Holding

The State must notify the election of a municipal President and cannot refuse to do so without affording the elected person a hearing; the Principal Secretary acted without authority and is liable for exemplary costs.

Summary

The respondent, Bhabhan Singh, was elected President of a municipal council in Samrala, Punjab, but the State Government failed to publish a notification of his election as required by Section 24(2) of the Punjab Municipal Act, 1911. The Principal Secretary also issued a show‑cause notice and later a notification removing Singh from the council under Section 16(1)(e), alleging "flagrant abuse of position". Singh challenged these actions in a writ petition; the High Court quashed the removal and ordered the government to notify his election, awarding him costs. On appeal, the Supreme Court held that the statute imposes a mandatory duty on the State to notify the election and that refusal to do so without giving the elected person an opportunity of being heard is unlawful. The Court further clarified that Section 16 deals with removal powers and does not define the disqualifications contemplated in the proviso to Section 24(2); disqualifications are to be found in the Punjab State Election Commission Act, 1994. No evidence showed Singh’s conduct amounted to "flagrant abuse". Consequently, the appeal was dismissed and the Principal Secretary was ordered to pay exemplary costs of Rs 25,000 personally.

Issues considered

The State Government’s power to refuse notification of a municipal President’s election under Section 24(2) of the Punjab Municipal Act, 1911 without a hearing.
Whether the removal of the respondent under Section 16(1)(e) for alleged "flagrant abuse of position" was justified.
The applicable disqualifications under the Punjab Municipal Act and the Punjab State Election Commission Act, 1994 that could bar notification.
The appropriateness of awarding exemplary costs against a public officer personally.

Legislation cited

Punjab Municipal Act, 1911s. 16(1)(e), s. 24(2)
Punjab State Election Commission Act, 1994s. 11

Subjects

municipal electionnotificationdisqualificationflagrant abuse of poweradministrative lawexemplary costsstatutory interpretationrule of law

Judgment

+

, STATE OF PUNJAB AND ORS. A
~ v.
BHAJAN SINGH AND ANR.

FEBRUARY 27, 2001

[K.T. THOMAS AND R.P. SETHI, JJ.] B

Municipalities :

Punjab Municipal Act, 1911-Sections 16( 1)(e) and 24(2)-Appellants
and pal1icularly the Principal Secretary deprived Respondent No. 1 from
performing his duties as the President of the Municipal Council after his
c
election-Writ petition was filed against the appellants as no notification was
issued after his election-NotificaJion was issued removing his name from the
membership of the council as well as its Presidents/zip on grounds ofmiscon-
duct-High Coul1 struck down the impugned notification imposing Rs. 10,000
as costs-On appeal Held, law relating to elections is creaJion of sta/ute, D
which has to be strictly interpreted and effected-There is no unbridled power
to notify or not to notify the election as it would be contrary to the concept
of democracy, rule of law and mandate of the Act-Even if Respondent No. 1
incurred some disqualifications, he should have been intimated and there can
be no justification for not doing so-Principal Secretary persistantly deprived
" E
him from performing his functions as an elected representative for 3 years and
""'l this loss cannot be compensated under any law-Principal Secretary person-
ally held liable to pay exemplary costs of Rs. 25,000.

Section 16 and 24 (2) proviso (/)-Power of Stale Government to
remove ftvm membership of council on grounds of misconduct-Held, there F
are other disqualifications provided under the Act and other laws which can
be relied on for taking action-Punjab State Election Commission Act, 1994--
Section II.

Words and Phrases-Meaning of "flagrant abuse of power" in the
context of Punjab Municipal Act, 1911-Sections 16(/)(e) and 20.
G

_.., Appellants and in particular the Principal Secretary of the State
Government did not allow Respondent No. 1 who was an elected repre-
sentative to the Municipal Council to perform his functions in order to
further the interest of the ruling party. Later on, he was also elected as H
149
150 SUPREME COURT REPORTS [2001] 2 S.C.R.
A the President Of the Council. However, no notification under Section 24 of
the Punjab Municipal Act, 1911 was issued. A writ petition was filed
,. '
against the said inaction of the State Government. In the meanwhile, a
show cause notice proposing to remove his name from membership of the
Nagar Panchayat/Council was issued under Section 16(1)(e) of the Act.
His name was removed from the membership of the Nagar Panchayat/
B
Council as well as the Presidentship of the Municipal Council by a notifi.
cation issued by the Principal Secretary. Respondent No. 1 filed another
writ petition against the said notification and the High Court allowed the
same imposing cost of Rs. 10,000 on the appellants. Hence this appeal.

c Appellants contended that respondent No. 1 had been improperly
elected as the President of the Municipal Council; that he had abused his
position as a member of the Municipal Council, that the action taken by
the Principal Secretary was legal and valid; and that the State Govern-
ment had a discretion to notify or not to notify the election of the Presi-
dent of the Municipal Council under Section 24(2) of the Act.
D
Dismissing the appeal the Court

HELD : 1. Despite the election of respondent No. 1 as President a
notification in terms of Section 24(2) of the Punjab Municipal Act, 1911 was
not issued. The Principal Secretary had no unbridled power or option to y
E notify or not to notify the election of the President in the Official Gazette as
such will not only be contrary to the concept of democracy and the rule of t.
law bnt in fact flagrant valuation of the mandate of the Act. A duty is cast
upon the Government to notify in the Official Gazette every election ol'
President of Municipality as is evident from the words "shall notify in the
F Official Gazette" used in the sub-section. The.State Government may refuse
to notify the election of a President, or any person who has incurred a
disqualification under the Act or nuder any other law for the time being in
force, subsequent to his election as Member of the Municipality pro,ided
the State Government gives an opportunity of being heard to the concerned
person. The State Government has failed to notify the election of the Presi-
G dent without assigning any reason, much less "giving an opportunity'' to
respondent No. 1. The omission and inaction of the Secretary cannot he
made a basis for frustrating the provisions oflaw and thereby nullifying the
peoples' verdict returned in an election conducted in accordance with the
provisions of law applicable in the case. Even if he had allegedly incurred
H some disqualification, the appellants were obliged to inform him that bis
+
STATE v. BHAJAN SINGH 151
election as President of the Municipality could not be notified for the afore· A
l said reason. In the absence of such intimation, the omission to notify cannot
be justified on such ground. 155-G-H, 156-A-D]

2. Section 16 deals with the powers of the State Governmentto remove
a member under the circumstances mentioned therein and does not refer to
the disqualification mentioned in proviso (1) to Section 24(2) of the Act. B
Section 16 does not prescribe the disqualification referred to in the aforesaid
proviso. There are other disqualifications prescribed under the Actor under
any other law and Section 16 is not the only provision upon which the State
Government can rely for taking action under Section 24(2) of the Act. The
provisions of the Punjab State Election Commission Act, 1994 were over- c
looked by the appellants, which deals with the constitution of the State Elec·
tion Commission and for vesting the superintendence, direction and control
of the preparation of the electoral rolls for and in the conduct of all elections
to the Panchayat and Municipalities in the State and to provide for all mat-
ters relating to or ancillary or in connection with the provisions of the
Panchayats and Municipalities. Section 11 of the 1994 Act in particular D
deals with the disqualifications for Membership of a Panchayat or Munici-
pality, Disqualification contemplated "under any Jaw for the time being in
force" under proviso to Section 24(2) are, therefore, the disqualifications a;
mentioned in Section 11 of the 1994 Act, which were nowhere stated or
-.-: alleged as attributable to respondent No. 1. [156-H; 157-A-C; 158-D) E
3. Itis unacceptable that by assuming his duties as President, respond-
ent No. 1 had "flagrantly abused" his position, warranting action under
Section 16(l)(e) or Section 20 of the Act. Flagrant abuse of position as a
member means doing of such act or acts as a member of a committee in
disregard of his duty which would shock a reasonable mind. The nature of F
,;.. the "abuse" before it could he termed as "flagrant" must in the circum-
stances he glaring, notorious, enormous, scandalous or wicked. There is
nothing on record to show that respondent No. 1 iook undue advantage
under the colour of his office committing any particular irregularity or
reprehensive act. Merely entering upon his office a President before the G
official notification, particularly on account of wilful omission of the appel-
Iants, cannot he called either a "flagrant abuse of position" as a member or
__...,
_ "abuse of power" within the contemplation of Sections 16(1)(e) and 20 of
the Act. [158-F-H)

4. The Principal Secretary by his acts of omission and commission H
152 SUPREME COURT REPORTS (2001] 2 S.C.R.
A has consistently and persistently deprived respondent No. 1 from assum-
ing and discharging his duties as a member and President of the Munici·
pal Council. Three years of his term have already been wasted and no law
can compensate for the loss of the opportunity to serve the people who
elected him. It is a fit case to award exemplary costs and the same should
not he burdened upon the State exchequer. The said Secretary is person-
B
ally liable to pay the costs of Rs. 25,000 to the respondent No. 1 within a
period of two months. [159-B-D]

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1558-59 of
2001.

c From the Judgment and Order dated 1.5.2000 of the Punjab and Haryaua
High Court in C.W.P. No. 7105/98 and 5418 of 1999.

Rajiv Dutta, Kapil Sharma and Rajeev Sharma for the Appellants.

Nidesh Gupta, Naveen Singh and Ms. Naresh Bakshi for the Respond-
D ents.

The Judgment of the Court was delivered by

SETIII, J. Leave granted.

Election process was scuttled and the democratic values throttled by a
E bureaucrat who happened to be Principal Secretary of the Local Government
Department (hereinafter referred to as "the said Secretary") of the State of
Punjab at the relevant time. Flouting all norms, violating statutory provisions
and showing scant respect to the principles of law, the said Secretary deprived
respondent No. I, the elected representative of the people, to perform his
F duties firstly as Memper and then as the President of the Municipality,
obviously to oblite his political opponents who incidentally happened to
belong to the ru!i.hg parties (Shiromani Akali Dal and BJP) in the State of
Punjab. Inaction attributable to the said Secretary in performance of his
statutory obligations and instead ill-action taken by him is a matter of concern
not only for the respondent No. I but all those who believe in the rule of law
G and the preservauce, development and conservation of democratic institutions
with their values in the country. There is no gainsaying that free, fair, fearless
and impartial elections are the guarantee of a democratic polity. For conduct-
ing, holding and completing the democratic process, not only a potential law
based upon requirements of the society tested on the touchstone of experience
of times, but also au independent, impartial apparatus for implementing and
H
+
STATE v. BHAJAN SINGH [SETHI, J 1 153
giving effect to the results of the election is the sine qua non for ensuring the A
compliance of statutory provisions and thereby strengthening the belief of the
common man in the rule of law, assured to be given to the people of this
country. Any attempt made to weaken the system, particularly when its
intention is likely to affect the socio-political fabric of the society, if not
checked and curtailed, may result in consequences which could not be else
B
but disastrous to the system. No person, much less a civil servant, can be
permitted to frustrate the Will of the people expressed at the elections, by his
acts of omission and commission. The law relating to the elections is the
creation of the statute which has to be given effect to strictly in accordance
with the Will of the Legislature.

The respondent No. I was a candidate to the elections of the Muncipal
c
Council, Samrala (Punjab) help on 2.1.1998. He was a candidate of the CPI
(M) and was elected as a Municipal Councillor along with 12 others. A
meeting was called by the Sub-Divisional Magistrate on 6.4.1998 for admin-
istering the oath of allegiance to the elected members of the Municipal
Council and for election of its President an<\ Vice President. It appears that D
all the elected members, with the exception of those belonging to BJP and
Shiromani Akali Dal attended the meeting and took the oath. Congress
Members proposed the name of respondent No. I and the Returning Officer
declared him elected as President of the Municipal Council (Annexure P-6).
Despite election of the President and the Vice President, the notification in E
terms of Section 24 of the Punjab Municipal Act, 1911 (hereinafter referred
to as "the Act") was not issued by the State Government.

Aggrieved by the inaction of the appellants, particularly the said
Secretary, the respondent No.I on 15.5.1998 filed a writ petition being Writ
Petition No.7105 of 1998 praying therein for the issuance of a writ of mandamus F
directing the appellants to issue notification regarding his election as Presi-
dent of the Municipal Council, Sarnrala in the meeting held on 6.4.1998.
Written statement in the said writ petition was filed in the High Court on 13th
August, 1998. In the meanwhile a show cause notice dated 1.7.1998 was
issued to the respondent No. I proposing to take action against him under
Section 16(1)(e) of the Act and removing him from the Membership of Nagar
G
Panchayat/Council, Samrala (Ludhiana). The show cause notice was accom-
panied by tl1e deiails of the allegations wherein it was stated:

"Regional Deputy Director, Local Government, Ludhiana has inti-
mated vide his letter No.DDLG/S3/ 2258 dated 21.4.1998 before the
H
+
154 SUPREME COURT REPORTS [2001] 2 S.C.R.
A issuance of the notification for the President in accordance with the
instructions of the Government you have interfered in the working of
the Nagar Council and did not behave properly. By doing so you have
misused the powers vested under Section 16(1)(e) of the Punjab
Municipal Act, 1911. Therefore, it is proposed to take action under
Section 16(J)(e) of the Punjab Municipal Act, 1911 and to remove
B
him from the membership."

The responden_t No.I submitted his reply on 23rd July, 1998 and the said
Secretary vide his notification No.6/16/980-3LGIIl/4498 dated 9.4.1999 re-
moved the respondent No. I not only from the Presidentship but also from the
c Membership of the Nagar Council, Sarnrala.

Feeling aggrieved, the respondent No. I filed a wdt petition in the High
Court which was allowed vide the order impugned by quashing the impugned
notification and issuance of directions to the respondents therein to notify the
name of the respondent No. I herein within a week. The respondent No. I
D was also held entitled to the payment of costs which was quan.tified at
Rs.10,000.

Assailing the judgment of the High Court, Mr.Rajiv Dutta, Senior
Advocate who appeared for the appellants submitted that as the respondent
No. I had not been properly elected as President of the Municipal Council, he
E
by assuming the charge of that post abused his position and incurred a
disqualification to be a member of the Municipal Council. Referdng to
Sections 16 and 24 of the Act, the learned Senior Advocate submitted that
the action of the said Secretary was legal, valid and according to law. The
judgment of the High Court has been termed to be contrary to law. According
F to him, the State Government had the discretion to notify or not to notify the
election of the President in terms of sub-section (2) of Section 24 of the Act.
It is contended that as the respondent No. I was proved to have 'flagrantly
abused' the position as Member of the Council, he had incurred a disquali-
fication under clause (e) of sub-section (I) of Section 16 which justified the
action by the appellants for his removal.
G
Chapter III of the Act deals with the constitution of Council which has
been defined under Section 2(4) to mean a Municipal Council or a Nagar
Panchayat, as the case may be, constituted under Section 12 of the Act. Under
Section 13A, the State Government has been empowered to direct holding of
H general elections of the members of the Municipalities or an election to fill
+
STATE v. BHAJAN SINGH [SET!Il, J.] 155
the casual vacancy by the issuance of notification. As soon as a notification A
is issued, the Election Commissioner is mandated to take necessary steps for
t holding such elections. It may be noticed at this stage that the general
elections to the Panchayat and the Municipalities are to be conducted by the
State Election Commission constituted under the Punjab State Election Com-
mission Act, 1994 (Punjab Act No.19 of 1994). After the general elections B
of the Municipality, election of President and Vice President is to be con-
ducted in terms of Section 20 of the Act. The term of the office of the
President of a Municipality is co-terminus with the term of Municipality
under Section 21 of the Act. No elected member of a Municipality can enter
upon his duties as such member until he has taken or made, at a meeting of
the Municipality, an oath or affi1mation of his allegiance to India in the form C
prescribed under sub-section (I) of Section 24. Sub-section (2) of Section 24
of the Act provides:

"The State Government shall notify in the Official Gazette every
election of a President of a Municipality and no President shall enter
upon his duties as such until his election is so notified:
D

Provided that the State Government may refuse to notify the election
as President o' any person who has incurred a disqualification under
this Act or under any other law for the time being in force, subsequent
to his election as member of the Municipality; E
Provided further that the State Government shall not refuse to notify
the election of the President without giving an opportunity of being
heard to the concerned person."

It is not disputed that despite the election of respondent No. I as Presi- F
dent on 6.4.1998, a notification in terms of sub-section (2) of Section 24 of
the Act was not issued forcing the respondent No. I to file Writ Petition
No.7105 of 1998 in the High Court on 15.5.1998. We do not agree with the
argument of Mr.Dutta that the State Government or the said Secretary had an
unbriddled power or option to notify or not to notify the election of the
President in the Ofticial Gazette. Such an argument will not only be contrary G
to the concept of democracy and the rule of law but in fact flagrant violation
of the mandate of the Act as incorporated in Sub-section (2) of Section 24
of the Act.

A duty is cast upon the Government to notify in the Official Gazette H
+
156 SUPREME COURT REPORTS [2001] 2 S.C.R.
A every election of President of Municipality as is evident from the words "shall
notify in the Official Gazette" used in the sub- section. The State Government
has the authority to refuse to notify the election of a President, of any person
. -
who has incurred a disqualification under the Act or under any other law for
the time being in force, subsequent to his election as Member of the Munici-
pality provided that before refusing to notify the elections the State Govern-
B
ment gives an opportunity of being heard to the concerned person. Admit-
tedly, the State Government has failed to notify the election of the President
in the Official Gazette without assigning any reason, much less "giving an
opportunity" to the respondent No. I. The omission and inaction of the said
Secretaiy cannot be made a basis for frustrating the provisions of law and
C thereby nullifying the peoples' verdict returned in an election conducted in
accordance with the provisions of law applicable in the case. Even if the
respondent No. I had allegedly incmred some disqualification, the State
Government was obliged to inform him that his election as President of the
Municipality could not be notified for the aforesaid reason. In the absence of
D such intimation, the omission to notify cannot be justified on such ground.

It has been contended that as the respondent No. I had allegedly in-
curred a disqualification in terms of clause (e) of sub-section (!) of Section
16 of the Act, the State Government was not obliged to notify his election
as President and was justified in removing him from the Membership of the
E Municipal Council. Section 16(!)(e) provides:

"Powers of the State Government as to removal of members: (1) The
State Government may, by notification remove any member of a
committee other than an associate member

xxx xxx xxx
F
(e) if, in the opinion of the State Government he has flagrantly abused
his position as a member of the committee or has through negligence
or misconduct been responsible for the loss, or misapplication of any
1noney or property of the committee."
G It may be noticed that Section 16 deals witl1 the powers of the State
Government to remove a member under the circumstances mentioned therein
and does not refer to the disqualification mentioned in proviso (!) to sub-
section (2) of Section 24 of the Act. We also do not agree with Mr. Dutta that
Section 16 prescribes the disqualification referred to in the aforesaid proviso.
H It is also not correct to say that no other disqualifications are prescribed under
+
STATE v. BHAJAN SINGH [SETHI, J.] 157
the Act or under any other law and Section 16 of the Act is the only provision A
,, . upon which the State Government can rely for talcing action under sub-section
\.· (2) of Section 24 of the Act. It appears that the appellants have overlooked the
provisions of the Punjab State Election Commission Act, 1994 which deals
with the constitution of the State Election Commission and for vesting the
superintendence, direction and control of the preparation of the electoral rolls
B
for and in the conduct of all elections to the Panchayat and Municipalities in the
State of Punjab and to provide for all matters relating to or ancillary or•in
connection with the provisions ~f the Panchayat and Municipalities in terms of
the provisions of Part IX and IXA of the Constitution. Chapter IV in general and
Section 11 in particular deals with the disqualifications for Membership of a
Panchayat or Municipality. Section 11 reads: c
"Disqualifications for membership of a Panchayat or a Municipality-
A person shall be disqualified for being chosen as, and for being a
member of a Panchayat or a Municipality, -

(a) if he is not a citizen of India, or has voluntarily acquired tile D
citizenship of a foreign State, or is under any acknowledgeme.nt
of allegiance or adherence to a foreign State; or

(b) if he is of unsound mind and stands so declared by a competent
court; or
E
(c) if he is an undischarged insolvent; or
""
(d) if he has, in proceedings for questioning the validity or regular-
ity of an election, been found guilty of any corrupt practice; or

(e) if he has been found guilty of any offence punishable under
Section 153A or Section 171E or Section l 71F or Section 376 or F
Section 376A or Section 376B or Section 376C or Section 3760
or Section 498A or Section 505 of the Indian Penal Code, 1960
or any offence punishable under Chapter XIII of this Act unless
a period of six years has elapsed since the date of such convic-
,. tion; or G
(f) if he holds an office of profit under a Panchayat or a Municipal-
ity; or

(g) ifhe holds an office of profit under the Government of India or
any State Government; or
H
158 SUPREME COURT REPORTS [2001] 2 S.C.R.
A (h) if he is interested in any subsisting contract made with, or any
work being done for, that Panchayat or Municipality except as .....
a share-holder (other than a Director) in an incorporated com-
pany or as a member of a co-operative society; or ·

(i) if he Is retained or employed in any professional capacity either
B personally or in the name of a firm in which he.is a partner, or
with which he is .engagl'd in a professional capacity, in connec-
tion with any cause or proceeding in which the Panchayat or the
Municipality is interested or concerned; or

Gl if he, having held any office under th~ State Government or any
c Panchayat or any Municipality or any other State level authority
or any Government company or any corporated body owned or
controlled by the State Government or Government of India,
has been dismissed from service, unless a period of four years
has elapsed since his dismissal."
D
Disqualification contemplated "under any law for the time being in
force" under proviso to sub-section (2) of Section 24 are, therefore, the
disqualification as mentioned in Section 11 of the Punjab State Election
Commission Act, 1994. The appellants have nowhere stated or alleged any
such disqualifications attributable to the respondent No. I. We also do not
E accept the plea of the appellants that by assuming his duties as President, the
respondent had allegedly, "flagrantly abused" his position as a member,
thereby incurring the wrath of the State Government in terms of Section
16(1)(e) or Section 20 of the Act. The clause "flagrantly abused of his position
. as member" means the doing of such act or acts by a member of a committee
F in disregard of his duty which would shock a reasonable mind. The nature of
the 'abuse' before it could be termed as 'flagrant', must, in the circumstance
be glaring, notorious, enormous, scandalous or wicked. There is nothing on
record to show or suggest that the respondent No. I in his capacity as member
or President took any undue advantage of his position or under the colour of
his office committed any particular irregularity or reprehensive acts. Any
G alleged contravention of the provisions of the Act cannot be categorised as
"fl«grant abuse of power" by a member of the Committee. The mere contra-
vention, if any, (which was not in this case) in respondent No. I entering upon
his office as 'President before his name was approved and published in the,
Official Gazette, particularly on account of wilful omission of the Stat.f
H Government cannot be called either a 'flagrant abuse of position' as a member
+
STATE v. BHAJAN SINGH [SBT!Il, J.] 159
or 'abuse of power' within the contemplation of Section !6(1)(e) and Section A
20 of the Act.

The appeal which is bereft of any merit is liable to be dismissed. We
are ~t pain to note that by his acts of omission and commission th\' said
Secretary has cQnsistently and persistently deprived the respondent No. I .of
the duty t? assume and discharge his duties as member and President of the B
Municipal Council, despite his election from 2.1.1998 till date. The term of
•• the office of the Municipality is a fixed term out of which three years of the ·
respondent No.I have.been wasted in uncalled for and forced litigation upon
him. No law can compensate the loss of opportunity provided to the respond-
ent No. I for serving the people after his election as Member and President C
of the Municipality. We find it a fit case to award exemplary costs and are
of the firm view that such costs should not be burdened upon the State
exchequer. The said Secretary who is responsible for the violation of the
statutory provisions and weakening the concept of rule of law, is, therefore,
personally liable to pay the costs from his own pockets. While dismissing this
appeal we direct the said Secretary to personally pay the costs of Rs.25,000/ D
- to the respondent No. I within a period of two months.

A.Q. Appeal dismissed.