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Madhya Pradesh High Court · body

2009 DIGILAW 1145 (MP)

ANIS BEG v. STATE OF M. P.

2009-09-22

R.S.JHA

body2009
Judgment R.S.Jha, J. ( 1. ) The petitioner has filed this petition assailing the proceedings for no confidence held against him on 22.1.2009 whereby the Municipal Council, Waraseoni has passed a resolution expressing no confidence against the petitioner, who at the relevant time was working as Vice President of Muncipal Council, Waraseoni, by a vote of 13:1. ( 2. ) The brief facts, leading to the filing of the present petition, are that the petitioner was initially elected as a Councillor from Ward No. 10 in Municipal Council, Waraseoni. He was subsequently elected as Vice President by the Councillors in a special meeting held for that purpose on 25.11.2004. On 26.12.2008 eleven ward members signed and forwarded an application under section 43 A of the Madhya Pradesh Municipalities Act, 1961 (hereinafter referred to as the Act), moving a motion of no confidence against the petitioner. The competent authority forwarded the same to the Collector who on 9.1.2009 directed convening of a meeting of no confidence on 22.1.2009 and issued notices for that purpose with a further direction to serve notices on all the Councillors within the stipulated period. ( 3. ) It is an undisputed fact that notices were served to all the Councillors including the petitioner between 13 1.2009 and 15.1.2009. It is also an undisputed fact that all the Councillors including the petitioner participated in the no confidence proceedings that was held on 22.1.2009. In accordance with the directions issued by the Collector, Balaghat the meeting was presided over by the Sub Divisional Officer and on that date 13 out of the 14 Councillors present voted against the petitioner as a result of which and in accordance with the provisions of Section 43 A of the Act, the petitioner stood removed from the post of Vice President and the said post was declared vacant. It is also an undisputed fact that the petitioner, as on date, is continuing to work as a Councillor and that subsequently on 8.6.2009 one Ramesh Devhare has been elected as Vice President of the Municipal Council, Waraseoni. ( 4. ) The learned counsel for the petitioner has assailed the impugned motion of no confidence on the ground that the petitioner was not given 10 clear days notice as required by the provisions of section 43A(2) of the Act as the notice of the meeting was served upon him on 15.1.2009. ( 4. ) The learned counsel for the petitioner has assailed the impugned motion of no confidence on the ground that the petitioner was not given 10 clear days notice as required by the provisions of section 43A(2) of the Act as the notice of the meeting was served upon him on 15.1.2009. The second contention of the learned counsel for the petitioner is that on account of delayed service of notice, the petitioner was prejudiced from defending the motion and, therefore, the entire motion for no confidence deserves to be quashed and set aside being contrary to the provisions of law. ( 5. ) To properly appreciate the submission of the learned counsel for the petitioner, it is apposite to consider the provisions of Section 43(A) of the Act, which reads as follows:- "43A. No-confidence motion against Vice-President.- (1) a motion of no confidence may be moved against the Vice-President by any elected Councillor at a meeting specially convened for the purpose under sub-section (2) and if the motion, is carried by a majority of two thirds of the elected Councillors present and voting in the meeting and if such majority is more than half of the total number of elected Councillors constituting the Council, the office of the Vice- President, shall be deemed to have become vacant forthwith a copy of such motion shall be sent by the Chief Municipal Officer to the Collector forthwith for filling up the vacancy: Provided that no such resolution shall lie against the Vice-President within a period of - (i) two years from the date on which the Vice- President enters upon his office; (ii) one year from the date on which the previous motion of no-confidence was rejected. (2) For the purpose of sub-section (1), a meeting of the Council shall be convened and presided over by the Collector or a Class I Officer in case of a Municipal Council and a Class II officer in case of Nagar Panchayat as nominated by him, in the following manner, namely:- (i) the meeting shall be convened forthwith on a requisition signed by not less than one-sixth of the total number of elected Councillors constituting the council for the time being; (ii) the notice of such meeting specifying the date, time and place shall be despatched to the President and every Councillor ten clear days before the meeting. (iii) the no-confidence motion moved under this section shall be decided through secret ballot." From a perusal of the aforesaid section it is clear that a motion of no confidence can be moved in a meeting specially convened for that purpose and has to be carried by a majority of two-third of the elected Councillors present and voting and if such majority is more than half of the total number of elected Councillors constituting the Council, provided that the resolution shall not be passed within two years from the date on which the Vice President enters upon his office and one year from the date on which the previous motion of no-confidence was rejected. The section also stipulates that the meeting for no confidence has to be convened on a requisition signed by not less than one-sixth of the total Councillors; that the notice of the meeting has to be dispatched to the President and every Councillor ten clear days before the meeting; and that the motion is to be decided through a secret ballot. ( 6. ) In the instant case, on the insistence of the learned counsel for the petitioner, the record of the Collector, Balaghat was summoned so as to verify the factual aspect of the case. From a perusal of the record it is clear that a motion of no confidence was signed and moved by 11 Councillors on 29.12.2008. On 9.1.2009, the Collector Balaghat, on being satisfied with the fact that the petitioner had been elected as vice President on 18.1.2005 and, therefore, the motion was beyond the period of two years from the date of his entering upon office and also satisfying himself of the fact that it was the first motion of no confidence against the petitioner, directed holding of a special meeting for the purpose of considering the motion of no confidence on 22.1.2009. It is also clear from the order passed by the Collector, Balaghat-dated 9.1.2009 itself that he also issued notices to all the Councillors on the same day with a direction to the Chief Municipal Officer, Waraseoni to ensure service of notice of the meeting who ultimately served the same on all the Councillors between 13.1.2009 and 15.1.2009. ( 7. It is also clear from the order passed by the Collector, Balaghat-dated 9.1.2009 itself that he also issued notices to all the Councillors on the same day with a direction to the Chief Municipal Officer, Waraseoni to ensure service of notice of the meeting who ultimately served the same on all the Councillors between 13.1.2009 and 15.1.2009. ( 7. ) From a perusal of the minutes of the proceedings held on 22.1.2009 it is also clear that as many as 15 Councillors including the petitioner and the President were present in the meeting; that all the persons participated in the proceedings and that 14 votes were cast out of which 13 votes went against the petitioner while one vote was cast in favour of the petitioner and, therefore, the presiding officer held the motion of no confidence to have been passed. Consequently, the Collector, Balaghat by order dated 4.2.2009 declared the post vacant. ( 8. ) From a perusal of the provisions of Section 43A(2)(ii) of the Act, which deals with the provision of notice, it is clear that the requirement of the Section is that the notice should be dispatched to the President and every Councillor ten clear days before the meeting and does not mandate service of notice 10 clear days before the meeting. ( 9. ) In the instant case, as is clear from the order passed by the Collector, Balaghat dated 9.1.2009, he had dispatched all the notices on that very day for service through the Chief Municipal Officer for service to all the-Councillors for a meeting that was to be held on 22.1.2009 and, therefore, the notices were apparently and admittedly dispatched 10 clear days before the date of meeting. The fact that the notice was served on the petitioner on 15.1.2009 is in fact immaterial as the requirement of the provision of law is despatch of notice 10 clear days before the meeting and not service of notice of 10 clear days before the meeting. In such circumstances, the contention of the learned counsel for the petitioner that the no confidence meeting and the consequent motion deserves to be quashed in view of the non-compliance of the provisions of Section 43A(2)(ii) of the Act, is misplaced and misconceived. ( 10. In such circumstances, the contention of the learned counsel for the petitioner that the no confidence meeting and the consequent motion deserves to be quashed in view of the non-compliance of the provisions of Section 43A(2)(ii) of the Act, is misplaced and misconceived. ( 10. ) I find support for the aforesaid conclusion from a Full Bench Judgment of this Court rendered in the case of Smt. Bhulin Dewangan vs. State of M.P. and others, 2000(4) MPHT 69 (FB), wherein the Full Bench was considering a similar provision of Section 21 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam,1993 wherein the requirement of the section was despatch of notice and not service of notice and in that context it was held as under:-"9. The legislature has designedly used the expression the notice of such meeting specifying date, time and place thereof shall be caused to be dispatched by him through the Secretary of the Panchayat concerned. The use of the word dispatch appears to be deliberate and it cannot be read as receipt of the notices by the members of the Panchayat. No rule of interpretation permits reading of one word for the other. As is clear from the contents of the rule, the intention appears clear to us. The law intends that the notice of meeting should be Sent to the members concerned seven days in advance of the meeting to enable them to participate in the motion of no-confidence. The Rule does not convey any intention that the motion of no-confidence should be taken up only after each and every member of the Panchayat has been actually served with the notice. Had the intention been such, it would have been easy for the legislature to have clearly said so by use of word receipt instead of the word dispatch of notices 7 days in advance of the meeting. Use of word dispatch in the Rule is clearly with a view that merely on non-service of notice of meeting on one or few members, the consideration of motion of no- confidence should not be frustrated, as in any case, the passing of it depends on existence of the requisite majority. Use of word dispatch in the Rule is clearly with a view that merely on non-service of notice of meeting on one or few members, the consideration of motion of no- confidence should not be frustrated, as in any case, the passing of it depends on existence of the requisite majority. Section 21, however, requires that a valid motion of no-confidence can be passed only on a motion mooted by prescribed one third of total number of elected members and passed by majority of not less than 3/4th of the Panchas present and voting and such majority is more than 2/3 rd of the total number of Panchas. If the motion is validly passed by the requisite majority, mere non-service of notice of meeting on one or more members would not render the passing of no-confidence motion invalid. The latter part of sub-rule (3) of Rule 3 uses the words shall be caused indicating clearly that the rule is mandatory and requires due compliance. The literal meaning of word despatch is given in New Standard dictionary, Vol. I as under:- 1. The act of dispatching,: a forwarding to some destination: usually with the implication of promptness or celerity; as, as the dispatch of a messenger, or of the mails. 2. A message sent by special means and with haste, as by telegraph; especially, a communication on public matters sent by one official to another. 3. Quick transaction, as of business; speedy execution the prompt performance and completion of work; expedition, speed; as, he shows ability to dispatch of business; he concluded the negotiations with dispatch." 10. We have, however, to assign both a literal and legal meaning to the word dispatch otherwise it is open to wicked abuse in the hands of concerned authority who may act in collusion with any of the elected members. It is not mere sending or giving of notice of meeting in the manner best suited to the liking of the Secretary of the Panchayat. ( 11. ) In the decision of the Supreme Court in the case of Delhi Development Authority Vs. It is not mere sending or giving of notice of meeting in the manner best suited to the liking of the Secretary of the Panchayat. ( 11. ) In the decision of the Supreme Court in the case of Delhi Development Authority Vs. H.C. Khurana (AIR 1993 SC1488), the question arose was whether sealed cover procedure in the matter of promotion under the circular could be followed in the case of a government servant against whom although, a charge- sheet had been issued but it was not served on him on the date of the proceedings of the D.P.C. In that respect, the observations of the Supreme Court in its earlier decision in Union of India Vs. Jankiraman [(1991) 4 SCC109] = (AIR 1991 SC2010) came up for consideration. The contention advanced on behalf of the employee was that the requirement of issuance of charge-sheet to the employee as a pre-condition for adopting sealed cover procedure should mean actual service of charge-sheet on the employee. Negativing such a contention, the Supreme Court construed the meaning of the word issued used in the circular laying down sealed cover procedure in the case of H. C Khurana (supra). In the circular of sealed cover procedure the word used were "government servants in respect of whom a charge-sheet has been issued". In the Rule 3(3) for construction before us, the expression used in analogous i.e., "notice shall be caused to be dispatched to him". The literal meaning for words "issued" and "dispatched" and the following observations in the decision of H. C. Khuranas case support the construction placed on the rule by us: "The meaning of the word issued, on which considerable stress was laid by learned counsel for the respondent, has to be gathered from the context in which it is used. Meanings of the word issue given in the Shorter Oxford English Dictionary include: to give exit to; to send forth, or allow to pass out; to let out;.... to give or sent out authoritatively or officially; to send forth or deal out formally or publicly; to emit, put into circulation. Meanings of the word issue given in the Shorter Oxford English Dictionary include: to give exit to; to send forth, or allow to pass out; to let out;.... to give or sent out authoritatively or officially; to send forth or deal out formally or publicly; to emit, put into circulation. The issue of a charge-sheet, therefore, means its despatch to the Government servant, and this act is complete the moment steps are taken for the purpose, by framing the charge-sheet and despatching it to the Government servant, the further fact of its actual service on the Government servant not being a necessary part of its requirement. This is the sense in which the word issue was used in the expressing charge-sheet has already been issued to the employee, in para 17 of the decision in Jankiraman." 11. It is also pertinent to note that in the instant case the petitioner had full knowledge of the date of the meeting and was himself present on that day and also actively participated in the no confidence proceedings. In such circumstances, the contention of the petitioner that he was prejudiced by the fact of delayed service of notice is also misconceived, firstly, for the reason that the provision of law does not require service of notice but only despatch of notice 10 clear days before the date of meeting which has duly been done in the present case and, secondly, in view of the fact that the petitioner had full knowledge of the meeting and himself participated in the proceedings. It is also clear that the petitioner lost the motion of confidence by a clear majority of 13:1. It is, therefore, apparent that the Councillors did not repose any confidence in his continuance as Vice President of Municipal Council, Waraseoni. ( 12. ) In view of the aforesaid circumstances, I find no substance in the submission of the learned counsel for the petitioner that the motion of no confidence be quashed. It is, therefore, apparent that the Councillors did not repose any confidence in his continuance as Vice President of Municipal Council, Waraseoni. ( 12. ) In view of the aforesaid circumstances, I find no substance in the submission of the learned counsel for the petitioner that the motion of no confidence be quashed. The issue regarding prejudice caused due to non-compliance of a mandatory provision raised by the petitioner was also considered by the Full Bench, in the case of Smt. Bhulin Dewangah (supra), and it was held as follows in paras 15 and 16:- "15......As has been construed by us, even though second part of the rule requiring dispatch of notice of the meeting to the member is mandatory, yet in every case of challenge to the proceeding of no-confidence motion either before the Collector or this Court, it would still be open to the Collector or this Court to find out whether in a given case non-compliance of any part of the rule has in fact resulted in any failure of justice or has caused any serious prejudice to any of the parties. The general. rule is that a mandatory provision of law requires strict compliance and the directory one only substantial. But even where the provision is mandatory, every non- Compliance of the same need not necessarily result in nullification of the whole action. In a given situation even for non-fulfillment of mandatory requirement, the authority empowered to take a decision may refuse to nullify the action on the ground that no substantial prejudice had been caused to the party affected or to any other party which would have any other substantial interest in the proceeding. This Court under Article 227 of the Constitution has also a discretion hot to interfere even though a mandatory requirement of law has not been strictly complied with as thereby no serious prejudice or failure of justice has been caused. This is how various Single Bench decisions in which even after finding some infraction of the second part of Rule 3(3) of the Rules of 1994, the resolution of no-confidence motion passed was not invalidated on the ground that no substantial prejudice thereby was caused to the affected parties. The intention of the legislature has to be gathered from the provisions contained in Section 21 and the Rule 3(3) framed thereunder. The intention of the legislature has to be gathered from the provisions contained in Section 21 and the Rule 3(3) framed thereunder. The provisions do evince an intention that a meeting of the no-confidence motion be called within a reasonable period of not later than 15 days and every member has to be informed of the same seven days in advance. A notice of no-confidence motion is required to be moved by not less than l/3rd of the total number of elected members as required by first Proviso to sub-rule (1) of Rule 3 and can be lawfully carried by a resolution passed by majority of not less than 3/4th of the Panchas present and voting and such majority has to be more than 2/3rd of the total number of Panchas constituting the Panchayat in accordance with sub-section (1) of Section 21 of the Act. This being the substance of the provisions under the Act and the rules, a mere non-compliance of second part of sub- rule (3) would not in every case invalidate the action unless the Collector while deciding the dispute under sub-section (4) of Section 21 or this Court in exercise of its supervisory jurisdiction under Art. 227 of the Constitution comes to the conclusion that such non-compliance has caused serious prejudice to the affected office bearer or has otherwise resulted in failure of justice. 16. We get some support in our conclusion on the construction of the provisions contained in the Rule from Statutory Construction by Francis J. Mc Caffrey, 1953 Edition, Article 52, Page 110 where it stated: "Where a statute regulates the time at or within which an act is to be done by a public officer or body, it is generally construed to be permissive only as to the time, for the reason "that the public interests are not to suffer by the laches of any public officer" (Looney Vs. Hughes, 26 N.Y.,514). While the Courts are inclined to hold such provisions to be directory only as to time, they will be read as mandatory if the nature of the act to be performed or the phraseology of the statute indicates an intention on the part of the legislature to exact a literal compliance with the requirement of time. Hughes, 26 N.Y.,514). While the Courts are inclined to hold such provisions to be directory only as to time, they will be read as mandatory if the nature of the act to be performed or the phraseology of the statute indicates an intention on the part of the legislature to exact a literal compliance with the requirement of time. The Courts seek to achieve a just result in not ascribing an invalidating effect to the failure of public officers to observe the time provisions of statutes; a contrary rule would operate unfairly in prejudicing the rights of persons who have no control over the conduct of the public officer." (Emphasis supplied) and from the following passage in Statutory Interpretation by Francis Bennion, Second Edition, Part I, Section 10 page 34: "Even where the duty is mandatory, the Court will not now- a- days hold it to be contravened because of a purely formal or technical defect. This may be described as a defect that does not materially impair the remedy intended to be provided by the enactment for the mischief to which it is directed." A similar view has also been taken by this Court in the case of Apt Singh vs. Nagar Panchayat, Bhitarwar and others, 1995 MPLJ774 and Smt. Saraswati Bai vs. State of M.P. And others, 2003(1) MPHT415. ( 13. ) In view of the aforesaid facts and circumstances, I do not find any infirmity or illegality in the motion of no confidence passed against the petitioner on 22.1.2009 removing him from the post of Vice President of Municipal Council, Waraseoni, District Balaghat. The petition filed by the petitioner, being misconceived, is accordingly dismissed: In the facts and circumstances of the case there shall be no order as to the costs. Petition dismissed.