Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 651 (MP)

ASHOK KUMAR SAHU v. STATE OF MADHYA PRADESH

2009-05-15

K.K.LAHOTI, K.S.CHAUHAN

body2009
Judgment ( 1. ) THIS appeal is directed against an order dated 31. 3. 2009 by learned Single Judge in W. P. No. 2690/2008, by which writ petition preferred by the appellant challenging the proposal for recall of appellant, from the office of President, Nagar Panchayat, Chitrakut, forwarded by the Collector, Satna vide letter dated 24. 12. 2007, was dismissed. ( 2. ) THE sole contention of appellant before this Court was that section 47 of the M. P. Municipalities Act, 1961 (hereinafter referred to as act for short) provides a proposal of recall of the President and as per section 56 and 62 of the Act, only after convening a meeting in this regard a proposal can be sent to the Collector, as required under section 47 of the Act and no proposal could have been given to the collector directly by the Councillor for the recall of appellant. It was submitted that the learned Single Judge committed a grave error in dismissing the writ petition. ( 3. ) LEARNED counsel for respondents supported the order and submitted that section 47 itself provides a complete procedure for submitting proposal for recall of President and in view of provision contained in section 47, it was not necessary for the Councillor to convene a meeting for a proposal of recall. The contention of appellant was misconceived. ( 4. ) TO appreciate the aforesaid contention factual position in the case may be stated. The appellant was elected as President Nagar panchayat Chitrakut. His election was notified in the official Gazette dated 20. 12. 2004. The Nagar Panchayat Chitrakut comprises of a president and 15 elected Councillors. On 12. 3. 2007, 13 out of 15 councillors approached to the Collector alongwith their affidavits with a proposal to recall the appellant from the office of President Nagar panchayat, Chitrakut. All these Councillors appeared before the collector on 12. 3. 2007, who after satisfying himself and verifying the proposal that 13 Councillors proposed to recall the appellant, forwarded the proposal to the State Government vide his letter dated 24. 12. 2007 (Annexure P-4 in writ petition ). The State Government on receiving proposal from the Collector, Satna referred the matter to the State election Commission. The Election Commission, for initiating the process of recall of appellant, directed revision of voters list and the district Election Officer on 10. 9. 12. 2007 (Annexure P-4 in writ petition ). The State Government on receiving proposal from the Collector, Satna referred the matter to the State election Commission. The Election Commission, for initiating the process of recall of appellant, directed revision of voters list and the district Election Officer on 10. 9. 2008 appointed Tehsildar Mazgawan and Naib Tahsildar, Raghurajnagar as Registering and Assistant registering Authority, Nagar Panchayat, Chitrakut for the revision of voters list. The appellant assailed the proposal dated 24. 12. 2007 before the learned Single Judge on the ground that infact it was not a proposal in the eye of law and was contradictory to the provisions contained in section 47 read with section 56 and 62 of the Act and the collector who was required to record his satisfaction had failed to do so, which was not in conformity with the provisions of section 47 (2) of the Act. ( 5. ) LEARNED Single Judge considered the matter at length and arrived at a finding that the contentions made by the appellant were without merit and dismissed the writ petition. ( 6. ) TO appreciate the contentions raised by the appellant, it would be appropriate if section 47 of the Act, which has been substituted by act No. 11 of 1999 on 23. 4. 1999 in the statute book, is referred 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 councillors 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 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. As the provisions of sections 56 and 62 have been referred by the appellant it would be beneficial if both the aforesaid provisions are reproduced for ready reference :- "56. Convening of meeting - (1) A meeting of Council shall be either ordinary or special. (2) The date of every meeting, except the meeting referred to in section 47 and in [sub-section (1)] of Section 55, shall be fixed by the president, or in the event of his being incapable of acting, by the Vice-President, and in the like event in his case, by the Chief Municipal Officer. (3) Notice of every meeting specifying the time and place thereof and the business to be transacted thereat shall be despatched to every councillors and exhibited at the Municipal Office seven clear days before an ordinary meeting and three clear days before a special meeting. (4) No business other than that specified in the notice relating thereto shall be transacted at a meeting. 62. Minutes of proceedings.- (1) Minutes of the proceedings at each meeting of a Council or any of its committee shall be drawn up in hindi written in Devnagri script and recorded in book to be kept for the purpose separately for the council and each of its Committee and shall be signed by the Chairman of meeting or of next ensuing meeting. (2) The minutes of the Council shall be published in the manner prescribed and shall at all the reasonable time and without charge be open to the inspection by any habitant of the municipality. (2) The minutes of the Council shall be published in the manner prescribed and shall at all the reasonable time and without charge be open to the inspection by any habitant of the municipality. (3) The minutes of the proceedings recorded under sub Section (1) shall include- (i) the name of Councillors present ; (ii) the decision of meeting on every question considered ; and (iii) when such decision is not unanimous, the number of votes and the names of councillors voting for and against such question and the names of those who have remained neutral, whether votes have been taken by division or otherwise: provided that in case of a meeting under section 43-A or 47, the provision relating to recording the names of Councillors voting for and against the question shall not be applicable. (4) A copy of every resolution passed by council at a meeting shall, within ten days from the date of the meeting be forwarded to the prescribed authority. " ( 7. ) BEFORE proceeding further it would be appropriate to mention that before 23. 4. 1999 there was no provision in the statute book for recalling of President, but a provision for no confidence motion against the President was in the statute book as section 47 of the Act. ( 8. ) NOW with reference of aforesaid change in the Act, the contentions raised by the appellant may be looked into. Firstly section 47 may be seen. Section 47 specifically provides that after a period of 2 years from the date on which a President is elected and enters his office and half period of tenure elected in a by-election has not expired only then once in his whole of the term a process for recall may be initiated by a proposal signed by not less than three fourth of total numbers of elected Councillors. Such proposal shall be presented to the Collector who after satisfying himself and verifying that three fourth of the Councillors specified in sub-section (1) have moved the proposal of recall, shall send the proposal to the State government and the State Government shall make a reference to the election Commission in this regard. Now in this reference provisions of sections 56 and 62 may be looked into. Section 56 provides for convening of ordinary or special meeting. Now in this reference provisions of sections 56 and 62 may be looked into. Section 56 provides for convening of ordinary or special meeting. Sub-section (2) provides that the date of every meeting except the meeting referred to in section 47 shall be fixed by the President or in the event of his being incapable of acting, by the Vice President, and in the like event in his case, by the chief Municipal Officer. Apparently this section refers to earlier section 47 which may be referred for read reference as under :- "47. No-confidence motion against the president (1) a motion of no confidence may be moved against the President at a meeting specially convened for the purpose under sub-section (2) and if the motion is carried by a majority of more than three fourths of the elected councillors present and voting in the meeting and if such majority is more than two third of the total number of elected Councillors constituting the council, the copy of such motion shall be sent by the Collector to the State Government forthwith and the President shall cease to hold office from a date to be notified by the State Government within a period of 15 days from the date of receipt of motion and if the State Government fails to issue the notification within the stipulated time, the President shall be deemed to have vacated the seat on the expiry of the said period: provided that no such motion shall lie against the President :- (i) within a period of two years from the date on which the President enters upon his office; (ii) within a period of one year from the date on which previous motion of no-confidence was rejected; (iii) if the remaining period of the Council is less than six months. (2) For the purpose of sub-section (1), a meeting of the Council shall be convened and presided over by the Collector or an officer of class I in case of Municipal Council and an officer of Class II in case of Nagar Panchayat as nominated by him in the following manner, namely:- (i) the meeting shall be convened if a notice signed by not less than half of the total number of elected Councillors of the Council alongwith the proposed no-confidence motion showing the reasons thereof is given to the Collector; (ii) the notice of such a 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. " ( 9. ) EARLIER section 47 was specifically providing a meeting to consider no confidence motion against the President. But the present section 47, which provides recalling of President does not provide convening of meeting to consider such a proposal. Similarly section 62 of the Act though refer section 47 in the proviso of sub-section (3), specifically provides for voting for and against the question referred in sub-section (1) of section 62. If the present sections 56 and 62 are looked into in reference to earlier section 47, reference of section 47 in section 56 and 62 appears to be relevant, but after substitution of section 47 reference of section 47 in section 56 and 62 of the Act is totally irrelevant and it appears that after substitution of section 47, section 56 and section 62 of the Act which ought to have been amended, making the provision in consonance with section 47 as substituted on 23. 4. 1999 has not been amended. It appears that this aspect has been escaped from the legislation. Now in a different angle section 47 may be looked into. Section 47 nowhere provides for convening a meeting for a purpose of a proposal. Sub-section (1)specifically provides that such recall shall be by a majority of more than half of the total numbers of voters of Municipal area casting the votes. Proviso of sub-section (1) provides that no such process of recall shall be initiated unless a proposal is signed by not less than three fourth of the total numbers of elected Councillors and President, to the Collector. Proviso of sub-section (1) provides that no such process of recall shall be initiated unless a proposal is signed by not less than three fourth of the total numbers of elected Councillors and President, to the Collector. Nowhere sub-section (1) provides for convening of a meeting to consider such a proposal. If the intention of legislation would have been that such proposal should be discussed in a meeting then in place of proposal the legislation ought to have used the word "minutes or decision of meeting", as we find place in section 62 of the Act. The provisions of section 61 providing quorum for meeting ought to have been inserted in section 47. The 1st proviso of section 47 specifically provides that such proposal shall be initiated and signed by not less than three fourth of the total number of elected Councillors and presented to the Collector. Thereafter the legislation again casts a duty on the Collector to satisfy himself and verify that three fourth of councillors specified in sub-section (1) have proposed the proposal of recall, meaning thereby that not only the aforesaid proposal requires to be signed by three fourth of the total numbers of elected Councillors, but the Collector himself has to verify that three fourth of Councillors have made the proposal of recall. If a meeting was to be convened and in that meeting a proposal was to be made then the legislation would not have made such provision in sub-section (2 ). The entire scheme of section 47 is an independent provision providing a complete process for initiating proposal for recall of President. In the opinion of this Court no meeting was required for making a proposal for recall. Though the aforesaid ambiguity has arose because of language of sections 56 and 62 of the Act, but it is the settled law that the provisions of the Act has to be construed harmoniously and with this angle when we consider all the provisions of sections 47, 56 and 62 we arrive at a finding that present provisions in sections 56 and 62 were in reference to the provisions contained in earlier section 47 which was in the statute book prior to 23. 4. 1999. 4. 1999. After substitution of section 47 the convening of meeting as required under section 56 and recording of minutes as required under section 62 has no concern with present section 47 of the Act. ( 10. ) IN view of aforesaid, we do not find any merit in this appeal. This appeal is accordingly dismissed with no order as to costs.