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Gujarat High Court · body

2009 DIGILAW 633 (GUJ)

RAJUBHAI MOTILAL PADHIYAR v. STATE OF GUJARAT

2009-09-30

D.A.MEHTA

body2009
( 1 ) THE petitioner has challenged the proceedings of the extraordinary general meeting held on 17/07/2009 by the general body of Deesa Nagar Palika whereunder in light of provisions of Section 36 of the Gujarat Municipalities Act, 1963 (the Act) the petitioner came to be removed from the post of President of the Municipality upon the no confidence motion being carried by requisite majority. The petitioner has also challenged the subsequent election to the post of President held on 04/08/2009. ( 2 ) THE facts which are not in dispute are that petitioner was elected as President of Deesa Municipality on 05/05/2008 and at the said election respondent No. 4 herein, Smt. Varshaben Sanjaykumar Mali lost the election by one vote. Subsequently, it appears that Bhartiya Janta Party initiated action against 15 members under the provisions of Section 3 of the Gujarat Provision for Disqualification of Members of Local Authorities for Defection Act, 1986. Ultimately the said 15 persons were removed as members upon being disqualified under the provisions of the said Disqualification Act. Thus against original strength of 36 councillors the total strength in the Municipality stood reduced to 21. ( 3 ) IT appears that on 09/07/2009 an application in the form of proposal came to be moved expressing no confidence in the petitioner by 11 councillors out of 21 councillors. Pursuant thereto extraordinary general meeting of the body was held on 17/07/2009 where the motion was carried by majority of 14 councillors who were present and voting in favour of no confidence motion, while remaining three councillors who were present did not object to the motion. The petitioner therefore was removed from the post of President of Deesa Nagar Palika. ( 4 ) THE case of the petitioner as advocated by the learned Advocate for the petitioner is that the no confidence motion had not been moved by the appropriate number of councillors considering the provisions of Section 36 of the Act. It was contended that the total strength of the councillors in the Municipality was 36 and hence unless and until 12 councillors moved a no confidence motion no meeting could have been convened and thus the proceedings of the meeting held on 17/07/2009 was required to be quashed and set aside. It was contended that the total strength of the councillors in the Municipality was 36 and hence unless and until 12 councillors moved a no confidence motion no meeting could have been convened and thus the proceedings of the meeting held on 17/07/2009 was required to be quashed and set aside. Similarly it was contended that the no confidence motion was required to be approved by a two third majority which would be 24 considering the total strength of 36 against which only 14 councillors had voted in favour of the no confidence motion. Therefore also the resolution was not required to be upheld and it be declared that the petitioner continued to remain the President of the Municipality by quashing subsequent election held on 04/08/2009. ( 5 ) A plain reading of provisions of Section 36 of the Act would make it clear that the contentions raised on behalf of petitioner do not merit acceptance. The said section reads as under: "36. (1) Any councillor or a municipality who intends to move a motion of no confidence against its president or vice-president may give a notice thereof, in such form as may be prescribed by the State Government, to the municipality. If the notice is supported by not less than one third of the total number of the then councillors of the municipality, the motion may be moved. (2) If the motion is carried by a majority of not less than two-thirds of the total number of the then councillors of the municipality, the president or, as the case may be, the vice-president shall cease to hold office after a period of three days from the date on which the motion is carried unless he has earlier resigned; and thereupon the office held by him shall be declared to be vacant. (3) Notwithstanding anything contained in this Act or the rules made thereunder, the president, or as the case may be, the vice-president shall not preside over a meeting in which a motion of no confidence against him is discussed; but he shall have the right to speak in or otherwise take part in the proceedings of such meeting (including the right to vote ). " ( 6 ) SUB-SECTION (1) of Section 36 of the Act prescribes that a notice of no confidence motion has to be supported by not less than one third of the total number of the then councillors of the Municipality, and if such number is achieved the motion may be moved. Therefore one third of the total number has to be of the number of councillors of the Municipality at the point of time when a councillor intends to move a motion of no confidence against its President, i. e. on the date when the notice of no confidence has to be issued. ( 7 ) SIMILARLY under sub-section (2) of Section 36 of the Act it is provided that if the motion is carried by a majority of not less than two-thirds of the total number of the then councillors of the municipality, the president shall cease to hold office after a period of three days from the date on which the motion is carried. Here also the emphasis is on the number of councillors who are councillors at the point of time when the motion is put to vote. In both the sub-sections the use of term "then" clearly denotes that the total number of councillors of the municipality has to be considered on the date when either the notice of no confidence motion is moved or the date of voting when the motion is moved. ( 8 ) IN the facts of the present case admittedly on the day the no confidence motion notice was moved the total strength of the councillors was 21 and 11 councillors had supported the notice. Therefore the said number exceeded one-third of the then councillors of the municipality, which would be 07, considering the total strength to be 21. ( 9 ) AGAIN on 17/07/2009 when the extraordinary general body meeting had been convened out of total number of 21 councillors 17 were present, 14 voted in favour of the motion of no confidence and three did not vote. Therefore the two-third majority was achieved as required by sub-section (2) of the Section 36 of the Act. ( 9 ) AGAIN on 17/07/2009 when the extraordinary general body meeting had been convened out of total number of 21 councillors 17 were present, 14 voted in favour of the motion of no confidence and three did not vote. Therefore the two-third majority was achieved as required by sub-section (2) of the Section 36 of the Act. ( 10 ) IN the aforesaid scenario it is not possible to agree with the learned Advocate for the petitioner when he refers to the provisions of Section 60 (3) of the Act to submit that the quorum at the meeting has to be more than one third. A plain reading of Section 60 pertains to the procedure to be adopted at all proceedings of various committees which have been referred to in Section 51 of the Act. The provisions of Section 60 (3) of the Act therefore cannot carry the case of the petitioner any further. ( 11 ) THE petition is accordingly rejected for the afore stated reasons.