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IN THE HIGH COURT OF BOMBAY
(Full Bench)
C.S. Dharmadhikari, Actg. C.J., V.A. Mohta G.G. Loney, JJ.
Ashok Maniklal Harkut ... Petitioner.
Versus
Collector, Amravati others .... Respondents.
Writ Petition No. 1371, decided on 14-10-1987.
MUNICIPAL COUNCIL - Removal of President - Resolution passed by majority of not less than two-thirds of total number of Councillors (excluding co-opted Councillors) - Meaning of 'total number of Councillors' - Whether it means total number of seats in a particular Council or total number of Councillors entitled to sit and vote - Convening of special meeting within 10 days of receipt of requisition - Whether it means issuance of notice calling the meeting within 10 days or holding of the meeting itself within 10 days - Counting of two-third majority - Whether fraction should be ignored.
Fact of the Case:
The petitioner, Ashok Maniklal H., was elected as President of the Municipal Council Chandur Bazar. On 12th June, 1987, a requisition incorporating a proposal to move a resolution to remove the president was served by 12 Councillors on the collector of the District, requesting him to convene a special meeting for the said purpose, within 10 days of the receipt of the requisition. On 17th of June, 1987 the collector gave intimation about the said resolution to the president. On the same day he issued notice calling a meeting of no confidence, on 30th of June 1987. The meeting was accordingly held on 30th June, 1987. This meeting was attended by 19 elected and 2 co -opted councillors. Thirteen elected councillors voted in favour if the resolution, where as six voted against it, Since the resolution was carried out by a majority of not less than two-third s of the total number of councillors (excluding co-opted councillors), presiding officer declared that the motion of no confidence was duly passed and the petitioner has ceased to be the president of the said municipal Council.
Finding of the Court:
1. The phrase 'total number of Councillors' used in section 55 of the Maharashtra Municipalities Act, 1965 means total number of Councillors who are entitled to sit and vote at the relevant time and not the sanctioned strength. 2. The expression 'convene' as used in section 55(3) of the Maharashtra Municipalities Act, only means that a meeting should be called and the notice of the meeting should be issued within 10 days of the receipt of requisition by the Collector. It does not mean that the meeting itself should be held within 10 days. 3. While counting two-third majority under section 55 of the Act, fraction if any, should not be ignored.
Issues: 1. What is the meaning of the expression, the total number of Councillors (excluding co-opted Councillors). Which occurs in section 55 of the Maharashtra Municipalities Act? 2. Whether under sub-section (3) of section 55 of the Maharashtra Municipalities Act, it is necessary to hold a meeting of municipal Council for the consideration of motion of no confidence, of which requisition is received under sub-section (2), within ten days of the receipt of requisition of it only requires that a notice calling the meeting of the Municipal Council should be issued within ten days of the receipt of requisition? 3. whether while counting majority of not less than two-thirds of total number of Councillors under section 55 of the Act, fraction if any should be ignored?
Ratio Decidendi: 1. The definition of the term 'total number of councillors' as given in section 2(49) will have to be read with the definitions of terms 'council' and 'councillors'. While defining term 'council', a council which is deemed to be constituted, is also taken in its import. Councillor is a person who is duly elected, co-opted or nominated as a member of the Council. 2. The word 'convene' is used in sections 23(1), 51(2) and 81(5). On the other hand the word 'call' is used in various other sections of the Act, including sections 81(1), 1(a), 3, 4(b), 82 (2), 82(4) and 82(4) etc. In sub-section (5) of section 81 an expression `notice' convening the meeting to be held, is used. Thus it appears that the said expression is not used by Legislature in a precise sense. 3. Whenever Legislature wanted that the fraction should be ignored or should be rounded up it has specifically provided for it. Proviso to section 9(1), sections 9(2)(b) (e), 19(1), 63 (1), 65 (2), 81(a), 82(2)(IV), in terms provide that where there is a fraction it should be ignored. Section 9(2)(e) provides for rounding up of fraction. It lays down that if a fraction is less than one half it is to be ignored and if it is one half or more, then it shall be reckoned as one.
Final Decision: Rule discharged with no order as to costs.
2. It is contended by Shri B.P. Jaiswal learned Counsel appearing for the petitioner that the total number of the elected Counsillors of the Chandur Bazar Municipial Council, was 20, and therefore, 12 Councillors, who voted in favour of the resolution did not constitute two-third majority of the total number of the Councillor's (excluding co-opted Councillors) within the meaning of the said expression, as used in section 55(1) of the Maharashtra Municipalties Act, 1965 (hereinafter referred to as the act). It is the case of the petitioner that though one seat was vacant and the total number of elected Councillors then existing was only 19, still voting by fourteen Councillors which was twenty. Therefore, the resolution was not legally carried out. It was also contended that requisition for calling a special meeting was served on the Collector on 12th of June, 1987. Under sub-section (3) of section 55 it was obligatory on the part of the Collector to convene a special meeting of the Council within 10 days of the receipt of the requisition. The meeting which was convened by the Collector on 30th June, 1987 was beyond the said period of 10 days and on that count also the meeting held and the resolution passed are illegal. A contention is also raised that while counting the two-third majority, the fraction cannot be ignored and, therefore the resolution was not passed by the requisite majority.
3. On the other hand it is contended by Shri A.S. Bobde, learned Advocate General, that the expression used in section 55 of the said Act i.e. total number of Councillors, can only mean total number of Councillors (other than co-opted Councillors) who are entitled to sit and vote at the relevant time. If the interpretation suggested by the petitioner of the said phrase is accepted, then the provisions of the Act will become unworkable. He then contended that the expression 'convene' as used in section 55 only means that a meeting should be called and the notice of the meeting should be issued within 10 days of the receipt of the requisition by the Collector. It does not mean that the meeting itself should be held within 10 days. He also contended that while counting two-third majority a fraction if any, will have to be ignored inspite of his contention the petitioner has placed strong reliance upon the decision of the Division Bench of this Court in (Bhaskar another v. S.G. Daithankr Sub-Divisional Officer, Bhandara and 23 others)1, 1970 Mh.L.J. 953. On the other hand learned Advocate General has placed reliance upon the subsequent decision of another Division Bench in (Shivdas Govind Lanjewar v. The Municipal Council, Bhandara others)2, 1986 Mh.L.J. 216.
4. When the present writ petition came f
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