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1996 DIGILAW 352 (KER)

Vaheed v. Sivankully

1996-08-14

K.NARAYANA KURUP

body1996
Judgment :- K. Narayana Kurup, J. Petitioner is the Councillor of the Thiruvananthapuram Municipal Corporation. He was elected from Ward No. 14 of the Thiruvananthapuram Corporation during the election conducted in September 1995. The first respondent is the Chairperson (Mayor) of the Thiruvananthapuram Corporation. According to the petitioner, eversince the first respondent became the Mayor, he started mis-using powers and when his conduct and style of functioning became intolerable, petitioner decided to -move a no-confidence motion against the first respondent. Accordingly, petitioner moved a no-confidence motion in the form of are solution in accordance with S.19(2) of the Kerala Municipality Act (for short 'the act). 2. The sanctioned strength of the Thiruvananthapuram Corporation is 50. A resolution expressing no-confidence against the first respondent was included in the agenda of the council which held its meeting on 27.7.1996 at the Council Hall, Thiruvananthapuram. The meeting was presided over by the 2nd respondent who was the Chairman of the Standing Committee in accordance with sub-clause 4(c) of S.19 of the Act. After a debate of about 4 hours, the 2nd respondent decided to put the motion to vote. When voting commenced, only 24 members out of 50 persons cast their votes supporting the motion of no confidence. Two members declared that they would not participate in the voting. The other 24 members abstained from voting in accordance with the party whip. When the ballot papers were counted, it was found that only 24 members voted in support of the no-confidence motion. As a result, the 2nd respondent vide Ext. P1 declared that the motion has failed since it is not supported by more than half of the sanctioned strength of the councillors. 3. Learned counsel for the petitioner would contend that the decision of the 2nd respondent as reflected in Ext. P1 is arbitrary in so far as it says that the resolution is not carried with the support of more than one half of the total strength of the council which he arrived at by looking into the 24 votes cast by the members in support of the resolution. According to the learned counsel, in the absence of any opposition to the motion of no confidence by any councillors of the Municipality, the second respondent "should have declared the resolution passed unanimously". According to the learned counsel, in the absence of any opposition to the motion of no confidence by any councillors of the Municipality, the second respondent "should have declared the resolution passed unanimously". It is further contended that passing of the resolution without conducting a secret ballot "compelling the entire strength to vote" is illegal in view of S.19(9) of the Act. It was also can vassed that the issuance of party whip has vitiated the result of the motion of no confidence, 4. On the above averments, the petitioner prays for a declaration that 'the no-confidence motion moved by the petitioner is passed unanimously" and "consequently the first respondent has ceased to function as the Chairperson of the Municipality" and for the issuance of a writ of certiorari to quash Ext. P1 and for other reliefs. 5. When the Original Petition came up for admission on 8.8.3996, learned advocate-general appeared on behalf of respondents 3 ad 4 and submitted that the motion cannot be said to have been passed under S.19(11) of the Act as it is not carried with the requisite support of more than one half of the sanctioned strength of the councillors of the Municipality. 6. On the facts pleaded essentially the following questions arise for consideration in this Writ Petition. They are:- (1) Whether the motion is carried with the requisite majority in accordance with the procedure prescribed under the Act. (2) Whether all the members of the council should be compelled to vote by secret ballot, (3) Whether the motion can be said to have been passed unanimously and (4) Whether the issuance of party whip has vitiated the result of the motion of no-confidence. 7. To answer the first question, a reference to S.19(11) of the Act is necessary. Under S.19(11) of the Act, if the motion is carried with the support of more than one half of the sanctioned strength of the Councilors of the Municipality, the person against whom the no-confidence motion is passed shall cease to function as such and the Government is expected to notify the fact of his removal from the office. S.19(11) of the Act reads as follows: " 19(11). S.19(11) of the Act reads as follows: " 19(11). If the motion is carried with the support of more than one half of the sanctioued strength of the Councillors of the Municipality, the Chairperson or the Deputy Chairperson or Chairman of the Standing Committee, as the case may be, shall thereafter cease to function as such and the Government shall, notify the fact of his removal from office". In the instant case, only 24 out of 50 of the sanctioned strength of Councillors of the Thiruvananthapuram Corporation supported the motion of no-confidence. Therefore, the motion of no-confidence cannot be said to have been passed, notwithstanding the fact that no person voted against the motion. The question of any person voting against the motion is not germane to the requirement of S.19(11) of the Act. The only condition is that the motion has to be carried with the support of more than one half of the sanctioned strength of councillors. In the instant case, one half of the sanctioned strength of the Corporation is 25 and since only 24 councillors supported the motion of no-confidence, it cannot be said that the motion has been validly passed with the support of the requisite majority. Therefore the motion of no-confidence has failed in the eye of law. 8. The second question has to be considered in the light of S.19(9) of the Act which reads as follows: 19(9) The debate shall automatically terminate on the expiry of four hours from the time appointed for the commencement of the meeting, if it is not concluded earlier. Upon the conclusion of the debate or upon the expiry of the said period of four hours, as the case may be, the motion shall be put to vote, which shall be by means of secret ballot". In the instant case, it is admitted by the petitioner that in fact there has been a secret ballot. But the complaint of the petitioner appears to be that the Chairperson of the meeting ought to have compelled all members present to cast their vote by secret ballot. On a reading of S.19(9) of the Act, all that I am able to understand from its plain language is that a motion of no-confidence shall be put to vote by means of secret ballot. The petitioner has no case otherwise. On a reading of S.19(9) of the Act, all that I am able to understand from its plain language is that a motion of no-confidence shall be put to vote by means of secret ballot. The petitioner has no case otherwise. In fact, it is admitted that all the 24 Councillors who voted in favour of the motion did so by secret ballot. I am unable to find anything in S.19(9) of the Act operating as a compulsion on anybody to perforce exercise the right to vote in a meeting. No one can be compelled to exercise his right to franchise against his wish. The only legal requirement is that in the event of a voter exercising his right to vote, it shall be by secret ballot as enjoined by law. In the absence of such a requirement other methods of voting can also be employed. The statutory requirement is fulfilled in the instant case. Therefore, I find no merit in the contention of the petitioner that all the members should be compelled to vote by secret ballot. The salutary effect of a secret ballot has been to prevent undue influence and it is nobody's case that any one has exercised his franchise under undue influence. 9. The answer to the next question poses no difficulty. As already noted, only 24 of 50 of the sanctioned strength of Councillors supported the motion of no-confidence. Therefore, the motion of no-confidence cannot be said to have been passed simply for the reason that none present at the meeting voted against the motion. In fact, there is authority for the proposition that those not voting must be counted against the motion (vide Shackle ton on Meetings - Fourth Edition (195 8)- Page 45). In the aforesaid view, the petitioner cannot derive any mileage out of this contention, which is accordingly negatived. 10. The last contention raised by the petitioner that the party whip issued by the Left Democratic Front to its members is illegal also cannot be countenanced. In a democratic polity based on party politics, the issuance of a direction to the members of a political party to vote or not to vote in a particular way is a matter of internal Governance of the party concerned and is not subject to judicial scrutiny. In a democratic polity based on party politics, the issuance of a direction to the members of a political party to vote or not to vote in a particular way is a matter of internal Governance of the party concerned and is not subject to judicial scrutiny. Therefore, the action of a political- party in issuing direction to its members to vote or not to vote cannot be challenged before a court of law. As a matter of fact, the efficient and smooth functioning of the parliamentary and democratic institutions depend largely upon the Whips who as a party member of a legislature serves as a assistant floor leader, keeps in touch with his partisan colleagues, ascertains their views, reminds them to be present when crucial votes are needed and arranges "pair" with opposition so mat their votes may be neutralised and not lost. They also act as intermediaries between the leaders and the rank and file of their parties in order to keep the former informed as to the trend of party opinion. Therefore, there is nothing wrong on the part of the Councillors in not casting their votes in obedience to the party whip In the aforesaid view, I have no hesitation in negativing the contention of the petitioner that issuance of party whip has vitiated the result of the motion of no-confidence. (Vide Dictionary of Political Science by T.R. Nanda and Sir Thomas Erskine May's Treatise on the Law, Privileges Proceedings and Usage of Parliament - Sixteenth Edition (1957) - Page 262). In the light of the aforesaid discussion, the petitioner is not entitled to any of the reliefs prayed for in this Original Petition which is accordingly dismissed in limine.