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1986 Supreme(Bom) 88
IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Parekh N.K. Qazi M.M. JJ.
Shivdas Govind Lanjewar.... Petitioner.
Versus
Municipal Council, Bhandara others .... Respondents.
Writ Petition No. 3 of 1986, decided on 6-3-1986.
Advocates appeared :
A.S. Bobde V.G. Mohoril, for petitioner.
G.Y. Gharote, for respondent No. 1.
W.M. Sambre, Govt. Pleader, for respondent No. 2.
V.R. Manohar, for respondent No. 3.
The phrase “total number of Councillors” appearing in section 55 of the Maharashtra Municipalities Act, 1965 means the total number of Councillors who are entitled to sit and vote and not the total number of seats (some of which could be vacant), of which the Council is constituted.
Headnote:
MUNICIPALITIES ACT - SECTION 55 - INTERPRETATION - 'TOTAL NUMBER OF COUNCILLORS' - MEANING - RESOLUTION FOR NO CONFIDENCE - PASSING OF - REQUISITE MAJORITY - COMPUTATION.
Fact of the Case:
A requisition was submitted to the Collector for convening a Special Meeting to move a Motion of Non-confidence against the President of the Municipal Council. The Collector issued a notice for holding a Special Meeting. At the meeting, 36 councillors assembled, one of them being a co-opted councillor. Out of these 36 Councillors, 10 refused to mark their presence and left the meeting hall leaving behind 26 Councillors including a co-opted Councillor. The motion was then put to vote. As the co-opted Councillor had no vote he refrained from voting. The other 25 Councillors voted against the President. The Presiding Officer, who was a Deputy Collector, then gave a finding that the requisite strength (i.e. two-thirds of the total number of Councillors) was not reached and hence the motion of non-confidence stood rejected.
Finding of the Court:
The court held that the expression “not less than two thirds of the total number of Councillors” must mean two-thirds of the Councillors who are entitled to sit and vote and not the total strength which can include vacant seats. In this case two-thirds of the total number of Councillors must mean two-thirds of the 37 which comes 24.33, and since 25 Councillors have voted, this must mean that the resolution has been passed by the requisite majority.
Issues: Whether the words “total number of Councillors” appearing in section 55 of the Maharashtra Municipalities Act, 1965 ('Municipalities Act' for short) means the total number of Councillors who are entitled to sit and vote or the total number of seats (some of which could be vacant), of which the Council is constituted.
Ratio Decidendi: The court interpreted the phrase “total number of Councillors” appearing in section 55 of the Municipalities Act, 1965. The court held that the phrase means the total number of Councillors who are entitled to sit and vote and not the total number of seats (some of which could be vacant), of which the Council is constituted. The court reasoned that the definition of the phrase in section 2(49) of the Municipalities Act is clearly intended to advance the purpose of the Act and not to freeze the same. The court also held that the expression “not less than two thirds of the total number of Councillors” must mean two-thirds of the Councillors who are entitled to sit and vote and not the total strength which can include vacant seats.
Final Decision: The court allowed the petition and held that the resolution for no confidence was passed by the requisite majority.
2. The undisputed facts are that in the Municipal Council, Bhandara, there are 38 seats for Councillors, excluding the Councillors who are to be co-opted. That respondent No. 3 Nandurkar was elected President of the Council. On 13th December, 1985, 25 Councillors submitted a requisition to the Collector for convening a Special Meeting to move a Motion of Non-confidence against the President i.e. respondent No. 3. The Collector issued a notice dated 15-12-1985 for holding a Special Meeting on 20th December, 1985 at 1 p.m. At this meeting 36 councillors assembled, one of them being a co-opted councillor. Out of these 36 Councillors, 10 refused to mark their presence and left the meeting hall leaving behind 26 Councillors including a co-opted Councillor. The motion was then put to vote. As the co-opted Councillor had no vote he refrained from voting. The other 25 Councillors voted against the President. The Presiding Officer, who was a Deputy Collector, then gave a finding that the requisite strength (i.e. two-thirds of the total number of Councillors) was not reached and hence the motion of non-confidence stood rejected. Being aggrieved by this decision the petitioner has filed the present petition challenging the order of the Presiding Officer.
3. The petitioner has contended that the provisions of section 55 of the Maharashtra Municipalities Act, 1965 ('Municipalities Act' for short) requires a resolution for a no confidence to be passed by not less than two-thirds of the total number of Councillors, which means Councillors who are entitled to sit and vote. That since out the total strength of 38 one of the Councillors had resigned earlier, the Council consisted of 37 members only. That two-thirds of this 37 would mean a voting of 24.66 percent. That since 25 persons had voted, there was a clear majority of two-thirds, and the resolution was, therefore, valid. The respondents on the other hand have contended that is true that out of the total 38 councillors, one had resigned, but they have maintained that in computing the two-thirds of the total number of Councillors, the vacant seat must be taken into account. In other words, the voting must be not less than two-thirds of the total seats i.e. 38, in which case the requisite votes required would be 25.33. That as the voting by 25 members was less than 25.33 the rejection of the motion by respondent No. 2 was proper. The dispute, therefore, clearly turns on the interpretation of section 55 of the Municipalities Act and more particularly as to what is meant by the words, “by a majority of not less than two-thirds of the total number of Councillors” appearing therein.
4. Now section 55 reads as follows:
“55(1). A President shall cease to be President, if the Council by a resolution passed by a majority of not less than two-thirds of the total number of Councillors (excluding the co-opted Councillors) at a special meeting so decides.
(2) The requisition for such special meeting shall be signed by not less than one-half of the total number of Councillors (excluding the co-opted Councillors) and shall be sent to the Collector.
(3) The Collector shall, within ten days of the receipt of a requisition under sub-section (2), convene a special meeting of the Council.
Provided that, when the Collector convenes a special meeting, he shall give intimation thereof to the President.
(4) A meeting to consider a resolution under sub-section (1) shall be presided over by the Collector or any other officer authorised by him in this behalf, but the Collector or such either (sic) officer shall have no right to vote.
(5) The co-opted Councillors present at any meeting m
