Shambhu Dayal Sharma vs Mcd & Ors.Q
2011 Latest Caselaw 4924 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Date of decision: 3rd October, 2011

+                             W.P.(C) 2686/2011

%      SHAMBHU DAYAL SHARMA                                   .......Petitioner
                            Through: Mr. S.S. Tomar, Adv.

                                      Versus
       MCD & ORS.                                             ......Respondents
                            Through: Mr. H.S. Phoolka, Sr. Adv. with Mr. Dev P.
                                     Bhardwaj, Adv. for R-1 MCD.
                                     Ms. Shilpi Kaushik, Adv. for R-2 UOI.
                                     Mr. Maninder Singh, Sr. Adv. with Mr. V.
                                     Mukherjee & Mr. Gaurav Sharma, Adv. for
                                     R-4.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may          yes
       be allowed to see the judgment?

2.     To be referred to the reporter or not?         yes

3.     Whether the judgment should be reported        yes
       in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition as originally filed claiming the relief of quashing the

election held on 20th April, 2011 of the respondent no.4 Ms. Rajni Abbi to

the post of Mayor, Delhi Municipal Corporation was found to be incomplete

and inadequate and permission granted to amend the petition. Though a

proposed amended petition was filed but opportunity to further amend the

petition was sought and was also granted. Proposed amended petition dated

1st June, 2011 has been filed. However since the notice of the petition had

not been issued, though the counsels for the respondent no.1 MCD,

respondent no.2 UOI and respondent no.4 Ms. Rajni Abbi were appearing on

advance notice and were opposing even the amendments sought, and finding

the controversy entailed to be purely legal, with consent, the counsels were

finally heard on the averments in the last proposed amended petition dated

1st June, 2011.

2. The petitioner claims to be one of the Councillors of MCD. It is his

case, that the respondent no.4 is gainfully employed with the Delhi

University (Law Centre-II) where she is working as a Reader in

Law/Associate Professor and drawing gross salary of `96,635/- and has not

sought permission from Delhi University before seeking her appointment as

a Mayor of the MCD or even for the post of Councillor; that the respondent

no.4 does not even fulfill the requisite conditions for appointment/election

for the post of Councillor in MCD on account of disqualification incurred by

her as given in Section 9 of the Delhi Municipal Corporation (DMC) Act,

1957; once she cannot be a Councillor, she cannot be chosen or elected as

the Mayor; that there is thus an error apparent in the election held on 20 th

April, 2011 of the respondent no.4 to the post of Mayor of the MCD. The

petitioner thus claims issuance of a writ of certiorari quashing the election

held on 20th April, 2011 of the respondent no.4 to the post of Mayor of the

MCD.

3. The petitioner relies on the replies to the queries under the Right to

Information Act, 2005 informing that, the respondent no.4 joined as Reader

in Law w.e.f. 8th April, 2005 and was as on 5th May, 2011 working in Law

Centre-II, Faculty of Law, University of Delhi, A.R.S.D. College Complex,

Dhaula Kuan, New Delhi and that she had taken classes even in the month of

April, 2011 on the 1st, 4th, 7th, 8th, 11th and 15th; that the respondent no.4 was

as on 2nd May, 2011 being paid her salary regularly till date and her gross

salary was `96,635/- from January, 2011 onwards; that Delhi University is a

Central University; that the respondent no.4 had applied for leave for

contesting the elections of the MCD; that the respondent no.4 as on 28th

April, 2011 was teaching; that the respondent no.4 had taken leave from 1 st

August, 2008 to 5th July, 2010 for study with pay.

4. The counsel for the petitioner has invited attention to Section 9 of the

DMC Act prescribing disqualifications for being chosen as and for being a

Councillor; as per Clause (g) thereof, a person is disqualified for being

chosen as and for being a Councillor if he holds any office of profit under

the Government or Central Government. It is thus argued that the respondent

no.4 being employed with the Faculty of Law, University of Delhi at the

time of her election on 5th April, 2007 as Councillor of the MCD, was

disqualified from being a Councillor even and thus could not have been

elected as Mayor.

5. The senior counsel for the respondent no.4 has invited attention to the

following provisions of the DMC Act:-

(i) Section 2(27) where "member" in relation to the MCD means a Councillor;

(ii) Section 3(3) to demonstrate that MCD is composed of Councillors;

(iii) Section 3(4) to show that Councillors have to be chosen by direct election on the basis of adult suffrage from various wards into which Delhi is divided;

(iv) Section 4 prescribing the duration of the Corporation as five years;

(It is thus stated that the term of the present Corporation is till the

year 2012 only).

(v) Sections 8 & 9 prescribing qualifications and disqualifications for being chosen as and for being a Councillor;

(It is argued that the disqualification is holding any office of profit

under the Government or Central Government and which means that

the appointment and termination of employment should be by

Government)

(vi) Section 15 prohibiting an election of a Councillor from being called in question except by an election petition presented to the Court of the District Judge of Delhi within fifteen days from the date of publication of the result of the election;

(It is thus urged that the challenge if any to the election of the

respondent no.4 as the Councillor could have been made only by way

of an election petition preferred within fifteen days of 5th April,

2007 and which admittedly has not been done)

(vii) Section 17 prescribing the grounds for declaring elections to be void;

(viii) Section 21(2) providing that an election of a Councillor not called in question in accordance with the provisions of the Act shall be deemed to be a good and valid election;

(ix) Section 34 dealing with the payments to Councillors;

(x) Section 35(1) to contend that the qualification for election as the Mayor is to be a Councillor;

(It is urged that once there is no challenge to the election of the

respondent no.4 as a Councillor, her election as the Mayor cannot be

challenged inasmuch as respondent no.4 is admittedly a Councillor)

(xi) Section 36(2) regarding the facilities for the post of Mayor.

6. The senior counsel for the respondent no.4 has thus contended:

(a) that no challenge to the election of respondent no.4 as

Councillor was made in the manner provided;

(b) that no challenge in the manner provided having been made,

election of respondent no.4 as Councillor is a good and valid

election;

(c) no challenge to the election of the respondent no.4 as

Councillor is made in the present petition also;

(d) the only qualification for election as the Mayor is, to be a

Councillor and which qualification the respondent no.4

satisfies;

(e) the challenge to the election as Mayor is thus misconceived;

(f) that without prejudice to the aforesaid, the respondent no.4, for

the reason of holding the office of a Reader in Law / Associate

Professor in the Delhi University cannot be said to be holding

any office of profit under the Government or Central

Government so as to incur disqualification under Section

9(1)(g) of the DMC Act as contended.

7. Reliance is placed on Pradyut Bordoloi Vs. Swapan Roy (2001) 2

SCC 19 laying down that to determine whether a person holds an office

under the Government, the first and foremost question to be asked is,

whether the Government has power to appoint and remove the person on and

from the office? If the answer is in the negative, no further inquiry is called

for, the basic determinative test having failed. If the answer is a positive

one, further probe has to go on. It is urged that Delhi University was

constituted by the Delhi University Act, 1922 enacted by the Parliament and

the respondent no.4 was appointed by the Delhi University and not by the

Government and is not removable by the Government and hence the Delhi

University cannot be said to be Government.

8. The senior counsel for the respondent MCD has contended:-

(a) that different authorities conduct the election of Councillors and

of the Mayor;

(b) that while the elections of the Mayor are conducted by the

MCD, elections of Councillors are conducted by the Election

Commission;

(c) hence in a proceeding challenging the election of Mayor, the

election as Councillor cannot be considered;

(d) that the petitioner has only challenged the election of the

respondent no.4 as the Mayor and not her election as a

Councillor;

(e) Reference is made to Article 243-ZG of the Constitution of

India prescribing a bar to the challenge of Municipal Elections;

(f) Reference in this regard is also made to Sections 33(1)(a) and

33(3) of the DMC Act to contend that for challenge to be made

after the time for presenting an election petition has lapsed, the

disqualification ought to have been incurred only after the

election and the question whether such disqualification has been

incurred or not has to be referred for decision of the

Administrator whose decision is final. Reliance is placed on

Consumer Education and Research Society Vs. Union of

India (2009) 9 SCC 648 dealing with Article 101(3) of the

Constitution. It is thus contended that this petition is not

maintainable;

(g) Reference is invited to Sections 33(4) and 33A of the DMC Act

prescribing for the Administrator to obtain the opinion of the

Election Commission and the powers of Election Commission

in this regard. It is thus contended that the statute contains a

detailed procedure and challenge by way of present petition

cannot be made;

(h) It is argued that if election petition is not filed within time, a

candidate who at the time of election may not have been

eligible, is entitled to continue;

(i) It is reiterated with reference to Section 35 of the DMC Act that

the only qualification for the election as the Mayor is to be a

"member" i.e. a Councillor of MCD and which qualification the

respondent no.4 satisfies;

(j) Reference is made to Section 14 of the DMC Act providing for

publication in the official gazette, of the names of all persons

elected as Councillors. It is contended that as long as the name

of the respondent no.4 appears as a Councillor, she cannot be

said to be not eligible for election as the Mayor;

(k) Attention is invited to Article 191(1)(a) of the Constitution of

India also prescribing a disqualification of holding any office of

profit under the Government for being a member of Legislative

Assembly or Legislative Council of a State and to Aklu Ram

Mahto Vs. Rajendra Mahto (1999) 3 SCC 541 holding that a

person holds an office of profit under the Government if,

i) Government is the Appointing Authority; ii) Government is

the authority vested with power to terminate the appointment;

iii) Government is the authority which determines the

remuneration; iv) Government is the source from which

remuneration is paid; and, v) Government is the authority

vested with power to control the manner in which the duties of

office are discharged. In the facts of that case, it was held that

employment in the Bokaro Steel Plant did not amount to

holding an office of profit under the Central Government

because it was a company incorporated under the Companies

Act, though its shares were owned by the Central Government

and Chairman and the Board of Directors were appointed by the

President of India. It was however found that the appointment

and removal of workers was under the control of Steel

Authority of India Ltd. (SAIL) and their remuneration were also

determined by SAIL and that the functions discharged by SAIL

or by Bokaro Steel Plant could not be considered as essential

functions of the Government;

(l) Attention is also invited to Anokh Singh Vs. Punjab State

Election Commission AIR 2011 SC 230 holding the office of

Lambardar to be not an office of profit under the Government.

(m) Reference is made to Joti Prasad Upadhya Vs. Kalka Prasad

Bhatnagar AIR 1962 Allahabad 128 where a Division Bench

held the Vice-Chancellor of the Agra University to be not

holding any office of profit under the State Government and

further holding that the provisions of the Constitution indicate

that the Governor functions in two different capacities and

which cannot be confused with each other; that in making

appointment of Vice-Chancellor, the Governor acts as the

Chancellor of the University and not on behalf of the

Government.

(n) Reference in this regard is also made to Dr. V.S. Acharya Vs.

Returning Officer and Deputy Commissioner ILR 1990

Karnataka 2546 and to Roshan Lal Dobrey Vs. Behari Lal

Dobrey MANU/UP/0628/1982;

(o) It is urged that a Reader/Lecturer in the University is appointed

by the Executive Council of the University and which cannot be

said to be the Government and thus a teacher in the University

cannot be said to be holding an office of profit under the

Government.

9. The counsel for the petitioner in rejoinder has contended:

(a) That only a rival candidate from same constituency could have

challenged the election of the petitioner as a Councillor under

Section 15(2) of the DMC Act;

(b) That the said option being not available to other persons as the

petitioner, it cannot be urged that the petitioner had any

alternative remedy;

(c) Reference is made to Meera Kanwaria Vs. State Election

Commissioner 2004 I AD (Delhi) 554 laying down that the

disqualification prescribed in Section 9 relates both, to the stage

where a person seeks election and the stage after the person is

chosen or elected as a Councillor and thus upholding the

maintainability of a petition under Article 226 even though an

election petition had not been filed;

(d) That there is no equivalent of Article 193 of the Constitution in

the DMC Act;

(e) Attention is invited to Biharilal Dobray v. Roshan Lal Dobray

AIR 1984 SC 385 where an Assistant Teacher of a Basic

Primary School run by U.P. Board of Basic Education was held

to be holding an office of profit under the Government.

10. On enquiry as to the source of income/vocation of the petitioner, it is

stated that the petitioner is having agricultural lands and has also developed

and is operating a tourist resort in Rajasthan and is the developer of colony

of Budh Vihar and is involved in running charitable hospitals and schools in

Delhi.

11. The first question to be adjudicated is as to the maintainability of the

present petition. My findings thereon are as under:

A. There is no merit in the contention of the petitioner that an

election petition under Section 15(2) of the DMC Act can be preferred

by a rival candidate only and the remedy of Section 15 is not available

to any other person desirous of challenging election of a Councillor.

Section 15(2) allows remedy of an election petition under Section

15(1), not only to a rival candidate, but also to any elector of the ward

concerned and to any other Councillor also. The petitioner is

admittedly a Councillor and thus had the remedy of election petition

available to him.

B. Since according to the petitioner also, the respondent no. 4 was

disqualified under Section 9(1)(g) of the DMC Act from being chosen

even as a Councillor, Section 33 of the DMC Act, which as per the

dicta of the Supreme Court in Consumer Education and Research

Society (supra) applies only to cases where disqualification is incurred

after election, has no application.

C. The remedy of an election petition under Section 15 and of

vacation of the seat of Councillor under Section 33 is thus not

applicable to a case, where a challenge is to "being a Councillor"

within the meaning of Section 9 of the DMC Act for the reason of

disqualification, even if in existence on the date of election. Section

21(2) of the DMC Act & Article 243-ZG of the Constitution only

apply to a challenge to a election but do not apply to challenge to

"being a Councillor" and for which challenge a writ remedy is

available. Any other interpretation would make the words "being a

Councillor" in Section 9 otiose. This Court in Meera Kanwaria

(supra) also held a writ remedy available for the said reason.

However, after holding so, it was held that in the facts of that case,

remedy under Section 33 of the DMC Act was available to the

petitioner and a factual controversy was required to be adjudicated,

which was left to be adjudicated in accordance with the procedure in

Section 33(3) & (4) of the DMC Act. Reference in this regard was

also made to Article 243-V of the Constitution providing that a

question of disqualification for being a member of the municipality

shall be referred to the decision of such authority and in such manner

as the legislature of the State may by law provide. However, the

words "becomes subject to any disqualification.........." in Section

33(1)(a) were interpreted qua Articles 190-193 of the Constitution in

Election Commission Vs. Saka Venkata Subba Rao AIR 1953 SC

210 and Brundaban Nayak Vs. Election Commission of India AIR

1965 SC 1892 (not noticed in Meera Kanwaria) and recently qua

Article 101(3) in Consumer Education and Research Society (supra),

as incurring a disqualification after the election. In that light, the

remedy under Section 33 of the DMC Act cannot be said to be

available qua disqualification existing on the date of the election. The

legislature, in fact needs to look into this aspect, so that the

mechanism contemplated under Article 243-V(2) is available under

the DMC Act. Be that as it may, the remedy under Section 33 of the

DMC Act being not available to the petitioner, the writ remedy cannot

be said to be barred for the reason thereof.

D. If it were to be found that the respondent no.4 is disqualified

from being a Councillor and such disqualification is apparent and

unequivocal on the face of the record and without requiring any

investigation therein (as in this case), then this Court would cut

through the technicalities and not allow a person to occupy the office

of the Mayor, which he / she is not qualified for. This Court would not

allow any person to hold an office, for holding which he/she does not

satisfy the basic/primary qualification and strike at the root of the

illegality.

E. The Supreme Court recently in Kurapati Maria Das v.

Dr. Ambedkar Seva Samajan (2009) 7 SCC 387 held that where a

ward is reserved for Scheduled Caste and a person who is elected as a

Scheduled Caste candidate renounces his caste after the elections by

conversion to some other religion, then a valid writ petition for quo

warranto would certainly lie because then it is not the election of such

person which would be in challenge but his subsequently continuing in

his capacity as a person belonging to a particular caste. The Supreme

Court a decade earlier in K. Venkatachalam v. A. Swamickan (1999)

4 SCC 526 had held that where a person lacks a basic qualification (in

that case of a person to be elected from an Assembly Constituency to

be an elector of that Constituency) and is thus disqualified from being

an MLA and there is no dispute about the said position, the High Court

would be justified in exercising the powers under Article 226 of the

Constitution of India notwithstanding that election petition had not

been filed because there can be no fraud on the Constitution and

allowing such a person to function would be a fraud on the

Constitution.

F. For the same reason, there is no merit in the argument that the

challenge is to the election to Mayor and not to being a Councillor. A

mere lack of apposite and astute drafting of a petition cannot come in

the way of a challenge, if otherwise crystal clear, as in this case and

when no prejudice therefrom is caused to the opposite party.

I thus conclude the present petition to be maintainable.

12. The question falling for adjudication then really is, whether the

respondent no.4 admittedly employed till the filing of the petition as Reader

/ Lecturer in the University of Delhi, was holding any office of profit under

the Government or Central Government within the meaning of Section

9(1)(g).

13. Though it was held in Guru Gobinda Basu v. Sankari Prasad Ghosal

AIR 1964 SC 254 and Satrucharla Chandrasekhar Raju v. Vyricherla

Pradeep Kumar Dev (1992) 4 SCC 404 that office of profit is not to be

confused with and not a post or service in the Government, but in the light of

Govt. of Nct of Delhi v. Shyam Sunder Goel MANU/DE/2725/2010 &

Satrucharla Chandrasekhar Raju (supra) there can be no doubt that

drawing salary, as the respondent no.4 was, will be holding an office of

profit, if the Delhi University were to be held to be Government or Central

Government. The question for determination thus is, whether employment

with Delhi University is employment with Government.

14. The DMC Act till the amendment with effect from 1 st October, 1993

did not in Section 2 define "Government"; with effect from the said date,

Government has been defined as the Government of National Capital

Territory of Delhi. The said definition is of no help. Similarly, the General

Clauses Act, 1897 also in Section 3(23) defines Government as including

both Central Government and State Government. Significantly, holding an

office of profit under MCD (Section 9(1)(f)) and under the Government

(Section 9(1)(g)) only is a disqualification and not holding an office of profit

in any other organization.

15. The reason is not far to fathom. The purport of such disqualification

is that there should be no conflict between the duties and interest of an

elected representative and to see that such an elected member can freely and

fearlessly carry out his duties without being subjected to any kind of

Governmental pressure, thereby implying that if such an elected person is

holding an office which brings him remuneration and if the Government has

a voice in his functions in that office, there is every likelihood of such

person succumbing to the wishes of the Government. The subject

disqualification is intended to eliminate the possibility of such a conflict

between duty and interest so that purity of municipality is unaffected. The

counsel for the petitioner has neither made any attempt to demonstrate as to

how employment of respondent no.4 in the Delhi University affects her

functioning as member of MCD nor, inspite of the respondent no.4 for the

last four years being both, a lecturer in Delhi University and a Councillor,

are there any pleadings as to how it has affected her functioning as

Councillor.

16. A perusal of Delhi University Act, 1922 shows that objective thereof

is establishment and incorporation of a teaching and affiliating University at

Delhi; under Section 3(2) of the said Act, the University has a perpetual

succession and a common seal and is to sue and be sued in the said name;

under Section 4(7) of the Act, the University has been empowered to appoint

Professors, Readers, Lecturers and Teachers in the University; under Section

21, the Executive Council is the Executive body of the University with

constitution and the terms of office of the members of the Executive Council

being prescribed by the Statutes of the University within the meaning of

Section 28 of the Act. The Statute of the University in Clause 5 thereof

prescribes the composition of the Executive Council of the University.

17. A Division Bench of this Court in Anwer Raza Rizvi v. Jamia Millia

Islamia ILR (1972) 2 Del 799 on an analysis of the constitution of the Jamia

Millia Islamia University, though holding the University to be amenable to

writ jurisdiction nevertheless held that a teacher in the said University could

not be said to be a holder of a public office. It was held that Professors and

Readers of the University could not be said to be exercising any

Governmental functions or invested with the power or charged with the duty

of acting in execution or enforcement of law and are mere employees of a

statutory body. Similarly in J.S. Khanna v. University of Delhi ILR (1980)

2 Del 1404, qua Lecturers, Readers, Professors of Delhi University it was

held that the qualification for appointment, the scales of pay and conditions

of service are regulated by the University Ordinances even though scales of

pay are subject to approval of Central Government; that Delhi University is

an autonomous statutory body though funded by Government; that the

scheme of Ordinances of Delhi University do not leave any role for the

Government to play in the fixation of scales of pay or abolition of posts and

grades of University appointed teachers because the University does not

have to obtain approval of the Government. The Supreme Court however in

Satrucharla Chandrasekhar Raju has gone to the extent of holding that the

mere control of the Government over the authority having power to appoint,

dismiss or control the working of officer employed by that authority does

not disqualify that officer for holding an office of profit under the

Government.

18. Moreover, the Full Bench of this Court in Mohd. Khan Durrany v.

Principal, Shivaji College ILR (1970) 2 Delhi 414 held an employment of a

Lecturer in the Delhi University to be dominantly contractual and not

statutory or having a legislative status. Per contra, the Supreme Court in

Roshan Lal Tandon v. Union of India AIR 1967 SC 1889 held that though

origin of employment in Government is contractual but once appointed,

acquires a status and rights and obligations are no longer determined by

consent of parties but by statute or statutory rules. For this reason also, an

employee of the Delhi University cannot be said to be holding an office of

profit under the Government.

19. Reference may also be made to the First Report of Joint Committee of

the 14th Lok Sabha on Offices of Profit laid in Lok Sabha and Rajya Sabha

on 13th December, 2005 (The Supreme Court in Consumer Education and

Research Society had recorded that since recommendation of Bhargava

Committee Report in November, 1955, a constitutional convention has

evolved when every Lok Sabha has a Joint Committee for purposes of

identifying and classifying office of profit and whenever any office has to be

exempted from the disqualification rule, the Joint Committee's opinion is

sought on the question whether the said office was an office of profit or not

so as to conflict with duty of an elected representative; only on a report by

such Joint Committee recommending exemption, is such office exempted).

The said Joint Committee reported, after examining appointment procedure

and functioning inter alia in the Delhi University that Government does not

exercise any control even in appointment of Chancellors of Central

University (as the Delhi University is) and thus recommended that the

Chancellor of Central Universities cannot be said to be holding office profit

under the Government.

20. In the aforesaid circumstances, the law as laid down in the judgments

supra relied upon by the senior counsels for the respondent MCD and

respondent no.4 is found to be more apposite than the judgment of the Apex

Court in Biharilal Dobray cited by the counsel for the petitioner. Moreover

a reading of the said judgment shows that the employment in that case was

found to be in connection with the affairs of the State and the appointment

also was by the State Government. That is not the position here.

21. Moreover, it cannot be lost sight of that higher education though

earlier largely in public domain, in recent past has witnessed private

participation also and thus merely because the Delhi University in the

present case was established by the Government would not qualify the

employees of the Delhi University as the Government employees.

22. There is thus no merit in the petition; the same is dismissed. No order

as to costs.

RAJIV SAHAI ENDLAW (JUDGE) October 03, 2011/bs