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2014 DIGILAW 17 (CHH)

THAKUR RAM TANDON v. STATE OF C. G.

2014-01-20

PRITINKER DIWAKER

body2014
ORDER 1. The petitioner is an elected President of Nagar Panchayat, Bhatgaon, District Baloda Bazar, Bhatapara. He was elected to the said post on 27.12.2009 and his five years tenure would be over on 26.12.2014. There are as many as 15 Councilors in the Bhatgaon Nagar Panchayat out of which 14 Councilors moved an application dated 14.01.2013 (Annexure R-l) to the Collector for recalling the petitioner under Section 47 of the Chhattisgarh Municipalities Act, 1961 (for short "the Act of 1961"). Though in the said application instead of using the words "recalling the President", it was styled as for moving the proposal for "No Confidence Motion", it is not disputed that the said application was in fact filed under Section 47 of the Act of 1961. 2. Upon receiving the said application, on 16.01.2013 vide Annexure R-3 the Collector forwarded it to the Chief Municipal Officer (for short "the CMO") Nagar Panchayat, Bhatgaon. While forwarding the said application vide letter dated 16.01.2013 the Collector had asked the CMO to verify its authenticity and also the legal provisions as mentioned in Section 47 (1) of the Act of 1961. 3. After receiving the said letter of the Collector, the CMO issued letters to all those 14 Councilors who had signed the application (Annexure R-l) and also directed them to appear before him on 23.01.2013 at 3.00 P.M. in the office. 4. It is said that all the Councilors verified their signatures on the application (Annexure R-l) and vide letter dated 24.01.2013 (Annexure R-5) the CMO replied to the Collector that the application (Annexure R-l) has been moved by the Councilors as per Section 47 of the Act of 1961. 5. On receiving the report, a note-sheet was prepared by the Additional Collector on 04.02.2013 mentioning in it that No Confidence Motion has been proposed against the petitioner by 14 Councilors; the provisions of Section 47 of the Act of 1961 have been complied with and the CMO has verified the signatures of 14 Councilors in the application (Annexure R-l). From paragraph No. 1 of the note-sheet it is apparent that the same was produced by the Additional Collector before the Collector for approval and signature. In the last paragraph of this note-sheet it has been mentioned by the Additional Collector that it is apposite to send the proposal to the State Government. From paragraph No. 1 of the note-sheet it is apparent that the same was produced by the Additional Collector before the Collector for approval and signature. In the last paragraph of this note-sheet it has been mentioned by the Additional Collector that it is apposite to send the proposal to the State Government. This note-sheet was signed by the Collector on 05.02.2013 without mentioning anything else thereon. 6. After receiving the above note-sheet of the Additional Collector which was duly signed by the Collector, the Collector forwarded the same to the Secretary, State of Chhattisgarh vide letter dated 20.02.2013. In this letter also it has been mentioned by the Collector that the same was being forwarded to the Secretary for approval and signature. The Collector has also proposed action against the petitioner under Section 47 (2) of the Act of 1961. 7. After receiving the above letter of the Collector, on 04.09.2013 (Annexure R-8) the Deputy Secretary wrote a letter to the Secretary, State Election Commission requesting for an action against the petitioner under Section 47(3) of the Act of 1961. 8. Vide order dated 10.10.2013 (Annexure R-9), programme for preparation of voter list has been issued and as per the said programme the final voter list was to be issued on 23.12.2013. After issuance of the voter list the election for recalling the petitioner was fixed for 23.01.2014. 9. In the present petition the petitioner has assailed the order dated 20.02.2013 (Annexure P-1) i.e. the recommendation of the Collector to the State Government under Section 47 (2) of the Act of 1961, the letter dated 04.09.2013 (Annexure P-2) written by the Deputy Secretary State of Chhattisgarh to Secretary State Election Commission proposing an action against the petitioner under Section 47(3) of the Act of 1961 and order dated 10.10.2013 (Annexure P-3) i.e. the programme for preparation of voter list. Though in the present petition several grounds have been raised by the petitioner in support of his contention, during the argument counsel for the petitioner has confined his argument mentioned below. (i) That nowhere in the documents the satisfaction of the Collector is reflected before passing the order and unless the satisfaction of the Collector is recorded, no proceedings can be initiated against the petitioner. (i) That nowhere in the documents the satisfaction of the Collector is reflected before passing the order and unless the satisfaction of the Collector is recorded, no proceedings can be initiated against the petitioner. (ii) That after receiving the application the Collector had forwarded the same to the CMO who in turn had conducted a sort of inquiry and then forwarded his report to the Collector. (iii) After receiving the report of the CMO, the note-sheet was prepared and placed before the Collector for approval and signature and without verifying, the Collector has merely put his signature on the note-sheet of Additional Collector and merely putting the signature on the note-sheet of the Additional Collector, would not amount to recording of satisfaction by the Collector. (iv) The word "satisfaction" has a vast meaning and merely accepting the note-sheet of CMO or the Additional Collector could not be treated as recording of satisfaction of the Collector while forwarding the said application. (v) In support of his satisfaction counsel for the petitioner placed his reliance on the Judgment of Madhya Pradesh High Court in the matter of Smt. Satya Prakashi Parsadia Vs. State of MP and others 2008 (3) MPHT 264 , which was affirmed by Division Bench in a Writ Appeal, reported in 2008 (4) M.P.L.J. 316 . He also placed reliance on the Division Bench decision of this Court in the matter of Bharti Sonkar Vs. State of C. G. & others 2008(3) CGLJ 115 . 10. On the other hand replying to the arguments advanced on behalf of the petitioner, it has been argued by the counsel for the respondents/State as under: (i) Note-sheet of the CMO and that of Additional Collector was duly considered by the Collector and thereafter only he forwarded the same to the State Government after putting his signature. (ii) When the Collector put his signature on the note-sheet, it means that he was satisfied not only with the note-sheet but also with the application moved by the 14 Councilors for recalling the petitioner. (iii) The word "satisfaction" is a subjective satisfaction and unless contrary evidence is brought- on record, it cannot be said that the Collector was not satisfied with the note-sheet put forth by the CMO or by the Additional Collector. (iii) The word "satisfaction" is a subjective satisfaction and unless contrary evidence is brought- on record, it cannot be said that the Collector was not satisfied with the note-sheet put forth by the CMO or by the Additional Collector. (iv) Undisputedly the application for recalling the petitioner under Section 47 of the Act, of 1961 was signed by 14 Councilors out of 15 and thus the petitioner has absolutely no right to continue on the post of President. 11. Counsel for respondents No.5 & 6 has argued that the respondents No.5 & 6 have merely complied with the direction issued by the Collector and submitted the report before him. 12. Heard counsel for the parties and perused the documents on record. 13. Before adverting to the factual submissions made by the counsel for the rival parties, it appears necessary to first deal with the provisions of Section 47 of the Act of 1961 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 Councilors 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 Councilors specified in sub-section (1) have signed 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.” 14. (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.” 14. Thus on analysis of Section 47 of the Act of 1961 the following are the requirements for initiating the process of recall : (1) Proposal is to be signed by not less than 3/4th of the total number of elected councilors. (2) The proposal must be presented to the Collector. (3) The process of recall cannot be initiated : (a) Within a period of two 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 for recall of the President shall be initiated only once in his/her whole term. (5) The Collector shall satisfy himself and verify that 3/4th of the total number of the elected councilors had 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. 15. Language used in this section goes to show that it is incumbent on the Collector to record his satisfaction before sending the proposal to the State Government under Section 47(1) of the Act of 1961. If the facts of the present case are taken into consideration, the following picture emerges: (i) On 14.01.2013 application was moved by 14 Councilors for the proposal of No Confidence Motion (in fact it is proposal for recalling the petitioner). (ii) Application was forwarded by the Collector to the CMO on 16.01.2013. (iii) CMO verified signatures of the Councilors on 23.01.2013 and submitted his report to the Collector on 24.01.2013. (iv) The note-sheet was prepared by the Additional Collector on 04.02.2013 for approval of the Collector and signatures were put by the Collector on the said note-sheet on• 05.02.2013. (v) On 20.02.2013 the Collector moved the proposal to the State Government under Section 47(2) of the Act of 1961. 16. During hearing of the present petition this Court asked Government Advocate to keep the entire original record of the Collector ready for perusal. (v) On 20.02.2013 the Collector moved the proposal to the State Government under Section 47(2) of the Act of 1961. 16. During hearing of the present petition this Court asked Government Advocate to keep the entire original record of the Collector ready for perusal. State Counsel fairly submits that except putting his signature on the report of Additional Collector, there is no other order-sheet showing satisfaction of the Collector. He fairly submits that the report received from the Additional Collector was merely countersigned by the Collector on 05.02.2013 without mentioning even a single word in the said note-sheet. 17. True it is that after receiving the letter from the Collector the CMO had verified the signatures of 14 Councilors who had filed application for recalling the petitioner but all these formalities have been completed before the CMO and not before the Collector and it is the Collector who could have recorded his satisfaction. It was not incumbent on the Collector to verify the signatures personally or by calling all the 14 Councilors before him but it was his duty to record satisfaction and he was not merely a forwarding agency of the report submitted by the Additional Collector or CMO. The question in the present case is whether subjective satisfaction arrived at is of the Collector himself or it was based on the opinion and recommendation of the CMO and that of Additional Collector? In this regard, the note-sheet and the documents reflect that merely an endorsement was made by the Collector in the proposal put forth by the Additional Collector. From paragraph I of the note-sheet of the Additional Collector it is clear that the same was placed before the Collector for approval and signature and it nowhere reflects recording of satisfaction by the Collector. 18. Words "approval and satisfaction" connote different meaning and legislature in its wisdom has used these phrases in different statues at different places. 19. As per Webster's New World Dictionary, the word "approval" means favourable attitude or opinion, formal consent or pern1ission, approval for the customer to examine and decide whether to buy or return goods. The word "approve" means one's consent or sanction. The word "satisfaction" is defined in the said dictionary and means comfort, content, contentment, delight, enjoyment, fulfillment, gratification, happiness, pleasure etc. The word "approve" means one's consent or sanction. The word "satisfaction" is defined in the said dictionary and means comfort, content, contentment, delight, enjoyment, fulfillment, gratification, happiness, pleasure etc. Likewise, according to Chamber's Dictionary the word "approval" means acquiescence, agreement, assent, authorization, blessing, compliance, concurrence, confirmation, consent, countenance, endorsement, imprimatur, leave, licence, mandate, or pern1ission, ratification, recommendation, sanction, the go-ahead etc. 20. "Approval" in common parlance means what has to be approved has already taken place in its nature of ratification or what has already happened or has taken place. The word 'approval' in contradiction to the words 'previous permission', shows that the action is taken first and 'approval' is to be obtained afterwards. The word 'approval' does not equate with the word 'appeal'. The word approval does not mean anything more than either confirming, ratifying, assenting, sanctioning or consenting. While the word 'satisfaction' means the act of satisfying or the state of feeling being satisfied and the action of satisfaction contemplates adequate deliberation for acceptability of the conclusions. In other words, it means that before recording satisfaction, the concerned Authority must be convinced or persuaded to come to the conclusion. 21. In case of 'satisfaction' as well as 'approval', the application of mind is necessary. Section 47 of the Act lays down that before forwarding proposal the Collector must satisfy himself. The words "for the reasons to be recorded" are not in the act. Hence, it may be argued that objective satisfaction of the Collector is not necessary. However, still the subjective satisfaction is necessary. Thus, application of mind in both the cases is necessary. The degree of application of mind in the word 'satisfaction' is greater than the word 'approval'. Normally the approval is granted to an act of some other persons and not of his own. However, so far as satisfaction is concerned, said satisfaction is personal satisfaction. Said satisfaction can also be on the proposal or any other material or report submitted by some other authorities, still personal satisfaction is necessary. Hence, greater degree of application of mind is necessary, when the mandate of the law is that the 'satisfaction' is the satisfaction of himself. 22. In the case in hand, there does not appear to be a single document showing recording of satisfaction by the Collector and the word 'satisfaction' is one of the most important words in section 47 of the Act of 1961. 22. In the case in hand, there does not appear to be a single document showing recording of satisfaction by the Collector and the word 'satisfaction' is one of the most important words in section 47 of the Act of 1961. Rather the documents go to suggest that the Collector had not applied his mind to a greater degree as required under Section 47(2) of the Act of 1961 and passed the order in a mechanical manner forwarding his letter to the State Government requesting for further action against the petitioner under Section 47 of the Act of 1961. 23. Considering the facts and circumstances of the case and the illegality apparent on the face of record, this Court is of the considered opinion that the present petition deserves to be allowed and action initiated against the petitioner on the basis of proposal and recommendation made by the Collector is liable to be set aside. 24. Accordingly, with the observations made hereinabove, the petition is allowed and the action initiated against the petitioner on the basis of proposal and recommendation made by the Collector is set aside. 25. It is held that the State Government and the Chairman of State Election Commission would not proceed further with the reconm1endations made by the Collector under Section 47(2) of the Act of 1961. Petition Allowed.