- (1.) THIS is an application by Sayarmal under Art. 226 of the Constitution against an order passed by the State of Rajasthan under sec. 14 of the Rajasthan Town Municipalities Act, 1951 (No. XXIII of l95l) (hereinafter referred to as the Act; removing the applicant from the membership of the Municipal Board, Jalore.
(2.) THE case of the applicant briefly is this. He was the President of the Municipal Board of Jalore up to some date in March, 1955. A fresh election for the Municipal Board was held before March, 1955, and the applicant was elected as a member of the Board. He took oath of his office for another term as a member of the Board in March, 1955. It may be mentioned that some other person was elected Chairman for this term of the Board. It appears, however, that when the applicant was working as a Chairman of the Board, a complaint was made against him of receiving illegal gratification from one Noorkhan in January, 1955. THE applicant says that the matter was inquired into by the Collector of Jalore, and as no case was made out against him, the applicant was informed by the Secretary, Local Self Government, in April, 1956, that Government had refused sanction to institute a criminal case against him in that matter. THEn on the 10th September, 1956, the applicant was served with a notice to show cause why he should not be removed from the membeship of the Board for disgraceful conduct inasmuch as he had been caught redhanded taking bribe when he was Chairman of the Municipal Board. We must say that the notice was defective inasmuch as it did not specify when and from whom the applicant had taken bribe when he is said to have been caught redhanded. However, it is admitted between the parties that the notice refers to the same incident dated the 18th January, 1955, about which the previous complaint of receiving illegal gratification was made, and we shall proceed on that footing. THE applicant submitted a reply, and as the matter referred to the previous complaint which had already been inquired into by the Collector, no further inquiry was held, and the applicant was removed from membership by the order of Government dated the 19th December, l956. The applicant has come to this Court, and his contentions are twofold. In the first place, it is contended that no action under sec. 14 of the Act could be taken against him removing him from membership of the Board with respect to anything said to have been done by him at a time when the present Board which came into existence in March, 1955, was not in existence. In other words the applicant contends that a member can only be removed under sec. 14 for anything done by him during the continuance of his membership and not in connection with anything done before his membership began. Secondly, it was contended that he was already informed by Government in April. 1956, that he would not be prosecuted in connection with the alleged complaint with respect to the incident of 18th January, 1955 and it was mala fide on the part of the Government to use the same matter to remove him from office a few months later in December, 1956, He application had been opposed on behalf of the Government, particularly with respect to the second point raised on behalf of the applicant. Let us turn to (he question of law raised in this case, and the scope of the power of Government under sec. 14 of the Act Chapter II of the Act deals with the constitution of Municipal Board, and sec. 12 thereof prescribes general disqualifications for becoming a member. Among these disqualification is clause (v) of sec. 12 (1), which lays down that no person may be a member of a Municipal Board who has been removed from office under sec. 14 or sub-sec. (10) of sec. 22 of the Act or in like circumstances under a like provision of any other law for the time being in force dealing with and governing local authorities. Then comes sec. 12 (2) which lays down that if any person elected or nominated as a member is subject to any of the disqualifications specified in sub-sec. (1), his seat shall be deemed to be vacant. This sub-section obviously provides for those cases where a man gets elected or nominated by mistake in spite of the disqualification being there at the time of the election or nomination. Then comes sub-sec. (3) of sec. 12 which provides that if any member during the term for which he has been elected or nominated becomes subject to any of the disqualifications specified in sib-sec. (1), he shall be disabled from continuing to be a member, and his seat shall be deemed to have become vacant. Then comes sec. 13 which provides for resignation by a member. Lastly, we come to sec. 14 which is in these terms - "14. Liability to removal from office - The Government, if it thinks fit, may remove any member elected or nominated under this Act, after giving him an opportunity of being heard and after such enquiry as it deems necessary, if such member has been guilty of misconduct in the discharge of his duties or of any dis graceful conduct or has become incapable of performing his duties as a member. " This section gives power to Government to remove a member for three reasons, namely (1) if such member has been guilty of misconduct in the discharge of his duties ; (2) if such member has been guilty of any disgraceful conduct, and (3) if such member has become incapable of performing his duties as a member. Now it is quite obvious that so far as the first and third reasons are concerned, the misconduct in the discharge of duties must be during the term of membership and not during any other time. A member cannot be removed from membership for misconduct in the discharge of the duties for something which he did long before he becomes a member. Similarly, a member can only be removed on the ground of being incapable of performing his duties during the term of membership, and no argument is required to show this. The question then arises whether where a member is removed for any disgraceful conduct, such disgraceful conduct should have been committed during the term of his membership. We are of opinion that it must be the intention of the Legislature that a person can only be removed for disgraceful conduct if the disgraceful act was done during the term of membership. Take a simple example which would show that it could not have been the intention of the Legislature that a man should be punished under sec. 14 for something he did long before he became a member. Suppose that a man become1? a member of a Board in March, 1955, as in this case. Two years before that date, he behaved in a disgraceful manner though no criminal case followed. Was it the intention of the Legislature to arm the Government with power to remove a member from membership for disgraceful conduct of this type committed long before he became a member. The answer in our opinion, can only be 'no'. The Legislature has already provided under sec. 12 various disqualifications which would bar a person from being elected as a member. These disqualifications are to be found in sec. 12 (1) and are quite numerous. Further, under sub-section (2) it is also provided that if by mistake a man got elected or nominated while he was subject to any disqualification, his seat would be deemed to be vacant. Then sub sec. (3) provides that if during the term of membership, he becomes subject to any disqualification, his seat shall be deemed to be vacant, and he shall be disabled from continuing to be a member. We are of opinion that if there was anything against a person before he was elected, it should come under sec. 12 (1) and then only would he be liable to the penalty provided in sub-sec. (2 ). It could hardly be the intention of the Legislature that a man who had been elected to a municipal board and against whom no disqualification mentioned in sub-sec. (1) of sec. 12 was existing at the time of the election, should be removed from the membership of the board for something he had done long before the election. Therefore, it is clear that the disgraceful conduct for which a member can be removed under sec. 14 of the Act must be committed during the course of the membership from which he is sought to be removed. Let us now apply this principle to the facts of this case. The applicant was elected to the Municipal Board, Jalore, in March, 1955, and took oath of his office in the same month. His term of membership began under sec. 15 for three years from March, 1955. We are of opinion that action under sec. 14 could be taken by the State only with respect to anything done by the applicant or left undone by him in the discharge of his duties subsequent to the date on which his term of membership began and till such date as the term of membership terminates. No action, in our opinion, can be taken under sec, 14 against member for anything done by him before his membership began and after his membership terminates. As a matter of fact, even if something is done during his membership, the order under sec. 14 must be passed before the membership terminates; otherwise there will be no purpose in passing an order of removal after the term of office has come to an end. In this view of the matter, we are of opinion that as the applicant was removed from office for something he was alleged to have done on the 18th January, 1955, before the present term of membership began, the order of removal is illegal and must be set aside. In view of what we have held above, it is not necessary for us to any anything on the second point raised on behalf of the applicant. We, therefore, allow the application, and set aside the order of Government removing the applicant from membership of the Municipal Board, Jalore. In view of the circumstances we pass no order as to costs. . ;