Case: Ram Dial And Others Vs. The State Of Punjabwith Connected Writ Petition

reasons in cls. (a) to (g) thereof, as their contend 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 as. (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 or 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 hot 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. 9. Reliance in this connection is placed on behalf of the State on the proviso to S. 24(3). Section 24(1) 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 S. 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 S. 16(1). It is not necessary for us to decide whether the State Government can take action under this proviso read with S. 16(1) without giving notice as provided in the proviso to S.16(1). That question may have to be decided in a case where the State Government takes action under this part of the proviso to S. 24(3) without giving notice to the person concerned under the proviso to S. 16(1) and without giving him any opportunity of hearing as provided therein. The proviso to S.24 (3) 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 connection 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 S. 24(3) and the provision contained in S. 14(e). The proviso to S. 24(3) is complete in itself and deals with a situation when the State Government refuses to notify the election of a person who has been elected. Section 14 (e) 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 S.14(e) will depend upon its contrast with S. 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 S. 14(e) as compared to the provision in S. 16 (1) is more drastic and arbitrary and denies the member concerned an opportunity of being heard as provided in S. (1) by the proviso thereof. Consequently we are of opinion that this part S. 14(e) is discriminatory and must be struck down as unconstitutional under Art. 14 of the Constitution. 10. In this connection our attention is drawn to Radeshyam Khare v. State of Madhya Pradesh, 1959 S R 1440 : (AIR 1959 SC 107 ), on which reliance is placed on behalf of the State. In that case this Court was concerned. with Ss. 53A and 37 of the C. P. and Berar Municipalities Act which to a certain extent were held to overlap. The argument under Art. 14 did not really arise in that case because the two provisions dealt with two different situations. Under S. 57 the State Government had the power to dissolve a committee after giving it a reasonable opportunity to furnish its explanation. Under S. 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 S.53A(1) apparently overlapped the reasons for dissolving a committee under S. 57(1). Because of this difference in the scope of the two provisions contained in Ss. 53A and 57, there could be no question of application of Art. 14 to that case. 11. In the present case, however, S. 16 (1) which deals with removal of a member for reasons given in cls. (a) to (g) is completely covered by S.14 (e) which deals with vacation of a scat 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 Art. 14 and the State Government cannot take advantage of the decision in Radeshyam Khares case, 1959 SCR 1440 : (AIR 1959 SC 107 ).

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]4. We are of opinion that the appeals must succeed on this point, it is necessary in this connection to refer to Ss. 14 (e), 16 and 24 (3) of the Act.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.5. Section 16 is another provision which gives power to the State Government to remove any member of a municipal committee. This power is exercised for reasons given in cl. (a) to cl. (g) of S. 16 (1).The proviso, therefore, requires a hearing before the State Government take section under Section 16 (1). Sub-s. (2) of S. 16 provides for disqualification and says inter alia that any person removed under S. 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 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.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 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 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 of 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.8. We are of opinion that these contentions on behalf 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 contend 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 as. (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 or 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 hot 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.8. We are of opinion that these contentions on behalf 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 contend 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 as. (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 or 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 hot 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.Section 24(1) 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 S. 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 S. 16(1). It is not necessary for us to decide whether the State Government can take action under this proviso read with S. 16(1) without giving notice as provided in the proviso to S.16(1). That question may have to be decided in a case where the State Government takes action under this part of the proviso to S. 24(3) without giving notice to the person concerned under the proviso to S. 16(1) and without giving him any opportunity of hearing as provided therein. The proviso to S.24 (3) 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 connection 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 S. 24(3) and the provision contained in S. 14(e). The proviso to S. 24(3) is complete in itself and deals with a situation when the State Government refuses to notify the election of a person who has been elected. Section 14 (e) 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 S.14(e) will depend upon its contrast with S. 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 S. 14(e) as compared to the provision in S. 16 (1) is more drastic and arbitrary and denies the member concerned an opportunity of being heard as provided in S. (1) by the proviso thereof. Consequently we are of opinion that this part S. 14(e) is discriminatory and must be struck down as unconstitutional under Art. 14 of the Constitution.10. In this connection our attention is drawn to Radeshyam Khare v. State of Madhya Pradesh, 1959 S R 1440 : (AIR 1959 SC 107  ), on which reliance is placed on behalf of the State. In that case this Court was concerned. with Ss. 53A and 37 of the C. P. and Berar Municipalities Act which to a certain extent were held to overlap. The argument under Art. 14 did not really arise in that case because the two provisions dealt with two different situations. Under S. 57 the State Government had the power to dissolve a committee after giving it a reasonable opportunity to furnish its explanation. Under S. 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 S.53A(1) apparently overlapped the reasons for dissolving a committee under S. 57(1). Because of this difference in the scope of the two provisions contained in Ss. 53A and 57, there could be no question of application of Art. 14 to that case11. In the present case, however, S. 16 (1) which deals with removal of a member for reasons given in cls. (a) to (g) is completely covered by S.14 (e) which deals with vacation of a scat 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 Art. 14 and the State Government cannot take advantage of the decision in Radeshyam Khares case, 1959 SCR 1440   : (AIR 1959 SC 107  ).