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Karnataka High Court Upholds Government’s Right to Remove Commission Chairman at Pleasure Under Karnataka State Minorities Commission Act

Karnataka High Court Upholds Government’s Right to Remove Commission Chairman at Pleasure Under Karnataka State Minorities Commission Act

Case title: MR. ABDUL AZEEM VS STATE OF KARNATAKA

Case no.: WRIT PETITION No.17396 OF 2023 (GM – RES)

Dated on: 28th May 2024

Quorum:  Hon’ble. MR JUSTICE M. NAGAPRASANNA.

FACTS OF THE CASE

The petitioner claims to be a highly qualified citizen having M.A., LL.B. degree and retired as Assistant Police Commissioner and is known for his scientific investigation of high-profile criminal cases. The petitioner was also a Member of the Legislative Council and later in the year 2019 was appointed as the Chairman of the Commission for a period of three years (hereafter referred as the ‘first tenure’). The appointment was in terms of Sections 3 and 4 of the Karnataka State Minorities Commission Act, 1994 (hereinafter referred to as ‘the Act’ for short). The petitioner completes his first tenure on 15-10-2022. On completion of first tenure, an order comes to be passed continuing the petitioner as Chairman of the Commission for another term of three years, for it come to an end on 15-10-2025. When the petitioner was functioning as Chairman of the Commission, the men who man the Government changed. On 22-05-2023 a tippani emerges from the office of the Chief Minister which is communicated by the Chief Secretary to all the Departments. The communication was that the nominations made by the earlier Government will have to be annulled. In furtherance of the aforesaid communication/tippani a Notification comes to be issued on 22-05-2023 by which the continued nomination of the petitioner/2nd tenure is cancelled. The petitioner represents to the respondent/State on 24-05-2023 seeking to withdraw the said Notification. Owing to the representation, a Notification comes to be issued on 24-05-2023 withdrawing the Notification dated 22-05 2023 whereby the notification which cancelled the nomination of the petitioner for the second tenure comes to be withdrawn. The petitioner continues as Chairman of the Commission. The petitioner between the dates 22-05-2023 and 24-05-2023 had submitted a representation 23-05-2023 seeking consideration of the said representation to complete the term as a chairman for another 2 years and 5 months. When there was delay in consideration of the said representation, he had knocked at the doors of this Court in the subject petition by filing it on 05-08-2023. This Court initially issued notice to the respondents. During the pendency of the petition, it appears, the Government issues a Notification on 15-12-2023 cancelling the nomination of the petitioner as Chairman of the Commission. Therefore, the petitioner continues to function as Chairman of the Commission. The State files an application seeking vacation of the interim order and the petitioner files rejoinder to the statement of objections and objections to the application seeking vacation of the interim order. The matter was heard. When it was pointed out that there is no challenge to the order dated 15.12.2023, an amendment comes to be filed by the petitioner which is directed to be taken along with the main matter. With the consent of parties, the matter was heard.

 

ISSUES

  1. whether the petitioner would have any right to continue in the nominated post, which was at all times subject to the pleasure of the State?

LEGAL PROVISIONS

Constitution of India

 ARTICLE 226: Article 226(1) it states that every High Court shall have powers to issue orders or writs including habeas corpus, mandamus, prohibition, quo warranto, and certiorari, to any person or any government for the enforcement of fundamental rights and other purpose.

Karnataka State Minorities Commission Act, 1994

Section 3: Constitution of the Commission

This section outlines the formation and composition of the Karnataka State Minorities Commission, including the appointment of the Chairman and other members.

Section 4: Term of Office and Conditions of Service of Chairman and Members

Sub-section (1): Specifies that the Chairman and other members shall hold office for a term of three years and that their tenure is subject to the pleasure of the Government. This implies that their term can be curtailed by the Government at any time.

Sub-section (2): Details other conditions of service for the Chairman and members, which may be prescribed by rules.

Section 5: Disqualifications for Office of Membership

This section lists specific grounds on which a member can be disqualified from holding office.

CONTENTIONS OF THE APPELLANT

The learned senior counsel appearing for the petitioner submits that the appointment of the petitioner was for a fixed tenure of three years on certain terms and conditions. It was continued for another period of three years on the same terms and conditions. Therefore, it becomes an appointment with fixed tenure and the order which withdraws or cancels the nomination or appointment as the case would be, is arbitrary and misuse of power of pleasure that is available to the State to remove any person who is nominated. The learned senior would seek to place reliance upon several judgments of the Apex Court and that of this Court, all of which would bear consideration qua their relevance. n the rejoinder to the submission of the learned Advocate General, the learned senior counsel would submit that the State in its application seeking vacation of the interim order has indicated that there were several misconducts or illegalities on the part of the petitioner while discharging his duties as Chairman. Therefore, the removal of the petitioner would come within Section 5 of the Act and if it is under Section 5, it could not have been passed without following the principles of natural justice. It is her submission that no notice even issued and the petitioner is removed casting a stigma. She would seek quashment of the order.

CONTENTIONS OF THE RESPONDENTS

The learned Advocate General would take this Court through the Act with particular reference to Section 4. The nomination of the petitioner even if it is for a term, the nomination is in terms of Section 4 of the Act. Section 4 of the Act itself indicates that the chairperson of the Commission will be functioning subject to the pleasure of the Government. Pleasure of the Government shall be that it would only be until further orders. He has been nominated and de-nominated now and no fault can be found with the order impugned cancelling the second tenure of the petitioner. He would also seek to place reliance upon several judgments, which would all bear consideration in the course of the order qua their relevance.

 

COURT’S ANALYSIS AND JUDGEMENT

Though the Apex Court has close to five decades ago considered the effect of doctrine of pleasure and has rendered judgments from time to time, it would suffice if reference is made to the Constitution Bench judgment rendered in 2010, in the case of B.P. SINGHAL v. UNION OF INDIA. It is not in dispute that the petitioner was appointed in terms of Section 4 of the Act supra. Sub-section (1) of Section 4 clearly indicates that the Chairman or other members shall hold office for a term of three years subject to pleasure of the Government. Therefore, the statute itself recognizes the right of the Government to tinker with the nomination prior to its expiry as it is subject to pleasure of the Government. There need not be any inference drawn whether it is a pleasure term or otherwise as the statute itself indicates that it is at the pleasure of the Government. The issue is, whether pleasure could be exercised at any time by the State in terms of Section 4(1) of the Act. Before embarking upon its consideration, I deem it appropriate to notice the line of law, both upholding the annulment of appointment / nominations and annulling such annulment of appointment / nominations by the Apex Court and this Court. The Apex Court holds that doctrine of pleasure however is not a licence to act with unfettered discretion to act arbitrarily, whimsically or capriciously. The said judgment has been followed by a Division Bench of this Court in B.K. UDAY KUMAR v. STATE OF KARNATAKA. The Apex Court holds that nomination by itself from its nature is that the nominees do not have any vested right to continue as it is not akin to a fixed tenure as found in statutory appointments. A Division Bench of this Court in the case of THE STATE OF KARNATAKA v. DR. DEEPTHI BHAVA. The Division Bench upturns the order of the learned single Judge holding that the nominees would hold office with the pleasure of the State and cannot be seen to project any right that is taken away when those nominations are cancelled. The Division Bench holds that principles of natural justice also do not apply to cancellation of nominations, unless it is shown that it is exercised in an arbitrary manner. The afore-quoted judgment in the case of KHUSRO QURAISHI was also concerning the nomination of Chairman of the Commission under the Act. The Division Bench holds that Section 4 itself uses the expression subject to pleasure of the Government. Therefore, it cannot be said that it is arbitrary on the part of the State to invoke the mandate of the statute. If the case of the petitioner is considered on the touch stone of the law laid down by the Apex Court and on the coalesce of the reasoning rendered therein what would unmistakably emerge is, that no right of the petitioner is taken away. The petitioner is a nominee who is nominated under Section 4 of the Act. Section 4 itself indicates that it is at the pleasure of the State. It is exercised and he is de nominated. Such de-nomination of a nominee cannot be questioned on the ground that it is arbitrary. Much reliance is placed by the learned senior counsel for the petitioner in the case of B.P. SINGHAL. The same would not merit any acceptance, as the said judgment is considered by three Division Benches of this Court subsequent to the judgment of the Apex Court and have all held that if the statute indicates that it is subject to the pleasure, a person who is nominated subject to such pleasure cannot make a hue and cry about cancellation of such nomination. The averment is that there are several misconducts and illegalities on the part of the petitioner. A statement in the application seeking vacation of interim order cannot generate a right in the petitioner, which the petitioner in law does not have. Even then, any such averment can never supersede the rigour or mandate of the statute. Taking cue from the aforesaid paragraph the learned senior counsel elaborates her submission by strenuously trying to bring in the case of the petitioner under Section 5 of the Act, to contend that if it is removal under Section 5, notice ought to have been issued. Section 5 deals with disqualification for office of membership. The reason for such disqualification is found in clauses (a) to (g) of sub-section (1) of Section 5 and if those clauses are to be invoked and the incumbent is to be removed, it is then a reasonable opportunity of being heard should be granted. The petitioner is not disqualified on any ground whatsoever. He has been de-nominated, and it is a de-nomination simpliciter exercising State’s right under Section 4 of the Act. This submission of the learned senior counsel for the petitioner, on this score also does not merit any acceptance. In the light of none of the submissions of the learned senior counsel for the petitioner being acceptable, the petition deserves to be rejected. The writ petition is dismissed. Interim order if any subsisting, shall stand dissolved. Consequently, pending applications, if any, also stand disposed.

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Judgement Reviewed by – HARIRAGHAVA JP

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DISPLAY OF NAME AND NATURE OF BUSINESS DOES NOT AMOUNT TO ADVERTISEMENT: SUPREME COURT

In precedence of the case Bharti Airtel Vs. State of Madhya Pradesh the High Court of Madhya Pradesh declared the demand notices sent to the appellant for the payment of advertisement tax to be valid. This was challenged in the Hon’ble Supreme Court.

The appellant is a dealer of Hyundai passenger cars in Indore. He had a sign board outside the premise of the showroom displaying the business name and address of the place. Respondent number 2 issued a notice demanding Rs. 2,03,850 as advertisement tax under Section 189-A of the Municipal Act, 1965. The appellant contested that a sign board merely displaying the name of the business does not amount to “advertisement”. The objective behind putting up the sign board was only to inform the public about the business and what it deals in. The appellant filed a writ petition under article 226 of the Constitution of India but the High Court referred to the verdict given in the Bharti Airtel case and dismissed the petition. The appellant received notices to pay advertisement tax not only for the shop located within the jurisdiction of the Indore municipal corporation but also for the one located outside its jurisdiction.

The counsel for appellant contends that the facts in the Bharati Airtel case are not analogous to this case. This case deals with the issue whether a third party or a tax agency collect advertisement tax. Whereas in the present case, the issue is whether displaying the name and nature of the business amounts to advertisement. The counsel for appellant further contends that if tax is levied for the same it would be violative of article 19(1)(A) and 19(1)(G) of the Constitution.

The Indore municipal authority under sec 132(6)(1) of the municipal corporation act contends that it has rightfully demanded the advertisement tax from the appellant. The particular section states that the corporation can levy any tax contingent upon any special or general order taken by the state government, namely, ‘a tax on advertisement other than advertisements published in newspapers’ (Sub-clause (l)).

The court referred to the case of ICICI Bank and Another Vs. Municipal Corporation of Greater Bombay (2005) 6 SCC 404 which held that ‘advertisement’ must have a commercial aspect to it. It must attract the attention of the people in order to persuade them to engage in the activity of buying. Advertisement aims at providing information and is of a good or service. However, only displaying the name of the company does not amount to advertising unless it is a trade mark or trade name.

The hon’ble supreme court states that the sign board entailed the name of the business which itself is indicative of the kind of product the appellant deals with. Solely displaying the name of the enterprise or the business would not amount to advertising unless the enterprise in question in some way persuades the customer to purchase. Display boards and name boards are essential for the purposes of identification. If they are counted as advertisements, it would be impossible for customers to even identify such businesses. The context and circumstances must be taken into account.

In this case, the legislative provisions do not permit the municipal corporation to levy tax on sign boards. The objective of sign board is just to convey information about the kind of products dealt with by a business enterprise. The name of the business enterprise of the appellant shows what car he deals in and nothing more. It does not cause the public to purchase the products.

The Hon’ble court further stated that both the parties had objections to the demands made and they hastily rushed to the High Court under its extra ordinary jurisdiction. However, the court does not support the dismissal of the petition by the High Court. The outcome of the case remains unchanged and the first respondent was asked to review the objections filed by the appellant within eight weeks. In case, they decide against the appellant they cannot enforce the demands for another eight weeks. The appellants have the liberty to challenge any decision given by the Commissioner.

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Judgement Analysis written by- Rashi Hora.

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One Can’t Use Article 226 For Fulfilling Hidden Intent In The Name Of Public Interest: High Court Of Delhi

Title: Ms. Sabiha Parveen V  Government Of Nct Of Delhi & Ors.

Citation: W.P.(C) 11646/2023 & Cm Appl. 45465/2023

Coram:  Hon’ble The Chief Justice, Hon’ble Mr. Justice Tushar Rao Gedela

Introduction:

Petitioner before this Court has filed the present petition under Article 226 of the Constitution of India as a Public Interest Litigation (“PIL”) , In the said PIL the stated reliefs are being asked: 

  • directing the Respondents for immediate removal/sealing of Illegal and unauthorized construction.
  • Directing the Respondents for immediate sealing of structure in the form of unauthorized illegal construction /structure running Hotels at two sites (i.e., properties no. 7 & 8) in Darya Ganj / Old Delhi – Jama Masjid without having necessary permission from government authorities and Fire clearance / NOC from respondent.
  • Directing the Respondent for immediate removal electricity connections installed at Illegal and unauthorized construction

Facts:

Petitioner has no personal interest in the litigation and the petition is not guided by self-gain or for any other person/ institution/ body/ and that there is no motive other than of Public Interest in filling the writ petition.

Respondent, prior to filing of the writ petition on 10.05.2023 had lodged a police complaint against the Petitioner in respect of extortion, threat, etc. and as no action was taken in respect of the complaint lodged, he approached the Hon’ble Lieutenant Governor on 23.05.2023.

Court’s Judgement and Analysis:

On the basis of several judgements cited and presented, it is clear that a person who has not come with clean hands is not entitled for any relief and, in the present case, it is clearly visible that the Petitioner has not approached this Court with clean hands.

Nothing prevented the Petitioner from disclosing the relationship with Respondent. The Petitioner who was present in person has admitted the relationship with Respondent in open Court and, therefore, as the Petitioner was certainly an interested person, the Petition was dismissed with costs of Rs. 1,00,000/- to be paid to Army Battle Causalities Welfare Fund within 30 days from today.

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Written by- Sushant Kumar Sharma

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