Madhya Pradesh High Court
Mubarak Master vs State Of Madhya Pradesh on 12 June, 2020
Equivalent citations: AIRONLINE 2020 MP 1670
Author: Vishal Dhagat
Bench: Vishal Dhagat
1 WP-7684-2020
The High Court Of Madhya Pradesh
WP-7684-2020
(MUBARAK MASTER AND OTHERS Vs STATE OF MADHYA PRADESH AND OTHERS)
2
Jabalpur, Dated : 12-06-2020
Shri K.C. Ghildiyal, Advocate for the petitioners.
Shri Pushpendra Yadav, Additional Advocate General for respondents
No. 1, 3 and 4/State.
Shri Swapnil Ganguli, Advocate for respondent No.2. Heard through video conferencing.
Petitioners have filed the present writ petition challenging order dated 04/04/2020, contained in Annexure P/1. By said order Administrative Committee appointed for Municipal Council, Dhanpuri District Shahdol, MP vide gazette notification dated 03/06/2019 was removed and new Administrator namely concerned S.D.O. (Revenue) was appointed.
Impugned order is challenged by the petitioners on the ground that opportunity of hearing is not provided to them. Order of appointment of Administrative Committee was passed on 03/06/2019 when government formed by ruling party was in majority and order was passed with approval of Cabinet, whereas, the impugned order of removal is without jurisdiction as Governor could not have acted without aid and advice of Council of Ministers. There was no Council of Ministers as on 04/04/2020 and therefore, order is without jurisdiction and same is contrary to provision of Article 163(1) of the Constitution of India. It is also averred by the counsel appearing for petitioners that order is malafide and arbitrary and is passed under political pressure during the period of lock down. Order passed is also in violation of the order passed by the Division Bench of this Court in W.P. No. 6062/2020.
On the basis of aforesaid grounds, counsel appearing for petitioners prayed for grant of interim relief and to stay the impugned order dated 04/04/2020.
Digitally signed by VINOD KUMAR TIWARI Date: 16/06/2020 15:59:042 WP-7684-2020 Learned Additional Advocate General appearing for the respondents/State opposed the prayer for grant of interim relief to the petitioners and prayed for some time to file reply in the matter.
Learned counsel appearing for the petitioners submitted that executive power of the State is vested in the Governor and executive power is exercised by the Governor with aid and advice of Council of Ministers with Chief Minister as its head except in so far as as he is required to exercise his functions in his discretion under Constitution of India. The order of removal dated 04/04/2020 is passed in the name of Governor and signed by Secretary Urban Administration and Development. The impugned order ought to have been passed with the aid and advice of Council of Ministers. Since on the date of order, there was no Council of Ministers, therefore, Governor could not have passed the order dated 04/04/2020. Due to said reason, impugned order passed is without jurisdiction. Hence, he made a prayer for grant of stay over impugned order.
Learned Additional Advocate General submitted that executive power of State is vested in the Governor and shall be exercised by him either directly o r through officers subordinate to him in accordance with this constitution. Writ petition filed by the petitioners is not maintainable, as this court cannot examine what advice was tendered by Ministers to the Governor as mandated in Article 163(3) of the Constitution of India. It was further argued by him that Governor is vested with the power to make rules for convenient transaction of the business of the Government of the State. Hon'ble Governor has made Business Allocation Rules in exercise of the powers conferred by Clause 2 and 3 of Article 166 of the Constitution of India. Secretary of the Department of Urban Administration and Development has been specified in the schedule to carry out the business of the Government. Secretary of the Department is the official head of the department and is empowered to authenticate instruments and orders of Government of Madhya Pradesh. It was further argued by him that Governor can act on advice of the Chief Minister even if Digitally signed by VINOD KUMAR TIWARI Date: 16/06/2020 15:59:04 3 WP-7684-2020 Council of Ministers is not in existence and order can be placed before Council of Ministers latter on.
Heard the counsel for the petitioners as well as respondents on grant of interim relief.
Erstwhile Chief Minister and his Council of Ministers resigned from their office as they have lost the confidence of legislative assembly. After resignation of erstwhile Chief Minister, the present Chief Minister formed the Government in State of M.P. After appointment of Chief Minister, immediately Council of Ministers was not appointed by the Governor on advice of Chief Minister and it took some time to appoint Council of Ministers. During this interregnum period, impugned order dated 04/04/2020 was passed.
Impugned order was passed when Chief Minister was holding the post of Chief Minister de-facto. Impugned order cannot be termed invalid as there is vacuum in certain offices. Chief Minister of Sate has residuary powers and it is the Chief Minister, on whose advice Governor allocates the business among Cabinet Ministers. Council of Ministers is appointed by the Governor on advice of Chief Minister, as mandated in article 164(1) of the Constitution of India.
It is established law that matters like budget preparation, policy announcements, major projects, nominations or appointments to higher officers should wait for a regular Cabinet and a regular Chief Minister, but, in routine administrative matters orders can be passed by the Secretary of the Department in name of Governor. By impugned order, routine administrative order was passed. By said order, Administrative Committee was removed and it was replaced by Administrator under Section 328 of Madhya Pradesh Municipalities Act, 1961. Order under Section 328 (a) of Act of 1961 is a temporary arrangement made by the State Government for conducting business of Municipal Council till Municipal Council is reconstituted after elections.
Digitally signed by VINOD KUMAR TIWARI Date: 16/06/2020 15:59:044 WP-7684-2020 Learned counsel appearing for the petitioners has relied on the judgement of Shamsher Singh vs State of Punjab and another,(1974) 2 SCC 831. In this case, it has been held by the Apex Court that appointment and removal of persons are made by President and the Governor as the constitutional head of the Executive on the aid and advice of the Council of Ministers. Learned counsel for the petitioners argued that since there was no Council of Ministers, therefore, Governor could not have passed the impugned order and the order passed is contrary to Article 163 of the Constitution of India and nullity.
The arguments advanced by the counsel for the petitioners cannot be accepted. The case at hand is not the case of appointment or removal but a case where only an Administrator has been appointed which is a routine administrative matter and order cannot be held to be invalid. Further, a de facto Chief Minister was functioning in the State when order was passed and orders can be passed on his advise by the Governor which can be approved/rescinded by the Cabinet later on. In emergency situation, Chief Minister can advise the Governor and orders passed can be put before Council of Ministers for its approval. Such order cannot be said to be contrary to principle of parliamentary form of Government envisaged in Constitution of India.
At this stage, no case for grant of interim relief is made out in favour of petitioners.
Let notices of this petition be issued to the respondents on payment of PF within seven days.
Let the matter be listed immediately after service of notices on the respondents.
(VISHAL DHAGAT) JUDGE vkt Digitally signed by VINOD KUMAR TIWARI Date: 16/06/2020 15:59:04