CWP No. 10900 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: 29.10.2007 Avjinder Singh Sibia Petitioner versus S.Parkash Singh Badal and others ... Respondents CORAM:- Hon'ble Mr. Justice Uma Nath Singh. Hon'ble Mr.Justice Rajive Bhalla. Present: Mr.M.S.Khaira, Senior Advocate, with Mr.B.S.Sewak & Mr.Dharminder Singh, Advocates, for the petitioner. Mr.H.S.Mattewal, AG, Punjab, with Mr.N.D.S.Mann, Addl.AG, Punjab. UMA NATH SINGH, J. The petitioner was nominated during the term of the previous government as a member of Market Committee Raikot (Ludhiana) on 16.2.2005 in exercise of powers under Section 12 of the Punjab Agricultural Produce Markets Act, 1961 (for short `the Act') and other powers vested in the Governor of Punjab. He also became the Chairman of the said Committee, however, he has ceased to continue in office with issuance of the Punjab Ordinance No.2 of 2007 by the present Government, which was later translated in to an enactment, being the Punjab Act No.5 of 2007 substituting Section 12-A of the Act, whereby all the market committees in the state of Punjab have been superseded. The petitioner has, hence, sought to challenge the provisions of the Punjab Act No.5 of 2007, on the ground that the procedures laid down under Section 35 of the Act have not been CWP No. 10900 of 2007 2 followed. Section 12-A of the Act after amendment by Act No.5 of 2007 reads as follows: “12-A. Supersession of nominated Committees On and from the commencement of the Punjab Agricultural Produce Markets (Amendment) Ordinance, 2007. (a) all the Committees, constituted by way of nomination, under section 12 as it existed immediately before such commencement, shall stand superseded; (b) all the members including the Chairman and the Vice- Chairman of every Committee, shall cease to hold office; (c) during the period of supersession of the Committees, all powers and duties conferred and imposed upon the Committee, its Chairman and other members by or under this Act, shall be exercised and performed by such officer, as the Government may appoint in that behalf; and (d) all property vested in each Committee shall, until these are re-constituted, vest in the Government: Provided that the Committees shall be re-constituted in accordance with the provisions of section 12 within a period of six months from the date of supersession.” Thus, by amendment in the proviso to Punjab Act No.5 of 2005 by the Act No.5 of 2007, the period of three years has been substituted by a period of six months from the date of supersession. The other Section which also provides for supersession of Committees is Section 35 of the Act. The provisions of Section 35 of the Act read as under : “35 Supersession of committees (1) If, in the opinion of the State Government, a Committee CWP No. 10900 of 2007 3 is incompetent to perform or persistently makes default in performing the duties imposed on it by or under this Act, or abuses its powers, the State Government my, by notification, supersede the committee: Provided that before issuing a notification under this sub-section, the State Government shall give a reasonable opportunity to the committee for showing cause against the proposed supersession and shall consider the explanations and objections, if any, of the committee. (2) Upon the publications of a notification under sub-section (1) superseding a committee, the following consequences shall ensue:- a) all the members including the Chairman and Vice- chairman of the committee shall, as from the date of such publication, be deemed to have ceased to be members of the committee; b) all assets of the committee shall vest in the Board and the Board shall be liable for all the legal liabilities of the committee subsisting at the date of its supersession upto the limit of the said assets; c) The State Government may, in its discretion, by order constitute either a new committee as provided under section 12 or such other authority for the carrying out of the functions of the committee [and of its Chairman and other members] as the State Government may deem fit. (3)(a) When the State Government has made an order under CWP No. 10900 of 2007 4 clause (c) of sub-section (2), the assets and liabilities defined in clause (b) of sub-section (2) vesting in the Board at the date of such order shall be deemed to have been transferred on the date of such order to the new committee or authority constituted as aforesaid. (b) (i) Where the State Government by order under clause ( c ) of sub-section (2) has appointed an authority other than a new committee for the carrying out of the functions of the superseded committee, the State Government may, by notification, determine the period not exceeding one year for which such authority, shall act: Provided that the term of office of such authority may be terminated earlier, if the State Government for any reason consider it necessary. (ii) At the expiry of the term of office of such authority a new committee shall be constituted; (iii) Upon such an order being made the assets and liabilities vesting in the authority thereby superseded, shall be deemed to have been transferred by such order to the new committee. (4) Whenever the assets of a committee vest in the Board and no new committee or authority is appointed in its place the Board shall employ the balance of the assets remaining after the discharge of the subsisting legal liabilities of the committee or any object of public utility in the area specified in the notification issued under section 6.” As per the averments made in the writ petition, after formation CWP No. 10900 of 2007 5 of the present Government in February, 2007, it was decided to remove all the Chairman, Vice-Chairman and Members of the market committees nominated by the previous Government in the State. Thus, in exercise of powers under clause 1 of Articles 213 of the Constitution of India, an ordinance to that effect was issued to be followed by the Amendment Act No.5 of 2007. Section 12-A of the Act and the consequent notification issued thereunder have been impugned herein mainly on the ground that the Amendment Act gives sweeping powers to the respondents to act arbitrarily with discrimination which is violative of Article 14 of the Constitution of India. Heard learned counsel for the parties and perused the records. The principal submission of learned senior counsel for the petitioner is that in case of nomination under a statute, the statute would contain such provisions that the continuance of tenure of office of a nominated member would be subject to pleasure of the Governor. He has cited a constitution bench judgment of Hon'ble the Apex Court reported in AIR 1965 SC 1518 (Ram Dial and others versus State of Punjab). In that case before the Hon'ble Supreme Court in appeal, provisions of Section 14 (e) of the Punjab Municipalities Act (3 of 1911) were challenged on the ground of being discriminatory, and, thus, violative of Article 14 of the Constitution of India. The appellants therein had been elected to the Municipal Committee, Batala, in the elections held on 22.1.1961. Result of the elections was notified on 27.2.1961, and the elected members took oath on 16.3.1961 and started functioning with effect from that date itself. On 4.8.1961, certain notifications were issued, wherein it was mentioned that the Governor of Punjab in exercise of his powers was pleased to direct that CWP No. 10900 of 2007 6 the seats of all the appellants shall stand vacated from the date of publication of the notifications in the State Gazette in public interest.It was also directed that under sub-section 3 of Section 16 of the Act, the appellants shall stand disqualified for election for a period of one year w.e.f. the date so specified. In the appellants' writ petitions before this High court, it had been contended that the impugned action was taken without issuing them a notice to show cause as to why their seats be not vacated, and thus, they were denied the right of hearing. The appellants came to know after issuance of notifications that the said notifications had been issued on the basis of a resolution passed by the out-going members of the Municipal Committee on 13.3.1961 to the effect that the appellants had taken part in a demonstration on 10.3.1961 and had also broken some glass panes of the municipal building. It had also been contended in that writ petition that the out-going Municipal Committee was dominated by the members of the out- going political party, who were defeated by the appellants in the fresh elections held on 22.1.1961. Accordingly, that resolution was passed with a malafide intention to harm the appellants. In their writ petitions filed in this High Court, the appellants had taken various grounds while assailing the order of the Governor. However, the main point, which needed a decision and which could not be taken in the writ petitions was as to whether the provision of Section 14(e) of the Act was discriminatory and as such, hit by Article 14 of the Constitution of India. The appellants suffered an adverse order in the writ petitions. Being aggrieved, they filed Civil Appeals in the Supreme Court , and also a writ petition under Article 32 to urge the point of discrimination under Section 14(e) vis-a-vis Section 16 (1) of the Act which could not be urged in the writ petitions. Hon'ble the CWP No. 10900 of 2007 7 Apex Court while deciding the civil appeals and the writ petition has discussed the relevant provisions of the Act and given reasons for allowing the Appeals and the writ petition in paras 3 to 7 of the judgment as under: “(3) We are of the opinion that the appeals must succeed on this point. It is necessary in this connection to refer to Ss. 14 (e), 16 and S.24(3) of the Act. The relevant part of S.14(e) 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 vacated accordingly, notwithstanding anything in the Act or in the rules made thereunder. Further sub-s.(3) of S.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 S.14(e) 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. 4. Section 16 is another provision which gives power to the State Government to remove any member of a municipal CWP No. 10900 of 2007 8 committee. This power is exercised for reasons given in cl.(a) to cl.(g) of S.16(1). The proviso to S.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-s.(2) of S.16 provides for disqualification and says inter alia that any person removed under S.1(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 member's seat is vacated under S.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 Art.14. (5) Reference may now be made to S.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 24(2) lays down inter alia that if a person omits or refuses to take the oath as provided in sub-s.(1) within three months of the date of notification of his election or within such further period as the State Government may consider CWP No. 10900 of 2007 9 reasonable, his election, becomes invalid. Sub-section (3) of S.24 provides inter alia that where the election becomes invalid under sub-s.(2), a fresh election shall be held. The proviso to sub-s.(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 removed from office by the State government under any of the provisions of S.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. (6) The arguments on behalf of the appellants is that S.16 which gives power to the State Government to remove a member provides 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 S.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 s.14(e) 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 S.16(1) provides for removal for CWP No. 10900 of 2007 10 reasons given in cls.(a) to (g), that removal also is in the public interest. Therefore, there are two provisions in the Act one contained in S.14(e) and the other in S.16. Where the State Government takes action under S.16(1), 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 14(e) it need not give any opportunity to the member to show cause why he should not be removed. Further it is submitted that though S.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 S.16(1) is in public interest and, therefore, what is contained in S.16(1) is certainly all covered by S.14(e). In consequence there are two provisions in the Act for removing a member, one contained in S.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 S.14(e) 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 S.14(e) or under S.16(1), where the two overlap and, therefore, there is clear discrimination, as the provision in S.14(e) is more drastic and does not even provide for hearing the member concerned. 7. We are of the opinion that these contentions on behalf CWP No. 10900 of 2007 11 of the appellants are correct. There is no doubt that the removal contemplated in S.16(1) for reasons in cls. (a) to (g) thereof, as their content shows, is in the public interest and the proviso to S.16(1) provides for a hearing in the manner indicated therein. On the other hand S.14(e) which also provides for removal in the public interest makes no provision for hearing the member to be removed. Even if S.14(e) is wider than S.16(1), 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 S.14(e) and thus circumvent the provisions contained in the proviso to S.16(1) for hearing. Thus there is no doubt that S.14(e) which entirely covers S.16(1) is more drastic than S.16(1) and unlike S.16(1) 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 S.16(1) in which case it will have to give notice to the member concerned and take his explanation as provided in the proviso to Section 16(1), on the other hand it may choose to take action under S.14(e) 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 S.14(e) must be struck down as it is hit by Art.14 of the Constitution.” Thus, as per the ratio of the judgment, section 14(e) was held to CWP No. 10900 of 2007 12 be discriminatory and being hit by Article 14 of the Constitution for it did not envisage a provision for giving a show cause notice to members to explain before proceeding against them although the subject matter of this Section was similar to the one as contained in Section 16(1), which contrarily provided for a show cause notice and hearing. Thus, the provisions of Section 14(e) of the Act were held to be more drastic and to that extent the Section was struck down by the Hon,ble court. Learned senior counsel has also placed reliance on the judgment of Hon'ble the Apex Court reported in AIR 1974 SC 555 para 85 (E.P.Royappa versus State of Tamil Nadu and another), to argue that where an Act is arbitrary, implicitly, it is unequal both according to political logic and constitutional law, and therefore, if it affected any matter relating to public employment, it would be violative of Article 14 of the Constitution. Para 85 being relevant part of the judgment is reproduced here under: “The last two grounds of challenge may be taken up together for consideration. Though we have formulated the third ground of challenge as a distinct and separate ground it is really in substance and effect merely an aspect of the second ground based on violation of Arts. 14 and 16. Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged CWP No. 10900 of 2007 13 in the Constitution, Art. 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words, Art 14 is the genus while Art. 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Arts. 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle ? It is a founding faith, to use the words of Bose, J., "a way of life'', and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined'' within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14 and if it affects any matter relating to public employment, it is also violative of Art. 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all CWP No. 10900 of 2007 14 similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reasons for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Arts. 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice : in fact the latter comprehends the former. Both are inhibited by Arts. 14 and 16.” While citing the judgment of Hon'ble the Apex Court reported in AIR 1974 SC 543 (The State of Punjab and another versus Khan Chand), learned senior counsel has tried to build up a case on the basis of principle of law enunciated in that judgment that the Constitution has assigned to the Courts the function of determining as to whether the laws made by the Legislature are in conformity with the provisions of the Constitution. Para 12 of the judgment relied upon by the learned senior counsel reads as: “It would be wrong to assume that there is an element of judicial arrogance in the act of the courts in striking down an enactment. The Constitution has assigned to the courts the function of determining as to whether the laws made by the legislature are in conformity with the provisions of the Constitution. In adjudicating the constitutional validity of statutes, the courts discharge an obligation which has been imposed upon them by the Constitution. The courts would be CWP No. 10900 of 2007 15 shirking their responsibility if they hesitate to declare the provisions of a statute to be unconstitutional, even though those provisions are found to be violative of the Articles of the Constitution. Articles 32 and 226 are an integral part of the Constitution and provide remedies for enforcement of fundamental rights and other rights conferred by the Constitution. Hesitation or refusal on the part of the courts to declare the provisions of an enactment to be unconstitutional, even though they are found to infringe the Constitution because of any notion of judicial humility would in a large number of cases have the effect of taking away or in any case eroding the remedy provided to the aggrieved parties by the Constitution. Abnegation in matters affecting one's own interest may sometimes be commendable but abnegation in a matter where power is conferred to protect the interest of others against measures which are violative of the Constitution is fraught with serious consequences. It is as much the duty of the courts to declare a provision of