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2008 DIGILAW 65 (CHH)

Bharti Sonkar v. State of Chhattisgarh

2008-03-26

K.SINHA, R.GUPTA

body2008
JUDGMENT 1. Heard learned Counsel for the parties on admission. 2. Appellant-Bharti Sonkar, has filed this writ appeal against the impugned order dated 4-3-2008, passed in W.P. (C) No. 2284/2007. 3. Appellant/petitioner filed the writ petition for the following reliefs: 7.1. (1) The Hon'ble Court may kindly be pleased to call for the entire records reading to passing of the impugned memo, dated 26-3-2007 (Annexure P-10) before this Hon'ble Court, for its kind perusal. 7.2. The Hon'ble Court may kindly be pleased to issue a writ of certiorari quashing the entire proceedings culminating into memo dated 26-3-2007 (Annexure P-10) and declare the same as void and inoperative, and the further proceedings consequent to memo dated 26-3-2007 be also quashed. 7.3. Cost of the petition may also be granted to the petitioner. 7.4. Any other relief which this Hon'ble Court deems fit and proper may also kindly be granted to the petitioner, in the interest of justice. 4. The petitioner, thus, in substance was seeking quashing of the proceedings arising out of the memo dated 26-3-2007 (Annexure P-10). 5. Appellant/petitioner was elected as President of Nagar Panchayat, Gunderdehi sometime in November-December, 2004. On 15-3-2007, respondent No. 6-Pramod Kumar Jain, a Councillor of Nagar Panchayat, Gunderdehi moved an application (Annexure P-5) before the Collector, Durg for recalling the appellant/petitioner from the post of the President, Nagar Panchayat, Gunderdehi. The said motion to recall the petitioner was signed by 12 other Councillors. The Collector, Durg after satisfying himself as required under Section 47 of the C.G. Municipalities Act, 1961 (for short "the Act") prepared the memo (Annexure P-1O) forwarding the proposal to recall the appellant/petitioner to the State Government for being further forwarded to the State Election Commission. 6. The said motion to recall the petitioner was signed by 12 other Councillors. The Collector, Durg after satisfying himself as required under Section 47 of the C.G. Municipalities Act, 1961 (for short "the Act") prepared the memo (Annexure P-1O) forwarding the proposal to recall the appellant/petitioner to the State Government for being further forwarded to the State Election Commission. 6. The petitioner in the writ petition challenged the process of recall and the memo prepared by the Collector, Durg on the grounds that the motion of recall was not validly presented by 3/4th of total number of the elected Councillors, proposal was never placed before the Collector for verification and recording his satisfaction, as required under Section 47 (2) of the Act; statements were recorded by the Deputy Collector without any authority and that too before the time fixed, i.e., at 11.00 A.M. on 22-3-2007; whole exercise of verification was done at the behest of respondent No. 18-Smt. Ramshila Sahu, M.L.A. of Gunderdehi Constituency; objection of the petitioner with regard to the genuineness & correctness of the proposal to recall has not been considered; the whole exercise was held without any notice to the petitioner and she was not given opportunity to be present during the course of verification; and the Collector was duty bound to verify the genuineness of the proposal and he could not have entrusted the job of verification to the Deputy Collector, as Section 47 (2) of the Act does not empower the Collector to delegate his powers to the Deputy Collector. 7. Learned Single Judge on a thorough consideration of the submissions of learned Counsel for the parties and following the Full Bench judgment of the High Court of Madhya Pradesh in the case of State of M.P. v. Mahendra Kumar Saraf reported in 2005(3) JLJ 251 : 2005(4) M.P.H.T. 185, did not find any substance in the above mentioned submissions advanced on behalf of the appellant/petitioner. Learned Single Judge, therefore, passed the impugned order dated 4-3-2008 whereby the appellants writ petition was dismissed. 8. Learned Single Judge, therefore, passed the impugned order dated 4-3-2008 whereby the appellants writ petition was dismissed. 8. Shri Sanjay K. Agrawal, learned Counsel for the appellant confined his submissions to the following two grounds only- (i) that the satisfaction of the Collector recorded in the memo dated 26-3-2007 (Annexure P-10 in the writ petition) was about "Motion of No-Confidence" and not about "Motion to Recall"; (ii) and that the Collector himself did not verify and satisfy as contemplated under Section 47 (2) of the Act, as in the present case, the verification and satisfaction was of the Deputy Collector, which is evident from the note-sheet prepared by the Deputy Collector (Annexure P-11 in the writ petition). 9. So far as the first submission of learned Counsel for the appellant is concerned, the learned Single Judge has dealt with the same in detail in Para 15 of the impugned order, which reads as follows: “15. So far as the last submission of learned Counsel for the petitioner that memo of Annexure P-10, wherein the Collector has mentioned that he is satisfied that the proposal of no confidence against the petitioner has been properly placed, refers to "no confidence motion" and not to "recall of the petitioner" from the post of President of Nagar Panchayat and as such, the same is not a proposal within the meaning of Section 47 (2) of the Act and therefore, the State Government could not refer the proposal to the State Election Commission for voting on proposal of recall, is concerned the Madhya Pradesh Nagar Palik Vidhi (Sanshodhan) Adhiniyam, 1999 (No. 11 of 1999) was enacted and came into force w.e.f. 23-4-1999. Prior to the amendment there was a provision of "no confidence motion" against the President under Section 47 of the Act, which was substituted by the above amendment. The proposal submitted by 12 Councillors out of 15 clearly mentions that the signatories of the memo have no confidence in the petitioner, they want to remove her and therefore, they are tabling this no-confidence motion for removing her and for recalling her. The proposal submitted by 12 Councillors out of 15 clearly mentions that the signatories of the memo have no confidence in the petitioner, they want to remove her and therefore, they are tabling this no-confidence motion for removing her and for recalling her. Thus, the proposal before the Collector was for recalling of the petitioner and only duty cast on the Collector under Section 47 of the Act is to verily the genuineness of the contents of the proposal and the Collector after due verification recorded his satisfaction and forwarded the proposal to the State Government for further action. In these circumstances, mentioning of "no-confidence motion" in place of "recall of the petitioner" would not invalidate the whole exercise of recall and proceeding for recall cannot be quashed. 10. Learned Counsel for the appellant could not dispute that the motion submitted by respondent No. 6-Pramod Kumar Jain (Annexure P-5, Page 73) is described as "motion of no-confidence and to recall". The contents of Annexure P-5 further indicate that what was intended by the 13 Councillors of the Nagar Panchayat through Annexure P-5 was to recall the appellant/ petitioner who was the President of Nagar Panchayat, Gunderdehi. In the note-sheet prepared by the Deputy Collector, Durg (Annexure P-l 1) also the motion has been mentioned as "Motion of No-Confidence and to recall". It was only in the memo of the Collector, Durg, dated 26-3-2007 (Annexure P-10) that the motion come to be mentioned only as "Motion of No- Confidence". 11. On a cumulative consideration of the above mentioned broad features of the case, we have no manner of doubt that on the mere mention of the motion as "Motion of No-Confidence" in place of "Motion to Recall" by the Collector in the memo dated 26-3-2007, it cannot be held that the mandatory provisions contained in Section 47 (2) of the Act have not been complied with by the Collector, Durg. We, therefore, do not find any substance in the first submission of learned Counsel for the appellant and the same is liable to be rejected and is hereby rejected. 12. We, therefore, do not find any substance in the first submission of learned Counsel for the appellant and the same is liable to be rejected and is hereby rejected. 12. So far as the appellant's other contention about the verification having been done and satisfaction recorded by the Deputy Collector and not by the Collector as required under Section 47 (2) of the Act, is concerned, a bare comparative perusal of the memo prepared by the Collector - Annexure P-10 and the note-sheet of the Deputy Collector - Annexure P-11 reveals that the Collector has noticed and recorded certain features in the motion which were neither noticed by the Deputy Collector nor recorded in the note-sheet prepared by him. Thus, it is apparent that the Collector, Durg has independently verified the motion; the contents thereof; the number of the signatories on the motion and other relevant aspects himself and thereafter prepared the memo dated 26-3-2007 recording his satisfaction as is contemplated under Section 47(2) of the Act. 13. For the foregoing reasons, we do not find any good ground for interference in this writ appeal. The writ appeal, therefore, is liable to be dismissed and is hereby dismissed summarily.