Current Affairs

Source: Supreme Court

Why in News?

Recently the Supreme Court held that the removal of the elected representative 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.

What was the Background of Makarand alias Nandu v. State of Maharashtra & Ors. Case?

• Markarand was elected for the post of councilor of the Municipal Council, Osmanabad and in 2006 he was elected as the Vice-President.
• One of the respondents filed an application before the Collector, Osmanabad, under Sections 44(1)(e), 55A and 55B of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (1965 Act) and allegation was that appellant violates the provision of 1965 Act and misuse the power (illegal construction of house).
• An inquiry was conducted by the collector, and he held that the allegation was correct.
• A show cause notice was issued to the appellant and during the pendency of show cause proceeding the state government took suo moto action and minister-in-charged disqualified the appellant from the post of Vice-President.
• The appellant was also debarred from contesting election of the Council for six years.
• Another appellant Nitin was elected for the post of President of the Municipal Council, Naldurga.
• In this case also a complaint was filed before the Collector and referred to minister-in-charge and after serving show cause notice he was removed from the post of President for irregularity in allotting work.
• In this case, the appellant was debarred from contesting the Municipality election for six years.
• Both the appellants filed a writ petition and challenged the order of minister-in-charge before the High Court. The High Court of Bombay, Bench at Aurangabad dismissed the petition.
• The appeal was filed before the Supreme Court.
• Since both the appeals involve a common issue, they have been clubbed and heard together.
• The Supreme Court passed an interim order during the pendency of these proceedings and allowed the appellants to continue to hold the offices.

What were the Court’s Observations?

• The Court held that 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 Court was satisfied that the action taken against the appellant was totally unwarranted and it exceeded jurisdictional limits.
• The Supreme Court set aside the order of the High Court and quashed the order passed by minister-in-charge.

What are the Legal Provisions Involved in this Case?

Sections 44(1)(e) of 1965 Act:

• This Section deals with the disqualification of Councilor during his term of office. It states that-

(1) A Councilor shall be disqualified to hold office as such, if at any time during his term of office, he—

(e) Has constructed or constructs by himself, his spouse or his dependent, any illegal or unauthorized structure violating the provisions of this Act, or the Maharashtra Regional and Town Planning Act, 1966 or the rules or bye-laws framed under the said Acts ; or has directly or indirectly been responsible for, or helped in his capacity as such Councilor in, carrying out such illegal or unauthorized construction or has by written communication or physically obstructed or tried to obstruct any Competent Authority from discharging its official duty in demolishing any illegal or unauthorized structure and he shall be disabled subject to the provisions of sub-section (3) from continuing to be a Councilor and his office shall become vacant:

Section 55 A of 1965 Act:

• This Section deals with the removal of President and Vice-President by Government.
• It states that without prejudice to the provisions of sections 55-1A and 55, a President or a Vice-President may be removed from office by the State Government for misconduct in the discharge of his duties, or for neglect of, or incapacity to perform, his duties or for being guilty of any disgraceful conduct, and the President or Vice-President so removed shall not be eligible for re-election or re-appointment as President or Vice-President, as the case may be, during the remainder of the term of office of the Councilors : Provided that, no such President or Vice-President shall be removed from office, unless he has been given a reasonable opportunity to furnish an explanation.

Section 55 B of 1965 Act:

• This Section deals with the disqualification for continuing as Councilor or becoming Councilor on removal as President or Vice-President. It states that-

Notwithstanding anything contained in section 55A, if a Councilor or a person is found to be guilty of misconduct in the discharge of his official duties or being guilty of any disgraceful conduct while holding or while he was holding the office of the President or Vice-President, as the case may be, the State Government may, —

(a) Disqualify such Councilor to continue as a Councilor for the remainder of his term of office as a Councilor and also for being elected as a Councilor, till the period of six years has elapsed from the order of such disqualification;

(b) Disqualify such person for being elected as a Councilor till the period of six years has elapsed from the order of such disqualification.

What are the Constitutional Provisions Related to Municipalities?

• The 74^th Constitutional Amendment Act, 1992 introduced Part IX-A in the Constitution of India, 1950 (COI) which talks about the establishment, administration and power & function of Municipal bodies at different levels.
• Article 243P to 243ZG under Part IX-A of the COI deals with the municipalities and the 12^th Schedule was added through the 74^th Amendment Act.
• The Amendment Act created 3 types of municipalities:
  • Nagar Panchayat
  • Municipal Council
  • Municipal Corporation
• The members of a municipality shall be elected directly by the people.
• There is a reservation of seats for Scheduled Castes (SC) and Scheduled Tribes (ST) in the proportion of their population.
• 1/3^rd seats of total numbers of seats to be filled by direct election would be reserved for women, including the number of seats reserved for the women belonging to SC and ST.
• Article 243V of the COI talks about Disqualifications for membership. It states that-

(1) A person shall be disqualified for being chosen as, and for being, a member of a Municipality—

(a) If he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned.

Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years;

(b) If he is so disqualified by or under any law made by the Legislature of the State.

(2) If any question arises as to whether a member of a Municipality has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide.

• Article 243W of the COI deals with Powers, authority and responsibilities of Municipalities, etc.
• The term of every municipality is 5 years.