Elected Members Of Municipality Can’t Be Removed At Whims And Fancies Of Civil Servants Or Their Political Masters: SC

In a most upright step which is definitely worth applauding and definitely worth emulating in similar such cases, the Supreme Court in a most learned, landmark, laudable, logical and latest judgment titled Makarand alias Nandu vs State of Maharashtra & Ors. in Civil Appeal No. 14925/2017 with Civil Appeal No.19834/2017 that was pronounced just recently on April 25, 2024 has in a recent challenge against the disqualification of elected members of certain local municipalities in Maharashtra held that elected representatives at the grass-roots level of democracy could not be thrown out of office at the ‘whims and fancies’ of civil servants or their ‘political masters’. We need to certainly note here that while setting aside the disqualification orders that were issued in 2015 and 2016 by the Minister-in-Charge of the Urban Development in the State of Maharashtra, the Bench comprising of Hon’ble Mr Justice Surya Kant and Hon’ble Mr Justice PS Narasimha underscored that the Municipality was a form of local government at the grassroots level of democracy. What also deserves mentioning here is the fact that the Bench was hearing a set of connected matters challenging the orders of the Aurangabad Bench of the Bombay High Court which dealt primarily with the common issue of the manner and extent of powers exercisable by the Minister-in-Charge, Urban Development in disqualifying the elected Councilors/Office Bearers of the Municipalities.

Interestingly enough, the appellants in both the scenarios were debarred from contesting the elections in the Council for 6 years. We thus see that in this leading case, the Apex Court thus proceeded to set aside the impugned order and allowed the appeals. The disqualification and debarment orders of the Minister-in-Charge were also quashed. Very rightly so!

At the very outset, this pragmatic, persuasive, progressive, pertinent and powerful judgment authored by a Bench of Apex Court comprising of Hon’ble Mr Justice Surya Kant and Hon’ble Mr Justice PS Narasimha sets the ball in motion by first and foremost putting forth in para 1 that, “These two Civil Appeals lay challenge to the orders dated 19.10.2016 and 21.10.2016 passed by the High Court of Judicature at Bombay, Bench at Aurangabad in W.P. No.11795/2015 and W.P. No.6065/2016, respectively. Since both the appeals involve a common issue regarding the manner and extent of powers exercisable by the MinisterIn-Charge, Urban Development in disqualifying the elected Councilors/Office Bearers of the Municipalities, the same have been clubbed and heard together. For the sake of clarity, the facts are being noted separately.”

To put things in perspective, the Bench envisages in para 2 that, “The appellant in Civil Appeal No.14925/2017 (Makarand @ Nandu) was elected the Councilor of the Municipal Council, Osmanabad. He was further elected in 2006 as Vice-President of the said Council. Respondent no.5 filed an application on 07.01.2011 before the Collector, Osmanabad, under Sections 44(1)(e), 55A and 55B of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (in short, the “Act”) alleging violation of provisions of that Act and misuse of powers by the appellant, on account of the illegal construction of the house in excess of the permission granted.”

As it turned out, the Bench then enunciates in para 3 that, “The Collector held an enquiry and determined that the allegation was correct. A show-cause notice was thereafter issued to the appellant. It seems that while the show-cause proceedings were pending, the State Government, suo moto, took action in the matter, and the Minister-In-Charge vide an order dated 02.12.2015 disqualified the appellant from the post of Vice-President of the Municipal Council. Further, the appellant was also debarred from contesting election of the Council for six years.”

As we see, the Bench then discloses in para 4 that, “The appellant in Civil Appeal No.19834/2017 (Nitin) was elected President of the Municipal Council, Naldurga in 2011. In March 2012, a tender for garbage collection and disposal was invited by the Municipality. The tender of one Sevalal Institution was accepted after negotiation, overlooking the lowest bid. This led to a complaint before the Collector against the appellant, which was eventually referred to the Minister-In-Charge. After serving a show-cause notice for the alleged irregularity in allotting work to Sevalal Institution, the appellant was removed from the Office of President of the Municipal Council vide order dated 10.05.2016. In this instance, too, the appellant was debarred from contesting the election of the Municipality for a period of six years.”

As things stands, the Bench then observes in para 5 that, “Both the appellants unsuccessfully challenged the orders passed by the Minister-In-Charge and their writ petitions came to be dismissed vide the impugned orders referred to in the opening paragraph of this order.”

Do note, the Bench notes in para 6 that, “It may be noticed here that this Court passed interim orders in both the appeals, permitting the appellants to continue to hold their respective offices during the pendency of these proceedings.”

Frankly speaking, the Bench observes in para 8 that, “It may be true that the tenure of the appellants as elected Councilor/Vice-President of the Municipal Council as well as President of Municipal Council, respectively, has come to an end during the pendency of these proceedings and even the period of debarring them from contesting elections for six years has also expired. However, learned counsels for the appellants have rightly contended that so long as the allegations of misconduct, attributed to them are not annulled, it will continue to impact their eligibility to contest the elections in future. We have, thus, heard learned counsels for the parties on merits and perused the entire record.”

Truth be told, the Bench concedes in para 9 that, “In Makarand’s case, it is undeniable that the house alleged to have been illegally constructed, was actually built by his father. There is no specific finding that the appellant was in any manner associated as a co-owner or had otherwise made any contribution in the construction of the house. The Municipal Authorities never took any action alleging the construction of the said house to be illegal either during the life time of the appellant’s father or thereafter, until respondent no.5 made a complaint in 2011. It does not seem to be a mere coincidence that the complaint was made after the appellant had been elected as Councilor and Vice-President of the Municipal Council.”

Needless to say, the Bench states in para 10 that, “As the facts speak for themselves, the complaint filed by respondent no.5 was an afterthought; a device set up in order to take punitive action against the appellant and to punish him for an act which he never committed. The manner in which the proceedings, while pending before the Collector at the stage of show-cause notice, were suo moto transferred to the State Government and the Minister-In-Charge coming forward to hastily pass an order of removal, are sufficient for us to infer that the action was unfair, unjust and founded upon irrelevant considerations. In any case, the impugned action does not satisfy the doctrine of proportionality. The removal of the appellant from the office of Councilor/Vice-President with a further ban on him to contest election for six years is highly excessive and disproportionate to the nature of the so-called misconduct attributed to him.”

Most significantly and most forthrightly, the Bench mandates in para 11 postulating that, “Learned State counsel, however, vehemently urges that the action was taken after holding a fact-finding enquiry in which it was held that the appellant had actively joined hands with his father in raising the unauthorized construction. We are, however, not impressed with this contention. This was only a hearsay allegation without any supporting material. We hasten to add that the appellant was an elected representative. The Municipality is an institution of grass-root level democracy. The elected members cannot be removed at the whims and fancies of the civil servants or their political masters only because some of such elected members are found to be inconvenient within the system.”

It is worth noting that the Bench notes in para 12 that, “It requires no special emphasis that the elected representatives of public offices like a Municipality deserve due respect and autonomy in their day-to-day functioning, of course, subject to such limitations and restrictions as may be prescribed in law. When question of determining a misconduct committed by an elected member arises, ordinarily such misconduct would relate to his functioning after he has been elected to the office. However, in a given case, the misconduct committed before the election can also be taken cognizance provided that such misconduct is directly attributable to the elected representative and it went unnoticed and could not be scrutinized at the time when he filed his nomination papers. That is not the fact situation here. We are thus satisfied that the action taken against the appellant was totally unwarranted and it exceeded the jurisdictional limits.”

Be it noted, the Bench notes in para 13 that, “In the second case of Nitin, it is not in dispute that the tender of Sevalal Institution was accepted after due negotiation and after ensuring that no financial loss caused to the Municipality. The tender was accepted only on the basis of a resolution passed in the General Body Meeting. It is, therefore, difficult to hold that it was an act solely to be attributed to the appellant. It seems to us that the action taken against the appellant (Nitin) for wholly insufficient reasons and as a ploy to remove him from the elected office. We hasten to add that if such an act leads to financial loss to the Municipality and if an elected representative, most importantly the President himself, fails to protect the interest of the Municipality, in that event, the misconduct of causing financial loss or misappropriation etc., would undoubtedly be an act of gross misconduct justifying severe penal action, including that of removal from public office. We do not find any such allegation levelled or proved against the appellant.”

Finally, the Bench then concludes by holding in para 14 that, “For the reasons afore-stated, both the appeals are allowed. The impugned orders of the High Court dated 19.10.2016 and 21.10.2016 are set aside. The orders dated 02.12.2015 and 10.05.2016 of the Minister-In-Charge are hereby quashed.”

All told, we thus see that the Apex Court has made it pretty clear in this notable judgment that elected members of municipality can’t be removed at the whims and fancies of civil servants or their political masters. It is the civil servants and their political masters who must read this judgment most thoroughly and always abide most strictly by what is laid down so explicitly, elegantly and effectively by the top court in this leading judgment! There can be just no denying or disputing it!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.