ORDER
Rajendra Menon, J.
1. The petitioner, elected President of Municipal Council Shivpuri has filed this petition questioning the tenability and validity of the order Annexure P-1 dated 13-9-2002 passed by the State Govt. in exercise of its powers under Section 41A of the Madhya Pradesh Municipalities Act 1961 removing him from office.
2. It is the case of the petitioner that he was elected as President of the Council on 27-12-1999, he took charge of the Office on 4-1-2000 and since then had been discharging the duties when by the impugned order he has been removed.
3. It is averred by the petitioner that prior to him one Smt. Krishna Gupta was President of the Municipal Council, during her tenure a resolution was passed by the Council for the purpose of laying down roads with asphalt, the Council sanctioned the bid invited tender's and contract was given for construction of asphalt, road on hotmix method. It is averred in the petition that for the said purpose a sum of Rs. 24 lacs was sanctioned vide resolution No. 13 dated 20-1-1998. Under this resolution work was started and work up to the tune of Rs. 11 lacs was completed when certain objections with regard to the aforesaid construction was raised and complaints were made against the then President Smt. Krishna Gupta. Summary enquiry was initiated and by order dated 30-9-1999 Annexure P-2 the State Govt. exercising power under Section 41A of the Municipal Corporation Act 1961 removed Smt. Krishna Gupta from the Office of the President, The said Smt. Krishna Gupta filed an application for review on 10-10-1993 vide Annexure P-3 before the Minister concerned, who passed an order on this application suspending the order of removal, Similar orders were passed on another application Annexure P-4 dated 12-10-1999 submitted by Smt. Krishna Gupta. Minister took up the matter in review and thereafter vide Annexure P-4A order's were passed by the State Govt. cancelling and revoking the removal of Smt. Krishna Gupta and the order of her removal dated 30-9-1999 Annexure P-2 was cancelled. It is also averred in the petition that one M.L.A. Shri Brij Singh had also taken up the matter with the Minister concerned and he had complained that removal of Krishna Gupta is illegal and recommended for her reinstatement. Annexure P-5 is the letter of the M. L. A. In this regard. It is averred in the petition that after hearing Smt. Krishna Gupta and on consideration of the material not only was her removal revoked and cancelled but she was permitted to continue in the office of the President and a sum of Rs.10 lacs was sanctioned by the State Govt. on 11-11-1999 Annexure P-7 for completing the work.
4. It is the case of the petitioner that after he had taken over charge of President the State Govt. had sanctioned Rs.7.5 lacs for road construction. After the aforesaid sanction was received a resolution was passed by the Municipal Council on 5-3-2000 for the purpose of constructing three roads as per details given in para 5.9 of the petition, copy of the resolution is filed as Annexure P-8. It is further averred that after the petitioner took over the work of asphalt was done in accordance with rules, after due approval and sanction from the Executive Engineer P. W. D. as is evident from letter Annexure P-9, it is averred by the petitioner that the work was done by the council at a lower rate then the prevailing rate which was Rs. 115.88% above C. S. R. It is stated that in spite of the fact that C.S.R. had increased by 20% on 1-8-1999 as seen from Annexure P-10. Council got the work done at a much lower rate compared to that done by the previous President Smt. Krishna Gupta. Thereafter for the purpose of constructing various other roads, resolution was passed on 8-2-2001 sanctioning an amount of Rs. 6.19-lacs. It is the case of the petitioner that the said resolution dated 8-2-2001 was taken up in proceeding under Section 323 of the Municipal Council Act and the matter ultimately culminated in the Collector make certain recommendations thereof vide Annexure P-12 dated 22-10-2001.
5. It is the case of the petitioner that the respondent State Govt. issued a show cause notice to him under the provisions of Section 41A vide Annexure P-14 on 12-12-2001 and the charges alleged in the said show cause notice was that the petitioner as President of the Council had indulged in illegal activities which were earlier done by Smt. Krishna Gupta and in spite of having knowledge about the irregularities continued with the same work and therefore he was asked to show cause as to why he should not be removed from the office of President. It is the case of the petitioner that he submitted a detailed explanation vide Annexure P-15 explaining the circumstances and also annexed various letters issued by the council, the Executive Engineer had explained the circumstances appearing against him. However, without considering the reply and in an arbitrary manner, impugned order has been passed removing him from service. During the course of arguments Shri R.D. Jain learned Sr. Counsel took me through various aspects of the matter to demonstrate that the order impunged is unsustainable. Amongst others the submissions of Shri R.D. Jain, learned Sr. Counsel can be summarised as under :--
(1) The petitioner being a duly elected President of the Council had a legal right to continue in the Office until his term is completed. Power under Section 41-A can be exercised only if it is found that during his tenure the petitioner has committed such grave and serious irregularities which warrants his removal from the Office in the interest of public.
(2) For the said act the earlier President Smt. Krishna Gupta was proceeded against. Initially she was removed but on review as is evident from Annexure P-3 and P-4A her removal was suspended and finally proceedings were dropped. It was held that she has not committed any illegality and further proceedings were dropped not only that a sum of Rs. 10 lacs was sanctioned to her for completing the work. If no irregularity was found in the aforesaid work done by smt. Krishna Gupta then no action can be taken against the petitioner.
(3) The President of the Council dis-charges duties in accordance with the powers and duties contemplated under Section 51 of the Municipalities Act and when the President performs his duties he only presides over the meeting and regulates and conducts the same. The work was done in the present case after resolution was passed on 5-3-2000 by the Council. The resolution was passed by the Council in the interest of the city and therefore it was the council which was responsible for passing for the resolution and executing the work for which independent action cannot be taken only against the President. The council having taken a decision by majority the responsibility could not be fastened singly on the President. That apart it is submitted by him that the provisions of natural justice have been violated, in the show cause notice there is no mention with regard to report submitted by the collector or recommendations made by the Collector in his order dated 22-10-2001, taking action on the basis of the order of the Collector dated 22-10-2001 which was not part of the record and for which no opportunity of hearing was given to the petitioner is illegal.
(4) Even otherwise there is nothing on the basis of which action can be taken against the petitioner the allegations are false and baseless are unsustainable. Inviting attention to the judgment of the Supreme Court in the case of Tarlochan Dev Sharma v. State of Punjab (2001) 6 SCC 260 : (AIR 2001 SC 2524) and the judgment of this Court in the case of Kaushalya Bai (Smt.) v. State of M.P. (1999)1 Jab LJ 277. It was submitted that power of removal of an elected Office bearer is an extraordinary power and it can be exercised only when very strong and cogent reasons are available. It is submitted by Shri Jain that the law on the subject is very clear and this power cannot be exercised for trival or minor irregularities. In all it is the contention of learned Sr. Counsel that looking to the facts and circumstances of the case, nature of allegations made against the petitioner and the material on record it is clear that this is not a case where power of removal of the elected President has been exercised properly, in accordance with law. It is his case that power has been exercised arbitrarily on extraneous consideration, and without any justification. It is Submitted that the finding recorded in the impugned order Annexure P-1 is not only perverse but the same is unsustainable and is a glaring example of mis-use of statutory powers by the respondents for the purpose of removing a democratically and duly elected President of the Council. In that view of the matter it is submitted that the order impunged cannot be sustained.
6. Respondents have filed their return. A preliminary objection has been raised that the petitioner has an alternative efficacious remedy of filing an application, for review under Section 332 therefore petition is not maintainable. It is also stated that as the State Govt. has already initiated action for filling up of the casual vacancy under Section 37 of the Municipalities Act and therefore petition is not maintainable on merit. It is submitted that Annexure P-1 has been passed after issuing proper show cause notice, petitioner was given due opportunity to submit his reply, thereafter hearing took place before the Govt. on 10-12-2001, 20-12-2001, 28-12-2001, 1-1-2002, 4-1-2002 and on various other dates where the petitioner appeared along with his counsel. He was given ample opportunity to submit his reply, make oral statement, accept the documents and after hearing him the order was passed. That being so, it is contended that a finding has been recorded in Annexure P-1 wherein it is established that the petitioner had misused his office, has committed graveirregularities and therefore no interference is called for. It is also argued that action hasbeen taken keeping in view the M. P. Accounts rules of 1971. Clauses 131, 132 and133 of the aforesaid rules have been violated, merely because the Council had approved the construction the petitioner cannot sherk away from his responsibility.Exercise of power under Section 41A is proper.there is no perversity in the order impunged,said order has been passed wherein the allegations levelled in the show cause noticeare found to have been established andtherefore no case warranting interference ina petition under Article 226 and 227 of theConstitution is made out. That apart, it issubmitted that the contention of the petitioner that the order of the Collector dated22-10-2001 on the basis of which findinghas been recorded, against him without thesame being part, of the show cause notice isdevoid of substance, as during the courseof hearing the aforesaid order and its contents were made known to the petitionerand petitioner was aware of the same beforethe impugned order was passed. That being as, it is their case that no prejudice has beencaused to the petitioner. Shri K.N. Gupta,learned counsel representing the respondents produced the entire records pertainingto the proceedings held before the StateGovt. and it is submitted by him that therequirement of hearing and giving opportunity of making statement to the petitionerhaving been extended there is no violation warranting interference by this Court in thepresent, petition.
7. Shri S.B. Mishra, learned Sr. Counsel appeared for the intervenor who has been given charge of President to look after the work due to the casual vacancy being council. Shri Mishra argued that the order impugned Annexure P-1 is legal and proper and submitted that in the light of the averments that have been made by the respondents in the return and in view of the totality of the facts and circumstances of the case, no interference is called for.
8. I have heard learned counsel's for the parties and perused the records.
9. Section 41A of the Municipalities Act, 1961, empowers the State Govt. at any time to remove the President, Vice President or Chairman of any Council if a opinion is formed by the State Govt. that continuance of such a person is not desirable in public interest or in the interest of the council or it is found that he is incapable of performing his duties or he is working against the provisions of the Act or any rule made thereunder. From the aforesaid it is clear that the State Govt. has to form a opinion with regard to the desirability, interest of the public, interest of the council and the capacity of the person to perform his duties and then take action for removal under the aforesaid provision. However, Proviso to section contemplates giving reasonable opportunity of being heard to the person concerned before action is taken.
10. President of the Council is elected by direct voting in a democratic manner. That being so, while exercising power of removing such an elected officer bearer the State Govt. is duty bound to take extra care and caution and power under Section 41A cannot be exercised until and unless strong and cogent reasons are available for taking such an action, The scope of exercising power by the State Govt. under the aforesaid provision was considered by a bench for this Court in the case of Kaushlaya Bai (1999 (1) Jab LJ 277) (supra) and in para 4 of the said judgment this Court has held as under :--
'4. From the provision quoted above it is noteworthy that it confers an extraordinary and over riding power on the State Government to remove an elected office bearer of a local authority or committee under it on formation of an opinion that continuance of such office bearer is 'not desirable in public interest' or 'in the interest of Council' or that he 'is incapable of performing his duties or is working against the provisions of the act or any Rules' made thereunder. Similar power of removal of a Councillor is vested in the Collector under Section 41 of the Act against which there is an appeal provided. For taking action under Section 41 -A for removal of President, Vice-president or Chairman of any Committee, power is conferred on the State Government with no provision of any appeal. The action of removal casts a serious stigma on the personal and public life of the concerned office bearer and may result in his disqualification to hold such office for the next term. The exercise of power, therefore, has serious civil consequences on the status of an office bearer. The nature of power is such that it has to be exercised onan opinion objective formed by the StateGovernment. The misconduct or incapacity of the office bearer should be of suchmagnitude as to make his continuance un-desirable in the 'interest of Council' or 'inpublic interest'. There are no sufficientguidelines in the provisions of Section 41-A as tothe manner in which the power has to beexercised, except that it requires that reasonable opportunity of hearing has to beafforded to the office bearer proceededagainst. Keeping in view the nature of thepower and the consequences that flows onits exercise it has to be held that such power can be invoked by the State Governmentonly for very strong and weighty reason. Such a power is not to be exercised for some trivial or minor irregularities in discharge of duties by the holder of the elected post. The material or grounds on which the action is taken should be such as to justify the exercise of drastic power of removal of the office bearer with consequence of his disqualification for another term. The provision has to be construed in strict manner because the holder of office occupies it by election and he is deprived of the office by an executive order in which the electorate has no chance of participation.'
Similarly, while considering the powers conferred under the Punjab Municipal Act of 1911 for removing a President of the Council the Supreme Court in the case of Tarlochan Dev Sharma (AIR 2001 SC 2524) (supra) has observed as follows :--
Para 7 and 8
'7. In a democracy governed by Rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. That a returned candidate must hold and enjoy the office and discharge the duties related therewith during the term specified by the relevant enactment is a valuable statutory right not only of the returned candidate but also of the constituency or the electoral College which he represents. Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held. Therefore, a case of availability of aground square falling within Section 22 of the Act must be clearly made out. A President may be removed from office by the State Government, within the meaning of Section 22, on the ground of 'abuse of his powers' (of President), inter alia. This is the phrase, with which we are concerned in the present case.
8. The proceedings for removal must also satisfy the requirements of natural justice. Second proviso to Section 22 requires that the -reason for the proposed removal shall be communicated to the person proceeded against by means of a registered letter and he shall be allowed 21 days for putting up his explanation in writing. And thereafter alone, the State Government may proceed to notify his removal. In between, a duty to take decision by due application of mind to the allegations made and the explanation given is implicit and shall have to be read in the provision though not expressly stated therein. The appellant is not charged with habitual failure to perform the duties of President of the Municipal Council. He is charged with having abused his powers of President. The vires of the impugned order dated 1-10-1999 have to be tested on the touchstone of the availability of this ground.'
11. The case in hand has to be dealt with and considered in the light of the principles enumerated herein above by the Supreme Court and by this Court in cases referred to therein. As already indicated hereinabove the show cause notice Annexure P-14 which has been issued to the petitioner indicates that the allegations against him were that without taking approval of the council, without budgetary sanction and without inviting tender, work was awarded at a rate which is 23% more than the normal rate for which action was taken against the President Smt. Krishna Gupta and she was removed vide order dated 30-9-1999. The allegations made in para 1 of the show cause notice indicates that it is with regard to action taken against the Ex-President Smt. Krishna Gupta. Thereafter in para 2, the allegations against the petitioner is repeated and it is averred therein that after the petitioner took over charge as President he knew about the aforesaid illegalities mentioned in para 1 for which the State Govt. had taken action against the Ex-President and in spite of this the remaining work was continued by the petitioner which is irregular and therefore action is proposed under Section 41A. A perusal of the show cause notice indicates that in para 1 it is mentioned that for the irregularities mentioned therein the State Govt. had taken action against, the earlier President Smt. Krishna Gupta. Thereafter in para 2 it is stated that the same irregularities have been committed and continued by the petitioner in spite of the fact that he had knowledge that the State Govt. had taken action against the earlier President. In para 3 petitioner has been directed to file reply within 15 days. This is the sum and substances of the allegations as contained in Annexure -4, which is of three small paragraphs. The petitioner had submitted a detailed reply running to more than six pages vide Annexure P-5 and along with his application he had also filed various documents explaining his stand. The petitioner had also enclosed a letter dated 7-11-2001 issued by the Executive Engineer to demonstrate that the allegations levelled against him are incorrect. The rate has been properly fixed, budgetaiy sanction was available, action has been taken after passing resolution on 5-2-2000. It is a detailed reply submitted by the petitioner wherein he has not only explained the circumstances existing against him but has brought to the notice of the competent authority that he had taken action after being satisfied, that, there is budgetary sanction for the same, matter was placed before the Council, Council had passed the resolution, the rate given is, less than E. S. R. prevailing at the relevant time and no loss is being caused to the petitioner.
12. During the course of hearing the budgetary sanction in this regard have been brought on record which according to the petitioner were produced at the time of hearing, the budgetary sanction are contained in Annexure P-20 and P-21 and by referring to the sanctions contained therein for the purpose of construction of roads in question it was submitted by Shri Jain that the allegation that there was no budgetary sanction was also false. From the reply submitted by the petitioner and the documents annexed, it is seen that the petitioner had given a detailed explanation and had tried to emphasis that he had not committed any irregularity and he had taken action only in accordance with the resolution of the Council. However, in the impugned order Annexure P-1 it is seen that the explanation submitted by the petitioner was not at all considered. In the impugned order in para 1 allegations against the petitioner has been reproduced. Thereafter from para 2 onwards reply and explanation submitted by the petitioner Shri Daulatram Gupta have been reproduced. Para 2 is a reproduction of the explanation and reply submitted by the petitioner and thereafter a finding is recorded in para 3. A perusal of the same goes to indicate that the explanation submitted by the petitioner was considered in the light of the order dated 22-10-2001 passed by the Collector under Section 323 and after considering the same the explanation has been rejected. In the finding recorded in para 3 apart from referring to the so called order of the Collector dated 22-10-2001 it is mentioned that in the resolution the Council had sanctioned only a sum of Rs. 5,78,000/- but more amount has been spent which is indicated in the Collector's order no such allegation is contained in the show cause notice. A perusal of the order indicates that the competent authority instead of considering the allegations made in the show cause notice with reference to the reply submitted by the petitioner and his explanation contained therein has held that petitioner is guilty of the allegations only on the basis of the order of the Collector dated 22-10-2001.
13. This order of the Collector dated 22-10-2001 was never made the subject matter of allegation or mentioned in the show cause notice annexure- P-14. There is noth-ing in this order to indicate that the petitioner is guilty, if his actions are considered in the backdrop of the order dated 22-10-2001 passed by the Collector. It was submitted by Shri R.D. Jain, learned Sr. Counsel that without the aforesaid order being subject matter of enquiry in the show cause notice, action taken on the basis of the aforesaid order is unsustainable. This was rebutted by Shri K.N. Gupta and it is submitted that by order dated 22-10-2001 Collector has suspended the resolution of the Council dated 8-2-2001 and the petitioner was aware of this order which was brought to his notice during the proceedings which took place before the State Govt... and there-fore no prejudice has been caused to him.
14. Admittedly, the order of the Collector dated 22-10-2001 has been relied upon and it forms the basis for passing the impugned order. This order was never part of the proceedings which was there as per the show cause notice Annexure P-14. However, the submissions of Shri K.N. Gupta, that the order was part of the proceedings has to be considered in the light of the arguments that no prejudice is being caused. On a perusal of the proceedings that have been brought on record it is seen that on 10-12-2001 the petitioner appeared on behalf of the counsel before the Principal Secretary and took time to file the reply. Time was granted and he appeared on 1-1-2002 and submitted his reply and oral statement. Thereafter on 14-1-2002 and 15-1-2002 he had inspected the records and the case was adjourned to 8-2-2002. The petitioner sought adjournment on 8-2-2002. Thereafter on 11-3-2002 petitioner along with his counsel appeared, hearing took place and the case was reserved for orders and finally on 9-7-2002 orders were passed. It is the case of the respondent State that when the petitioner had inspected the records, the relevant records contained the order of the Collector dated 22-10-2001 and therefore the petitioner had occasion to see the same. The petitioner should have explained the same and therefore if while passing the impugned order the said order has been considered no prejudice is caused. On going through the records it is clear that two separate files are available, one is with regard to the proceedings for quashing the resolution dated 8-2-2001 initiated under Section 323 and the second is proceedings against the petitioner under Section 41A. Merely because the aforesaid document was available on record it cannot be accepted that no prejudice was caused to the petitioner. The facts that have come on record in the said order if were to be used for the purpose of making the petitioner responsible for the allegations levelled, against him, it was incumbent on the respondents to specifically intimate to the petitioner and to make it part of the show cause notice and allegations levelled against him'. I am unable to accept the contention of the respondents that non mentioning of this order in the show cause notice has not caused any prejudice. The petitioner while facing specific allegations in a proceeding under, Section 41A is only required to explain the allegations contained in the show cause notice. He is not expected to give his explanation with regard to each and every letter or order which is available in the file of the respondents. If the respondents wanted to consider the aforesaid order of the Collector for taking action then it had to be made part of the proceedings by incorporation in the show cause notice . There is no whisper in the show cause notice with regard to issuance of the order dated 22-10-2001 by the Collector and the effect of the same on the allegations levelled against the petitioner in the show cause notice. The order was available before the show cause notice was issued. The show cause notice is dated 12th November 2001 and the order is of 22-10-2001. If the respondents wanted to base their case for removing the petitioner on the basis of the aforesaid order they were duty bound to incorporate the same in the show cause notice. By considering the order dated 22-10-2001, making it the basis for taking action against the petitioner the respondents have committed violation of the principles of natural justice and the reasonable opportunity required to be given to the petitioner under Section 41A is violated.
15. It is also to be taken note of that in reply to the show cause notice Annexure P-14 the petitioner has explained the situation by submitting his reply Annexure P-15 supported by various documents. Even if the respondents wanted to consider the letter of the Collector dated 22-10-2001 they were duty bound to examine the same in the backdrop of the reply submitted by the petitioner. A perusal of para 3 of the order impugned and the finding recorded therein goes to indicate that the respondents have not at all considered the explanation and the documents submitted by the petitioner. It is clear from the impugned order that the defence submitted by the petitioner with regard to the resolution passed by the Council, the letters of the Executive Engineer and the fact that budgetary sanctions were available, work has been given below the prevailing market rate and other aspects of the matter were not at all considered.
16. That apart, perusal of the order dated 22-10-2001 passed by the Collector Annexure P-12, indicates that in the said order resolution dated 8-2-2001 has been quashed only on the ground that it has been passed in violation of the provisions of Rule 131 of the Madhya Pradesh Account Rules of 1971. During the course of hearing Shri R. D. Jain, learned Sr. Counsel for the petitioner had pointed out that M. P. Account Rules of 1971 have been repealed and the said Rules are no more in existence because of the enactment of the subsequent Rules in the year 1998 i.e. Madhya Pradesh Municipalities (The Conduct of Business of the Mayor-in-Council/President-in-Council and the Powers and Functions of the Authorities) Rules 1998 and after enchantment of the Rules of 1998 the earlier rules of 1971 stands repealed.
17. In the order dated 22-10-2001 passed by the Collector the reasons indicated for quashing the resolution dated 8-2-2001 is that administrative and technical sanction required under Rule 131 of the M.P. Account Rules 1971 (hereinafter referred to as Rules of 1971) were not taken and further the resolution has been passed without following the provisions of Rule 132 and 133 of the aforesaid Rules of 1971. This finding if examined in the backdrop of the submissions made by Shri R.D. Jain seems to be totally unsustainable. Account Rules of 1971 was enacted in the year 1971 in exercise of the powers conferred under Section 355, 358, 338 read with Section 113 of the Municipalities Act, 1961. Section 110 to 113 of the Municipalities Act contained a procedure for entering into the contract on behalf, of the council. Section 111 pertains to mode of executing a contract, Section 112 pertains to process for inviting tender and Section 113 contemplates that the Chief Municipal Officer shall in accordance with the Rules provided under this section requires security for due performance of the contract. The aforesaid sections, from Section 111 to 113 have been omitted by amending Act No. 20/98 with effect from 29-8-1998 and thereafter the Madhya Pradesh Municipalities (The Conduct of Business of the Mayor-in-Council/President-in-Council and the Powers and Functions of the Authorities) Rules 1998 has been enacted and brought into force with effect from 27-11-1998. In the aforesaid rules of 1998 powers of the President in Council and other office bearers is provided in Rule 5, constitution of tender committee is contemplated under Rule 6, mode of executing a contract is provided in Rule 7 and technical and administrative sanction to be taken is contained in Rule 8. Similarly in the Rules of 1971 Section 131 of 133 provides for procedure for sanctioning of work, administrative approval required and administrative sanction or technical approval. Thus it is clear that procedure which was earlier contemplated in the year 1971 conferring financial power and procedure for according and sanction of work stood specifically amended after the Rules of 1998 were enforced w.e.f. 27-11-1998. Section 17 of the Rules of 1998 contains the reappeal Clause and it provides that any Rule by law or order corresponding to these Rules, if any, shall stand reappealed from the date of commencement of these rules. In that view of the matter as far as the financial powers for according sanction is concerned, the same will be governed by Rule 5 of 1998 Rules. Similarly, the tender committee has to be constituted in accordance with Rule 6, mode of executing contract has to be done in accordance with Rule 7 and technical and administrative sanction has to be done as per Rule 8. A perusal of provisions of Rule 5 to 8 of the Rules of 1998 indicate that except for the purpose of technical and administrative sanction nothing as provided in Rules of 1971 has been made applicable. In Rule 8 it has been provided that in case of Municipal Council and Nagar Panchayat for the purpose of administrative and technical sanction, action shall be taken in accordance with the Rules of 1971. The only rule applicable is Rule 132 for the purpose of administrative sanction or technical approval. The other rules as provided in Section 130 with regard to procedure for sanction of work, Rule 131 with regard to financial power stood reappealed after coming into force the Rules of 1998. This aspect of the matter and change brought about in the rules was not at all considered by the Collector while passing the order dated 22-10-2001 to hold that the resolution is unsustainable being violation of Rules 131, 132, 133. The Collector failed to consider the fact that after enactment of Rules of 1998, procedure has been changed and he was required to examine the procedure followed in accordance with the Rules of 1998 and in not doing so, he has committed material irregularity and in that view of the matter, the order dated 22-10-2001 prima facie seems to be unsustainable on merit also.
18. Even if for the sake of argument if it is accepted that the order dated 22-10-2001 passed by the Collector can be taken into consideration it is not know how it can be helpful in holding the petitioner responsible for the irregularities alleged against him in the show cause notice dated 12-11-2001. In the order of the Collector dated 22-10-2001 after recording the submission of the parties from pages 1 to 5, in the last para of page 5 the findings are recorded. It is recorded therein that after hearing arguments of the either side the resolution dated 8-2-2001 for construction/asphaltation of the road from Jai Stambh Chowk to SDOP Bunglow at the rate of Rs. 6.19 lacs is not in accordance with the law. Submission made by Shri Durgalal Vijay, Advocate appearing for the council while referring to the provisions of Madhya Pradesh Municipalities (The Conduct of Business of the Mayor-in-Council/President-in-Council and the Powers and Functions of the Authorities) Rules, 1998 have been recorded and then in the last para after considering the provisions of Rules 131. 132, 133 of the M.P. Finance Rules of 1971 it has been held that the resolution being contrary to these rules and having been passed in violation therefore cannot be sustained. This order if examined in the light of the submissions made by Shri R.D. Jain, Sr. Advocate seems to be patently incorrect and unsustainable for the reasons indicated in the proceeding para. However as this order dated 22-10-2001 is not challenged in this petition, I am not required to examine it on merit but prima facie it seems to be unsustainable and, therefore, consideration of this order for taking action against the petitioner in a proceeding under Section 41-A cannot be approved by this Court.
19. Even if the order of the Collector dated 22-10-2001 is taken into consideration the same only quashes the resolution dated 8-2-2001 being contrary to the Madhya Pradesh Account Rules of 1971. This order in no way implicates the petitioner for having committed irregularity. The petitioner had taken action in pursuance to the resolution dated 5-3-2002. The said resolution is in existence and there is nothing in the order dated 22-10-2001 on the basis on which it can be said that the allegations against the petitioner are correct. Even while considering the order dated 22-10-2001, the respondents have committed material irregularity. The same only held the resolution dated 8-2-2001 as unsustainable. The finding recorded therein are only with regard to irregularities committed under the provisions of Madhya Pradesh Account Rules of 1971. There is nothing in this order on the basis of which it can be said that the allegations levelled against the petitioner as contained in Annexure P-14 is correct. Therefore, viewed from both the angles i.e. on the ground of denial of reasonable opportunity and also on merit the order impugned is unsustainable. It is crystal clear from the order that the State Govt. has passed the same without application of mind and without considering the explanation submitted by the petitioner.
20. It is also to be taken note of in the present proceedings that in the show cause notice Annexure P-14 the main allegation levelled against the petitioner is that he had proceeded with construction of road in spite of the fact that for the same irregularity, action had been taken by the Govt. by removing the earlier President Smt. Krishna Gupta vide order dated 30-9-1999. It is surprising that the Govt. has taken action against the petitioner on this ground when the Govt. itself vide Annexure P-4A had set aside the order dated 30-9-1999 issued against Smt. Krishna Gupta, proceedings against her were dropped and subsequently a sum of Rs. 10 lacs were sanctioned on 11-11-1999 vide Annexure P-7 for the purpose of construction of the roads. This aspect of the matter was also not considered by the Govt. while passing the impugned order. The Govt. having dropped the proceedings against Smt. Krishna Gupta cannot say that the petitioner committed irregularities or knowingly continued with the same irregularities. It is surprising that when no irregularity or illegality was found in the action of Smt. Krishna Gupta, how same action if continued by the petitioner can be termed as irregular or illegal.
21. Even though during the course of hearing learned counsel for the respondents by referring to the judgments of this Court in the case of Himayatullah Lakhnavi v. State of M.P., 1986 MPLJ 547; Balbhadra Prasad v. State of M.P., AIR 1969 MP 15; Food Corporation of India, Hyderabad v. Prabhalada Rao (2001) 1 SCC 165 : (AIR 2001 SC 51) have contended that this is an administrative decision and as the Govt. is vested with the power to take action this Court cannot reappreciate the material by acting as an appellate authority and interfere in the matter. The aforesaid argument is totally misconceived and cannot be accepted. The scope of judicial review in these matters have already been considered by this Court in the case of Kaushalya Bai (1999 (1) Jab LJ 277) (supra) and by the Supreme Court in the case of Tarlochan Dev Sharma (AIR 2001 SC 2524) (supra). I am only required to scrutinise the impugned order Annexure P-l in the light of the aforesaid enunciation of law. No doubt while reviewing administrative decision this Court cannot act as an appellate authority but in the course of judicial review if it is found that the order is totally perverse, based on extraneous consideration and without following the principles of natural justice this Court can interfere. As already indicated hereinabove, the order impugned is silent with regard to the explanation submitted by the petitioner. Reliance placed on the recommendation of Collector dated 22-10-2001, Section 323 is totally unsustainable and even if the aforesaid is taken into consideration it does not prove the allegations levelled against the petitioner. That apart, the allegations levelled in para 1 of the show cause notice Annexure P-14 are unsustainable in view of the orders passed by the State Govt. in the case pertaining to removal of Smt. Krishna Gupta. Considering this aspect of the matter it is to be held that the order impugned is totally unsustainable being perverse and based on extraneous consideration.
22. Apart from the above the Supreme Court in the case of Tarlochan Dev Sharma (supra) had considered the question of abuse of power by an elected office-bearer and after considering the same it has been observed by the Supreme Court in the said case that a singular or casual abbreviation or failure to exercise of power is not enough to take action for removal. When an elected office-bearer is being removed from his office, the executive authority exercising statutory power is dislodging a duly elected member and, therefore, it is again against the will of the majority which elected the incumbent to the post. That being so, as indicated by this Court in the case of Kaushalya Bai the power has to be exercised sparingly in cases of serious irregularities, power cannot be exercised in cases of minor irregularity in discharging the duties. That apart, the requirement of Section 41-A is misconduct or incapacity of the office-bearer to hold the office and the magnitude of the allegations is such that his continuation is undesirable in public interest or the interest of the council. In the order impugned there is no such finding recorded not only with regard to the allegations of misconduct or its magnitude but interest of the council or public has not at all been considered.
23. Considering the totality of the facts and circumstances of the case and in view of the discussions made hereinabove, I am of the considered view that this is a case where the respondent-State has exercised its power of removing the petitioner contrary to the settled principles and, therefore, it is unsustainable.
'24. This Court finds that the charges alleged in the show cause notice Annexure P-14 against the petitioner are not established from the material on record and on due consideration of the facts and circumstances of the case it appears that present is not a case of such a nature so as to warrant, taking of action of removal under Section 41-A. The extraordinary power conferred on respondents for removing an elected office bearer cannot be used in the facts and circumstances of the present case as strong cogent and justifiable grounds are not available in the present case for taking action. The petitioner had acted in pursuance to the resolution of the council, there was budgetary sanction and it cannot be said that he had misused its office for any personal gain or benefit.
25. Accordingly, the petition is allowed. The order impugned Annexure P-1 dated 13-9-2002 passed by respondents removing the petitioner from the office is quashed.
Parties to bear their own cost.