HIGH COURT OF CHATTISGARH BILASPUR WRIT PETITION C No 5486 of 2011 [ENTITY] Petitioners Versus [ENTITY] & others Respondents ! Shri [ENTITY] counsel for the petitioner ^ Shri [ENTITY] Dy Govt Advocate for the State Shri [ENTITY] counsel for respondent No3 Shri Shri [ENTITY] CORAM: HONBLE SHRI PRASHANT KUMAR MISHRA J Dated: 17/07/2012 : Judgement JUDGMENT
(17.07.2012) WRIT PETITION UNDER [SECTION] OF THE [ACT]
1. The petitioner, president of Municipal Council, Dongargarh, has assailed the legality and validity of the order Annexure P-1 whereby the department of Urban Administration and Development, Government of Chhattisgarh, in exercise of powers u/[SECTION] of the C.G. [ACT] [SECTION]61 has kept in abeyance financial powers of the petitioner as conferred on the President of Municipality under [SECTION] of the C.G. Municipalities Account Rules [SECTION]71.
2. Facts of the case, briefly stated, are that while discharging functions of the President of the said Municipality, a complaint was made before the Collector, Rajnandgaon vide Annexure R-1 alleging financial favouritism/benefit extended by the petitioner to one electrical contractor. The Collector made enquiries and submitted report to the State Government on 02.06.2011 and thereafter the impugned order was passed on 24.08.2011 (Annexure P-
1). In the report of the Collector, findings were recorded that the petitioner was guilty of signing the cheque without signing of the note-sheet and the cheque by the concerned Chief Municipal Officer.
3. Learned counsel for the petitioner has argued that the powers under [SECTION] of the Act is to be exercised in case of emergency against a Council and the word "Council" has been defined u/[SECTION] and when the said definition is read along-with the provisions contained in [SECTION] & [SECTION] of the Act, it is apparent that the said power cannot be exercised to initiate action against the President. He would thus submit that the impugned order has been issued without jurisdiction and in any case, there is no foundation for satisfaction that there existed an "emergency" so as to invite exercise of power under the said provision.
4. Per contra, learned State Counsel as well as learned counsel for the intervener have argued that before passing the impugned order, opportunity of hearing has been provided to the petitioner and even if [SECTION] is not attracted the order can be treated to have been passed u/[SECTION] of the [ACT], therefore, the impugned order does not suffer from any error of jurisdiction. It has been argued that while functioning as President of the Council and exercising financial power under [SECTION] of the Rules [SECTION]71, the President acts on behalf of council, therefore, the power has been used against the Council through the President and there is no illegality in the impugned order.
5. [SECTION] of the Act [SECTION]61 needs reference which is reproduced hereunder:
324. Extraordinary powers in case of emergency.- (1) In case of emergency the State Government or any officer, authorized by the State Government in this behalf may direct or provide for the execution of any work, or the doing of any act, which a Council is empowered to execute or do, and the immediate execution or doing of which is in its or his opinion, necessary for the health or safety of the public, and may direct that the expense of executing the work or doing the act with a reasonable remuneration to the person appointed to execute or do it, shall be forthwith paid by the Council.
(2) If the expenses and the remuneration are not so paid, the State Government or any officer authorized in this behalf may make an order directing any person, who for the time being has custody of any moneys on behalf of the Council, to pay such expense and remuneration from such moneys as he may have in his hands or may, from time to time, receive, and such person shall be bound to obey such order.
(3) Provisions of sub-section (2) 323 shall, as far as may be, apply to any order made under this section.
6. The extra ordinary power as contemplated and conferred on the State Government under [SECTION] of the Act (supra) is exercisable in case of emergency and qua a council. In the matter of [PRECEDENT] Hon'ble the Supreme Court has defined and explained the meaning of the word "emergency" to mean a situation which is not normal, a situation which calls for urgent remedial measures, however, in the present case, merely because a cheque was signed by the petitioner without note-sheet and signature of C.M.O., no such emergency had arisen calling for the impugned action by the State Government.
7. In the matter of Smt. Prabharani Vishwakarma v. State of Madhya Pradesh & others AIR [SECTION]99 MP 223, the Division Bench of the M.P. High Court has drawn distinction between the President and Municipal Council. Relevant portion of Paragraph 11 of the said judgment is quoted hereinbelow:
" In view of the preceding analysis it is amply clear that the Municipality being a body corporate has its own juristic personality, and therefore, the requirement of law that President intending to resign has to give a notice in writing to the Municipality, means, it has to be addressed to the Municipality. It may be delivered to the Chief Municipal Officer or any other person who has been authorized to receive it on behalf of the Municipality but the notice has to be addressed to the Municipality not to the Chief Municipal Officer. The Chief Municipal Officer may be the Chief Executive Officer of the Municipality and might have given authority to perform various functions but he cannot be substituted for the Municipality. It has been observed in the case of [PRECEDENT] (supra) that he has the duty to receive papers for or on behalf of the Municipality. In this regard we may say that the Chief Municipal Officer of the Council might have the authority to receive papers for or on behalf of the Municipal Council but when a notice is to be given in writing to the Municipality, though there is no explicit expression, it has to be addressed to the Municipality. It is inhered in the language employed as it has to be addressed to the Municipality which is a body corporate. In view of the analysis we are of the considered view that the decision rendered in the case of [PRECEDENT] (supra) do not lay down the correct law to the effect that notice on the Municipal Officer is notice to the Municipality. As the learned single Judge in the instant case has relied on the aforesaid decisions and has arrived at the conclusion that notice on the Chief Municipal Officer has been properly served on the Municipality, we are not able to subscribe to the said view. Resultantly, our view is that the requirement of the statute is that the notice in writing has to be addressed to the Municipality and a notice to the Chief Municipal Officer does not meet the requirement of law."
8. Though the controversy before the Division Bench of the M.P. High Court in the matter of Smt. [PRECEDENT] (supra) was concerning the issue as to whether the letter of resignation by the President of the Council addressed to the Chief Municipal Officer can be said to be a valid resignation tendered to the Municipal Council, yet the ratio as to the legal character of a Municipality and the CMO has been discussed and the said distinction between the Municipal Council as a body corporate and other officers like the Chief Municipal Officer who is the Chief Executive Officer of the Municipality and the elected head i.e., President of the Council has been clearly dealienated and relying on the said judgment and on the basis of the provisions contained in [SECTION], defining a "Council", [SECTION] providing for constitution of Municipal Council and [SECTION] providing for composition of Municipal Council, this Court has no hesitation in holding that the word "Council" as occurring in [SECTION] of the Act cannot be construed to mean President of the Council and therefore, the impugned order exercising powers u/[SECTION] of the Act is without jurisdiction being not available for taking action against the President of the Council for withdrawing his financial powers.
9. Learned counsel for the intervener has made a faint attempt to fall back on the provisions contained in [SECTION] of the Act to argue that even if the power u/[SECTION] of the Act is not available, the impugned order can be treated to have been passed u/[SECTION] of the Act and thus the impugned order cannot be branded as without any power or authority of law. The said argument needs reference only for rejection. [SECTION] authorizes the Divisional Commissioner, the Collector or any other officer authorized by the State Government to suspend execution of any resolution or order or prohibit the doing of any act by or on behalf of the Council when it is not in conformity with law or with the rules or the bye-laws made therein and is detrimental to the interest of the Council or the Public or is causing or likely to cause injury or annoyance to the public or any class or body of persons or is likely to lead to a breach of the peace. Sub-Section (2) thereof makes a provision that the authority making the order under sub-section (1) shall forthwith forward to the State Government and to the Council effected thereby a copy of order with a statement of reasons for making it; and it shall be in the discretion of the State Government to rescind the order or to direct that it shall continue in force with or without modification permanently or for such period as it thinks fit. When the impugned order is tested on the parameters of the prerequisites of [SECTION], it is amply clear that the impugned order has been passed by the State Government and not by the Authority competent under the provisions to pass such an order and consequently when the State Government itself passes the order, there is no occasion to send it for conformation to the State Government as provided in [SECTION]. Even otherwise, the power available is to suspend the execution of any resolution or order or prohibit the doing of any such act which means a particular resolution or order or any act whereas in the present case the entire financial power of the President as available to him under the C.G. Municipalities Account Rules [SECTION]71 has been seized/withdrawn. Such power is not contemplated under [SECTION] of the Act, therefore, this argument of learned counsel for the intervener sans substance and deserves to be rejected at once.
10. In the matter of [PRECEDENT] it has been held thus in paragraphs 7 and 11.
7. In a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. That a returned candidate must hold and enjoy the office and discharge the duties related therewith during the term specified by the relevant enactment is a valuable statutory right not only of the returned candidate but also of the constituency or the electoral college which he represents. Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held. Therefore, a case of availability of a ground squarely falling within [SECTION] of the Act must be clearly made out. A President may be removed from office by the State Government, within the meaning of [SECTION], on the ground of "abuse of his powers" (of President), inter alia. This is the phrase with which we are concerned in the present case.
11. The expression "abuse of powers" in the context and setting in which it has been used cannot mean use of power which may appear to be simply unreasonable or inappropriate. It implies a willful abuse or an intentional wrong. An honest though erroneous exercise of power or an indecision is not an abuse of power. A decision, action or instruction may be inconvenient or unpalatable to the person affected but it would not be an abuse of power. It must be such an abuse of power which would render a Councilor unworthy of holding the office of President. Inasmuch as an abuse of power would entail adverse civil consequences, the expression has to be narrowly construed. Yet again, the expression employed in [SECTION] is "abuse of his powers or of habitual failure to perform his duties". The use of plural - powers, and the setting of the expression in the framing of [SECTION] is not without significance. It is suggestive of legislative intent. The phrase "abuse of powers" must take colour from the next following expression - "or habitual failure to perform duties". A singular or casual aberration or failure in exercise of power is not enough; a course of conduct or plurality of aberration or failure in exercise of power and that too involving dishonesty of intention is "abuse of powers" within the meaning of [SECTION] of the Act. The legislature could not have intended the occupant of an elective office, seated by popular verdict, to be shown exit for a single innocuous action or error of decision."
11. In the matter of Sharda Kailash Mittal v. State of Madhya Pradesh (2010) (2) SCC 3[SECTION], the following has been laid down in Paras 25 & 26:
"25. For taking action under [SECTION] for removal of the President, Vice President or Chairman of any Committee, power is conferred on the State Government with no provision of any appeal. The action of removal casts a serious stigma on the personal and public life of the office-bearer concerned and may result in his/her disqualification to hold such office for the next term. The exercise of power, therefore, has serious civil consequences on the status of an officer-bearer.
26. There are no sufficient guidelines in the provisions of [SECTION] as to the manner in which the power has to be exercised, except that it requires that reasonable opportunity of hearing has to be afforded to the office-bearer proceeded against. Keeping in view the nature of the power and the consequences that flows on its exercise it has to be held that such power can be invoked by the State Government only for very strong and weighty reason. Such a power is not to be exercised for minor irregularities in discharge of duties by the holder of the elected post. The provision has to be construed in strict manner because the holder of office occupies it by election and he/she is deprived of the office by an executive order in which the electorate has no chance of participation."
12. In the case in hand, though the petitioner has not been removed from the office of President but his financial powers have been seized under the impugned order thus the impugned order inflicts a stigma which is no less serious than the stigma cast when the president is removed from the office because when powers are withdrawn, the person looses credibility in the minds of voters and his supporters that he is a person who does not have integrity and does not stick to financial discipline. In a case like this, the person continues to hold the office but loses his powers to put his signatures on the financial instruments like bills, cheques etc., which are presently signed by the CEO and the Vice President even though the President is available in the Office. This effect of the impugned order causes humiliation to an elected President of the Municipal Council which amounts to casting of stigma losing his reputation, therefore, this Court has no hesitation in holding that considering from any angle the impugned order cannot be sustained which deserves to be and is hereby quashed by issuing a writ of certiorari.
13. In the result, the writ petitions stands allowed. No order as to costs.
JUDGE