State of Punjab B K Khanna and R N Sachthey for the respondent in all the appeals and the writ petition
The Judgment of WANCHOO HIDAYATULLAH SHAH and SIKRI JJ
was delivered by WANCHOO J MUDHOLKAR J gave an inde pendent judgment
Wanchoo J These three appeals are against the judgment of the Punjab High Court on certificates granted by that Court
The writ petition has been filed by Uma Shankar appellant in this Court and raises the same question as in the appeals namely whether section 14e of the Punjab Municipalities Act No III of 1911 hereinafter referred to as the Act is unconstitutional inasmuch as it violates article 14 of the Constitution
The appeals and the writ petition will therefore be dealt with together
We may add that we are not concerned in these appeals with section 14 a and b and that part of section 14 e which provides for recall at the request of the majority of the electors and express no opinion in that behalf
The question arises in this way
The appellants were elected to the Municipal Committee Batala in elections held on January 22 1961
The result of the elections was notified in the Punjab Government Gazette on February 27 1961
The new members took oath on March 16 1961 and began functioning from that date
On August 4 1961 notifications dated July 26 1961 860 were issued in which it was stated that the Governor of Punjab for reasons of public interest was pleased to direct that the seats of the three appellants shall be vacated from the date of the publication of the notifications in the State Gazette and to direct further that under sub section
3 of section 16 of the Act the three appellants shall be disqualified for election for a period of one year from the date specified
No notice was issued to the appellants to show cause why their seats be not vacated and no hearing was given to them before the action in question was taken by the Governor of Punjab
The appellants  case was that after the notifications vacating their seats and disqualifying them had been issued they came to know that these notifications had been issued on the basis of a resolution passed by the out going municipal committee on March 13 1961 to the effect that the appellants had taken part in a demonstration on March 10 1961 and had broken some glass panes of the municipal building
The appellants  further case was that the outgoing municipal committee had been dominated by members belonging to the Congress Party but these members had mostly been defeated in the fresh elections held on January 22 1961 and it was in consequence that the resolution was passed mala fide by these persons in order to harm the appellants
A number of grounds were taken in the petitions filed before the High Court challenging the order of the Governor of Punjab
Now however we are only concerned with one ground namely that the provision contained in section 14e was discriminatory and hit by article 14 of the Constitution
It appears however that this ground was not urged before the High Court and that is why the writ petition has been filed in this Court specifically raising this point again and thus in the present appeals and the writ petition we are only concerned with the question whether section 14 e of the Act is bad as it violates article 14 of the Constitution
We are of opinion that the appeals must succeed on this point
it is necessary in this connection to refer to section 14e section 16 and section 243 of the Act
The relevant part of section 14e with which we are concerned provides that notwithstanding anything in the foregoing sections of Chapter III which deals with constitution of committees appointment and election of members term of office of members of municipal committees the State Government may at any time for any reason which it may deem to affect the public interest by notification direct that the seat of any specified member whether elected or appointed shall be vacated on a given date and in such case such seat shall be 861 vacated accordingly notwithstanding anything in the Act or in the rules made thereunder
Further sub section
3 of section 16 provides that a person whose seat has been vacated under the provisions of section 14 e may be disqualified for election for a period not exceeding five years
 There is no provision for giving notice to a member against whom action is taken under section 14e and he is not entitled to any hearing before action is taken against him
Further action can be taken against a member for any reason which the State Government may deem to affect the public interest
Section 16 is another provision which gives power to the State Government to remove any member of a municipal com mittee
This power is exercised for reasons given in cl
a to cl
g of section 16 1
The proviso to section 16 1 lays down that before the State Government notifies the removal of a member under this section the reasons for his proposed removal shall be communicated to the member concerned and he shall be given an opportunity of tendering an explanation in writing
 The proviso therefore requires a hearing before the State Government takes action under section 16 1
Sub section 2 of section 16 provides for disqualification and says inter alia that any person removed under section 16 1 shall be disqualified for election for a period not exceeding five years
There is a slight difference here inasmuch as under this provision there must be disqualification for some period not exceeding five years though if a members seat is vacated under section 14 e the disqualification is entirely in the discretion of the State Government and is not imperative
That however has no effect on the question whether the relevant part of section 14 e is unconstitutional as it is hit by article 14
Reference may now be made to section 24 on which reliance has been placed on behalf of the State
Section 24 1 inter alia prescribes the oath before a member can begin to function
Section 242 lays down inter alia that if a person omits or refuses to take the oath as provided in sub section 1 within three months of the date of the notification of his election or within such further period as the State Government may consider reasonable his election becomes invalid
Sub section 3 of s24 provides inter alia that where the election becomes invalid under sub section
2 a fresh election shall be held
The Proviso to sub section
3 on which stress has been laid on behalf of the State lays down inter alia that the State Government may refuse to notify the election as member of any person who could be 862 removed from office by the State Government under any of the provisions of section 16 or of any person whom the State Government for any reason which it may deem to affect the public interests may consider to be unfitted to be a member of the committee and upon such refusal the election of such person shall be void
The argument on behalf of the appellants is that section 16 which gives power to the State Government to remove a member pro vides that before that power can be exercised reasons for the removal have to be communicated to the member concerned and he is to be given an opportunity of tendering his explanation in writing
So it is urged that before action can be taken to remove a member under section 16 the proviso thereof requires that the member concerned is to be given a hearing as provided therein
The argument proceeds that the relevant part of section 14e also provides in effect for the removal of a member though it actually says that the seat shall be vacated and that this removal has to be for any reason which in the opinion of the State Government affects the public interest
It is urged that when section 16 1 provides for removal for reasons given in cls
a to g that removal also is in the public interest
Therefore there are two provisions in the Act for removal of a member in the public interest one contained in section 14e and the other in section 16
Where the State Government takes action under section 161 it has to give a hearing in terms of the proviso thereof to the member concerned but if for exactly the same reason the State Government chooses to take action under section 14e it need not give any opportunity to the member to show cause why he should not be removed
Further it is submitted that though section 14 e may be said to be wider inasmuch as cls
a to g may in a conceivable case not completely cover all that may be included in the term public interests the removal for reasons given in cls
a to g in section 161 is inpublic interest and therefore what is contained in section 161 is certainly all covered by section 14e
In consequence there are two provisions in the Act for removing a member one contained in section 16 where the State Government cannot remove the member without giving him a hearing in the manner provided in the proviso and the other in section 14e where no hearing is to be given and the member is not even called upon to show cause
Finally it is urged that it depends entirely on the State Government to use its powers either under section 14e or under section 161 where the two overlap and therefore there is clear discrimination as the provision in section 14e is more drastic and does not even provide for hearing the member concerned
863 We are of opinion that these contentions on behalf of the appellants are correct
There is no doubt that the removal contemplated in section 161 for reasons in cls
a to g thereof as their content shows is in the public interest and the proviso to section 161 provides for a hearing in the manner indicated therein
On the other hand section 14e which also provides for removal in the public interest makes no provision for hearing the member to be removed
Even if section 14 e is wider than section 161 there is no doubt that all the reasons given in cls
a to g are in the public interest and therefore even if the State Government intends to remove a person for any reasons given in cls
a to g it can take action under section 14e and thus circumvent the provisions contained in the proviso to section 161 for hearing
Thus there is no doubt that section 14e which entirely covers section 161 is more drastic than section 161 and unlike section 161 makes no provision for even calling upon the member concerned to explain
In this view of the matter it is clear that for the same reasons the State Government may take action under section 161 in which case it will have to give notice to the member concerned and take his explanation as provided in the proviso to section 161 on the other hand it may choose to take action under section 14e in which case it need not give any notice to the member and ask for an explanation from him
This is obviously discriminatory and therefore this part of section 14e must be struck down as it is hit by article 14 of the Constitution
Reliance in this connection is placed on behalf of the State on the proviso to section 243
Section 241 to 3 inter alia provides for what happens where a member omits or refuses to take oath as provided therein
Then comes the proviso to section 24 3 which gives power to the State Government to refuse to notify the election of a person elected on any of the grounds mentioned in section 161
It is not necessary for us to decide whether the State Government can take action under this proviso read with section 161 without giving notice as provided in the proviso to section 161
That question may have to be decided in a case where the State Government takes action under this part of the proviso to section 243 without giving notice to the person concerned under the proviso to section 161 and without giving him any opportunity of hearing as provided therein
The proviso to section 243 further provides that the State Government may refuse to notify the name of any person elected if in its opinion he is unfit to be a member of a municipal committee on ground of public interest
It is urged that there is no provision in this con 864 nection for notice and
hearing of the person elected
That seems to be so but again the question may arise in a proper case whether this provision would be constitutional
We see no connection between the proviso to section 24 3 and the provision contained in section 14e
The proviso to section 243 is complete in itself and deals with a situation where the State Government refuses to notify the election of a person who has been elected
Section 14e on the other hand provides for vacation of the seat of a member after he has taken the oath of office
Therefore the constitutionality or otherwise of section 14e will depend upon its contrast with section 16 1 which also provides for removal of a member
As we have already indicated on comparing the two provisions both of which provide for removal of a member in public interest we find that the provision contained in section 14e as compared to the provision in section 161 is more drastic and arbitrary and denies the member concerned an opportunity being heard as provided in section 161 by the proviso thereof
Consequently we are of opinion that this part of section 14e is discriminatory and must be struck down as unconstitutional under article 14 of the Constitution
In this connection our attention is drawn to Shri Radeshyam Khare vs The State of Madhya Pradesh1 on which reliance is placed on behalf of the State
In that case this Court was concerned with sections 53A and 57 of the CP and Berar Municipalities Act which to a certain extent were held to overlap
The argument under article 14 did not really arise in that case because the two provisions dealt with two different situations
Under section 57 the State Government had the power to dissolve a committee after giving it a reasonable opportunity to furnish its explanation
Under section 53A the committee was not dissolved but the State Government had the power to appoint an executive officer and confer upon him such powers of the committee its president vice president or secretary as it thought fit though the reason for taking action under section 53A 1 apparently overlapped the reasons for dissolving a committee under section 571
Because of this difference in the scope of the two provisions contained in sections 53A and 57 there could be no question of application of article 14 to that case
In the present case however section 161 which deals with removal of a member for reasons given in cls
a to g is completely covered by section 14e which deals with vacation of a seat 1 865 in the public interest and it is open to the State Government either to proceed under one provision or the other for exactly the same reasons
One of the provisions provides for notice and hearing while the other does not and is therefore more drastic and arbitrary
In these circumstances there is in our opinion a clear discrimination in view of article 14 and the State Government cannot take advantage of the decision in Shri Radeshyam Khare s case1
We therefore allow the appeals as well as the writ petition and declaring section 14e insofar as it gives power to the State Government to vacate a seat on the ground of public interest to be unconstitutional set aside the notifications vacating the seats of the appellants
The direction as to disqualification therefore also fails
The appellants will get their costs from the State throughout
One set of hearing fee
No costs in the writ petition
Mudholkar J I have read the judgment prepared by my brother Wanchoo and while I agree with him that the appeals must be allowed I would prefer to give my own reasons for that conclusion
The appellants in these three appeals were elected to the Municipal Committee Batala in the elections held on January 22 1961
On August 4 1961 that is after these persons started functioning as members of the Municipal Committee the Government of Punjab issued a notification under section 14 cl
e of the Punjab Municipalities Act 1911 in which it was stated that the Governor of Punjab for reasons of public interest was pleased to direct that the seats of these appellants shall be vacated from the date of publication of the notification and further stated that they would be disqualified for election for a period of one year from the date specified
This notification is challenged by the appellants on the ground that the provisions contained in section 14e of the Act under which it was issued being discriminatory were rendered void by article 14 of the Constitution
Section 14 of the Act as it now stands runs thus Notwithstanding anything in the foregoing sections of this chapter the State Government may at any time for any reason which it may deem to affect the public interests or at the request of a majority of the electors by notification direct 1 866 a that the number of seats on any committee shall be increased or reduced b that any places on a committee which are required to be filled by election shall be filled by appointment if a sufficient number of members has not been elected e that the seat of any specified member whether elected or appointed shall be vacated on a given date and in such case such seat shall be vacated accordingly notwithstanding anything in this Act or in the rules made thereunder
 It would be clear from a perusal of the above provision that powers conferred by section 14 can be exercised by the State Government i for any reason which it may deem fit to affect the public interest or ii at the request of the majority of the electors
We are not concerned in this case with the second circumstance and therefore it is unnecessary to consider whether that part of section 14 which enables the State Government to take action at the request of a majority of electors is valid or not
Similarly we are not concerned in these appeals with the powers exercisable by the State Government under cls
a and b
AR that arises for consideration before us is whether the conferral of power upon the State Government to require that the seat of any specified member of the Committee shall be vacated for any reason which it may deem to affect the public interest is valid
The expression public interest is of wide import and what would be a matter which is in the public interest would necessarily depend upon the time and place and circumstances with reference to which the consideration of the question arises
But it is not a vague or indefinite ground though the Act does not define what matters would be regarded as being in the public interest
It would seem that all grounds set out in section 16 which confers upon the State Government the power to remove any member of a Committee and sets out a number of grounds upon which this could be done would be in the public interest
Section 14 however apart from the fact that the power it confers upon the State Government is not limited to matters set out under section 16 confers upon the Government the power to determine not merely what is in the public interest but also what for any reason which it may deem to affect the public interest
 This would suggest that the power so 867 conferred would extend to matters which may not be in the public interest
For that would be the effect of introducing the fiction created by the words for any reason which it may deem
There is no guidance in the Act for determining what matters though not in public interest may yet be capable of being deemed to be in the public interest by the State Government
In the circumstances it must be held that the power which conferred upon the State Government being unguided is unconstitutional
For this reason I hold that section 14 in so far as it confers power on the State Government to require a seat of a member of a committee to be vacated for any reason which it may deem to affect public interest as violative of article 14 of the Constitution and therefore unconstitutional
In the result each of the appeals is allowed with costs and I accordingly do so
Appeals allowed


Summary:
The appellants who had been elected members of the Municipal Committee Batala challenged the Notification issued under section 14e of the Punjab Municipalities Act III of 1911 directing their removal and disqualifying them from election for a period of one year
It was contended on their behalf that there were two provisions in the Act ie section 14e and section 161 clauses a to g under which a member could be removed in the public interest and whereas action could only be taken under section 161 after notice and an opportunity for a hearing to the member concerned there was no such requirement in the case of section 14e
This sec tion was therefore hit by Article 14 and consequently the Notifications were invalid
HELD  per Wanchoo Hidayatullah Shah and Sikri JJ If the State Government intended to remove a person for any of the reasons given under section 161 cases a to g it could take action under section 14e and thus circumvent the provision in section 161 for a hearing
The relevant part of section 14e entirely covered section 161 but was more drastic
It was therefore obviously discriminatory and violative of article 14 of the Constitution
863 C E Shri Radeshayam Khare vs The State of Madhya Pradesh  distinguished
No assistance could be derived by the respondent State from the fact that under the proviso to section 243 the State Government had power to refuse to notify the election of a person elected on any of the grounds mentioned in section 161 and there was no provision in this connection for notice and hearing of the person elected
Apart from the question of the constitutionality of this provision there was no connection between the proviso to section 243 and the provision contained in section 14e
The proviso to section 243 was complete in itself and dealt with a situation where the State Government refused to notify the election of a person who had been elected
Section 14e on the other hand provided for the vacation of the seat of a member after he had taken the oath of office
Therefore the constitutionality or otherwise of section 14e would depend upon its contrast with section 161 which also provided for the removal of a member
864 A C Per Mudholkar J The power conferred by section 14 upon the State Government to require that the seat of any member shall be vacated for any reason which it may deem to affect the public interest is unconstitutional
The expression public interest  is of wide import and what would 859 be a matter which is in the public interest would necessarily depend upon the time and place and circumstances with reference to which the consideration of the question arises
But it is not a vague or indefinite ground
There is no guidance in the Act for determining what matters
though not in public interest may yet be capable of being deemed to affect the public interest
866 E G 867 A C