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2014 DIGILAW 134 (CHH)

Omprakash Dewangan v. State of Chhattisgarh

2014-03-26

PRASHANT KUMAR MISHRA, YATINDRA SINGH

body2014
ORDER 1. These two writ petitions challenge the validity of, A portion of sub-rule (2) of rule 4 {rule 4(2)} (the impugned portion) of the Chhattisgarh Municipalities (The Conduct of Business of the Mayor-in-Council/ President-in-Council and the Powers and Functions of the Authorities) Rules, 1998 (the Rules) providing that the Vice-President will be a member of President-in-Council; The circular dated 08.04.2005 explaining the impugned portion; and The show-cause notice issued to the Petitioners on 20.06.2011 and 30.08.2011 to show cause as to why action be not taken against them under section 41A of the Chhattisgarh Municipalities Act, 1961 (the Act) for removing the Vice-Presidents as members of the President-in-Council. THE FACTS 2. The State Government issued a circular dated 08.04.2005 indicating that under the Rules, the Vice-Presidents are to be included as members of the President-in-Council and as such, they should be included in the President-in-Council. They have been included in the municipalities. 3. In the present two writ petitions initially the vice presidents were included but later on were removed. These dates are different and as such they are mentioned under separate sub-heading in the succeeding paragraphs. Writ Petition (C)- 3812 of 2011 4. This writ petition relates to Municipal Council, Birgaon. The election in this Municipal Council for the post of the President was held on 24.12.2010. Shri Omprakash Dewangan, the petitioner in this case was elected and took oath on 05.01.2011. 5. The petitioner removed the Vice President from the President-in-Council on 07.03.2011. Thereafter, a show cause notice dated 14.06.2011 was issued to the Petitioner to show cause otherwise proceedings under section 41A of the Act would be initiated. Writ Petition (C)- 5960 of 2011 6. This writ petition relates to Nagar Panchayat, Arjunda. The election in this Nagar Panchyat for the post of the President was held on 21.12.2009. Smt. Satyabhama Kesaria, the petitioner in this case was elected and took oath on 27.12.2009. 7. The petitioner removed the Vice President from the President-in-Council on 22.06.2011. Thereafter, a show cause notice dated 30.08.2011 was issued to the Petitioner to show cause otherwise proceedings under section 41A of the Act would be initiated. Hence, this writ petition. POINTS FOR DETERMINATION 8. We have heard counsel for the parties. The following points arise for determination in this case: (i) Whether the impugned portion is invalid; (ii) Whether the notice should be dropped. 1st POINT: NOTICE IS VALID 9. Hence, this writ petition. POINTS FOR DETERMINATION 8. We have heard counsel for the parties. The following points arise for determination in this case: (i) Whether the impugned portion is invalid; (ii) Whether the notice should be dropped. 1st POINT: NOTICE IS VALID 9. The rule 4 of the Rules is titled 'Constitution of President-in-Council' (see Appendix-I for the same). The impugned part of rule 4 (2) (the impugned-portion) is as follows: 'Simultaneously the Vice-President shall also be included as one of the members.' 10. The counsel for the Petitioners submits that the impugned-portion is invalid on the grounds that: (i) It is against the intention and policy of the Act as apparent from its legislative history; (ii) It is in conflict with sub section (3) of section 70 {section 70(3)} of the Act; (iii) It is beyond the rule making power conferred upon the State Government. 1st Submission 11. The present section 70 of the Act is titled as 'Constitution of President-in-Council' (see Appendix-II for the same). The existing section provides that the President-in-Council shall consist of the President and seven members, who hold office during the pleasure of the President. 12. The present section 70 of the Act was substituted by MP Act 20 of 1998. The earlier section 70 (see Appendix-III for the same) was titled as 'Standing Committee'. It provided that the Standing Committee shall consist of the President, Vice-President, Chairmen of the Departmental Committees, and two elected Councillors nominated by the President and only these two held office during the pleasure of the President. 13. In the present section, ex-officio person, namely Vice-President and the Chairmen of the Departmental Committees have been omitted. 14. It is because of the aforesaid changes that the counsel for the Petitioners submits that the impugned-portion is against the intention and policy of the Act. 15. 13. In the present section, ex-officio person, namely Vice-President and the Chairmen of the Departmental Committees have been omitted. 14. It is because of the aforesaid changes that the counsel for the Petitioners submits that the impugned-portion is against the intention and policy of the Act. 15. A rule may not be declared invalid unless, It violates any provision of the Constitution (for rulings see below), Rashid Ahmad v. Municipal Board, Kairana- AIR 1950 SC 163 : 1950 SCR 566 ; Tahir Hussain v. District Magistrate, Muzafarnagar- AIR 1954 SC 630 ; RM Seshadri v. District Magistrate, Tanjore- AIR 1954 SC 747 : (1955) 1 SCR 686 ; Narendra Kumar v. Union of India- AIR 1960 SC 430 : 1960 (2) SCR 375 ; Kameshwar Prasad v. State of Bihar- AIR 1962 SC 1166 : 1962 Supp (3) SCR 369; PJ Irani v. State of Madras- AIR 1961 SC 1731 : (1962) 2 SCR 169 ; Indian Express News Papers v. Union of India- (1985) 1 SCC 641 : AIR 1986 SC 515; State of MP v. Mahalaxmi Fabric Mills Ltd- 1995 (1) Scale 758 : AIR 1995 SC 2213 : 1995 Supp (1) SCC 642; or It is contrary to any statute of competent legislature including the one under which it is made (for rulings see below), Secretary Ministry of Chemicals Fertilizers v. Cipla Ltd.- (2003) 7 SCC 1 : AIR 2003 SC 3078 ; Kerala Samsthana Chethu Thozhilali Union v. State of Kerala- (2006) 4 SCC 327 : AIR 2006 SC 3480; State of TN v. P Krishnamurthy- (2006) 4 SCC 517 : AIR 2006 SC 1622 ; Sarbananda Sonowal v. Union of India- (2007) 1 SCC 174 : (2007) 1 SLT 648 : (2007)12 Scale 33; or Iit is beyond the rule making power conferred under the statute (for ruling see below), Chandrakant v. Jasjit Singh- AIR 1962 SC 204 : 1962 (3) SCR 108 ; Hukamchand v. Union of India- AIR 1972 SC 2427 : (1972) 2 SCC 601 ; Additional District Magistrate v. Shri Siri Ram-JT 2000 (6) SC 643 : (2000) 5 SCC 451 : AIR 2000 SC 2143 . 16. The policy of the Act is to encourage local self-government. 16. The policy of the Act is to encourage local self-government. The policy of the constitutional amendments as well as the amendments in the Act is to give autonomy to the local self-government, to provide representation to women as well as weaker sections of the society. There is no policy that Vice President should not be included in the President-in-Council. 17. The municipalities consist of the elected members from different wards. Generally, there are many elected members. It is for this reason that the President-in-Council, a smaller body, is constituted for better governance of the municipalities. 18. In a municipality, better governance is only possible, if all sections are represented in the President-in-Council. The Vice-President is elected by all Councillors and the President. His inclusion ensures it (for details refer to the discussion under 2nd Submission). In any case, a rule cannot be struck down merelyon the ground that it is against intention of the legislature. It has to be contrary to any specific provision. 19. In our opinion, the first submission has no merit. 2nd Submission 20. Rule 4(2) of the Rules (see Appendix-I) provides that among the President-in-Council, one member will be from the women category, one from the other backward classes, and one member from scheduled caste/ scheduled tribe category. This part of the rule 4(2) of the Rules is not challenged by the Petitioners. 21. The impugned-portion provides that Vice-President shall be included as one of the members in the President-in-Council. This part is challenged by the petitioners. 22. The result of rule 4(2) of the Rules is that four persons as mentioned in rule 4(2) of the Rules are required to be included in the President-in-Council. This may be three if any member has two qualifications in one; namely, the Vice President could be a women or OBC or SC/ ST as well. 23. Section 70 (3) of the Act provides that the members shall hold the office during the pleasure of the President and is as follows: '70. Constitution of President-in-Council.- ... (3) The members of the President-in-Council shall hold office during the pleasure of the President. ' 24. The counsel for the petitioners submits that: The impugned-portion provides that the Vice-President will be member of the President-in-Council. Constitution of President-in-Council.- ... (3) The members of the President-in-Council shall hold office during the pleasure of the President. ' 24. The counsel for the petitioners submits that: The impugned-portion provides that the Vice-President will be member of the President-in-Council. This means that he cannot be removed; In case the Vice-President cannot be removed then he is not on the pleasure of the President; This is illegal and contrary to section 70 (3) of the Act. 25. It is settled law that subordinate legislation fills up the details; it can supplement though not supplant the statute and in considering the vires of any statute or subordinate legislation, one should start with the presumption that it is intra vires. While interpreting them, the court should adopt a construction which makes it valid. 26. While discussing the 1st submission, we have observed that the President-in-Council was envisaged as a smaller body for better governance of the municipalities. A better governance also requires that all sections should be represented in the smaller body. It is a matter of details, how all sections can be represented in the smaller body. 27. Rule 4 (2) of the Rules provides that a women, an OBC, SC/ ST person should be included in the President-in-Council under the Act. This is done so that these sections are represented in the President-in-Council. So is the case with the Vice-President. 28. Section 43 of the Act is titled as 'Election and term of Vice-President'. It provides that the President and the elected Councillors will elect the Vice-President among the elected Councillors in the prescribed manner. 29. The Vice-President is elected by all the councillors including the President, in a way he represents all of them. President-in-Council is nominated by the President only. The Vice-President has been included in the President-in-Council so as to reflect the majority wish of the Councillors. This is matter of details. This rule is not contrary to section 70 (3) of the Act. 3rd Submission 30. Section 355 of the Act is titled as 'Power to make rules'. Sub-section (1) of section 355 {section 355 (1)} of the Act empowers the government to make rules generally for the purpose of carrying into effect the provisions of the Act. Sub-section (2) of section 355 {section 355 (2)} of the Act confers specific powers to make rules in respect of the matters mentioned therein. 31. Sub-section (1) of section 355 {section 355 (1)} of the Act empowers the government to make rules generally for the purpose of carrying into effect the provisions of the Act. Sub-section (2) of section 355 {section 355 (2)} of the Act confers specific powers to make rules in respect of the matters mentioned therein. 31. The counsel for the State has brought to our notice the clauses (ii) and (iii) of sub-section (2) of section 355 {355 (2) (ii) and (iii)} of the Act and submits that the rules could be framed under the general power conferred upon the State Government under section 355 (1) as well as section 355 (2) (ii) and (iii) of the Act (see Appendix-IV). 32. Section 355 (2) (ii) of the Act specifically confers power to make rules relating to the conditions subject to which the President-in-Council can exercise powers of the council; whereas, section 355 (2) (iii) confers power to frame rules relating to the conditions subject to which the powers of the council are to be delegated to the President or Vice-President or Chairman of the President-in-Council or other Committees. 33. In the present case, the question relates to constitution of the President-in-Council. This is not covered under section 355 (2) (ii) and (iii) of the Act. However, this does not detract the submission of the counsel for the State so far as section 355 (1) of the Act is concerned. 34. Section 355 (1) of the Act empowers the State Government to make rules for carrying out the effect of the Act: what should be the constitution of the President-in-Council; how all sections could be represented in it; how should it also consider and reflect majority wish of the Councillors?is carrying out the purpose of the Act. In our opinion, the rule is within the rule making power under section 355 (1) of the Act. 2nd POINT: STATE SHOULD CONSIDER 35. The counsel for the Petitioners submits that: The Petitioners bona fide believed that the members including the Vice-President were at their pleasure and as such the Vice-President was removed by them; The Petitioners have no objection in taking the Vice-Presidents back in the President-in-Council; The show-cause notice for taking action under section 41A of the Act be dropped. 36. It is not necessary for us to deal with the aforesaid submissions of the counsel for the Petitioners. 36. It is not necessary for us to deal with the aforesaid submissions of the counsel for the Petitioners. The Petitioners may take back the Vice-Presidents in the President-in-Council and thereafter file their reply to the show-cause notice within a period of one month from today. In case they do so, it will be open to the State Government to consider this aspect, while passing the final order. CONCLUSIONS 37. Our Conclusions are as follows: (a) Rule 4 (2) of the Chhattisgarh Municipalities (The Conduct of Business of the Mayor-in-Council/ President-in-Council and the Powers and Functions of the Authorities) Rules, 1998 is valid; (b) It is not necessary for us to consider whether the notice should be dropped or not; (c) The Petitioners may take back the Vice-Presidents in the President-in-Council and reply to show-cause notice within a month. Thereafter, the State Government may take decision in accordance with law. 38. With the aforesaid observations, the writ petitions are disposed of.