Elected Members Of Municipality Can't Be Removed At Whims And Fancies Of Civil Servants Or Their Political Masters : Supreme Court

The Supreme Court, 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'. 

Setting aside the disqualification orders issued in 2015 and 2016 by the Minister-In-Charge, Urban Development(State of Maharashtra), the bench of Justices Surya Kant and PS Narasimha emphasized that the Municipality was a form of local government at the grassroots level of democracy. 

The Court said :

" 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."

The bench was hearing a set of connected matters challenging the orders of the Bombay High Court (Aurangabad branch) which dealt with a 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. The appellants in both scenarios were debarred from contesting elections in the Council for 6 years. 

In one case, the appellant who was the elected Councilor of the Municipal Council, Osmanabad was further elected in 2006 as the Vice-President of the Council.  He was subsequently disqualified in suo-moto proceedings taken by the Minister-In-Charge in 2015 for alleged misuse of powers to construct an illegal house in excess of the permission granted. 

In the other case, the appellant was elected as the President of the Municipal Council, Naldurga in 2011. He was disqualified from his position over allegations of irregularly allotting work to one Sevalal Institution in a tender for garbage collection and disposal invited by the Municipality.  

Both the appellants unsuccessfully challenged the orders passed by the Minister-In-Charge and their writ petitions came to be dismissed by the High Court. 

The main contention of the appellants was that while their respective tenures have presently come to an end and the period of debarment has also expired, if the allegations of misconduct aren't annulled, it will impact the eligibility to contest future elections. 

In the instance of the appellant (who was a member of the Osmanabad Municipal Council), the Court observed that there is no evidence showing that the appellant co-owned or contributed to the building of the house. The local government did not claim that the house was illegally built during or after the lifetime of the appellant's father. The fact that the formal complaint surfaced right after the appellant became a Councilor and Vice-President of the Municipal Council suggests it wasn't a coincidence.

Further, it was noted that the complaint seems to have been made later on purpose to create trouble for the appellant over something he didn't do. Additionally, the case was moved from the Collector to the State Government without a clear reason, and the Minister quickly decided to remove the appellant. These actions suggest that the decision was biased and not based on relevant factors. 

The Court was of the opinion that disqualification and a further ban on contesting elections was a disproportionate measure taken especially in light of the fact that there appeared no actual misconduct on the part of the first appellant. 

"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." 

The bench also rejected the contention of the State that a proper fact-finding inquiry was conducted which found that the appellant had actively joined hands with his father in raising the unauthorized construction, terming it as a 'hearsay allegation' only.  

It was additionally observed that people elected to positions like in a Municipality should be respected and allowed to work independently, though they must still follow the rules set by law. Normally, if an elected official is accused of misconduct, it would be due to something they did after being elected. However, if they did something wrong before being elected that wasn't noticed at that time such as during their nomination, that can also be considered as misconduct. In the present case of the first appellant, however, the court found that the actions taken against the individual in question were unjustified and went beyond the jurisdictional limits 

"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..." 

With regards to the second case of the disqualification of the President of Naldurga Council, the Court noted that the tender was awarded only on the basis of a resolution passed in the General Body Meeting and was "therefore, difficult to hold that it was an act solely to be attributed to the appellant."  

The court concluded that the complaint filed against him was  "a ploy to remove him from the elected office".  The bench further noted that causing a financial loss to the Municipality by an elected member that too the President would amount to 'gross misconduct' which justifies the severe penal action and removal from the post. However, in the present instance, no such finding necessitated the taking of such strict actions against the second appellant.  

"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." 

The 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.  

Case Details : MAKARAND ALIAS NANDU v. STATE OF MAHARASHTRA & ORS. CIVIL APPEAL NO. 14925/2017  & NITIN v. STATE OF MAHARASHTRA & ORS.  CIVIL APPEAL NO.19834/2017

Citation : 2024 LiveLaw (SC) 354

Click here to read the judgment