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Madhya Pradesh High Court · body

2009 DIGILAW 216 (MP)

MANGILAL v. STATE OF M P

2009-02-12

DIPAK MISRA, S.K.SETH

body2009
Judgment ( 1. ) THE centrirorial question that emanates for determination in this intra- Court appeal preferred under Section 2 (1) of the Madhya Pradesh uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 pertains to the commencement of the period of President of a Nagar Panchayat for the purpose of recall as envisaged under Section 47 (1) of the M. P. Municipalities act, 1961 (for brevity the Act ). ( 2. ) SHORN of unnecessary details the facts which are imperative to be unfurled are that the present appellant was elected as President of Nagar panchayat in an election held on June 16,2004 and the said election was notified on June 24,2004. The first meeting of the Municipal Council was held on July 15, 2004. During the continuance of the petitioner as the President of the Nagar panchayat, a proposal was mooted for his recall and the said application was entertained by the Collector in terms of Section 47 of the Act and was forwarded to the State Government for further appropriate action. ( 3. ) QUESTIONING the aforesaid action of the Collector the petitioner invoked the jurisdiction of this Court under Article 226 of the Constitution of india contending, inter alia, that initiation of process under Section 47 of the Act was in contravention of the mandatory provisions of the Act and the recommendation sent by the Collector also is not in accord with the same and hence, the whole process is unsustainable. ( 4. ) IT was urged before the learned Single Judge that as the first meeting to the Municipal Council was held on July 15,2004 in terms of Section 55 of the Act, the initiation of the process to recall the President of the Council on June 26,2006 was impermissible as the same was within the span of two years from the date of the first meeting. It was highlighted that a meeting of this nature could not have been called before expiration of two years from the date of entering into office by the petitioner and hence, action taken by the authority was sensitively susceptible warranting interference by this Court. ( 5. ) THE stance of the petitioner was resisted by the learned Counsel for the State propounding, inter alia, that the action of the Collector was absolutely justified inasmuch all the requirements of the mandatory provisions had been taken care of. ( 5. ) THE stance of the petitioner was resisted by the learned Counsel for the State propounding, inter alia, that the action of the Collector was absolutely justified inasmuch all the requirements of the mandatory provisions had been taken care of. It was canvassed that the colossal complaint that the application for recall was moved prior to expiry of two years from the date of entering into office by the President is sans substance inasmuch as the notification for electing the President was issued on June 24, 2004 and the application for recall was preferred on June 26,2006 which is after expiry of two years and, therefore, no fault can be found with the action of the authorities. ( 6. ) THE learned Single Judge referred to Sections 36, 55 and 47 of the act and Article 243-U of the Constitution of India and placed reliance on the decision rendered in Stale of M. P. Vs. Mahendra Kumar Saraf and others, 2005 (4) M. P. H. T. 185 (FB) = 2005 (3) MPLJ (FB) 578, and came to hold that the controversy is covered by the law enunciated by the decision rendered by the full Bench and, therefore, the writ petition was sans merit. Being of this view he treated the writ petition to be devoid of merit and dismissed the same. ( 7. ) WE have heard Mr. Piyush Mathur, learned Counsel for the appellant Mr. A. S. Kutumble, learned Addl. Advocate General for the respondent No. 1 and Mr. Sunil Jain, learned Counsel for the respondent No. 2, the State Election Commission. ( 8. ) QUESTIONING the correctness of the order passed by the learned single Judge, Mr. Mathur, learned Counsel for the appellant has raised the following submissions:- (a) If the entire scheme of the Act is studied in a closer scrutiny an elected President can enter into office only and from the date of the first meeting in terms of Section 55 of the Act and not prior to that. (b) The Legislative intent behind the recall has not been appositely appreciated and the reliance placed on the decision in Mahendra Kumar Saraf (supra), without discussing the contentions in that regard makes the order sensitively susceptible. (b) The Legislative intent behind the recall has not been appositely appreciated and the reliance placed on the decision in Mahendra Kumar Saraf (supra), without discussing the contentions in that regard makes the order sensitively susceptible. (c) The learned Single Judge has fallen into error by not appreciating the scope of sweep of the 74th Amendment of the Constitution wherein mode of electing President of municipalities was changed and the tenure of the Council was made co-terminus with that of the elected President and councillors in terms of Articles 239-Q, 239-R and 239-U of the Constitution of India and on appreciation of the aforesaid provisions it would be quite vivid that the intendment of the Legislature is to the effect that an elected president would only enter into the office from the date of the first meeting and not from the date of notification of the election. (d) The decision rendered in Mahendra Kumar Saraf (supra), requires reconsideration by a Larger Bench inasmuch as the said decision has not considered the effect and impact of the provisions brought by way of State Amendment Act No. 11 of 1999. (e) If the ratio of the Full Bench decision is applied the intention of the Legislature would be totally defeated inasmuch as fixation of two years from the date of notification of election would defeat the basic purpose of tenure which has inseggregable nexus with the newly elected Councillors. (f) The reliance on Section 49 of the Act in Mahendra Kumar saraf (supra), is not appropriate as there should have been a proper scrutiny of the entire scheme of the Act regard being had to the amendments to the frame of the statute and there was no need to give a narrow and constricted meaning to the provision. (g) The reference to the concept of deemed fiction as envisaged under Section 49 of the Municipalities Act by the Full Bench runs counter to the constitutional provisions and other statutory provisions as a result of which an anomalous situation has emerged. ( 9. ) MR. A. S. Kutumble and Mr. Sunil Jain, learned Counsel appearing for the respondents supporting the order passed by the learned Single Judge contended that the controversy has been correctly put to rest in Mahendra kumar Saraf (supra), and there is no warrant to refer the matter to a Larger bench. ( 9. ) MR. A. S. Kutumble and Mr. Sunil Jain, learned Counsel appearing for the respondents supporting the order passed by the learned Single Judge contended that the controversy has been correctly put to rest in Mahendra kumar Saraf (supra), and there is no warrant to refer the matter to a Larger bench. It is urged by them that as the conclusion arrived at by the learned Single judge is totally in accord with the ratio of the case of Mahendra Kumar Saraf (supra), the writ appeal deserves to be dismissed. ( 10. ) THE seminal question as is manifest from the submission of the learned Counsel for the parties how the period is required to be computed for the purpose of recall as envisaged under Section 47 of the Act. In this context, it is apt to refer to Section 36 of the Act which deals with duration of the municipality. The said provision reads as under:- "section 36. Duration of the Municipality.- (1) Every Municipality unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer. (2) An election to constitute a Municipality shall be completed,- (a) before the expiry of its duration specified in sub- section (1 ). (b) before the expiration of a period of six months from the date of its dissolution : provided that where the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election under this section for constituting the Municipality for such period. (3) A Municipality constituted upon the dissolution of a municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved municipality would have continued under sub-section (1) had it not been so dissolved. (4) Subject to the provisions of this Act, the term of President and every Councillor shall be co-terminus with the term of the council. " ( 11. ) SUBMISSION of Mr. Mathur, learned Counsel for the appellant is that duration of elected body is for five years from the date of conducting of the first meeting and the term of the President is co-terminus with the Chairman of the Council. " ( 11. ) SUBMISSION of Mr. Mathur, learned Counsel for the appellant is that duration of elected body is for five years from the date of conducting of the first meeting and the term of the President is co-terminus with the Chairman of the Council. It is urged by him that the said fixation of term is in consonance with the mandate of Articles 243-Q, 243-R and 243-U of the Constitution of India and, therefore, has to be strictly construed. Article 243-U being relevant is reproduced below:- "243-U. Duration of Municipalities, etc.- (1) 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: provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution. (2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Municipality at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1 ). (3) An election to constitute a Municipality shall be completed,- (a) before the expiry of its duration specified in clause (1); (b) before the expiration of a period of six months from the date of its dissolution : provided that where the remainder of the period of which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Municipality for such period. (4) A Municipality constituted upon the dissolution of a municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved municipality would have continued under clause (1) had it not been so dissolved. " ( 12. ) RELYING on the said provision of the Constitution of India it is submitted by Mr. Mathur that the period of Municipal Council has to be five years and that is the Legislative intendment of the 1961 Act which has been amended by Act No. 18 of 1997. " ( 12. ) RELYING on the said provision of the Constitution of India it is submitted by Mr. Mathur that the period of Municipal Council has to be five years and that is the Legislative intendment of the 1961 Act which has been amended by Act No. 18 of 1997. Emphasis has been laid on the concept of co-terminus to pyramid the proponements that once the term of the President is co-terminus with that of the term of the Council commencement of the term has to be from the first meeting of the Council and on that base the period of recall has to be computed from that period. In this regard, it is apt to reproduce section 43 of the Act which deals with election and term of the Vice President. The said provision as it stands today is the resultant factum of the amendment in the statute book by M. P. Act No. 17 of 1994 on 30th May, 1994 and Act No. 18 of 1997, dated 21-4-1997. It reads as under :- "43. Election and term of Vice President.- (1) The President and the elected Councillors of the Council shall as it first meeting as referred to in sub-section (1) of Section 55 elect a Vice President from amongst the elected Councillors in the prescribed manner. (2) The meeting under sub-section (1) shall be presided over by such officer as mentioned in sub-section (2) of Section 55. (3) The term of the Vice President shall be co- terminus with the term of the Council. " ( 13. ) ON a plain reading of the said provision it is luminescent that the president and the elected Councillors have been empowered to elect a Vice president from amongst the Councillors at its first meeting. ( 14. ) THE provision of recalling of President as enshrined under Section 47 of the Act reads as follows :- "47. " ( 13. ) ON a plain reading of the said provision it is luminescent that the president and the elected Councillors have been empowered to elect a Vice president from amongst the Councillors at its first meeting. ( 14. ) THE provision of recalling of President as enshrined under Section 47 of the Act reads as follows :- "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 Councillors and presented to the Collector : provided further that no such process shall be initiated:- (1) 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 bye-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 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. (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. " ( 15. ) WE have extracted the provision in entirety to understand the purport of the same. Learned Counsel for the appellant has emphatically urged that the words "whole term" used in the Third Proviso to Section 47 (1) have to be read conjointly with the words "coterminous" used in Section 36 as both the provisions refer to the concept of tenure. In essentiality, the proponements of mr. Mathur is that commencement of the term cannot be marginalised for the purpose of computation of the period of two years as stipulated in the Second proviso to Section 47 (1) of the Act. In essentiality, the proponements of mr. Mathur is that commencement of the term cannot be marginalised for the purpose of computation of the period of two years as stipulated in the Second proviso to Section 47 (1) of the Act. It is noteworthy that as per the provision the process of recall cannot be initiated within a period of two years from the date of which the President is elected and enters office. In this context, we may fruitfully refer to Section 45 which has been brought in the Statute Book by M. P. Act No. 18 of 1997. It reads as follows :- "45. Notification of election of President and Councillors.- Every election of the President and Councillors from wards shall be notified by the State Election Commission in the Official Gazette. " ( 16. ) IT is worth noting that the election of the President is a direct election. The President participates in the first meeting along with Councillors to elect the Vice President. Indubitably, he is elected on the date it is notified in the Official Gazette by State Election Commission. It is propounded by Mr. Mathur that the President should not only be elected but must enter his office for the purpose of computation of recall under Section 47 of the Act. There can be no doubt that they have to be read in conjunction. The words enters his office have also been used in Section 49 (1) of the Act. Section 49 deals with penalty for refusal to handover charge by outgoing office bearers. Sub-section (1) of the said provisions reads as follows :- "49. (1) The President and the Vice President shall,be deemed to have entered their respective offices from the date of their election and the outgoing President, as the case may be, to handover the required papers and property forthwith. " ( 17. ) THE Full Bench in Mahendra Kumar Saraf (supra), has held thus:- "31. The first point relating to Section 49 (1) has to be examined in the light of the provisions of Section 45 of the Act which provides that every election of the President shall be notified by the State election Commission in the Official Gazette. Section 49 (1) creates the deeming fiction that President shall be deemed to have entered his office from the date of his election. Section 49 (1) creates the deeming fiction that President shall be deemed to have entered his office from the date of his election. The provisions of Section 45 do clearly indicate that the election shall become final with the notification in Official Gazette. That exactly should be the commencement of the term of the President which is further made clear by the specific provision of Section 49 (1 ). 32. No doubt, Section 49 bears the title "penalty for refusal to handover charge by outgoing officer bearers" but that heading should not mislead us in interpreting the provisions of Section 49 because it is a settled law that the title of a section may not be a guiding factor for interpreting that section. 33. The placement of sub-section (1) which creates the deeming fiction before sub-section (2) of Section 49 which provides for handing over of charge forthwith gives a clear indication of the scheme and the intention of the Legislature in this respect. Had the intention of the Legislature been otherwise, then sub-section (2) of section 49 should have been the opening part of Section 49 and, thereafter, it could well have been added that for the purpose of taking and handing over charge the President shall be deemed to have entered his office from the date of his election. This being not the case here, it cannot be said that sub-section (1) of Section 49 is only surplusage of sub-section (2 ). On the contrary, what is very much clear from the aforesaid placement of sub-sections (1) and (2)is that for the purpose of the Act, the entering into office of the president shall be deemed from the date of its election which invariably, shall be the date of notification of election as contemplated by Section 45 of the Act. Any other interpretation to sub-section (1) would definitely amount to an interference in the scheme which the Legislature intended to provide thereby rendering the effect of sub-section (1) of Section 49 totally meaningless. 34. In fact, no rider is there in sub-section (1) of Section 49 so as to make it applicable only for the purpose of sub-section (2 ). Had sub-section (1) been a proviso to sub-section (2), then definitely the interpretation could have been taken that the deeming fiction is for limited purpose. Therefore, the argument to the contrary can not be accepted. Had sub-section (1) been a proviso to sub-section (2), then definitely the interpretation could have been taken that the deeming fiction is for limited purpose. Therefore, the argument to the contrary can not be accepted. " Thereafter, the Full Bench proceeded to state as follows:- 39. In the background of the aforesaid connotations of words "terminus" and "co-terminus" it flows that usually word "terminus" implies the terminal or end point or finishing point and when used with prefix "co", it should mean to imply two things or objects having the same end, same finishing point or same terminating point. Therefore, in the context in which word "co-terminus" has been used in Section 36 (4) it has to be given the meaning that the term of the President shall end with the term of the Council, meaning thereby the moment the term of the Municipal Council comes to an end, the term of the President shall also come to an end irrespective of the fact whether or not the office bearer has completed five years in office. In the case of bye-election to the post of President the term of the office of the President elected in bye-election may be shortened and in that case it can never be co-terminus, if we interpret the word "co-terminus" in the sense of commencement and termination, with the term of the Council because in that eventuality the term of the Council shall commence with the first meeting of the election shall commence afresh and not from the date of the first meeting. 40. It is quite understandable from the provision 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. 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. " ( 18. ) THE learned Counsel would submit that the concept of deemed to have entered into the office from the date of first election as engrafted under section 49 of the Act should have been ignored regard being had to the concept of tenure and conceptual eventuality of tenure. The aforesaid submission in our considered opinion really does not deserve acceptance because Section 49 has a sacrosanct purpose. It avoids any kind of cavil between the elected President and the outgoing President who had been occupying the office. That apart, when there are two provisions in the Statute Book and the Legislature was aware of the provisions it would be inapposite to treat the deeming provision as enshrined under Section 49 to be surplus. It has a purpose to serve. The submission that commencement of term of the Municipal Council and the concept of co-terminus have to have inseggregable nexus with the computation of the period of recall cannot be accepted. We are of the considered opinion, the view expressed by the Full Bench does not require reconsideration and accordingly, we repel the submission of Mr. Mathur, learned Counsel for the appellant. ( 19. ) CONSEQUENTLY, the writ appeal, being sans substratum, stands dismissed. In the facts and circumstances of the case, there shall be no order as to costs.