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Madhya Pradesh High Court · body

2009 DIGILAW 285 (MP)

SHYAMLAL KOL v. STATE OF M P

2009-03-02

ARUN MISHRA, SUSHMA SHRIVASTAVA

body2009
Judgment ( 1. ) FACTS lie in a narrow compass. Respondent No. 4 Smt Laltia tamrakar is holding the post of President, Nagar Panchayat, Uchchara, district Satna. Earlier proposal (P-l) for her recalfwas moved. The Collector had sent the proposal to the State Government which was sent back to the Collector. Proceedings for recall against the respondent No. 4 could not be initiated. Respondent No. 4 had filed W. P. No. 10891/08, which was dismissed as withdrawn on 22. 10. 08, it is mentioned in the order that the proceedings against respondent no. 4 were dropped, as such the petition was withdrawn. Again a fresh proposal was moved before the Collector as apparent from the order dated 13. 10. 08. It was moved under Section 47 (2) of the Municipalities Act. ( 2. ) COLLECTOR while considering the fresh proposal for recall, moved under Section 47 (2) of the Municipalities Act has held vide order dated 13. 10. 08 that earlier proposal for recall had been moved, as such it was not possible to initiate fresh proceedings for recall proposal has been rejected. ( 3. ) PETITIONERs counsel Shri K. C. Ghildiyal has placed reliance on a Division bench decision of this court in Narayan Nagina Vs State of M. P. and others 2004 (1) M. P. L. J. 341 to contend that earlier the Collector was not satisfied with the first proposal as the same had not been moved by the requisite number of councillors. It could not be said that there was initiation of proceedings on the first proposal and the second proposal could not have been turned down to initiate process for recall on the ground that first proposal had been submitted. ( 4. ) SHRI A. M. Trivedi, learned Senior counsel with Shri A. D. Mishrahas submitted that earlier moving of the proposal for recall was initiation of process for recall as contemplated under Section 47 of the Municipalities Act. He has placed reliance on the Full Bench decision of this Court in State of MP. and another Vs. Mahendra Kumar Saraf and another 2005 (4) MPHT 185 . ( 5. ) SECTION 47 of the Municipalities Act deals with the recalling of the president. He has placed reliance on the Full Bench decision of this Court in State of MP. and another Vs. Mahendra Kumar Saraf and another 2005 (4) MPHT 185 . ( 5. ) SECTION 47 of the Municipalities Act deals with the recalling of the president. The sub-Section 1 of Section 47 provides that a President can be recalled through a secret ballot by a majority of more than half of the total number of voters of the municipal area. The first proviso contains that no such process of recall shall be initiated unless a proposal is signed by not less than three fourth of total number of the elected Councillors and presented to the Collector. Second provisio to sub-section 1 of Section 47 makes it clear that no such process shall be initiated within two years from the date on which such President is elected and enters his office and half of the period of tenure of the President elected in a by-election has not expired. Third proviso to sub-section 1 of Section 47 provides initiation of such a process for recall of the President once in his whole term. ( 6. ) SECTION 47 of the Municipalities Act is reproduced below: - 47. Recalling of President: (1) Every President of a Council shall forthwith be deemed to have vacated his office is he is recalled through a secret ballot by a majority of more than half of the total number of the 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 by 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 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 councillors specifieid in sub-Section (1)have the proposal or recall, shall send the proposal to the State. . . (2) The collector, after satisfying himself and verifying that the three fourth of the councillors specifieid in sub-Section (1)have the proposal or 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. Bare reading of sub-Section 1 of Section 47 makes it clear that there is a difference between submission of proposal and initiation of process of recall, the earlier proposal was not put to the voting, as such it could not be said that process was initiated as contemplated under Sub-Section 1 of Section 47, the secret ballet to be caste by the voters. In case, requisite number of Councillors had not sent the earlier proposal and it was not put to the secret ballet, it could not be said that process of recall was initiated and carried to its logical end. What is the meaning of the word initiation is clear from sub-Section 1 of Section 47 and the proviso explains it further. ( 7. ) DIVISION Bench of this court in Naravan Nagina Vs. State ofm. P. and others (supra) has laid down what is the meaning of initiation. Para 9 of the decision reads thus:- 9," thus, the language is clear and specific, proceedings will be initiated only after three fourth of the Councillors have signed the proposal and verified by the Collector to his satisfaction. Until and unless the Collector has satisfied himself and verified that three fourth of the elected Councillors have signed the proposal, proceedings for recall cannot be said to be initiated. Mere submission of proposal is not sufficient unless the Collector has satisfied and verified that three fourth of the elected councillors have signed the proposal for recall voluntarily and once the Collector is satisfied and has forwarded the proposal to the state government, then it will amount to initiating of process of recall. ( 8. ) SHRI Trivedi, learned Senior counsel has placed reliance on Full Bench decision of this court in State of M. P. and another Vs. ( 8. ) SHRI Trivedi, learned Senior counsel has placed reliance on Full Bench decision of this court in State of M. P. and another Vs. Mahendra Kumar Saraf and another, (supra) in which section 47 has been explained thus:- 10- On analysis of Section 47 of the Act we find that following are the requirements for initiating the process of recall: ) Proposal 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 can not 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 by-election has not expired. (4) Process of recall of the President shall be initiated only once in his/her whole term. (5) The Collector shall satisfy 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 send 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. In our opinion, the Collector was required to take into consideration the shyamradingco. ,itrsi Vs. STATEOF M. P. aforesaid requirement of Section 47 of the Act, as laid down by Full Bench of this court. However, the Full bench has not dealt with the aspect what is the meaning of initiation, whether proposal which was not placed for consideration of the voters and was not carried through stage of sub-Section (1) of Section 47 could be said to create embargo for submitting second proposal to initiate process of recall. . Thus the decision is of no help to respondent No. 4. Consequently, Collector committed gross illegality in rejecting the second proposal moved for the recall the initiation of the proceedings of the recalling. The order dated 13. 10. 08 by which the Collector did not apply the mind to the satisfaction contemplated under sub-section 2 of Section 47 and rejected the proposal as the same cannot be said to be proper. Same is liable to be quashed. The order dated 13. 10. 08 by which the Collector did not apply the mind to the satisfaction contemplated under sub-section 2 of Section 47 and rejected the proposal as the same cannot be said to be proper. Same is liable to be quashed. Collector is directed to consider the proposal afresh as provided in sub section 2 of Section 47 and to take steps in accordance with law within a period of two weeks from the date of receipt of certified copy of the order. Petition is allowed. No costs. C. C. as per rules. Petition allowed.