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2015 Supreme(P&H) 351
IN THE HIGH COURT OF PUNJAB AND HARYANA
[DIVISION BENCH]
Before
The Hon’ble Mr. Justice Satish Kumar Mittal
The Hon’ble Mr. Justice Harinder Singh Sidhu
LPA No. 664 of 2015 ( O&M )
Deputy Commissioner, Karnal & Anr.
v.
Smt. Sunita & Ors.
{Decided on 03/07/2015}
For the Appellants (in LPA No. 664 of 2015): Mr. Lokesh Sinhal, Addl. A.G., Haryana,
For the Respondents No.4 and 5 (in LPA No. 665 of 2015):Mr. Amar Vivek, Advocate.
For the Appellants (in LPA No. 665 of 2015):Mr. Bhoop Singh, Advocate.
For the Respondents No.1 to 3 (in both the LPAs)
Headnote:Municipal Election--No Confidence Motion--Not required to be put to vote by secret ballot mandatorily and also not on merely on the asking of one or two members of the committee, who are grossly in minority.
(A) Haryana Municipal Act, 1973, S.21(3)--No Confidence Motion--A motion of no Confidence against the President or Vice President of a Municipal Committee is not required to be put to vote by secret ballot mandatorily and also not on merely on the asking of one or two members of the committee, who are grossly in minority--Haryana Municipal Election Rules, 1978, Rule 72-A.
Neither under Section 21 of the Act nor under Rule 72-A of the Election Rules of 1978, there is any requirement that to ascertain the wish of the elected members of the Committee, motion of no-confidence has to be put to vote by secret ballot--If two-third elected members of the Committee are openly supporting the motion of no confidence against the President of the Committee, in that situation, merely on the asking of the minority group having less than one-third members of the elected members of the Committee to put the motion of no-confidence to vote by secret ballot, the Presiding Officer of the meeting is not required to ask the majority group of the elected members of the Committee to cast their vote by secret ballot. Only in a situation when the provision of law clearly requires that No Confidence Motion has to be put to vote by secret ballot, the Presiding Officer of the meeting is duty bound to put the motion of no-confidence to vote by secret ballot, even on the asking of one elected member of the Committee--But when the statute does not provide for secret ballot in case of considering No Confidence Motion against the President or the Vice-President of the Committee, the court cannot impliedly read such provision of law in the statute. If the wish of the House or the members of the Committee is not clear, then it will be open for the Presiding Officer of the meeting to put the motion of no-confidence to vote by secret ballot, but it cannot be laid down as a law that in all circumstances, the Presiding Officer is duty bound to put the motion of no-confidence to vote by secret ballot, if demanded even by one member of the Committee, irrespective of the fact that two-third elected members of the Committee have openly and unequivocally supported the motion of no-confidence not only by giving their respective affidavits, but also by putting their signatures on the proceedings of the meeting held for considering No Confidence Motion. (Para 16)
(B) Haryana Municipal Act, 1973, S.21 & S.22--Removal of President--Passing of Non Confidence motion--Difference between--The removal of the President or Vice-President from the office can be made on the ground of abuse of his power or of habitual failure to perform his duties--Whereas under Section 21 of the Act, on passing a No Confidence Motion against the President or Vice-President by not less than two-third of the elected members of the Committee, he shall be deemed to have vacated his office. (Para 14)
The object and intention of Section 21 of the Act is very clear that if an elected President loses the confidence of the House and a motion of noconfidence is carried against him with the support of not less than two-third of the elected members of the Committee, he is deemed to have vacated the office--On passing of motion of no-confidence against the President by not less than two-third of the elected members of the Committee automatically leads to his removal--The moment, such motion is passed, the President is deemed to have vacated his office. Thus, the intention of Section 21 of the Act is that when a President has lost the support of two-third of the elected members of the Committee, he cannot remain in the office.
Mr. Satish Kumar Mittal, J.: - This order shall dispose of two Letters Patent Appeals under Clause X of the Letters Patent, i.e. LPA No. 664 of 2015 filed by Deputy Commissioner, Karnal and Sub Divisional Officer (C) Indri; and LPA No. 665 of 2015 filed by Sukhwinder Kaur and six others (elected members of Municipal Committee, Indri), against the judgment dated 20.04.2015 passed by the learned Single Judge, whereby the writ petition (CWP No. 2849 of 2015) filed by Smt. Sunita and two others (respondents No.1 to 3 in both these appeals) seeking quashing of the proceedings dated 12.02.2015 (Annexure P-3) passing No Confidence Motion against Smt. Sunita as President of Municipal Committee, Indri, by more than two-third of the elected members of the Municipal Committee, has been allowed and the proceedings passing No Confidence Motion against Smt. Sunita, President of the Municipal Committee, Indri, has been set aside.
2. Before considering the questions of law involved in these appeals, it is necessary to give brief facts of the case.
3. Municipal Committee, Indri (hereinafter referred to as ‘the Committee’) consists 15 members, i.e. 13 elected members and 2 nominated members (Member of Parliament and Member of Legislative Assembly of the area). Election of the Committee took place in February, 2013. Smt. Sunita (respondent No.1 herein) was elected as President of the Committee in May/June, 2013.
4. Majority of the members of the Committee were not satisfied with the functioning of the President of the Committee. Therefore, on 16.01.2015, 10 elected members of the Committee submitted a requisition along with their respective affidavits to the Deputy Commissioner, Karnal, for convening the meeting of the Committee to consider the No Confidence Motion against the President of the Committee. On the said requisition, the Deputy Commissioner, Karnal, vide letter dated 19.01.2015, authorised the Sub Divisional Officer (Civil) Indri, to convene a special meeting as per Rule 72-A of the Haryana Municipal Election Rules, 1978 (hereinafter referred to as ‘the Election Rules of 1978’), for consideration of No Confidence Motion against the President of the Committee. The Sub Divisional Officer (Civil), Indri, issued notice dated 23.01.2015 to all the 15 members of the Committee, convening of special meeting on 12.02.2015 at 3.00 PM in the Office of the Committee, to consider No Confidence Motion against the President of the Committee. On the date, time and place fixed, the special meeting was held, which was attended by 14 members of the Committee, i.e. 13 elected members and one nominated member (Member of Legislative Assembly of the municipal area). Out of 13 elected members, 10 elected members supported the No Confidence Motion against the President of the Committee. They duly signed the proceedings in support of passing the No Confidence Motion. The remaining 3 elected members of the Committee, including the President of the Committee, demanded for putting the motion of no-confidence to vote by secret ballot, and did not support the No Confidence Motion. In view of this, the Presiding Officer recorded that No Confidence Motion has been passed by two-third elected members of the Committee, and as per Section 21 (3) of the Haryana Municipal Act, 1973 (hereinafter referred to as ‘the Act’), the President shall be deemed to have vacated the office of the President of the Committee.
5. The President and two other elected members of the Committee, who did not support the No Confidence Motion, filed the aforesaid writ petition challenging the proceedings of passing No Confidence Motion against the President of the Committee, on the ground that in spite of the demand of 3 elected members of the Committee, the Presiding Officer did not put the motion of no-confidence to vote by secret ballot, and acted illegally and arbitrarily while rejecting the request of 3 elected members for secret ballot. Hence, the proceedings of passing No Confi
