Reliance Is Placed On The Judgment Of Supreme Court In Commissionerof Income Tax And Others v. Signature Not Verifiedsigned By: Vaibhavyeolekarsigning Time: 02-11-2023

1 IN THE HIGH COURT OF MADHYA PRADESHAT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK AGARWALON THE 30[th] OF OCTOBER, 2023 WRIT PETITION No. 26895 of 2023 BETWEEN:- SANDEEP @ GUDDU YADAV S/O SHRI RAJARAMYADAV, AGED ABOUT 37 YEARS, OCCUPATION:ELECTED COUCILOR MUNICIPAL CORPORATIONBUSINESS R/O GANHDIGANJ MAHATMA GANHDIWARD NO. KATNI DISTIRCT KATNI (MADHYAPRADESH) (BY SHRI UTKARSH AGRAWAL - ADVOCATE) .....PETITIONER AND 1.THE STATE OF MADHYA PRADESH THROUGH ITSPRINCIPAL SECRETARY DEPARTMENT OFURBAN ADMINISTATION AND DEVELOPMENTMANTRALAYA, VALLABH BHAWAN, BHOPALDISTRICT BHOPAL (MADHYA PRADESH)PRINCIPAL SECRETARY DEPARTMENT OFURBAN ADMINISTATION AND DEVELOPMENTMANTRALAYA, VALLABH BHAWAN, BHOPALDISTRICT BHOPAL (MADHYA PRADESH) 2.SACHIN KUMAR BEHRE S/O LATE SHRIJAWAHARLAL BEHRE, AGED ABOUT 45 YEARS,OCCUPATION: POLITICIAN ,R/O 447, MAHATAMAGANDHI WARD, GANDHIGANJ , KATNI , DISTRICTKATNI (MADHYA PRADESH)JAWAHARLAL BEHRE, AGED ABOUT 45 YEARS,OCCUPATION: POLITICIAN ,R/O 447, MAHATAMAGANDHI WARD, GANDHIGANJ , KATNI , DISTRICTKATNI (MADHYA PRADESH) .....RESPONDENTS (SHRI VED PRAKASH TIWARI - GOVERNMENT ADVOCATE FOR THESTATE)(SHRI MOHAN LAL SHARMA - ADVOCATE FOR RESPONDENT NO. 2) This petition coming on for admission this day, the court passed the following: ORDER This petition is filed by petitioner Sandeep @ Guddu Yadav beingaggrieved of order dated 9[th] October, 2023 passed by the Commissioner, 2 Jabalpur Division, Jabalpur in Case No. 0203/Appeal/2023-24 wherebyexercising Authority in terms of the provisions contained in Section 19 of theMadhya Pradesh Municipal Corporation Act 1956, petitioner has been declaredto be disqualified to hold the post of the Councillor in Nagar Nigam Katni. The impugned order is challenged on the ground that a complaint wasmade against the petitioner by the private respondent alleging that on account ofconviction, petitioner has become ineligible in terms of the provisions containedin Section 8(1), 8(2) and 8 (3) of the Representation of People Act on beingconvicted for two years or more and that being the complaint, petitioner hadfiled reply to that effect that provisions of Representation of People Act are notapplicable but after registering a case as a revenue case as is evident fromAnnexure P-10, petitioner has been visited with punishment of removal. It is submitted that there is no application of mind on the part of theCommissioner, in as much as, he has failed to appreciate that in the criminalcase, the allegation on the petitioner was only of wielding a lathi and secondlyproviso below sub-section (2) of Section 19 of the Madhya Pradesh MunicipalCorporation Act, 1956 has not been considered in the right perspective. It isalso submitted that it is a case of legal malice. Reliance is placed on the judgment of Supreme Court in Commissionerof Income Tax and others Vs. Chhabil Das Agarwal (2014) 1 SCC 603 . Placing reliance on this judgment and drawing attention of this court to para 15,it is submitted that there cannot be an insistence to avail alternate remedybecause Supreme Court has recognized some exceptions to the rule ofalternative remedy i.e. where the statutory authority has not acted in accordancewith the provisions of the enactment in question, or in defiance of thefundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in totalviolation of the principles of natural justice. Reliance is placed on the judgment of Supreme Court in Commissionerof Income Tax and others Vs. Chhabil Das Agarwal (2014) 1 SCC 603 . Placing reliance on this judgment and drawing attention of this court to para 15,it is submitted that there cannot be an insistence to avail alternate remedybecause Supreme Court has recognized some exceptions to the rule ofalternative remedy i.e. where the statutory authority has not acted in accordancewith the provisions of the enactment in question, or in defiance of thefundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in totalviolation of the principles of natural justice. Similarly, reliance is placed on the judgment of Supreme Court inGorkha Security Services Vs. Government (NCT of Delhi) and others(2014) 9 SCC 105. Placing reliance on paragraphs 21 and 22 of the saidjudgment, it is submitted that the show-cause notice should have mentioned theconsequential action which was required to be taken by the Commissioner butsince notice Annexure P-10 is silent on this aspect, therefore petitioner couldnot have been declared to be disqualified from holding the post of theCouncillor. It is submitted that appropriate opportunity of hearing was not affordedto the petitioner. Shri Mohan Lal Sharma, learned counsel for respondent no. 2 in his turnsubmits that a notice was given to the petitioner as contained in Annexure P-10. That notice was sufficient and petitioner had filed his reply vide Annexure P-4. After giving him an opportunity of hearing, Commissioner has passed theimpugned order Annexure P-1. After hearing learned counsel for the parties and going through the recordbefore adverting to the orders of the Commissioner, the provisions contained inSection 17(1)(ii)(a) are relevant for the controversy. This section deals with general disqualifications for becoming aCouncillor. It is provided in sub-section 1 (II) (a) that a person who has beenconvicted by the court in India for an offence not falling under sub-section (i)and sentenced to an imprisonment for a period of not less than two years isdisqualified. In the present case, it is admitted that vide judgment dated 28/12/2022,petitioner has been convicted for offences punishable under Sections 323, 324read with Section 34 of I.P.C. for a term of imprisonment of two years R.I. forconviction under Section 324 and one year R.I. for conviction under Section323 by the court of learned V[th] Additional Sessions Judge, Katni. This fact isborne out from Annexure P-8. Section 17 (II) deals with disability from continuing as a Councillor andreads that if any Councillor during the term of which, he has been elected ornominated becomes disqualified under sub-section (i) of Section 13 and hisname is struck off or under sub-section (i) of this Section, then he shall besubject to the provisions of sub-section 3 be disabled from continuing to be aCouncillor. Section 19 deals with removal of Councillors. Divisional Commissionerhas been empowered to remove a Councillor for the eventualities given in sub-section 1. Clause (a) of sub-section (1) of Section 19 provides that a personwill be liable to be disqualified and for removal, if his continuance as aCouncillor is not, in the opinion of the Divisional Commissioner desirable in theinterest of the public or the Corporation. Sub-section (2) of Section 19 authorizes the Divisional Commissionerthat while ordering the removal, he can also pass an order declaring the saidCouncillor to be ineligible to become a Councillor of the Corporation againwhich period shall not exceed five years. The proviso below sub-section (2) of Section 19 on which a lot ofemphasis is laid by Shri Utkarsh Agrawal deals with the fact that no resolutionrecommending the removal of any Councillor shall be passed by the 5 Sub-section (2) of Section 19 authorizes the Divisional Commissionerthat while ordering the removal, he can also pass an order declaring the saidCouncillor to be ineligible to become a Councillor of the Corporation againwhich period shall not exceed five years. The proviso below sub-section (2) of Section 19 on which a lot ofemphasis is laid by Shri Utkarsh Agrawal deals with the fact that no resolutionrecommending the removal of any Councillor shall be passed by the 5 Corporation nor any such order of removal shall be passed by the DivisionalCommissioner unless such Councillor has been given a reasonable opportunityof showing cause why a recommendation should not be made for his removalor why he should not be removed from his office. Admittedly, a notice Annexure P-10 though contains heading of Rajaswamamalon me notice but is passed by the Commissioner in terms of theprovisions contained in Section 17 of the Municipal Corporation Act, 1956. Thus, when this aspect is taken into consideration, then it is evident thatSection 17 of the Madhya Pradesh Municipal Corporation Act, 1956 deals withthe disqualifications which may be earned by the Councillor. Since, Section 17(1) (ii) (a) provides for a disqualification on being sentenced to an imprisonmentfor a period not less than two years, the Commissioner was not required toadjudge the merits of the judgment of the criminal court as that is the specialprerogative of the appellate Court and not of the court of the Commissioner. Thus, once there is a conviction, then there is an attached disqualification withconsequences and since the consequences are that once the Councillorbecomes disqualified, then he will be disabled from continuing to be aCouncillor or Mayor and his office shall become vacant. In the present case, the Commissioner after affording an opportunity ofhearing where petitioner admittedly could not dispute his conviction for twoyears or more has exercised his power. Therefore, the second submission thatin terms of proviso to Section 19(2), petitioner could not have been removed asno reasonable opportunity was given is not made out. Even aspect of non-application of mind is also not made out. The judgment rendered in the case of Gorkha Security Services(supra) has limited application, in as much as, that was a case of blacklisting. The authorities entitled to pass an order of blacklisting had several optionsavailable to them but in the present case, once, a disqualification is earned onaccount of conviction for two years or more, then there is no other option butto remove and once, a notice was issued under Section 17 of the MunicipalCorporation Act, then the consequence was well known to the petitioner excepthe would have proved that his conviction has been stayed by any superiorcourt. Therefore, the judgment rendered in the case of Gorkha SecurityServices (supra) has no application to the facts of the present case. Similarly,the law laid down in the case of Chhabil Dass Agarwal (supra) has noapplication to the facts of the present case because rule of availing alternatestatutory remedy can be waived only when the petition is able to demonstratethat there is defiance of the fundamental principles of judicial procedure. No such material is brought on record to substantiate first ground. Thesecond ground which is available as per the case of Chhabil Dass Agarwal(supra) is that reliance is placed on a repealed judgment or in violation of theprinciples of natural justice that too is not made out. A notice was duly issued under Section 17. Reply was called,opportunity of hearing was given and, therefore, even judgment of ChhabilDass Agarwal (supra) has no application to the facts of the present case. Asfar as third ground in regard to legal malice is concerned, whenever malice eitherof fact or law is alleged, then it is incumbent upon such person alleging legalmalice to implead that person against whom legal malice is alleged. No such material is brought on record to substantiate first ground. Thesecond ground which is available as per the case of Chhabil Dass Agarwal(supra) is that reliance is placed on a repealed judgment or in violation of theprinciples of natural justice that too is not made out. A notice was duly issued under Section 17. Reply was called,opportunity of hearing was given and, therefore, even judgment of ChhabilDass Agarwal (supra) has no application to the facts of the present case. Asfar as third ground in regard to legal malice is concerned, whenever malice eitherof fact or law is alleged, then it is incumbent upon such person alleging legalmalice to implead that person against whom legal malice is alleged. In the present case, petitioner has failed to implead DivisionalCommissioner in his personal capacity, therefore, he could not have waived the 7 requirement of alternative statutory remedy as is provided in sub-section 3 ofSection 19 of the Madhya Pradesh Municipal Corporation Act, 1956 but sincepetitioner insisted to have a judgment on merit, instead of accepting suggestionof this court to avail alternative statutory remedy, that right to avail remedy ishereby closed because after judgment of the High Court, a subordinateauthority in the State Government cannot be allowed to sit over the decision ofthe High Court and scrutinize the same in the name of appeal. Therefore, petitioner has voluntarily given up his right to avail remedy ofappeal as is provided in sub-section 3 of Section 19 of the MunicipalCorporation Act, 1956, by insisting to have a decision on merits. As far as merits of the case are concerned, conviction for two or moreyears has natural corollary of declaring a person to be disqualified to hold thepost. Therefore, action taken by the Commissioner which is a naturalconsequence and for which the Commissioner had material as contained inClause A of sub-section 1 of Section 19 of the Act of 1956, there is no illegalityin the impugned order calling for interference. Accordingly, the petition fails and is dismissed. vy (VIVEK AGARWAL)JUDGE