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Jogindar Singh Vs. the State of Punjab and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 127 of 1961
Judge
Reported inAIR1963P& H280
ActsConstitution of India - Article 226; Punjab Municipal Act - Sections 14, 16(1) and 16(3)
AppellantJogindar Singh
RespondentThe State of Punjab and anr.
Appellant Advocate H.S. Gujral, Adv.
Respondent Advocate H.S. Doabia, Addl. Adv. General and; Chetan Das, Dy. Adv. General
DispositionPetition dismissed
Cases ReferredCooper v. Wandsworth Board of Works
Excerpt:
.....100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - where the case of removal of a member of a municipal committee was clearly governed by special provisions of section 16 of the act, the general provisions contained in section 14 of..........to the allegations made in the petition, the petitioner is said to be a persona non grata with the punjab state because of his political activities. accordingly, the state government by notification no. 10212-ici-60/53358 dated 16th september, 1960, ordered that the petitioner's seat as-member of the municipal committee, mukerian, shall be vacated from the date of publication of the said notification and it was further ordered that, under section 16(3) of punjab municipal act, 1911, the petitioner would be disqualified for election for a period of three years from the said date. this was contended to be a mala fide removal.it was further contended that section 16 of the said act dealt with the subject of removal of individual members for their acts and defaults, but they had a protection.....
Judgment:
ORDER

Tek Chand, J.

1. This is a petition under Article 226 of the Constitution praying for the issuance of a writ of mandamus or any other appropriate writ, direction or order requiring the State of Punjab, the first respondent, and the Deputy commissioner, Hoshiarpur, the second respondent to restore the petitioner to the office of Municipal Commissioner, Mukerian Municipal Committee, from which it is alleged that he had been wrongly and improperly removed. According to the allegations made in the petition, the petitioner is said to be a persona non grata with the Punjab State because of his political activities. Accordingly, the State Government by notification No. 10212-ICI-60/53358 dated 16th September, 1960, ordered that the petitioner's seat as-member of the Municipal Committee, Mukerian, shall be vacated from the date of publication of the said notification and it was further ordered that, under Section 16(3) of Punjab Municipal Act, 1911, the petitioner would be disqualified for election for a period of three years from the said date. This was contended to be a mala fide removal.

It was further contended that Section 16 of the said Act dealt with the subject of removal of individual members for their acts and defaults, but they had a protection of being given an opportunity of tendering an explanation in writing which was not the case when resort was had to the provisions of Section 14. Notification was under Section 14(e) with ulterior motive of depriving the petitioner of having an opportunity to defend himself against contemplated removal. in this case, the petitioner did not receive any notice or intimation about the contemplated action against him and was given no opportunity to show cause against the action intended. It was then said that has he been given an opportunity to show cause against the proposed removal, he would have placed the entire material before the State Government to show that there was no cause against his removal. Consequently, it was prayed that a writ of mandamus or any other appropriate writ, direction, or order be issued calling upon the respondents to restore the petitioner to the office of Municipal commissioner.

2. In the written statement filed on behalf of the Punjab State it was stated that the seat of the petitioner in the Municipality was declared vacant under Section 14(e) of the Punjab Municipal Act, 1911, on the basis of 3 report received from the Deputy Commissioner, Hoshiarpur, to the effect that the

'activities of the petitioner were detrimental to the communal harmony and was calculated to cause breach of peace and disturbance of public tranquility and were thus considered to be prejudicial to the public interest'.

The respondents also maintained that

'the very fact that the State Government is empowered to disqualify a person for election in the case of those members whose seats are vacated under Section 15(3) of the Act, shows, that resort to Section 14 can also be had for purposes other than reducing the strength of the members of the Municipal Committee, Section 14 does not provide for the procedure of service of snow-cause notice and consideration of explanation before declaring the seat vacant. Hence nothing illegal had been done in this case.'

It was denied that the Impugned order was passed on account of political affiliation of the petitioner and it was asserted that it was done in the public interest that his removal was warranted by Section 14(e) of this Act and, further, that the notification was bona fide, legal and intra vires. On the above grounds it was prayed that the petition be dismissed.

3. Mr. Chetan Dass Dewan, learned counsel on behalf of the Punjab State, has placed his main reliance upon an unreported case decided by a Division Bench of this Court on 16-3-1962, in Civil Writ No. 1194 of 1961, Ram DayaI v. Punjab State. The judgment has been read to me in extenso, and reliance was placed upon certain observations made therein. The petitioner relied upon an earlier Division Bench case in Harnam Singh Modi v. State, (1958) 60 Pun LR 394: (AIR 1960 Pun] 186). In the judgment of the Division Bench in Ram Dayal's case, C. W. No. 1194 of 1961, D/- 16-3-1962 (Punj) reference was made to a decision of the Supreme Court in Radheshyam Khare v. state of Madhya Pradesh, AIR 1959 SC 107. Mr. H. S. Gujrat, learned counsel for the petitioner, has maintained that the points arising in the petition are covered by the Division Bench decision in Harnam Singh Modi's case, (1958) 60 Pun LR 394: (AIR 1960 Pun) 186) and the facts of the two cases bear close analogy. He maintained that the latter case of Ram Dayal, C. W. No. 1194 of 1961, D/-16-3-1962 (Punj) was distinguishable and certain observations made by the Division Bench in that case lent some support to him as also the observations of the supreme Court in the case of Radheshyam Khare, AIR 1959 SC 107. It was held in Harnam Singh Modi's case, (1958) 60 Pun LR 394: (AIR 1960 Punj 186) that a member who is removed from the office on the ground that he has flagrantly abused his position as a member was entitled to be informed of the reason of his proposed removal and to be afforded an opportunity of tendering an explanation. It was further held that the provisions contained in Section 14 of the Punjab Municipal Act were general provisions and those of Section 16 of the Act were specific or particular. Where the case of removal of a member of a Municipal Committee was clearly governed by special provisions of Section 16 of the Act, the general provisions contained in Section 14 of the Act would not apply. In such a case the Government must communicate to the member the reasons for his proposed removal and afford him an opportunity of tendering his explanation. As no such opportunity had been given, the Letters Patent Bench set aside the decision of the learned Single Judge, allowed the appeal and held that the appellant was entitled to a mandamus that he should be restored to the office from which he had been wrongly and improperly removed. A doubt was expressed in Ram Dayal's case, C. W. No. 1194 Of 1961, DA 16-3-1962 (Punj) as to the view of the Letters Patent Bench in Harnam Singh Modi's case, (1958) 60 Pun LR 394: (AIR 1960 Punj 186) that if removal of a member could be ordered either under Section 14 or under Section 16 then It must be ordered under the latter provision. It was thought that this view was no longer sustainable in view of the decision of their Lordships of the Supreme Court in Radheshyam Khare's case, AIR 1959 SC 107.

4. Mr. Gujral has endeavoured to bring out three distinguishing features which, according to him, make Ram Dayal's case, C. W. No. 1194 of 1961, D/- 16-3-1962 (Punj) inapplicable to the present petition. In the present case the principal and the only prayer is for grant of a writ of mandamus. In the case before the Supreme Court, the principal prayer was for a writ in the nature of a certiorari for quashing the order passed by the state Government and the succeeding prayer for a writ of mandamus restraining the respondents from giving effect to the impugned order was deemed to be consequential or ancillary to the main prayer. The petition before their Lordships or the Supreme Court was treated as essential one for we issue of a writ of certiorari and it was well settled that such a writ would not lie to correct errors of authorities or bodies which were entrusted with purely administrative functions. The conclusions of the Division Bench in Ram Dayal's case, C. W. No. 1194 of 1961, D/- 16-3-1962 (Punj) was that the action under Section 14(e) of the Punjab Municipal Act was of an administrative nature and also that prayers made in the petitions before the Bench seemed to snow that the main prayer was for quashing the orders vacating the seats of the petitioners and for disqualifying them for specific period and such orders could be quashed only by certiorari which must be held to be the principal prayer for issuing that writ. The prayer as to writ of mandamus though made was considered ancillary in nature to the main prayer in the same manner as the prayer in Radheshyam Khare's case, AIR 1959 SC 107, was treated to be so by S.H. Dass C. J. This cannot be said to be so in the present case. The relief sought is clearly for the issuance of a writ of mandamus. Similarly, in Harnam Singh Modi's case, (1958) 60 Pun LR 394: (AIR 1960 Punj 186) the writ granted was one of mandamus.

5. The second distinguishing feature brought out by the learned counsel for the petitioner is that to the facts of this case the provisions of Section 16 (1) (d) of the Act are attracted. Under Section 16, Sub-section (1) (d) the State Government may by notification remove any member of the Committee if his continuance in office, is, in the opinion of the State Government, dangerous to the public peace or order. In paragraph 8 of the written statement filed by the respondents in this case, the allegation is that the activities of the petitioner were detrimental to the communal harmony and

'was calculated to cause breach of peace and disturbance of public tranquility and were considered to be prejudicial to the public interest.'

In Ram Dayal's case, C. W. No. 1194 of 1961, D/- 16-3-1962 (Punj), the Bench expressed the view that the reasons for which the petitioners' seats were ordered to be vacated were not such as would bring their case within Section 16 as was possible in the case of Harnam Singh Modi, 60 Pun LR 394 : (AIR 1960 Punj 186). At P. 16 of the cyclostyled copy of the judgment in Ram Dayal's case, C. W. No. 1194 of 1961, D/- 16-3-1962 (Punj) the following observations were made:

'Moreover, as pointed out before, this matter does not really arise in the present cases as It has not been shown that the reasons which have been set out in the written statement for the action which has been taken against the petitioners are such as would have justified their removal under Section 16'.

6. It was also urged on behalf of the petitioner that even if it be held that under Section 14(e) an order could be passed independently of Section 16(1)(d) and even in the assumption that the order passed by the State Government was of administrative character, the rule of fair play could not be departed from. Expression was given to this view in clear language by the Supreme Court in Radheshyam Khare's case, AIR 1959 SC 107 and observations to that effect in an English case, Cooper v. Wandsworth Board of Works, (1863) 14 C. B., (N. S. ) 180, were cited with approval. It was remarked by the Chief Justice of India that Cooper's case, (1863) 14 CB (NS) 180.

'clearly establishes that in some cases it may be necessary to give an opportunity to a party to have his say before an administrative action is taken against him. But that is quite different from the well ordered procedure Involving notice and opportunity of hearing necessary to be followed before a quasi-judicial action, open to, correction by a superior Court by means of 3 writ of certiorari, can be taken. The difference lies in the manner and mode of the two procedures. For the breach of the rule of fair play in taking administrative action, a writ of certiorari will not lie.'

Further, on the facts of that case, the appellants before their Lordships of the Supreme Court had been given fair opportunity and actually an enquiry had been held into the allegations against them by the Additional Deputy collector and all the charges levelled against the appellants were forwarded to them and they had submitted an explanation. The findings of the enquiry officer were accepted by the State Government before the order, which was impugn-ed, was passed. In the case before the Supreme Court, the appellants had no grievance on that account as the enquiry had been instituted by the State Government after giving full opportunity to the appellants to defend themselves. With respect to this rule of fair play, the Bench in Ram Dayal's case, C. W. No. 1194 of 1961, D/- 16-3-1962 (Punj) made the following observations at p. 20--

'However, the other principle which was accepted by the learned Chief Justice in the Supreme Court judgment of the rule of fair play requiring that an opportunity should be given to a party to have his say before an administrative action is taken against him in certain circumstances would be fully applicable when an order is made under Section 14(e). Thus, although it will be for the State Government to form Its own opinion as to whether it would be in public interest to vacate the seat of a particular member, the rule of fair play would nevertheless be attracted Inasmuch as any order directing that the seat of an elected member be vacated is bound to have far-reaching consequences. Not only that a person who has been elected by the vote of the majority in his constituency Is being removed by an executive fiat but also such an order may constitute a permanent slur on his fair name and reputation and lower him in the estimation of the public. Moreover, when such a member is disqualified for a specified period, as has been done in the present cases, there Is all the more reason for the aforesaid rule to be Invoked as he cannot stand for election to the public office of a Municipal Commissioner which he was otherwise entitled to do under the law owing to the existence of an order disqualifying him.'

This factor Introduces a third distinguishing feature. The ground which prevailed with the Bench in Ram Dayal's case, C. W. No. 1194 of 1961, DA 16-3-1962 (Punj) was that the principle of fair play in the case of orders of administrative nature under Section 14 (e) may not be insisted upon where the prayer was for quashing the orders by issuing a writ of certiorari. In the instant case, however, the only prayer is for the issuance of a writ of mandamus. Therefore, the reasoning which weighed with the Bench in Ram Dayal's case, C. W. Ho. 1194 of 1951, DA 16-3-1962 (Punj) cannot be held applicable on the facts of this case. In this case, not only no opportunity of any kind was given to the petitioner and no enquiry was stated to have been held, but the relief also sought is for issuance of a writ of mandamus.

7. For reasons stated above, I entertain serious doubts in my mind as to the applicability of the observations made in Ram Dayal's case, C. W. No. 1194 of 1961, D/-16-3-1962 (Punj), The two decisions of this Court in Harnam Singh Modi's case, (195S) 60 Pun LR 394: (AIR 1960 Punj 186) and in Ram Dayal's case, C. W. No. 1194 of 1961, DA 16-3-1962 (Punj) in some matters, are not easy to reconcile. The decision of the Supreme Court in Radheshyam Khare's case, AIR 1959 SC 107, is also distinguishable. I am, therefore, of the view that, as the question raised in this petition is of frequent occurrence and the question involved is of great legal importance, the points in controversy should be decided by a Full Bench. I would, therefore, direct that the papers of this case may be placed before the Honourable the Chief Justice for constituting a Full Bench to dispose of this petition.


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