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2023 DIGILAW 26 (JK)

Pawan Kumar Kohli v. UT of J&K

2023-02-06

SANJEEV KUMAR

body2023
JUDGMENT : 1. The petitioner who is elected President of Municipal Council, Samba, is aggrieved of and has called in question notice bearing no. MC/S/2022-23/1173, dated 27.10.2022 issued by the Chief Executive Officer, Municipal Council, Samba for convening a special meeting of the Municipal Council on 04.11.2022 at 11:00 AM sharp in the Office of Municipal Council, Samba. 2. Impugned notice of convening the special meeting issued by the Chief Executive Officer, Municipal Council, Samba, is assailed by the petitioner primarily on two grounds:- a. That the earlier no confidence motion moved by the majority of councilors failed in the special meeting of the Municipal Council held on 17.10.2022 and, therefore, the second no confidence motion could not have been brought within one year of the dismissal of the earlier no confidence motion. b. That in compliance to Bye-law 27 of the Jammu and Kashmir Municipality (Procedure and Conduct of Business) Bye-Laws, 2021, [“Bye Laws, 2021"] the petitioner in his capacity as President had convened the meeting within a period of seven days which was presided over by the Vice-President of the Council and, therefore, it was not open to the Chief Executive Officer of the Municipal Council, Samba to issue a fresh notice for convening another meeting for taking up no confidence motion against the petitioner. 3. With a view to address the arguments of Mr. Abhinav Sharma, learned senior counsel appearing for the petitioner, made in support of aforesaid grounds of challenge, it is necessary to notice few material facts which are germane to the disposal of the controversy raised in this petition. 4. The petitioner came to be elected as President of Municipal Council, Samba, on 07.01.2019 for 5 year term. While the petitioner was performing his duties as President of the Council, majority of the Councilors moved a no-confidence motion against the petitioner on 11.04.2022 before the Chief Executive Officer, which no-confidence motion was later on withdrawn on 15.04.2022. 5. It seems that after few months, another no-confidence motion was moved by nine Councilors against the petitioner before the petitioner himself, as is mandated by the Rules. 5. It seems that after few months, another no-confidence motion was moved by nine Councilors against the petitioner before the petitioner himself, as is mandated by the Rules. The petitioner, who received the no-confidence motion, did not convene a formal meeting by issuing any notice but an informal meeting of about nine Councilors out of total 17 Councilors took place on 19.10.2022 in the Municipal Council, Samba, in which all the Councilors present reposed confidence in the petitioner. The President reduced the minutes of meeting in writing and conveyed the decision to the Competent Authority. 6. The Chief Executive officer, Municipal Council, Samba who received the information about the defeat of the no-confidence motion moved against the petitioner took up the matter with the Director to seek instructions in the matter as there was no formal meeting of the Councilors convened and the decision had been taken in an informal meeting that took place in the Office of Municipal Council, Samba, on 19.10.2022. It appears that the Chief Executive Officer, without waiting for requisite instructions from the Director and statedly relying upon some opinion of law officer, issued the impugned notice for convening the meeting. The petitioner feeling aggrieved of the issue of impugned notification, in the face of the earlier no-confidence motion having been defeated, has filed the instant petition. 7. On being put on notice, the official respondents have caused their appearance through Mr. S.S. Nanda, Sr. AAG and Respondent No. 5 and 6 have appeared through Mr. M.R. Qureshi. Objections have been filed by all the respondents. 8. It is the plea of learned counsel appearing for the respondents that since as per mandate of Bye-laws 2021, the notice for convening a special meeting to take up no-confidence motion moved against the petitioner was not issued within stipulated period, as such, the Chief Executive Officer was under an obligation to convene such meeting within a period of three days thereafter. This exactly has been done by the Chief Executive Officer and, therefore, the impugned notice issued by the Chief Executive Officer, which is in consonance with Section 25 read with Bye-Laws 2021, cannot be found fault with. 9. Having heard learned counsel for the parties and perused the material on record, it is necessary to first set out Section 25 of the Jammu & Kashmir Municipal Act, 2000 [“the Act"]:- 25. 9. Having heard learned counsel for the parties and perused the material on record, it is necessary to first set out Section 25 of the Jammu & Kashmir Municipal Act, 2000 [“the Act"]:- 25. Motion of no confidence against President or Vice-President-(1) A motion of no confidence against the President or Vice-President may be made in accordance with the procedure laid down in the rules. (2) Where a notice of intention to move a resolution requiring the President or Vice-President of the municipality to vacate his office, signed by not less than majority of its total elected members is given and if a motion of no-confidence is carried by a resolution passed by a majority of elected members present and voting at its general or special meeting, the quorum of which is not less than one-half of its total elected members, the President or the Vice-President against whom such resolution is passed shall cease to hold office forthwith. (3) Notwithstanding anything contained in this Act or the rules made thereunder the President or Vice-President of the municipality shall not preside over a meeting in which a motion of no-confidence is discussed against him. Such meeting shall be presided over by such a person, and convened in such manner, as may be prescribed and the persons against whom a motion of no-confidence is moved, shall have a right to vote and to take part in the proceedings of such a meeting. (4) Motion of no-confidence under this section 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. 10. From reading of Section 25, it is evident that motion of no-confidence against the President or Vice President may be made in accordance with the procedure laid down in the rules. The Government has laid down the Rules in the exercise of powers conferred by Section 24 read with Section 51 of the Act, known as Bye-laws of 2021. Bye-law 27 is relevant in the context of controversy raised herein and is also set out below:- 27. The Government has laid down the Rules in the exercise of powers conferred by Section 24 read with Section 51 of the Act, known as Bye-laws of 2021. Bye-law 27 is relevant in the context of controversy raised herein and is also set out below:- 27. No Confidence Motion.-The No Confidence Motion brought under section 25 of the Jammu and Kashmir Municipal Act, 2000 against the President or Vice-President of Municipal Committee/Council as the case may be shall be considered and disposed of as per the following procedure:- (1) Where a notice of intention to move a resolution requiring the President or Vice-President of Municipal Committee/Council to vacate his office, a special meeting of the elected Councillors shall be called for. Such special meeting shall be requisitioned and signed by not less than half of the total numbers of the elected Councillors which shall be given to the President of the concerned Municipal Council/Committee. Notice shall be issued by the President Municipal Committee/Council for the special meeting within seven days from receipt of requisition from the elected councillors. (2) Notwithstanding anything contained in these Bye-laws, the President or Vice-President of the municipality shall not preside over a meeting in which a motion of no confidence is discussed against him. Such meeting shall be presided over by a Councillor elected by majority of the elected members and the persons against whom a motion of no confidence is moved, shall have a right to vote and to take part in the proceedings of such a meeting. (3) In case the notice not being issued by the President within the stipulated date or not convening the meeting within stipulated time, the special meeting shall be called by the Chief Executive Officer/ Executive Officer within three days thereafter. (4) The notice issued for considering no confidence motion against the President or Vice-President shall clearly contain the reasons/ allegations on which the No Confidence Motion is to be brought. (5) As soon as the meeting, called for, commences, the presiding member at the meeting shall read out the motion on which the meeting has been called before the members present and declare it open for deliberations. During deliberations, opportunity shall be given to the President or Vice-President against whom no confidence motion is moved, to defend himself. The motion shall be put to vote by the presiding member by secret ballot on the same day. During deliberations, opportunity shall be given to the President or Vice-President against whom no confidence motion is moved, to defend himself. The motion shall be put to vote by the presiding member by secret ballot on the same day. If motion of no confidence is carried by resolution passed by the majority of elected members and voting at its special meeting the President or Vice-President against whom such resolution is passed shall cease to hold office forthwith. (6) In the event of both the posts of President or Vice-President falling vacant as a sequel to the passage of the No Confidence Motion, till the new President or Vice-President are elected for the remainder period, all the powers and duties which, under the provisions of the Act or the Rules or the regulations made thereunder or any other law for the time being in force, shall be exercised by the Chief Executive Officer/ Executive Officer of the Municipality. (7) On completion of the no confidence motion process, the Chief Executive Officer/Executive Officer shall submit a written report to the District Election Officer immediately. (8) Where the posts of President or Vice-President fall vacant as a consequence of no confidence motion, the process of electing new President or Vice-President for the remainder period shall be completed within 30 days by the Deputy Commissioner (District Election Officer) of the concerned District. 11. From conjoint reading of the Section 25 and Bye-law 27, it is evident that where a notice of intention to move a resolution requiring President or Vice-President of Municipality to vacate his office signed by not less than majority of its total elected members is given, a special meeting is required to be called by the President of the concerned Municipal Council/Committee by issuing notice within seven days from receipt of requisition from the elected councilors. However, if the President fails to convene such meeting within the stipulated time, the special meeting shall be called by the Chief Executive Officer within three days thereafter. The notice to be issued for considering no-confidence motion against the President or the Vice-President, as the case may be, shall clearly contain reasons or allegations on which the no-confidence motion is to be brought. 12. The notice to be issued for considering no-confidence motion against the President or the Vice-President, as the case may be, shall clearly contain reasons or allegations on which the no-confidence motion is to be brought. 12. Furthermore, as soon as the meeting called for commences, the presiding member of the meeting shall read out the motion on which the meeting has been called and declare it open for deliberations. During deliberations by the members/councilors, an opportunity shall also be given to the President or Vice-President against whom the no-confidence motion is moved to defend himself. It is only after such deliberations, the motion shall be put to vote by the presiding member by secret ballot on the same day. This is the procedure evisaged in Bye-law 27. 13. Indisputably, in the instant case, notice of intention to move a resolution of no-confidence against the President i.e. petitioner herein, was moved in writing signed by nine members that constituted more than half of the total members of the elected councilors. The notice, as required, was given to the President for convening a special meeting. It is not disputed by the parties that no formal notice of the meeting within seven days or even thereafter was given by the petitioner for convening the special meeting nor the councilors who were supposed to attend the meeting were made aware about the reasons/allegations on which the no confidence motion had been brought against the petitioner. However, in an informal meeting in which nine of the councilors were incidentally present, a decision was taken in favour of the petitioner and the no-confidence motion was declared defeated. Obviously, the course adopted by the petitioner was not in tune with the procedure laid down in Bye-law 27. There was no notice of convening the meeting indicating the time and venue as also the reasons/allegations on which no-confidence motion had been brought. Obviously, there was no deliberation on the agenda of no-confidence. Eight councilors, who were admittedly not present in the meeting and can rightly claim to have no notice of the meeting, were deprived of participating and deliberating in no-confidence motion and in that way a vital right of the councilor to be present and participate in the deliberations of the no-confidence was infracted. 14. Eight councilors, who were admittedly not present in the meeting and can rightly claim to have no notice of the meeting, were deprived of participating and deliberating in no-confidence motion and in that way a vital right of the councilor to be present and participate in the deliberations of the no-confidence was infracted. 14. Viewed from any angle, the manner in which the petitioner has acted, is not in consonance with law and the so-called informal meeting conducted by him in derogation of the procedure laid down in Bye-law 27 is nullity. The Chief Executive Officer, Municipal Council, Samba was well within its rights to assume that there was no notice issued by the petitioner to convene the meeting within a period of seven days and in default thereof rightly issued the impugned notice for convening meeting of the Municipal Council to deliberate on the no-confidence motion. 15. In view of the above, this Court does not find any illegality or infirmity in the impugned notice issued by the Chief Executive Officer, Municipal Council, Samba. Since the time fixed in the notice has expired and therefore, the Chief Executive Officer may be required to issue a fresh notice for convening of the special meeting to take up the no-confidence motion intimating all the Councilors the date, time and venue as also the reasons/allegations on which the no-confidence motion has been moved. 16. For the foregoing reasons, I find no merit in this petition and the same is disposed of with a direction to the Chief Executive Officer to issue a fresh notice to convene a meeting strictly in accordance with the procedure laid down in the Bye-law 27 of Bye-Laws, 2021. 17. Disposed of as above.