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2008 DIGILAW 985 (MP)

MADAN LAL NARVARIYA v. SATYA PRAKASHI PARSEDIA

2008-08-07

INDRANI DATTA, SUBHASH SAMVATSAR

body2008
Judgment ( 1. ) THIS judgment shall govern the disposal of both the aforesaid writ appeals as they arise out of common order dated 25-01-2008 passed by the Single Bench of this Court in Writ Petition No. 5293/07 [2008 (3) M. P. H. T. 264] whereby the learned Writ Court has allowed the writ petition filed by petitioner Shrimati satya Prakashi Parsedia (respondent No. 1 herein) and quash the order of recall. ( 2. ) BRIEF facts of the case are that respondent No. 1 writ petitioner shrimati Satya Prakashi Parsedia was elected as President of Municipal Council, dabra, District Gwalior. She was declared elected as the President in the elections held on 20-11-2004. In the Municipal Council, Dabra there are as many as 24 councilors. Out of said 24 Councilors, it is alleged that 20 Councilors moved an application for recall on 3-11-2007 under Section 47 of the Madhya Pradesh municipalities Act, 1961 (hereinafter, referred to as act ). Said proposal was accepted by the Collector and was forwarded to the State Government. The State government referred the matter to the State Election Commission and the State election Commission on the reference made by the State Government started taking steps for elections on the proposal of recall of the writ petitioner. ( 3. ) WRIT petitioner Shrimati Satya Prakashi Parsedia filed the writ petition inter alia alleging that the procedure prescribed by sub-section (2) of section 47 of the Act was not followed, hence, the entire action of the Collector and the State Government for recall is illegal and without jurisdiction. ( 4. ) TO appreciate the argument, we have to first refer to the facts of the case. On 03-11-2007, at about 11. 45 an application for recall under Section 47 of the Act was moved which was allegedly signed by 20 Councillors. This application was addressed to the Collector who marked it to the Project Officer, district Urban Development Agency (DUDA ). Said project officer prepared a note Annexure R-1 stating that an application under Section 47 of the Act is received on 3-11-2007 at 11. 45 by the Councillors by remaining present before the Collector for recalling the President. Said President is on post since 12-1-2005, hence she completed two years ten months period. 3/4th of the Councilors have moved an application for recalling the said President. This note was put up to the project Officer. 45 by the Councillors by remaining present before the Collector for recalling the President. Said President is on post since 12-1-2005, hence she completed two years ten months period. 3/4th of the Councilors have moved an application for recalling the said President. This note was put up to the project Officer. The Project Officer wrote a report on the said note that out of 24 councilors of Nagar Palika, Dabra, 20 Councilors have signed the said application after remaining present before the Collector and they have made a demand for recalling the President Shrimati Satya Prakashi Parsedia. It is mentioned by the project Officer that he has verified the signatures. He has mentioned that the said Shrimati Satya Prakashi Parsedia was elected in the year 2004 when the result of the election was published in the gazette dated 28-12-2004. The President had taken over charge on 12-1-2005. As 3/4th of the Councillors have signed the application and the President is in office for more than two years, the proposal for recall should be forwarded to the State Government. Collector has made an endorsement on the said note approved and signed the same. Thereafter, the matter was sent to the State Government for action. ( 5. ) THE contention of the learned Counsel for the writ petitioner respondent herein is that for taking action under Section 47 of the Act, recording of satisfaction by the Collector is mandatory. In such a situation, it will be necessary for this Court to refer to the said provision which reads as under :-"47. ( 5. ) THE contention of the learned Counsel for the writ petitioner respondent herein is that for taking action under Section 47 of the Act, recording of satisfaction by the Collector is mandatory. In such a situation, it will be necessary for this Court to refer to the said provision which reads as under :-"47. Recalling of President.- (1) Every President of a Council shall forthwith be deemed to have vacated his office if he is recalled through a secret ballot by a majority of more than half of the total number of voters of the municipal area casting the vote in accordance with the procedure as may be prescribed : provided that no such process of recall shall be initiated unless a proposal is signed by not less than three fourth of the total number of the elected Councilors and presented to the Collector: provided further that no such process shall be initiated : (i) within a period of two years from the date on which such President is elected and enters his office; (ii) if half of the period of tenure of the President elected in a by-election has not expired : provided also that process for recall of the President shall be initiated once in his whole term. (2) The Collector, after satisfying himself and verifying that the three fourth of the Councilors specified in sub-section (1) have the proposal of recall, shall send the proposal to the State government and the State Government shall make a reference to the State Election Commission. (3) 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. " ( 6. ) FROM careful reading of Section 47, we find that sub-section (1)of Section 47 provides that every President of a Council shall forthwith be deemed to have vacated his office if he is recalled through a secret ballot by a majority of more than half of the total number of voters of the municipal area casting the vote in accordance with the procedure as may be prescribed. Proviso to this sub-section provides that no such process of recall shall be initiated unless a proposal is signed by not less than three fourth of the total number of the elected Councilors and presented to the Collector. Proviso to this sub-section provides that no such process of recall shall be initiated unless a proposal is signed by not less than three fourth of the total number of the elected Councilors and presented to the Collector. Thus, as per this proviso, the application for recall is to be signed by 3/4th of the Councilors and is to be presented to the collector. The procedure prescribed under this proviso is fully complied with in the present case as the application was signed by twenty out of twenty four councilors and was presented to the Collector. ( 7. ) SECOND proviso to sub-section (1) of Section 47 of the Act further lays down that no such process shall be initiated within a period of two years from the date on which such President is elected and enters his office. In the present case, the President had entered the office on 12-1-2005 and the application for recall is filed on 3-11-2007 i. e. , after expiry of two years and ten months. Hence, on this ground also, the application was maintainable. Proviso (ii) of second proviso to sub-section (1) of Section 47 further lays down that the application for recall shall not lie if half of the period of tenure of the President elected in a by-election has not expired. In the present case, the President was elected for five years and thus half of the tenure has already expired on the date of filing of the application for recall. ( 8. ) THE third proviso to Section 47 (1) further lays down that the process for recall of the President shall be initiated once in his whole term. There is nothing on record in the present case to show that before the present application for recall, any other application was moved. Hence, requirement of this proviso is also fulfilled. ( 9. ) SUB-SECTION (2) of Section 47 of the Act provides that the Collector, after satisfying himself and verifying that the three fourth of the Councillors specified in sub-section (1) have the proposal of recall, shall send the proposal to the State Government and the State Government shall make a reference to the state Election Commission. ( 10. ( 9. ) SUB-SECTION (2) of Section 47 of the Act provides that the Collector, after satisfying himself and verifying that the three fourth of the Councillors specified in sub-section (1) have the proposal of recall, shall send the proposal to the State Government and the State Government shall make a reference to the state Election Commission. ( 10. ) SHRI R. D. Jain, learned Counsel for the respondent- writ petitioner contended that this requirement is not fulfilled in the present case, while Sarvashri D. K. Katare, Counsel appearing for appellants in W. A. No. 98/08 and Vivek Khedkar, learned Government Advocate appearing in WA. No. 339/08 on behalf of appellants State have submitted that as the Collector has made an endorsement approved on the proposal of the Project Officer, the collector has satisfied himself and verified the facts that 3/4th of the Councilors have signed the proposal. ( 11. ) TO support their contentions, learned Counsel for the appellants have relied upon Full Bench decision of this Court in the case of State of Madhya pradesh Vs. Mahendra Kumar Saraf, 2005 (4) M. P. H. T. 185 = 2005 (3) MPLJ 578 wherein the Full Bench has considered the language and scope of Section 47 of the Act and held that the proviso to Section 47 of the Act does not contemplates that the proposal should be presented by the 3/4th of the Councillors in person or that for the purpose of verification of the signatories, their personal presence is necessary. It is held that the provision nowhere mandates that the verification shall be made in presence of signatories. Verification of signatures of signatories after procuring their presence may be one of the modes for such verification but it is not the only or exclusive mode, because nothing can be read in the proviso itself to this effect. Therefore, to put fetters on the discretion of the collector in selecting the mode of verification by making the personal presence of signatories mandatory while the law is framed to give him more elbow room in the matter would be clearly against the legislative intent. ( 12. ) ANOTHER Full Bench judgment on this point is in the case of Smt. Naravadi Bai Choudhary Vs. ( 12. ) ANOTHER Full Bench judgment on this point is in the case of Smt. Naravadi Bai Choudhary Vs. State of M. P. , (2005) 2 M. P. H. T. 119 in which similar view is taken and it is held that all the signatories i. e. , Councillors are not required to be physically present before the Collector at the time of presentation of the proposal. The proposal, even if, is presented by one of the Councillors, it is a valid proposal. ( 13. ) THE third judgment relied upon by the Counsel for the parties is in the case of Narayan Nagina Vs. State of M. P. and others, 2004 (1) MPHT 312 wherein it is laid down that sub-section (1) of Section 47 is to be read with sub-section (2) and on reading of both the sub-sections, it is apparent that the proceedings for recall shall be deemed to be initiated when the Collector has satisfied himself after verification that three fourth of the Councilors mentioned in sub-section (1) have submitted a proposal of recall. Satisfaction and verification by the Collector is mandatory under sub-section (2 ). Unless the Collector is satisfied after verification that three fourth of the elected Councillors have signed the proposal, it cannot be said that the proceeding for recall has been initiated. Proceeding for recall shall be deemed to be initiated after verification and satisfaction by the Collector as envisaged under sub-section (2) of Section 47 of the Act. ( 14. ) RELYING on these full decisions of this Court, the contention of the learned Counsel for the appellants is that the requirement of Section 47 of the act is fully complied with in the present case. ( 15. ) SO far as question of signatures are concerned, the petitioner alongwith his petition had filed affidavits of seven Councilors in support of the petitioner wherein they have stated that they have signed the proposal under the influence of the Collector. Thus, they have admitted their signatures on the application for recall and therefore, the question of verification of their signatures does not arise and there is no doubt about the genuineness of their signatures. ( 16. ) THE question in the present case is whether the Collector had satisfied himself and verified the fact that 3/4th of the Councillors have signed the proposal before sending the proposal to the State Government. ( 16. ) THE question in the present case is whether the Collector had satisfied himself and verified the fact that 3/4th of the Councillors have signed the proposal before sending the proposal to the State Government. ( 17. ) IN the present case, the Collector had endorsed the proposal of the Project Officer as approved. The question which emerges is whether said approval can be said to be satisfaction of the Collector. ( 18. ) THE question in the present case is what is the difference between the words approval and satisfaction. The Legislature in its wisdom has used these phrases in different statutes at different places. ( 19. ) AS per Websters New World Dictionary, the word approval means favourable attitude or opinion, formal consent or permission, approval for the customer to examine and decide whether to buy or return goods. The word approve means ones consent or sanction. The word satisfaction is defined in the said dictionary and means comfort, content, contentment, delight, enjoyment, fulfilment, gratification, happiness, pleasure etc. ( 20. ) approval in common parlance means what has to be approved has already taken place in its nature of ratification or what has already happened or has taken place. The word approval in contradistinction to the words previous permission, shows that the action is taken first and approval is to be obtained afterwards. The word approval does not equate with the word appeal. The word approval does not mean anything more than either confirming, ratifying, assenting, sanctioning or consenting. While the word satisfaction means the act of satisfying or the state of feeling being satisfied and the action of satisfaction contemplates adequate deliberation for acceptability of the conclusions. In other words, it means that before recording satisfaction, the concerned Authority must be convinced or persuaded to come to the conclusion. ( 21. ) IN case of satisfaction as well as approval, the application of mind is necessary. Section 47 of the Act lays down that before forwarding proposal the Collector must satisfy himself. The word "for the reasons to be recorded" are not in the Act. Hence, it may be argued that objective satisfaction of the Collector is not necessary. However, still the subjective satisfaction is necessary. Thus, application of mind in both the cases is necessary. The degree of application of mind in the word satisfaction is greater than the word approval. The word "for the reasons to be recorded" are not in the Act. Hence, it may be argued that objective satisfaction of the Collector is not necessary. However, still the subjective satisfaction is necessary. Thus, application of mind in both the cases is necessary. The degree of application of mind in the word satisfaction is greater than the word approval. Normally, the approval is granted to an act of some other persons and not of his own. However, so far as satisfaction is concerned, said satisfaction is personal satisfaction. Said satisfaction can also be on the proposal or any other material or report submitted by some other authorities, still personal satisfaction is necessary. Hence, greater degree of application of mind is necessary, when the mandate of the law is that the satisfaction is the satisfaction of himself. ( 22. ) IN the present case, the Collector has used the word approved and has nowhere stated that he has satisfied himself about the contents of the application. Thus, he has not applied his mind to a degree which is required under Section 47 of the Act. It does not mean that the Collector cannot satisfy himself on the report given by some other agency. It is open to the Collector to get report from some other agency and then satisfy himself on the basis of the said report. However, this exercise is not done by the Collector in the present case. He has merely approved the proposal of the Project Officer. That itself suggests that he has not applied his mind to a greater degree which is the requirement of sub-section (2) of Section 47 of the Act. Therefore, the learned single Bench has rightly allowed the writ petition filed by respondent No. 1 herein. We do not find, in the present case, that the Collector has applied his mind as required under Section 47 (2) of the Act before sending the proposal to the State Government. ( 23. ) IN the present case, it is the effect of the satisfaction that gives rise to the jurisdiction, which is not present in the case in hand. Hence, the action of the Collector in forwarding the proposal to the State Government cannot be sustained in the eyes of law. Hence, these appeals being devoid of any merit are dismissed.