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2001 DIGILAW 305 (MP)

PALLVIKA PATEL v. STATE ELECTION COMMISSION

2001-04-04

BHAWANI SINGH, RAJEEV GUPTA

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BHAWANI SINGH, C. J. ( 1 ) SMT. Pallvika Patel was elected President, Nagar Panchayat, Anooppur, District Shahdol in December, 1997. This Nagar Panchayat comprises of 15 elected members besides the petitioner, apart from nominated Members of House of People, Member of Legislative Assembly elected from Anooppur Assembly Constituency, thus taking the total membership of the Nagar Panchayat to 19. The term of office of the President, Nagar Panchayat is five-year from the date of its first meeting. By now, the petitioner has completed three years. ( 2 ) SECTION 47 (unamended) of the M. P. Municipalities Act, 1961 (for short the Act of 1961) provided for No-Confidence Motion against the President of the Nagar Panchayat. It could be moved in a meeting specially convened for the purpose under sub-section (2) of S. 47 and if the same was carried by a majority of more than 3/4th of the elected Councillors, present and voting in the meeting and if such majority was more than 2/3rd of the total number of elected Councillors constituting the Council the motion would be sent by the Collector to the State Government and the President would stand removed. This provision has been amended by Amendment Act No. 11 of 1999 published in M. P. Rajpatra (extraordinary) dated 23rd April, 1999 at page 646 (3-5 ). By this amendment President of Nagar Panchayat can be recalled through a secret ballot by a majority of more than half of the total number of voters of the Municipal area casting vote in accordance with the procedure, as may be prescribed. No such process for recall can be initiated unless the proposal is signed by not less than 3/4th of the total number of elected Councillors and presented to the Collector. It is also provided that such process shall not be initiated within a period of two years from the date on which such President is elected and enters the office and that if half of the period of tenure of the President elected in a by-election has not expired. It also envisages that the process for recall of the President can be initiated only once in his whole term. It also envisages that the process for recall of the President can be initiated only once in his whole term. Thereafter, the Collector has to satisfy himself and verify that 3/4th of the Councillors specified in sub-section (1) of S. 47 have signed the proposal for recall and the same is sent to the State Government which shall make a reference to the State Election Commission. On receipt of the reference, the State Election Commission shall arrange for voting on the proposal of recall in such manner as may be prescribed. ( 3 ) THE grievance of the petitioner is that S. 47 of the Act of 1961 is violative of Art. 243-R of the Constitution of India. Precisely, the challenge is that Art. 243-R of the Constitution of India does not provide for recall of the President/chairperson directly elected. Therefore, making provision for the same under S. 47 of the Act is unconstitutional. It is also contended that S. 21-A of the Madhya Pradesh Panchayat Raj Adhiniyam, 1993 (for short hereafter Adhiniyam of 1993) does not make similar provision, therefore, there is requirement of having similar provision for removal/recall for office-bearers of all bodies of Local Self-Government. ( 4 ) SHRI S. K. Seth, Additional Advocate General and Shri R. S. Jha, Deputy Advocate General submit that amendment of S. 47 is thoroughly constitutional and within the competence of State Legislature. As a matter of fact, the purpose of making the amendment is many fold, two such being that recall of President directly elected has been vested with the voters who elected him and the removal has been made more stringent by providing in-built safeguards in the interest of the voters as well as the office-bearers. With respect to contention that the Adhiniyam of 1993 provides for different mode for recall of office-bearers, it is contended that the two provisions are in different fields. Similarity for removal of office-bearers cannot be necessary nor can it be insisted upon. ( 5 ) AFTER giving our consideration to the respective contentions of learned counsel appearing for both sides, we are of the considered opinion that S. 47 of the Act of 1961, as amended by Act No. 11 of 1999 is not constitutionally invalid. Perusal of Art. 243-R of the Constitution of India demonstrates that election to Municipality is to be held by direct election. Perusal of Art. 243-R of the Constitution of India demonstrates that election to Municipality is to be held by direct election. The State Legislature has been empowered to enact law to provide for representation in a Municipality. Certain categories are to be nominated and sub-art. 2 (b) of Art. 243-R of the Constitution of India provides for the manner of the election of Chairperson of the Municipality. It may be true that persons mentioned in paragraph (1) have not been given right to vote in the meetings of the Municipality but it does not prohibit the Legislature from enacting law to confine the voting right to elected Councillors. Accordingly, S. 47 (amended) of the Act of 1961 provides for participation by elected Councillors. ( 6 ) SHRI Baghel, learned senior counsel for the petitioner brought to our notice Apex Court decision reported in AIR 2000 SC 583 (Raees Ahmad v. State of U. P.) and contended that Municipality comprises of elected and nominated members, therefore, for the purpose of recall, 3/4th must comprise of the total members of the Municipality. After going through this decision, we find that it is inapplicable to this case. Provision under S. 87-A of the U. P. Municipalities Act, 1960 (hereafter for short the Act of 1960) provides for majority of 2/3rd of the total members of the Municipality for motion of no-confidence against the President, whereas S. 47 of the Act of 1961 provides that no such process of recall shall be initiated unless the proposal is signed by not less than 3/4th of the total number of theelected Councillorsand presented to the Collector. This apart, as said in the preceding part of the order, there are further in-built checks in S. 47 of the Act of 1961 making the process for recall more stringent and fair. Therefore, we do not see any invalidity in the provision as contended by Shri Baghel. Similarly, we find no reason for accepting the contention that different provision has been provided for recall in S. 21-A of the Adhiniyam of 1993. ( 7 ) IN (1992) 4 SCC 80 : ( AIR 1993 SC 2042 ) (Mohanlal Tripathi v. District Magistrate, Rai Bareli) at pages 84-85 (of SCC) : (at pp. Similarly, we find no reason for accepting the contention that different provision has been provided for recall in S. 21-A of the Adhiniyam of 1993. ( 7 ) IN (1992) 4 SCC 80 : ( AIR 1993 SC 2042 ) (Mohanlal Tripathi v. District Magistrate, Rai Bareli) at pages 84-85 (of SCC) : (at pp. 2045-46 of AIR) paragraphs 2, 4 and 5, the Apex Court observed thus :"democracy is a concept, a political philosophy, an ideal practised by resorting to governance by representatives of the people elected directly or indirectly. But electing representatives to govern is neither a 'fundamental right' nor a 'common law right' but a special right created by statutes, or a 'political right' or 'privilege' and not a 'natural,' 'absolute' or 'vested right. ' "concepts familiar to common law and equality must remain stranger to 'election law' unless statutorily recognised. " Right to remove an elected representative, too, must stem out of the statute as 'in the absence of a constitutional restriction it is within the power of a Legislature to enact a law or recall of officers. ' Its existence or validity can be decided on the provision of the Act and not, as a matter of policy. Therefore, the validity or otherwise of a no-confidence motion of removal of a President would have to be examined on applicability of statutory provision and not on political philosophy. . . . . . . . . . "the Apex Court further said in paragraph 4 that :-". . . . . . . . . . Recall of elected representative is advancement of political democracy, ensuring true, fair, honest and just representation of the electorate. Therefore, a provision in statute for recall of an elected representatives has to be tested not on general or vague notions but on practical possibility and electoral feasibility of entrusting the power of recall to a body which is representative incharacter and is capable of projecting views of the electorate. . . . . . . . . "". . . . . . . . An elected representative is accountable to its electorate. That is the inherent philosophy in the policy of recall. For the President, his electorate to exercise this right, is the Board as it comprises representatives of the same constituency from which the President is elected. . . . . . . . . "". . . . . . . . An elected representative is accountable to its electorate. That is the inherent philosophy in the policy of recall. For the President, his electorate to exercise this right, is the Board as it comprises representatives of the same constituency from which the President is elected. Purpose of S. 87-A of the Act is, to remove elected representative who has lost confidence of the body which elected him. It may be by people themselves or they may entrust their power through legislation to their representatives. In the Act, it is the latter. Members of the Board are elected from smaller constituencies. They represent the entire electorate as they are representatives of the people, although a smaller in body. The President who is elected by entire electorate when removed by such members of the Board who have also been elected by the people, is in fact removal by the electorate itself. Such provision neither violates the spirit nor purpose of recall of an elected representative. Rather, it ensures removal by a responsible body. It cannot be criticised either as irrational or arbitrary or violative of any democratic norm. . . . . . . . " ( 8 ) IT is also held in AIR 1952 SC 64 (N. P. Ponnuswami v. Returning Officer, Namakkal) and AIR 1982 SC 983 (Jyoti Basu v. Debi Ghosal) that a right to elect or to be elected, though fundamental in a democracy, is neither a Fundamental Right nor a Common Law Right. It is pure and simple a statutory right (See Chandra Bhan Singh s/o Shri Babu Singh v. State of Madhya Pradesh and others, W. P. No. 2349 of 2000 decided on 31-3-2001 (FB) ). ( 9 ) BY amending S. 47, the State has made further advancement by entrusting the power to recall to the voters. Even otherwise, it would be difficult for the Court to question the wisdom of Legislature for enacting the provision. In our view, it is pragmatic and practical. ( 10 ) WHAT emerges out of aforesaid discussion is that there is no merit in the challenge raised by the petitioner against S. 47 of the Act of 1961, as amended by Act No. 11 of 1999 and consequently the writ petition is dismissed. Costs on parties. Petition dismissed. .