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2005(2) JLJ 379
(FULL BENCH)
Rajeev Gupta, S.L. Jain and S.S. Kemkar, JJ.
Naravadi Bai Chaudhary (Smt.) and others v. State of M.P. and others
Letters Patent Appeal No. 112 of 2003: against the order of Single
Bench passed in WP No. 5940 of 2002;
Decided on 4.11.2004.
Respondent No.7 Suresh Pathak was elected as President of Nagar Panchayat, Bareli, District Raisen on 4.1.2000. First meeting of Nagar Panchayat was held on 7.1.2000. Out of the 15 councillors, 13 moved a proposal for recall of President under section 47 of the Municipalities Act (hereinafter referred to as the Act‘).
Suresh Kumar Pathak submitted a representation to the Collector to the effect that five councillors, who are the signatories of the proposal, have expressed their confidence in him. The affidavits of those five councillors were also submitted. Collector summoned all the 13 councillors who signed the proposal but out of them only 11 turned up and verified their signatures on the proposal. On 19.2.2000 two councillors, Smt. Narvadi Bai Choudhary and Smt. Madhuri Gupta were summoned but only Narvadi Bai Choudhary turned up whose signatures were verified. Madhuri Gupta could not appear as she was pregnant. After being satisfied that out of 15 councillors, 13 have signed the proposal, the Collector forwarded the proposal to the State Government on 22.2.2002. Subsequently, other three councillors denied their signatures on the proposal and also denied the verification of signatures by the Collector. An application to this effect was also made by these councillors but the Collector refused to take note of it. On 11.10.2002 the State Government made a reference to State Election Commission. The Commission notified the election programme on 8.11.2002.
The proposal was challenged in the writ petition. The case of respondent No.7 in writ petition was that the proposal of recall was to be presented by all the signatories of the proposal before the Collector. Since the same was not done the presentation was invalid.
The learned Single Judge allowed the writ petition and held that the proposal of recall is required to be presented by requisite number of councillors before the Collector. [Paras 2.1 to 2.4
Held: We are of the firm view that the two requirements of signing and presenting the proposal as provided in the proviso are different and it is not the requirement that presentation should also be by not less than 3/4th of the total number of the elected councillors. [Para 10
(2) Municipalities Act, 1961 (M.P.)--S.47(2)--verification of signatures on proposal to recall President -- presence of signatories is nowhere mandated--no fetters on discretion of Collector can be put -- he can adopt any reasonable mode. 2003(1) Vidhi Bhasvar 119 distinguished. [Paras 12 & 13
(3) Municipalities Act, 1961 (M.P.)--S.47(1)--Constitution of India--Art. 243ZG(b)--process of recall of President--is also election--election process commences only when Election Commission notifies the election -- forwarding the proposal for recall of President by Collector to State Government--cannot by itself termed as election process. [Para 18
(4) Constitution of India--Art. 226/227 -- M.P. Municipalities Act, 1961--S. 47 -- allegation that Collector failed to exercise his duties under S. 47 of the Act -- person aggrieved has remedy to invoke writ jurisdiction of High Court. [Para 20
(5) Constitution of India--Arts. 226. 243-0 and 243ZG -- bar put by Arts. 243-0 and 243ZG -- cannot be read in the manner to curtail Constitutional power of High Court under Art. 226 -- election process not begun -- bar is not attracted. [Para 21
¼1½ uxjikfydk vf/kfu;e] 1961 ¼e-ç½& &/kkjk 47¼1½ ijarqd& &v/;{k dks okil cqyk, tkus dk çLrko&fuokZfpr ik"kZnksa dh dqy la[;k ds 3@4 }kjk gLrk{kfjr gksuk gksrk gS&çLrqfr] mu lcds }kjk visf{kr ugha gSaA
çR;FkhZ Ø-7 lqjs‘k ikBd 4-1-2000 dks uxj iapk;r] cjsyh] ftyk jk;lsu dk v/;{k fuokZfpr gqvk FkkA uxj iapk;r dk çFke lfEefyu 7-1-2000 dks gqvkA 15 ik"kZnksa esa ls 13 us uxjikfydk vf/kfu;e ¼,rfLeui‘pkr~ ^vf/kfu;e* dh Hkk¡fr fufnZ"V½ dh /kkjk 47 ds v/khu v/;{k dks okil cqyk, tkus dk çLrko çLrqr fd;kA
lqjs‘k dqekj ikBd us bl vk‘k; dk vH;kosnu dyDVj ds le{k çLrqr fd;k fd ik¡p ik"kZnksa us] tks çLrko gLrk{kjdrkZ gSa] mlesa fo‘okl vfHkO;Dr fd;k gSA mu ik¡p ik"kZnksa ds ‘kiFki= Hkh çLrqr fd, x, FksA dyDVj us mu lc 13 ik"kZnksa dks leu fd;k ftUgksaus çLrko ij gLrk{kj fd, Fks fdarq muesa ls dsoy 11 mifLFkr gq, vkSj çLrko ij vius gLrk{kjksa dk lR;kiu fd;kA 19-2-2000 dh nks ik"kZn Jherh uoZnhckbZ pkS/kjh rFkk Jherh ek/kqjh xqIrk leu dh xbZ Fkha fdarq dsoy uoZnhckbZ pkS/kjh mifLFkr gqbZ ftlds gLrk{kj lR;kfir fd, x,A ek/kqjh xqIrk milatkr ugha gks ldh D;ksafd os xHkZorh FkhaA ;g lek/kku gks tkus ij fd 15 ik"kZnksa esa ls 13 us çLrko ij gLrk{kj fd, gSa] dyDVj us 22-2-2002 dks çLrko jkT; ljdkj dks vxzsf"kr dj fn;kA rRi‘pkr~] vU; rhu ik"kZnksa us çLrko ij vius gLrk{kj gksus dk çR;k[;ku fd;k vkSj dyDVj }kjk gLrk{kjksa ds lR;kiu dk Hkh çR;k[;ku fd;kA bl vk‘k; dk vkosnu bu rhu ik"kZnksa }kjk fd;k x;k fdarq dyDVj us bl ij /;ku nsus ls badkj dj fn;kA 11-10-2002 dks jkT; ljdkj us jkT; fuokZpu vk;ksx dks funsZ‘k dj fn;kA vk;ksx us 8-11-2002 dks fuokZpu dk;ZØe vf/klwfpr dj fn;kA
çLrko ij fjV ;kfpdk esa vk{ksi fd;k x;kA fjV ;kfpdk esa çR;FkhZ Ø-7 dk i{kdFku Fkk fd okil cqyk, tkus dk çLrko dyDVj ds le{k leLr gLrk{kjdrkZvksa }kjk çLrqr fd;k tkuk pkfg, FkkA D;ksafd ,slk ugha fd;k x;k Fkk( çLrqfr vfof/kekU; FkhA
fo}ku ,dy U;k;k/kh‘k us fjV ;kfpdk eatwj dj yh vkSj vfHkfu/kkZfjr fd;k fd okil cqyk, tkus dk çLrko dyDVj ds le{k ik"kZnksa dh visf{kr la[;k }kjk çLrqr fd;k tkuk visf{kr FkkA ¼iSjk 2-1 ls 2-4½
vfHkfu/kkZfjr % gekjh n`<+ jk; gS fd ijarqd esa ;Fkk micaf/kr] çLrko ij gLrk{kj djus vkSj mls çLrqr djus dh nksuksa vis{kk,¡ fHkUu&fHkUu gSa rFkk ;g vis{kk ugha gS fd çLrqfr Hkh fuokZfpr ik"kZnksa dh dqy la[;k ds 3@4 ls vU;wu la[;k }kjk dh tkuk pkfg,A ¼iSjk 10½
¼2½ uxjikfydk vf/kfu;e] 1961 ¼e-ç-½& &/kkjk 47¼2½&v/;{k dks okil cqyk, tkus ds çLrko ij gLrk{kjksa dk lR;kiu& &gLrk{kjdrkZvksa dh mifLFkfr dgha Hkh vkKkfir ugha&dyDVj ds foosdkf/kdkj ij csfM+;k¡ ugha Mkyh tk ldrh& &og dksbZ Hkh ;qfDr;qDr <ax viuk ldrk gSA 2003¼1½ fof/k HkkLoj 119 çHksfnrA ¼iSjk 12 ,oa 13½
¼3½ uxjikfydk vf/kfu;e] 1961 ¼e-ç-½& &/kkjk 47¼1½&Hkkjr dk lafo/kku&vuq-243N¼[k½&v/;{k dks okil cqyk, tkus dh çfØ;k&Hkh fuokZpu gSa&fuokZpu çfØ;k rHkh çkjaHk gksrh gS tc fuokZpu vk;ksx }kjk fuokZpu vf/klwfpr fd;k tkrk gS&dyDVj }kjk jkT; ljdkj dks v/;{k dks okil cqyk, tkus ds çLrko dk vxzs"k.k&Loa esa fuokZpu çfØ;k ugha dgk tk ldrkA ¼iSjk 18½
¼4½ Hkkjr dk lafo/kku& &vuq-226@227&e-ç- uxjikfydk vf/kfu;e] 1961& &/kkjk 47& &vfHkdFku fd dyDVj /kkjk 47 ds v/khu micaf/kr vius drZO;ksa ds fuoZgu esa vlQy jgk&OfFkr O;fDr dks mPp U;k;ky; dh vf/kdkfjrk dk vkJ; ysus dk mipkj miyC/k gSA ¼iSjk 20½
¼5½ Hkkjr dk lafo/kku& &vuq- 226] 249.k rFkk 243;N&vuq-243.k rFkk 243;N }kjk vf/kjksfir otZu&ikB bl çdkj ugha fd;k tk ldrk fd vuq- 226 ds v/khu mPp U;k;ky; dh lkafo/kkfud ‘kfDr de gks& &fuokZpu çfØ;k vkjaHk ugha&otZu vkÑ"V ugha gksrkA ¼iSjk 21½
Jain, J.-1. Being aggrieved by the order dated 11.2.2003 passed by learned Single Judge in writ petition No, 5940/02, appellants have filed this Letters Patent Appeal under Clause 10, of the Letters Patent.
2. A thumb nail sketch of the case is thus :
2.1. Respondent No.7 Suresh Pathak was elected as President of Nagar Panchayat, Bareli, District Raisen on 4.1.2000. First meeting of Nagar Panchayat was held on 7.1.2000. Out of the 15 councillors, 13 moved a proposal for recall of President under section 47 of the Municipalities Act (hereinafter referred to as the 'Act').
2.2.Suresh Kumar Pathak submitted a representation to the Collector to the effect that five councillors, who are the signatories of the proposal, have expressed their confidence in him. The affidavits of those five councillors were also submitted. Collector summoned all the 13 councillors who signed the proposal but out of them only 11 turned up and verified their signatures on the proposal. On 19.2.2000 two councillors, Smt. Narvadi Bai Choudhary and Smt. Madhuri Gupta were summoned but only Narvadi Bai Choudhary turned up whose signatures were verified. Madhuri Gupta could not appear as she was pregnant. After being satisfied that out of 1,5 councillors, 13 have signed the proposal, the Collector forwarded the proposal to the State Government on 22.2.2002. Subsequently, other three councillors denied their signatures on the proposal and also denied the• verification of signatures by the Collector. An application to this effect was also made by these councillors but the Collector refused to take note of it. On 11.10.2002 the State Government made a reference to State Election Commission. The Commission notified the election programme on 8.11.2002.
2.3. The proposal was challenged in the writ petition. The case of respondent No.7 in writ petition was that the proposal of recall was to be presented by all the signatories of the proposal before the Collector. Since the same was not done the presentation was invalid.
2.4. The learned Single Judge allowed the writ petition and held that the proposal of recall is required to be presented by requisite number of councillors before the Collector.
3. We have heard Shri Prashant Singh, learned counsel for appellant, Shri Mirgendra Singh counsel for respondent No.7 and Shri R.S. Jha, Deputy Advocate General for the State.
4. Before adverting to the rival contentions raised by the learned counsel for the parties it is necessary to refer to section 47 of the Act as substituted by Amending Act No. 11 of 1999, which is relevant is quoted hereinbelow :
"47. Recalling of President--(1) Every President of a Council shall forthwith be deemed to have vacated his office if he is recalled through a secret ballot by a majority of more than half of the total number of voters of the municipai area casting the vote in accordance with the procedure as may be prescribed;
Provided that no such process of recall shall be initiated unless a proposal is signed by not less than three fourth of the total number of the elected councillors and presented to the Collector; Provided further that no such process shall be initiated :
(i) within a period of two years from the date on which such President is elected and enters his office;
(ii) if half of the period of tenure of the President elected in a by-election has not expired :
Provided also that process for recall, of the President shall be initiated once in his whole term.
(2) The Collector, after satisfying himself and verifying that the three fourth of the councillors specified in sub-section (1) have signed the proposal of recall, shall send the proposal to the State Government and the State Government shall make a reference to the State Election Commission.
(3) On receipt of the reference, the State Election Commission shall arrange for voting on the proposal of recall in such manner as may be prescribed."
5. On analysis of section 47 of the Act, we find that following are the requirements for in
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