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2022 DIGILAW 1529 (BOM)

Yogendra S/o. Jituji Rangari v. Collector Nagpur

2022-06-20

G.A.SANAP, SUNIL B.SHUKRE

body2022
JUDGMENT SUNIL B.SHUKRE,J. - Heard. Rule. Rule made returnable forthwith. Heard finally by consent of the learned counsel for the parties. 2. Shri M. I. Dhatrak, learned counsel for respondent Nos.2 and 3 has taken a preliminary objection regarding maintainability of this petition on account of non-joinder of necessary party. He submits that during the pendency of this petition, no confidence motion against the petitioner was passed and thereafter, the election for the post of Vice President, which had fallen vacant due to removal of the petitioner as Vice President of Municipal Council, Kanhan Pipri by passing of vote of no confidence, was held and another person was elected. He submits that at a time when no confidence motion against the petitioner was just passed and meeting for electing the new Vice President was about to be held, the petitioner was present and was aware of the election of another person in his place as a Vice President of Municipal Council and yet the petitioner has not joined him as party respondent. 3. Shri Firdos Mirza, learned counsel for the petitioner opposing the preliminary objection submits that there was no need for joining the newly elected Vice President as a party respondent, as by an order passed on 1/3/2021, this Court had made it clear that the petitioner shall continue to be the member of Municipal Council and can participate in the voting without prejudice to his rights and contentions and that whatever further steps would be taken by Municipal Council, Kanhan Pipri, same would be subject to the outcome of this petition. He also submits that the petitioner has questioned the legality and correctness of the Minutes of Meeting dtd. 12/2/2021, which record the passing of no confidence motion against the petitioner by majority vote of 12 Councillors including the elected President on the main ground that it does not satisfy the requirement of its passing by minimum of two third majority of the total number of Councillors and on the ancillary ground of the no confidence motion having been passed without there being any proposing and seconding as well. He submits that if the Minutes of Meeting held on 12/2/2021 are quashed and set aside everything done in consequence of the same would also go as this Court has already granted interim relief to the effect that further steps would be subject to the outcome of this petition. He submits that if the Minutes of Meeting held on 12/2/2021 are quashed and set aside everything done in consequence of the same would also go as this Court has already granted interim relief to the effect that further steps would be subject to the outcome of this petition. He thus submits that there is no need to add newly elected Vice President as party respondent. 4. The exhaustive argument submitted by Shri Firdos Mirza, learned counsel for the petitioner speaks for itself and, as it represents the factual position, it is, in our opinion, irrefutable. The obvious inference then would be that this petition is maintainable in the present form and there is no need for adding any person as party respondent with the further steps taken after passing of the no confidence motion as per the Minutes of Meeting dtd. 12/2/2021 being subject to the outcome of this petition. The preliminary objection is, therefore, rejected. 5. Now the questions that arise here are two fold. They are:- (i) Whether no confidence motion against the petitioner, the elected Vice President of Municipal Council, Kanhan Pipri, has been passed with requisite majority ? (ii) Whether the no confidence motion was proposed and seconded appropriately and in accordance with Rules 17 and 18 of the Maharashtra Municipalities (Conduct of Business) Rules, 1966 (For Short Rules of 1966) read with Sec. 81 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (For short Act of 1965) ?. 6. The provisions of law, which deal with the question of the minimum of majority required for passing of a resolution of no confidence at a special meeting, are contained in Sec. 55-1A of the Act of 1965. For the sake of convenience the Sec. is reproduced as below : Sec. 55-1A-Removal of Vice-President by Councillors (1) A Vice-President shall cease to be the Vice-President, if the Council by a resolution passed by a majority of not less than two-thirds of the total number of the Councillors, at a special meeting, so decides : Provided that, no such resolution shall be moved within a period of six months from the date of election of the Vice-President. (2) The requisition for such special meeting shall be signed by not less than one-half of the total number of Councillors and shall be sent to the President, and the President shall, within ten days of the receipt of such requisition, convene a special meeting of the Council, where the nominated Councillors shall have no right to vote. (3) If the resolution seeking removal of the Vice-President is not moved or as the case may be rejected, in the special meeting convened for the purpose under sub-sec. (2), no fresh resolution for such removal shall be brought during the tenure of such Vice-President. 7. It would be clear from the above referred provisions of law that upon passing of no confidence motion against the Vice President, the Vice President ceases to be a Vice President. It is also clear that requisite majority for passing of such a motion against the Vice President is of minimum of two third of the total number of Councillors. The expression total number of Councillors has been defined in Sec. 2 (49) of the Act of 1965 and in order that no doubt remains in our mind, the same is quoted as below. (49) total number of Councillors in relation to a Council, means the total number of the elected [Councillors] of that council. 8. The definition of the expression total number of Councillors indicates that only specific kind of Councillors are included in the expression and not all kinds of Councillors. The term Councillor has been defined in Sec. 2(7) of the Act of 1965 and it tells us that there are three categories of Councillors namely (i) duly elected Councillor (ii) directly elected President and (iii) nominated Councillor. The definition, for removal of doubt, if any, is reproduced thus:- Sec. - 2 (7) Councillor means a person duly elected as member of the Council, [the directly elected President], and includes the nominated Councillor, who shall not have the right,- (i) to vote at any meeting of the Council and Committees of the Council ; and (ii) to get elected as [a President of the Council in accordance with Sec. 51A-1B under Sec. 51 or] a Chairperson of any of the Committees of the Council;] 9. Now, if we examine the definition of the expression total number of Councillors, elucidated in Sec. 2(49) of the Act of 1965, in the light of the definition of the term Councillor we would at once notice that it is only the elected Councillor who is included in the expression total number of Councillors and not the directly elected President or the nominated Councillor. If the legislature had intended to include directly elected President in the expression total number of Councillors it would have said so expressly, keeping in view three categories of Councillors. But, the legislature has avoided it and therefore, it can be said that the other two categories of Councillors, namely, directly elected President and nominated Councillors have been consciously excluded by it from the expression total number of Councillors. 10. The conclusion that must be drawn from the above referred discussion is that no confidence motion taken up for consideration at a special meeting is required to be passed by a majority of not less than two third of the total number of the Councillors in terms of Sec. 51-1A of the Act of 1965 and that means it must be passed by a minimum two third of the majority of the elected Councillors only. This is because we have already seen that, the expression total number of Councillors does not include the category of nominated Councillors having no right to Vote and also the directly elected President. 11. After having understood the law which governs the field, let us now consider the facts of the case. 12. On perusal of the Minutes of Meeting dtd. 12/2/2021, in which no confidence motion against the petitioner was placed for its passing by the requisite majority, we find that in all 12 Councillors including directly elected President were present. It is not in dispute that Municipal Council, Kanhan Pipri is composed of 20 Councillors including directly elected President and two nominated Councillors. In other words, for the purpose of passing of no confidence motion, at a special meeting, there were only 17 total number of the elected Councillors available, in terms of Sec. 55-1A of the Act of 1965. Out of the 17 elected Councillors, admittedly, only 11 elected Councillors were present and the 12th Councillor present at the meeting was the directly elected President, who was not included in the expression total number of Councillors. Out of the 17 elected Councillors, admittedly, only 11 elected Councillors were present and the 12th Councillor present at the meeting was the directly elected President, who was not included in the expression total number of Councillors. The two thirds majority of total 17 elected Councillors comes to 11.33 Councillors and there is no dispute about it. The no confidence motion has been passed by 12 Councillors which included directly elected President. But in terms of the Sec. 55-1A of the Act of 1965, it was actually passed by only 11 elected Councillors. The requisite majority, as stated earlier, was that of 11.33 Councillors which is to be understood in law to be of 12 Councillors. Some explaining of law here is necessary to clarify the proposition. 13. In a case like this any fraction of vote cannot be rounded off to the nearest lesser number rather it is required to be taken as equivalent to one owing to the need for passing of resolution by not less than two thirds of the total number of the Councillors. Whenever not less than is the expression used, it must be understood as nothing less than; not even a fraction less than what is required. Such an interpretation of the expression not less than two thirds majority of the total number of the Councillors employed in Sec. 55-1A of the Act of 1965 only will lend meaning to it and carry out its purpose. This is what Honble Supreme Court has held in the case of Ganesh Sukhdeo Gurule v/s. Tahsildar Sinnar and ors, reported in (2019) 3 SCC 211 . The relevant observations of the Apex Court appearing in paragraph 19 being relevant are reproduced as follows: 19.......The words not less than used in Sec. 35(3) of the Act has to be given meaning and purpose. When majority comes to 5.33 votes not less than 5.33 votes have to be given meaning, hence, 5.33 can never be rounded off to 5, fraction has to be treated as one because votes cannot be treated as fraction. Hence, 5.33 votes to be read as 6 votes for passing of the motion as mandated by Sec. 35(3). When majority comes to 5.33 votes not less than 5.33 votes have to be given meaning, hence, 5.33 can never be rounded off to 5, fraction has to be treated as one because votes cannot be treated as fraction. Hence, 5.33 votes to be read as 6 votes for passing of the motion as mandated by Sec. 35(3). Thus, it is clear that the figure of 11.33 here was required to be counted as 12 in order to comply with the mandate of the Sec. 55-1A of the Act of 1965, which prescribed that a resolution be passed by not less than two thirds majority of the total number of the Councillors. 14. Shri M. I. Dhatrak, learned counsel for the respondent Nos.2 and 3 submits that total number of Councillors also includes the President of the Council. He relies upon the Full Bench Judgment of this Court rendered in case of Ashok Maniklal Harkut .v/s. Collector, Amravati and Ors., reported in 1988 Mh.L.J. 378 (decided on 14/10/1987), wherein it is held that total number of Councillors is an expression which also includes the President of the Municipal Council. In our respectful submission, this judgment of the Full Bench is of no assistance to the case of the respondent Nos.2 and 3 as in the said judgment, the expression total number of Councillors was found to be defined to include Councillor, co-opted Councillor and also nominated Councillor, which position underwent a drastic change in 1994 when amendments were introduced to the Act of 1965, in particular to the definition of the expression total number of Councillors as laid down in Sec. 2(49) of the Act of 1965. 15. It is thus clear that in the present case, the Minutes of the Meeting dtd. 12/2/2021 which recorded passing of no confidence motion against the petitioner, the Vice President of Municipal Council, Kanhan Pipri, by vote of not less than two third majority of the total number of Councillors are misconceived as they took into account the facts which did not exist. The two third majority of the total number of Councillors was that of 11.33 Councillors and as per the law settled by the Apex Court in the case of Ganesh Gurule (supra) the fraction of 0.33 has to be considered as equivalent to one vote which would make the figure of 11.33 as that of 12. The two third majority of the total number of Councillors was that of 11.33 Councillors and as per the law settled by the Apex Court in the case of Ganesh Gurule (supra) the fraction of 0.33 has to be considered as equivalent to one vote which would make the figure of 11.33 as that of 12. The resolution, however, was passed by a majority of only 11 elected Councillors, which is not the two thirds majority of total number of elected Councillors, which is 17 for Kanhan Pipri Municipal Council. The resolution so passed was invalid, it having been passed in breach of mandate of Sec. 55-1A of the Act of 1965, and we declare it to be so. It then goes without saying that the Minutes of Meeting dtd. 12/2/2021 are illegal and deserve to be quashed and set aside and all the consequential actions including the further step of holding of new election for electing another Vice President must also go. 16. Apart from what is stated earlier, we find that there is also no compliance with the provisions of Rules 17 and 18 of the Rules of 1966, which require that every motion, not being the formal motion, shall be handed over or sent by a proposer in writing and it shall not be taken up for discussion unless and until it is seconded by the Councillor who is entitled to vote. 17. According to the learned counsel Shri Dhatrak, the above stated requirement of law is not mandatory in nature but is only directory inasmuch as the motion of no confidence in the present case has been passed against the petitioner in compliance with the provisions made in Sec. 55-1A of the Act of 1965. He submits that motion of no confidence is something which relates to loosing of trust and confidence in an elected representative by the majority members of the house and whenever the majority looses its confidence in the elected representative, the elected representative looses his right to continue in the public office and whenever this happens, the aspect of proposing and seconding loses its significance. He relies upon the law laid down by the Full Bench of this Court in the case of Tatyasaheb Ramchandra Kale .v/s. Navnath Tukaram Kakde and Ors. reported in 2014 (6) Mh.L.J.804. He relies upon the law laid down by the Full Bench of this Court in the case of Tatyasaheb Ramchandra Kale .v/s. Navnath Tukaram Kakde and Ors. reported in 2014 (6) Mh.L.J.804. According to Shri Mirza, learned counsel for the petitioner, noncompliance with Rules 17 and 18 here has come only as additional harm to the already damaged case of the Municipal Council and therefore, the case of Tatyasaheb (supra) does not promote the case of the Municipal Council. 18. There can be no second opinion about the view taken by the Full Bench of this Court and it would be certainly binding on this Court. The view taken is that adherence to the prescription of proposing and seconding by qualified Councillors must be examined in the light of the entire case and if it is found that the defect arising from lack of proposing and seconding affects the merits of the case and challenge is also specifically raised to such motion on this ground, the Court can take a view that the requirement must be followed in that case. But if it is not so, the defect can be considered to be something not impinging upon the validity of the motion of no confidence which has otherwise been passed by fulfilling all the legal parameters. 19. In the present case, the basic requirement of passing of the no confidence motion by the requisite majority has not been fulfilled and to worsen the situation, there was no proposer and no seconder, as there is no reference made to any proposer or seconder in the minutes of meeting and the Municipal Council has not clarified this aspect. The petitioner has also raised a specific challenge on this ground. This fact situation warrants, as rightly said by Shri Mirza, learned counsel for the petitioner, a conclusion that resolution passing no confidence vote was and is invalid for yet another reason of the motion not being proposed and seconded by qualified Councillors. 20. The petition is, therefore, allowed. 21. The Minutes of Meeting dtd. 12/2/2021 passed by Municipal Council, Kanhan Pipri are hereby quashed and set aside. 22. All consequential acts and steps taken in furtherance of the Minutes of Meeting dtd. 12/2/2021 are also quashed and set aside. 23. Rule is made absolute in the above terms.