Madhya Pradesh High Court
Digvijaysingh Bhandari vs Smt. Malini Gaud on 28 October, 2015
WP 1987-2015 1
IN THE HIGH COURT OF MADHYA PRADESH :
BENCH AT INDORE
S.B.:- Hon'ble Smt. Justice S.R. Waghmare
W.P. No.1987/2015
Digvijaysingh Bhandari
vs.
Smt. Malini Gaud and others
----------------------------------------------------------------------------------------
Dr. Manohar Dalal, learned Counsel for the
petitioner.
Shri A.S. Garg, learned Senior Counsel with Shri
Ravishankar Sharma, learned Counsel for the respondent
No.1.
Shri Sunil Jain, learned Additional Advocate General
along with Kumari Mahim Pandey and Shri Pushyamitra
Bhargava, learned Dy. Advocate General for the
respondents No.2 & 3.
Shri Ashok Kutumbale, learned Senior Counsel with
Shri V.S. Gandhi, learned Counsel for the respondent
No.4.
----------------------------------------------------------------------------------------
ORDER
(Passed on 28/10/2015) By this writ petition under Article 226 of the Constitution of India, the petitioner Divijaysingh Bhandari has challenged the fact whether respondent No.1 Smt. Malini Gaud can continue on the post of Mayor of Indore since it is per se illegal and unconstitutional.
WP 1987-2015 202. Briefly put under Section 9(1)(d) of Madhya Pradesh Municipal Corporation Act, 1956 (hereinafter called as "The Act"), she also becomes a Councillor of the Municipal Corporation of Indore by virtue of being a Member of the Legislative Assembly of the State and peculiarly Smt. Gaud was elected Mayor of the City of Indore and took oath on 19.02.2015 administered by Shri Shivraj Singh Chouhan, the Hon'ble Chief Minister of Madhya Pradesh.
03. Counsel for the petitioner has vehemently urged the fact that per se the continuation of Mayor on her post was de-hors the provisions of the M.P. Municipal Corporation Act, 1956 as well as the Constitution of India. Referring to Article 243-R of the Constitution of India which mandates thus:-
"243-R. Composition of Municipalities.-(1) Save as provided in clause (2), all the seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be known as wards.
(2) The Legislature of a State may, by law, provide-
(a) for the representation in a Municipality of-
(i) persons having special knowledge or experience in Municipal administration;
(ii) the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Municipal area;WP 1987-2015 3
(iii) the members of the Council of States and the members of the Legislative Council of the State registered as electors within the Municipal area;
(iv) the Chairpersons of the Committees constituted under clause (5) of article 243S:
Provided that the persons referred to in paragraph (i) shall not have the right to vote in the meetings of the Municipality;
(b) the manner of election of the Chairperson of a Municipality."
And reading the said Article in conjunction with Section 16(4) of "The Act", it is found that 16(4) of "The Act" states thus:-
"16 (iv) If a person is elected for the Office of Mayor and Councillor both, he shall have to resign from one of the office within seven days from the date on which he is declared elected."
Then under the circumstances a preliminary objection has been raised regarding the continuance in office by respondent No.1 Smt. Gaud as Mayor as well as the Councillor. Whereas Counsel submitted that even according to the proviso under Section 9 of the Act, 1956 the Member of the House of the People and the State Legislative Assembly can only nominate his representative who possess the qualifications in this behalf to attend the meeting of the Corporation but cannot vote and Counsel urged that for all practical purposes the Member of the Legislative Assembly is only a deemed Councillor WP 1987-2015 4 and on a harmonious reading of all these provisions it is imperative for the Mayor to have resigned from one of the office; within 7 days from the date on which she was declared Mayor Elect. The legislative intent seems to have been misread and Counsel urged that continuation of the respondent No.1 Smt. Gaud on post of Mayor is per se illegal and unconstitutional. Counsel submitted that directions be issued to the respondent No.4 Municipal Corporation to declare the post of Mayor vacant and her continuation in the Office would be a colourable exercise of power and directions or writ be issued to the said effect in the circumstances.
04. Senior Counsel Shri Ashok Garg appearing on behalf of respondent No.1 Smt. Malini Gaud has vehemently urged the fact that respondent No.1 was already a Member of the Legislative Assembly of the M.P. State during her direct election, when she was elected from the Municipal Area of Indore City for the post of Mayor. Besides as per the proviso of Section 9(1)(d) of "The Act" of 1956 she is also deemed to be a Councillor for all purposes of the Act although the right to vote in the meeting of the Corporation is withheld. Referring to the controversy raised by the Counsel for the petitioner, Counsel also WP 1987-2015 5 urged that provision of Section 16(4) and Section 21 of "The Act", 1956 would not be attracted in the present case since the office of Mayor has not become vacant. Counsel submitted that respondent No.1 Smt. Gaud has been appointed as Mayor and Councillor in accordance with the provisions of the M.P. Municipal Corporation Act, 1956 and Counsel submitted that the petition was without merit and the same be dismissed.
It was also urged by the Counsel for the respondent No.1 that the post of Member of the Legislative Assembly is not a office of profit under the Government and person holding the post of MLA is entitled to contest the election of Mayor. Counsel placed reliance on Suresh Seth Vs. Commissioner, I.M.C. and others reported in AIR 2006 S.C. 767. Similarly Counsel submitted that there was no bar for a person from simultaneously holding two offices, one is Member of the Legislative Assembly and another is Mayor of Municipal Corporation and the Municipal Corporation as well as the Legislative Assembly are two different authorities and have the power to enact their own laws. Referring to Section 17 of the Municipal Corporation Act of 1956 Counsel for the respondent No.1; also interestingly WP 1987-2015 6 raised the ground that the final authority to decide whether the office of Mayor was vacant shall be decided by the State Government and only the Government decides that the vacancy has arisen, the Councillor or the Mayor shall not be disabled under Sub-Section (2) from continuing as Councillor or Mayor and at present no such application has been filed nor has the Government decided that the office of the Mayor should lie vacant and the present writ petition is, therefore, not maintainable in the circumstances. If at all the petitioner is aggrieved there is a statutory alternative remedy available to him and in this regard also the petition is not maintainable. Counsel prayed that the petition be dismissed.
05. Senior Counsel Shri Sunil Jain, Additional Advocate General and Shri Pushyamitra Bhargava, Dy. Advocate General appearing on behalf of Counsel for the respondents No.2 & 3 have also supported the contentions of the Counsel for the respondent No.1. Referring to various Sections of the Municipal Corporation Act, Counsel submitted that bare perusal of provisions of Section 9 of "The Act"
makes it clear that Mayor and other Councilor shall be elected through direct election whereas, six WP 1987-2015 7 persons shall be appointed by State Government and the MLAs and MP shall be deemed to be Councillor by virtue of their office, but they have no right to vote. Referring to Section 16(4) of "The Act", 1956 which reads thus:-
(4)If a person is elected for the office of Mayor and Councillor both, he shall have to resign from one of the office within 7 days from the date on which he is declared elected.
Counsel urged from bare reading of the provisions of Section 16(4) of "The Act" makes it crystal clear that to attract the rigor of this provision the qualifying word is 'elected'. Counsel urged that although at a first blush it appears that the office of the Mayor as well as Councillor both cannot be held by a singular person and he has to resign from one office within a period of 7 days, however, surprisingly the fact that the rigors of Section 16(4) of "The Act", 1956 would be attracted only if a person is elected both for the office of the Mayor and elected for the office of the Councillor. Whereas in the present case by virtue of holding office as a Member of the Legislative Assembly, the present respondent No.1 Smt. Gaud happens to be a Councillor and by direct election she has been elected as a Mayor and it was vehemently contended that had she been elected to the office of the WP 1987-2015 8 Councillor; only then she would be required to resign from the post of Mayor; which is not the present case. And Counsel vehemently urged the fact that the ingredients of election as per Section 2(d) of the Madhya Pradesh Nagar Palika Nirvachan Niyam, 1994 were not fulfilled regarding the respondent No.1 being elected as Councillor. And in this light Counsel submitted that there is no room for doubt that the provision of Section 16(4) of "The Act", 1956 are not attracted and Counsel prayed that the petition was without merit and the same be dismissed.
06. Supporting the arguments put forth by the Counsel for the respondent No.1, 2 & 3, Shri Ashok Kutumbale, Senior Counsel appearing on behalf of respondent No.4-Indore Municipal Corporation has vehemently urged that respondent No.1 Smt. Gaud was elected by direct election from the Municipal area of Indore City for the post of Mayor and she, already being a member of Legislative Assembly of M.P. State, has a choice to nominate her representative and she also deemed to be a Councillor for all purposes of this Act without having the right to vote in the meeting of the Corporation. Counsel also urged that by virtue of deeming WP 1987-2015 9 provision of Section 9(1)(d) of "The Act" of 1956, the respondent No.1 was also a deemed Councillor and not elected Councillor to attract the rigors of Section 16(4) of "The Act". Consequently the office of the Mayor has not become vacant and, therefore, provision of Section 21 of "The Act" would not be attracted in the present case. He also vehemently urged that there is no illegality in the election of the respondent No.1 as Mayor of Indore Municipal Corporation and same is not the ground put forth by the Counsel for the petitioner. Moreover there has been no application to the State Government and, therefore, Section 17 of "The Act" were also not attracted since there is no disqualification as is being urged by the Counsel for the petitioner. Placing reliance on Bhanukumar Jain Vs. Kamal Gupta and others [2003(3) M.P.L.J. 182] Counsel submitted that the Mayor does not hold the office at the pleasure of the Government and virtually it is an independent elected office in a Parliamentary democracy under the Constitution and by virtue of this public office, he also performs public duties cast upon him by the Constitution. Besides the office of the MLA is not a office under the Government and it, therefore, cannot be termed as a office of profit and WP 1987-2015 10 hence Counsel submitted that the provision of Section 9(1)(d) and Section 16(4) of "The Act" are not at all attracted in the present circumstances. He submitted that the petitioner had raised bald and baseless grounds and the same is devoid of any substance and the petitioner was not entitled to any relief as was being claimed. Counsel prayed that the petition be dismissed with heavy costs.
07. On considering the above submissions, I find that the Counsel for the petitioner Dr. Manohar Dalal has raised an important issue whether a person at one time can hold two offices i.e. one for a 'Mayor' and the other is 'Councillor' under the M.P. Municipal Corporation Act of 1956 at the same time. It is an admitted position that the respondent No.1 Smt. Malini Gaud was elected as a Mayor and declared to be sworn by Hon'ble Chief Minister Shri Shivraj Singh Chouhan on 19.02.2015 and at that time she was also an MLA of the State of M.P. and, therefore, the question has to be re-framed whether the MLA could be elected to the office of Mayor and after election continue to hold both the posts that of a Mayor and a Councillor ?
I find that, to some extent, the matter was discussed in para-45 of the judgment rendered in WP 1987-2015 11 case of Bhanukumar (supra):-
"45. Virtually, in this case, I am not required to consider whether the office of Mayor is an office of profit under Government or not and it is not the matter of challenge in this revision. Similarly, I am also not required to consider in this case whether a person at a time can hold two offices of equal status or not. Shri S. Seth, respondent no.10, who appeared in person, produced before me a number of local Acts and submitted that under various local Acts the State Government has prohibited the MLAs to hold two offices at a time. He further submitted that under local Acts as many as 178 MLAs of rural areas have been debarred from holding two offices of profit whereas 52 MLAs of urban areas are enjoying this facility, which is a legal and legislative discrimination. The question of this discrimination is also not under consideration or under challenge in this revision before this Court and it cannot be a subject matter of the revision also. It is for the State Government and State legislature to consider about the removal of these discriminations and to pass appropriate uniform legislation in this regard by incorporating amendments in the local Acts. The legislature has provided disqualification for the post of Mayor but that disqualification is not applicable to the MLAs. It is also for the legislature and for the government to consider this aspect of the matter."
08. Thus under the peculiar circumstances, it WP 1987-2015 12 may be safely concluded that in the past MLAs have been holding two posts of equal status in the State of Madhya Pradesh.
09. However, the legislative intent according to Section 16(4) of "The Act" clearly indicates that an elected Mayor and elected Councillor, both offices cannot be held by a singular person elected to both the posts and that they hold office to the pleasure of the State Government and would incur in disqualification in this regard. Similarly the inescapable and inevitable conclusion that S.16(4) of "The Act" would be attracted only if a person is elected for the office and although Shri Dalal, Counsel for the petitioner has submitted that in the case of respondent No.1 Smt. Malini Gaud she has been elected to the Legislative Assembly and in this sense could be termed elected Councillor, however, I find that this would be stretching the analogy a bit too far. The words of the statute have to be precisely interpreted: the word 'elected' in Section 16(4) of "The Act" is directly connotative and applicable to the office of the Mayor and Councillor or both; clearly specifying that the person has to be elected could either one of the offices or to both; thereby excluding nomination as Councillor. Thus in the WP 1987-2015 13 present case; Smt. Gaud being the Member of the Legislative Assembly was by the virtue of her holding the office of the Member of the Legislative Assembly, and she was not an elected Councillor but a nominated Councillor and in this sense for a harmonious reading of the provisions, it would be also appropriate to consider Sections 17, 19 & 21 of "The Act" of 1956. Section 17 of the M.P. Corporation Act pertains to general disqualifications for becoming a Councillor or Mayor, it has been inserted by the amendment of 1997. Referring to Section 17 Sub-Section (bb) of "The Act" states thus:-
"(bb) has been disqualified for further election or [nomination] as a [Councillor or Mayor] under section 17-A unless he has been relieved by the Government from such disqualifications;"
Section 17-3 of "The Act" states that the Government is the final authority competent to decide whether a vacancy has occurred. The decision may be given by the State either: on any application, made by any person; or suo motu, until the Government, decides that the vacancy has arisen and Sub-Section 3 of Section 17 provides for the continuation of the Councillor or Mayor till the final WP 1987-2015 14 decision is taken by the State. Therefore, clearly indicating that the State is the final authority to decide whether a vacancy in the office of the Mayor or Councillor has occurred and in the present circumstances, Counsel for the State Government Shri Sunil Jain has categorically stated that such a contingency has not arisen at all in the present case and then reading this Section along with Section 16(4) of "The Act" and Article 243-R of the Constitution of India, I find that it is in the realm and jurisdiction of the State Government to decide whether the present Mayor has incurred disqualification and noting the contentions of the learned Additional Advocate General, I find that the disqualification as alleged by the petitioner is not incurred at all since the respondent Smt. Malini Gaud was already a Councillor nominated at the time of election as a Mayor and was thereafter elected by direct election to the post of Mayor. Then the rigors of Section 19 of the M.P. Municipal Corporation Act have also not been incurred. Section 19 of "The Act"
pertains to removal of the Councillor. Section 19(a) of "The Act" particularly authorises the Divisional Commissioner to discontinue the Councillor if in his opinion it is not desirable in the interests of the WP 1987-2015 15 public or the Corporation. Similarly Section 19-B of "The Act" pertains to removal of the Mayor or Speaker or Chairman of a Committee and Section 19-C pertains to resignation of Mayor and declaration of the vacancy.
Section 21 of "The Act" pertains to the filling of casual vacancies by the State Government by declaring the office of the Mayor or Councillor Elect to be vacant and I find that the State Government of Madhya Pradesh is the final authority to declare such a vacancy. It has also been candidly agreed before me by all the Counsel that the application was never moved before the Corporation and alternative efficacious remedy is available to the petitioner, if he is still so aggrieved.
10. However, in the present case, I find that the provisions of Section 16(4) of "The Act" are not attracted at all since as already declared above, the present respondent No.1 is undoubtedly a Mayor Elect but not a Councillor Elect but deemed to be a Councillor by virtue of her being an MLA and thus I find in peculiar facts and circumstances of this case that respondent No.1 Smt. Malini Gaud can hold two offices/posts in the Municipal Corporation at Indore at present and the allegations of the petitioner in this WP 1987-2015 16 regard are demolished. And considering the sum total of the circumstances and that there is a nexus between the term elected Mayor and elected Councillor which has to be considered first; there is no scintilla of doubt in my mind that in the present case, there is no bar to the respondent No.1 Smt. Malini Gaud, Mayor Elect in holding two posts, however, the right to vote is curtailed under the provisions of law.
With the aforesaid observation, this writ petition is disposed of. No costs.
CC as per rules.
(Mrs. S.R. Waghmare) Judge soumya