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2018 DIGILAW 2095 (HP)

Madan Lal v. State Of Himachal Pradesh

2018-11-27

AJAY MOHAN GOEL, SURYA KANT

body2018
JUDGMENT Surya Kant, C.J. - The petitioner assails the Order dated 24th November, 2018, passed by the Sub Divisional Officer (Civil), Nalagarh, District Solan, whereby the application moved by the petitioner to recall the Notice of Meeting of Municipal Council, Baddi to consider the No Confidence Motion, which was scheduled to be held on 24th November, 2018, has been dismissed being devoid of any merit. 2. The facts are like this. The petitioner was elected as President of Municipal Council, Baddi, District Solan on 4th February, 2016. On 8th November, 2018, a No Confidence Requisition was received against the petitioner which was duly signed by five Municipal Councillors. The Deputy Commissioner, Solan on receipt of the said requisition, authorized the Sub Divisional Officer (Civil), Nalagarh to convene a special meeting of the Municipal Council, Baddi and consequently, in purported compliance of Rule 92(3) of the Himachal Pradesh Municipal Election Rules, 2015 (in short, ''the 2015 Rules''), a Notice was issued on 8th November, 2018 itself to convene the meeting on 24th November, 2018 at 11:00 a.m. in the office of Municipal Council, Baddi. The petitioner represented against the above stated Notice pleading inter alia that the Notice was actually served on him on 19th November, 2018 and since a clear Notice of not less than 15 days is mandatorily required to be served in view of Rule 92(3) of the 2015 Rules, the meeting which was to be held on 24th November, 2018 was liable to be deferred or a fresh Notice was required to be issued to convene such meeting after expiry of 15 clear days. The said application has been turned down by the Sub Divisional Officer (Civil), Nalagarh. It will be useful to reproduce paras 9, 10 and 13 of the impugned Order dated 24.11.2018 passed by the Sub Divisional Officer (Civil), Nalagarh, which are to the following effect: "9. I have perused the letter No. SDM/NLG/HC/2018-1088-1102 dated 8.11.2018, the copy of which is taken on record as exhibit-1. It will be useful to reproduce paras 9, 10 and 13 of the impugned Order dated 24.11.2018 passed by the Sub Divisional Officer (Civil), Nalagarh, which are to the following effect: "9. I have perused the letter No. SDM/NLG/HC/2018-1088-1102 dated 8.11.2018, the copy of which is taken on record as exhibit-1. From the perusal of this letter, it appears that these letters were issued to all the 9 councillors of Municipal Council, Baddi and through this letter as per the provisions of Rule 92(3) of H.P. Municipal Council Election Rules, 2015, a special meeting was fixed for 24.11.2018 at 11:00 AM in the office of M.C. Baddi to consider the said no confidence requisition against the President of Municipal Council Baddi and further all the elected members of Municipal Council, Baddi are requested to attend the said meeting on the said date and time. All these 9 letters were forwarded to the Executive Officer, Municipal Council Baddi to serve upon all 9 elected members under proper receipt. 10. Sh. Ajmer Singh Thakur, Executive Officer Municipal Council Baddi submitted a copy of letter No. 2169 dated 22.11.2018 addresed to S.D.O. Nalagarh and in his statement he stated that all the letters containing dispatch No. 1088-1102 dated 08.11.2018 were received in his office on 09.11.2018, the copy of this letter is taken on record as exhibit-2. Sh. Ajmer Singh Thakur, Executive Officer Municipal Council Baddi in his statement stated that all the letters were handed over to Sh. Anshu, Assist Librarian and Sh. Jaidev, Peon of his office to further deliver them to the councillors of M.C. Baddi. He further stated that on dated 9.11.2018 Sh. Anshu informed him telephonically that he has delivered the letters alongwith requisition to Sh. Madan Lal Chaudhary at his Petrol Pump but he has refused to sign on the receipt. Thereafter, he (Sh. Ajmer Thakur) called on phone with Sh. Madan Lal Chaudhary to put his signatures of the receipt on which Sh. Madan Lal told him that he has received the letter and he will sign the same later on. Thereafter, the detailed report regarding delivery of letters was submitted by Sh. Anshu in my office, the copy of which is taken on record as exhibit-3 Sh. Ajmer Singh Thakur further stated that letter were served to all the 9 Members of Municipal Council, Baddi as per the provision of law. .... 13. Thereafter, the detailed report regarding delivery of letters was submitted by Sh. Anshu in my office, the copy of which is taken on record as exhibit-3 Sh. Ajmer Singh Thakur further stated that letter were served to all the 9 Members of Municipal Council, Baddi as per the provision of law. .... 13. As per above stated facts, it is crystal clear that as per provisions of Rule 92(3) of the H.P. Municipal Council Election Rules, 2015 a special meeting of Municipal Councillor Baddi to consider the no confidence requisition was fixed for 24.11.2018 at 11:00 AM and as per the provision of the rule ibid, letter vide No. SDM/NLG/HC/2018-1088-1102 dated 08-11-2018 was issued to all the elected members of M.C. Baddi and the service of these letters were made through Executive Officer, M.C.Baddi as per provisions of law. The plea of Sh. Madan Lal Chaudhary, President of M.C. Baddi that he has received the letter on 19.11.2018 without copy of no confidence requisition is not sustainable wherever Sh. Ajmer Singh Executive Officer, M.C. Baddi has stated that letter alongwith copy of no confidence requisition was handed over to him by Sh. Anshu, an employee of his office personally on 9.11.2018 but he (Sh. Madan Lal Chaudhary) has not put his signatures on office copy advertently/knowingly. Keeping in view of foregoing facts, the application of Sh. Madan Lal Chaudhary, President, M.C. Baddi for not complying with the mandatory provisions of H.P. Municipal Council Election Rules, 2015 and not providing copy of requisition of no Confidence Motion and also not giving 15 days'' notice of the special meeting scheduled for 24.11.2018 is dismissed being devoid of merit in the interest of justice." 3. There is, thus, a serious dispute on facts between the petitioner and the Authorities, as according to the latter, the Notice had been issued on 8th November, 2018 and it was duly served in the petitioner''s office on 9th November, 2018 and that Rule 92(3) had been complied with. 4. Petitioner, on the other hand, as noticed earlier, urges that he has received Notice on 19th November, 2018 without a copy of the No Confidence Requisition and therefore, the entire exercise initiated by the Sub Divisional Officer (Civil), Nalagarh is contrary to law. 5. In order to appreciate the rival submissions, it may be useful to reproduce Rule 92 (relevant extracts), which reads as follows: "92. 5. In order to appreciate the rival submissions, it may be useful to reproduce Rule 92 (relevant extracts), which reads as follows: "92. No confidence motion against the President and Vice President.- (1) A motion of no confidence against the President or Vice President of a municipality may be made through a requisition given in writing addressed to the Deputy Commissioner signed by not less than majority of its total elected members: Provided that the members who have made such a motion may withdraw the same before the meeting is convened for the purpose: Provided further that motion of no confidence under this rule shall not be maintainable within one year of the date of his election to such office and any subsequent motion of no-confidence shall not be maintainable within the interval of one year of the last motion of no-confidence. ..... (3) The Deputy Commissioner or such other officer not below the rank of Sub-Divisional Officer (Civil) authorized by the Deputy Commissioner shall convene a special meeting by giving a notice of not less than fifteen days for the consideration of the motion referred to in sub-rule (1) and shall preside over at such meeting." 6. Relying upon Pioneer Motors Ltd. Vs. Nagercoil Municipal Council , (1967) AIR SC 684, it is contended that in view of the negative expression used in the Rule, namely, ''..not less than fifteen days.....'', the date of issuance of Notice and the date on which meeting is to be convened are excluded so as to give in between clear 15 days to the Noticee. 7. On the other hand, learned Advocate General urges that subrule (3) of Rule 92 does not mandate that the Notice should be personally handed over to each Councillor and if it is published on the Notice Board of the Municipal Council or the office of Deputy Commissioner or other public place, that will be sufficient and substantial compliance of subrule (3), which is otherwise not mandatory in nature. According to him, the No Confidence Notice was issued on 8th November, 2018 and the meeting has been held on 24th November, 2018 after a clear gap of 15 days. We are informed that the No Confidence Motion has been successfully passed against the petitioner, a majority of Councillors supported the said motion. 8. According to him, the No Confidence Notice was issued on 8th November, 2018 and the meeting has been held on 24th November, 2018 after a clear gap of 15 days. We are informed that the No Confidence Motion has been successfully passed against the petitioner, a majority of Councillors supported the said motion. 8. Having given our thoughtful consideration to the rival submissions, we are not inclined to interfere with the impugned Order. We say so for the reasons that firstly this Court need not to disbelieve the authorities, who have, in no uncertain terms, averred that the Notice was issued on 8th November, 2018. The meeting was convened on 24th November, 2018, namely, after a gap of clear 15 days. Secondly, sub-rule (3) may not be construed to mean that every Councillor is required to be handed over the Notice personally. If such were to be the procedure, the convening of meeting in support of a No Confidence Motion will become difficult, if not impossible. One of the Municipal Councillor can be absent for 15 days at a given point of time and if they start doing so in rotation, the matter will have to be postponed for indefinite period. That is not the legislative object or purpose of giving not less than 15 days advance Notice. To say it differently, if Notice has been displayed on a public place known to the Municipal Councillors, sub-section (3) shall stand complied with. 9. In the case in hand, a Notice was admittedly sent to the petitioner''s office and therefore, it can be safely inferred that its contents were known to him. With this finding, it is not necessary to dwell upon the contention that whether sub-rule (3) which prescribes a Notice of not less than 15 days is not mandatory in nature, for no consequences have been prescribed or that it should be taken as mandatory merely because the expression ''shall'' has been used by the Legislature. 10. There is yet another reason for not entertaining the writ petition. No Confidence Motion has been already passed against the petitioner on 24th November, 2018, by virtue of which, he stands removed from the office of President. The said Resolution is not under challenge in these proceedings. 10. There is yet another reason for not entertaining the writ petition. No Confidence Motion has been already passed against the petitioner on 24th November, 2018, by virtue of which, he stands removed from the office of President. The said Resolution is not under challenge in these proceedings. Even if the rejection order of petitioner''s representation passed by the Sub Divisional Officer (Civil), Nalagarh is set aside, it will not cause restoration of the petitioner to the office of President, Municipal Council, Baddi. 11. For the above reasons, we do not find any merit in the present petition, which is accordingly dismissed, so also miscellaneous applications, if any.