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Madhya Pradesh High Court · body

2007 DIGILAW 1014 (MP)

Mangilal v. State of M. P.

2007-09-19

VINEY MITTAL

body2007
ORDER Viney Mittal, J. 1. The petitioner is elected President of Gram Panchayat, Pipalravan, District Dewas. He has challenged the order dated September 20, 2006 passed by the Collector, Dewas-respondent No. 3, whereby an application filed by the 3/4th of the elected Councillors for recall of the petitioner, as President, has been forwarded to the State Government under Section 47(2) of the M.P. Municipalities Act, 1961 (hereinafter referred to as 'Act') for taking further appropriate action. 2. The facts as depicted in the petition show that the petitioner was directly elected as President of Nagar Panchayat, Pipalravan, in an election held on June 16,2004. The said election was notified on June 24, 2004. According to the petitioner, first meeting of the Municipal Council was held on July 15, 2004 in terms of Section 55 of the Act. 3. A proposal to recall the petitioner as President of the Municipal Council was initiated by 3/4th of the Municipal Councillors and presented to the Collector, Dewas on June 26, 2006. The said application filed by the said Councillors, was duly entertained by the Collector and thereafter, in terms of Section 47 of the Act, the said application was forwarded to the State Government for further appropriate action. 4. It is in these circumstances, that the petitioner is before this Court making a grievance that the initiation of the process for recall of the petitioner was wholly contrary to the mandatory provisions of the Act and even the order passed by the Collector was not in accordance with law and therefore, the entire process was liable to be set aside. 5. It has been specifically claimed in the petition that since the first meeting of the Municipal Council was held on July 15, 2004 in terms of Section 55 of the Act, therefore, the initiation of the process to recall the petitioner as President of the Municipal Council on June 26, 2006 was within the period of two years of the date of first meeting and therefore, a period of two years having not elapsed from the date of entering of the office by the petitioner, the initiation of the said process was contrary to the provisions of Section 47 of the Act and on such defective application, the Collector could not have initiated the process and forwarded the said application to the State Government for taking further action. 6. 6. The claim of the petitioner has been contested by respondent Nos. 1 to 3. A reply to the petition has been filed. In the reply, the respondents have specifically pleaded that a period of two years had already elapsed from the dale of entering of the office of the petitioner, which period was to be computed from the date of issuance of the notification, which had been issued on June 24, 2004. The respondents support the aforesaid plea by relying upon a Full Bench Judgment in the case of State of Madhya Pradesh and Anr. v. Mahendra Kumar Saraf and Ors. 7. I have heard Shri Piyush Mathur, learned Counsel appearing for the petitioner and Shri Anand Pathak, learned Dy. Government Counsel appearing for the respondents and with their assistance have also gone through the record of the case. 8. Shri Piyush Mathur, learned Counsel for the petitioner has referred to Section 36 of the Act and has contended that every Municipality unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer. My attention has also been drawn to Sub-section (4) of Section 36 to contend that subject to the provisions of the Act, the term of the President and every Councillors was to be coterminous with the term of the Council. Learned Counsel thus also relies upon Article 243U of Constitution of India to contend that every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer. 9. On that basis, it has been contended by the learned Counsel for the petitioner that since the first meeting of the Municipal Council had been held on July 15,2004, therefore, obviously term of five years for Municipal Council was to be computed from the said date and on that basis, even the term of five years for the petitioner, as Municipal President, was to commence from that date. According to the learned Counsel if the term of the petitioner were computed from that date then, the initiation of the proposal to recall the petitioner through an application presented on June 26, 2006, was within two years and as such, was clearly hit by the mandatory provisions of Section 47 of the Act, which merely permitted for initiation of the procedure to recall after the expiry of the period of two years. 10. Having duly considered all the aforesaid contentions raised by the learned Counsel for the parties, 1 find unable to agree with the same on account of authoritative pronouncement on this question by a Full Bench of this Court in the case at Mahendra Kumar Saraf (supra). While dealing with Section 47 of the Act, the Full Bench had noticed that the proposal to recall initiation "is to be signed by not less than 3/4th of the total number of elected Councillors. (2) The proposal must be presented to the Collector. (3) The process of recall cannot be initiated: (a) within a period of 2 years from the date on which such President is elected and enters his/her office, (b) unless half of the tenure of President elected in a bye-election has not expired. (4) Process for recall of the President shall be initiated only once in his/her whole term. (5) The Collector shall satisfy himself and verify that 3/4th of the total number of the elected Councillors have signed the proposal of recall. (6) After such satisfaction and verification, the Collector shall sent the proposal to the State Government. (7) The State Government shall make a reference to the State Election Commission which shall arrange for voting on the proposal of recall in the prescribed manner." 11. For the purpose of computation of period of two years, the Full Bench analysed various provisions of the Act and after taking into consideration the fact that the Municipal Act has been amended by the Amending Act 18 of 1997 and thereafter, the President was to be elected directly by the people and not by the elected Councillors and therefore the first meeting of the Councillors had nothing to do with the first meeting because the election of the President already stood concluded prior to the first meeting. 12. The following paragraphs of the said judgment in the Mahendra Kumar Saraf's case (supra), may be extracted as follows: 40. 12. The following paragraphs of the said judgment in the Mahendra Kumar Saraf's case (supra), may be extracted as follows: 40. It is quite understandable from the provisions of Section 36(1) of the Municipalities Act that the term of the Municipality unless sooner dissolved, shall be five years from the date of its first meeting. Here it is noteworthy that the Municipalities Act has been amended by Amending Act No. 18 of 1997. Before the amendment the President of the Municipality was to be elected as per provisions of Section 55 by the Councillors in the first meeting of the Municipal Council. A corollary of this would have been that the term of the President could not have commenced prior to the first meeting of the Council because the President itself was to be elected in the first meeting. However, after the amendment the position is completely changed. Now, the president has to be elected directly by the people and not by the elected Councillors. This very clearly implies that the election of the President which was previously to be made in the first meeting of the Council now has nothing to do with the first meeting because it stands already concluded prior to the first meeting. Therefore, the term of the President shall have to commence from the date of election as notified under Section 45 of the Act and not from the date of first meeting. Thus, after the amendment it can not be said that because of the provisions of Section 36(4) of the Municipalities Act the term of the President of the municipality shall commence from the first meeting of the Council. 41. In view of the aforesaid analysis, the argument advanced on behalf of the respondent Mahendra Saraf, can not be accepted. 42. In this connection, the third and the last point as specified earlier also has significance. While bringing Section 47(1)(i) of the Act in the enactment for the purpose of recall of the President the provisions of Sections 49(1), 36(4) and 55 of the Municipalities Act, as extracted above, were well within the knowledge of the Legislature and it was upto the Legislature to choose appropriate phraseology for deciding the commencement of period of two years for the purpose of initiating proposal of recall. The Legislature could have well provided that the period of two years shall be counted from the date of first meeting of the Council or Corporation, as the case may be. The Legislature simultaneously, had the option to use the phraseology as used in Section 49(1) to the effect that the period of two years shall commence from the date on which President is elected and enters his office. The date, of election and entering into office is a date referred to only in Section 49(1). It can not be disputed that the Legislature was aware of the aforesaid situation. 43. In our view, the Legislature has deliberately used the phrase "elected and enters his office" in Section 47(1)(i) of the Act which has its genesis in Section 49(1). Therefore, to subscribe a different meaning to this phrase, other than one which is subscribable under Section 49(1) of the Municipalities Act would amount to inflicting violence to the scheme which the Legislature had in its mind while incorporating Section 47(1)(i) in the Act. This again fortifies our view that the word "co-terminus" as used in Section 36(4) has nothing to do as far as the commencement of the period of two years for the purpose of Section 47(1)(i) is concerned. 44. Thus, we are of the firm view that the period of two years for initiating the proposal of recall shall have to be computed from the date of election of the President as notified under Section 45 of the Municipalities Act which in turn, under deeming fiction contemplated by Section 49(1), be the date of his entering into the office. 13. In view of the answer given by Full Bench to the various questions arising in the said case, I am satisfied that the contentions raised by the learned Counsel for the petitioner in the present case have also to be rejected. 14. Consequently, the present petition being devoid of any merit, is dismissed. C.C. as per rules.