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2005(2) JLJ 339
(FULL BENCH)
Rajeev Gupta, S.L. Jain and S.S. Kemkar, JJ.
State of M.P. and another v. Sushri Manorama Gour
Letters Patent Appeal No. 124 of 2003 : against the order of Single Bench passed in Writ Petition No. 5461 of 2002;
Decided on 4.11.2004.
Respondent-Mayor filed a writ petition before this Court for quashing the proposal of recall. It was alleged by the Mayor in the petition that affidavits of 48 Councillors were filed before the Commissioner, but the Commissioner, without making any enquiry about the genuineness of signatures of Councillors on the proposal of recall and other allegations forwarded the same to the State Government.
Mayor Smt. Manorama Gour also alleged that the proposal was not presented to the Commissioner by requisite number of Councillors. The learned Single Judge allowed the petition holding that the Commissioner did not ensure that proposal was presented by requisite number of Councillors and also did not verify their signatures on the proposal. The learned Judge directed a fresh enquiry in the matter in terms of the observations made in the order. It has also been held that Dinesh Soni and Gangaram Ahirwar were not present at the time of presenting the proposal and out of 38 persons alleged to have been present at the time of presenting the proposal, Uday Yadav not being a signatory to the proposal, his presence at the time of presentation was inconsequential. [Paras 2.2 to 2.4
Learned counsel appearing for the State vehemently submitted that the law does not require that the proposal of recall should be presented by 3/4th of the total number of elected Councillors. Even if it is presented by anyone of them, it is sufficient compliance of section 24 of the Act. Therefore, order impugned, whereby proposal and forwarding thereof has been quashed, is not sustainable. [Para 6
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 also should be by not less than 3/4th of the total number of the elected Councillors. [Para 9
(2) Municipal Corporation Act, 1956 (M.P.)--S.24(2) -verification of signatures on proposal to recall mayor -- presence of signatories is nowhere mandated -- no fetters on discretion of Commissioner can be put -- he can adopt any reasonable mode. 2003(1) Vidhi Bhasvar 119 distinguished. [Paras 11 & 12
(3) Municipal Corporation Act, 1956 (M.P.)--S.24(2)-comparison of signature -- is a recognised mode of verifying signatures of a person -- comparison of signatures of councillors on proposal of recall -- cannot be objected to. [Para 23
(4) Municipal Corporation Act, 1956 (M.P.)--S. 24--Constitution of India-- Art. 243-ZG(b) -- election process commences only when Election Commission notifies the election -- forwarding of proposal for recall of mayor by Commissioner to State Government -- cannot by itself be termed election process. [Para 27
(5) Constitution of India--Art. 226/227 -- M.P. Municipal Corporation Act, 1956 -- S. 24 -- allegation that Commissioner failed to discharge his duties provided under S. 24 of the Act -- person aggrieved has remedy to invoke writ jurisdiction of High Court. [Para 29
(6) Constitution of India--Arts. 226, 243-O and 243ZG -- bar put by Arts. 243-O and 243ZG -- cannot be read so as to curtail Constitutional power of High Court under Art. 226 -- election process not begun -- bar is not attracted. [Para 30
(7) Municipal Corporation Act, 1956 (M.P.)--S. 24(2) -presentation of proposal of recall of mayor noted not on the notesheet but on the proposal itself--Commissioner also noted that 37 councillors signed in his presence--forwarding the proposal is not vitiated. [Para 33
(8) Practice --‘drink nothing without seeing it and sign nothing without reading it‘ -- councillors cannot be said to have signed proposal for recall of mayor without reading it--no complaint of fraud or misrepresentation by councillors--plea of misrepresentation is an afterthought. [Para 35
¼1½ uxjikfyd fuxe vf/kfu;e] 1956 ¼e-ç-½&/kkjk 24¼1½ ijarqd&egkikSj dks okil cqyk, tkus leFkZu okil ysus dk çLrko&fuokZfpr ik"kZnksa dh dqy la[;k ds 3@4 }kjk gLrk{kfjr gksuk gksrk gSμ lcds }kjk çLrqfr visf{kr ughaA
çR;FkhZ egkikSj us okil cqyk, tkus ds çLrko ds vfHk[kaMu ds fy, bl U;k;ky; ds le{k fjV ;kfpdk Qkby dh FkhA egkikSj }kjk fjV ;kfpdk esa vfHkdFku fd;k x;k Fkk fd vk;qDr ds le{k 48 ik"kZnksa ds ‘kiFki= Qkby fd, x, Fks ijarq vk;qDr] us leFkZu okfilh ds çLrko ij ik"kZnksa ds gLrk{kjksa dh vlfy;r vkSj vU; vfHkdFkuksa ds ckjs esa tk¡p fd, fcuk mls jkT; ljdkj dks vxzsf"kr dj fn;kA
egkikSj Jherh euksjek xkSj us ;g vfHkdFku Hkh fd;k Fkk fd vk;qDr dks çLrko ik"kZnksa dh visf{kr la[;k }kjk çLrqr ugha fd;k x;k FkkA
fo}ku ,dy U;k;k/kh‘k us ;kfpdk ;g vfHkfu/kkZfjr djrs gq, eatwj dj yh fd vk;qDr us lqfuf‘pr ugha fd;k fd çLrko ik"kZnksa dh visf{kr la[;k }kjk çLrqr fd;k x;k gS rFkk mls mlus çLrko ij muds gLrk{kj Hkh lR;kfir ugha fd,A fo}ku U;k;k/kh‘k us vkns‘k esa dh xbZ leqfDr;ksa ds vuqlkj ekeys esa u, fljs ls tk¡p dk funs‘k fn;kA ;g Hkh vfHkfu/kkZfjr fd;k x;k gS fd fnus‘k lksuh vkSj xaxkjke vfgjokj çLrko çLrqr djrs le; mifLFkr ugha Fks rFkk çLrko çLrqr djrs le; ftu 38 O;fDr;ksa dk mifLFkr gksuk vfHkdfFkr gS muesa ls mn; ;kno çLrko dk gLrk{kjdrkZ ugha gksus ds dkj.k çLrqfr ds le; mldh mifLFkfr egRoghu FkhA ¼iSjk 2-2 ls 2-4½
jkT; dh vksj ls milatkr fo}ku dkmUlsy us çcy fuosnu fd;k fd fof/k esa visf{kr ugha gS fd okil cqyk, tkus dk çLrko fuokZfpr ik"kZnksa dh dqy la[;k ds 3@4 }kjk çLrqr fd;k tkuk pkfg,A ;fn og muesa ls fdlh ,d }kjk Hkh çLrqr fd;k tk, rc vf/kfu;e dh /kkjk 24 dk i;kZIr vuqikyu gksrk gSA vr%] vkf{kIr vkns‘k] ftlds }kjk çLrko rFkk mldk vxzs"k.k vfHk[kafMr fd;k x;k gS] dk;e j[ks tkus ;ksX; ugha gSA ¼iSjk 6½
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 gSa fd çLrqfr Hkh fuokZfpr ik"kZnksa dh dqy la[;k ds 3@4 ls vU;wu la[;k }kjk dh tkuk pkfg,A ¼iSjk 9½
¼2½ uxjikfyd fuxe vf/kfu;e] 1956 ¼e-ç-½& &/kkjk 24¼2½&egkikSj dks okil cqyk, tkus ds çLrko ij gLrk{kjksa dk lR;kiu&gLrk{kjdrkZvksa dh mifLFkfr dgha Hkh vkKkfir ugha&vkqDr 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 ¿iSjk 11 ,oa 12À
¼3½ uxjikfyd fuxe vf/kfu;e] 1956 ¼e-ç-½& &/kkjk 24¼2½& &gLrk{kjksa dk feyku&OfDr ds gLrk{kj lR;kfir djus dk ekU; <ax gS&okil cqyk, tkus ds çLrko ij ik"kZnksa ds gLrk{kjksa dk feyku&vkifRrÙk ugha dh tk ldrhA ¼iSjk 23½
¼4½ uxjikfyd fuxe vf/kfu;e] 1956 ¼e-ç-½& &/kkjk 24&Hkkjr dk lafo/kku& &vuq-243 N ¼[k½& &fuokZpu vk;ksx fuokZpu vf/klwfpr djrk gS rc gh fuokZpu çfØ;k vkjaHk gksrh gSa&vkqDr }kjk jkT; ljdkj dks egkikSj dks okil cqyk, tkus ds çLrko dk vxzs"k.k&Loa esa fuokZpu çfØ;k ugha dgk tk ldrkA ¼iSjk 27½
¼5½ Hkkjr dk lafo/kku& &vuq-226@227&e-ç- uxjikfyd fuxe vf/kfu;e] 1956&/kkjk 24&vfHkdFku fd vk;qDr vf/kfu;e dh /kkjk 24 ds v/khu micaf/kr vius drZO;ksa ds fuoZgu esa vlQy jgk&OfFkr dks mPp U;k;ky; dh fjV vf/kdkfjrk dk vkJ; ysus dk mipkj miyC/k gSA ¼iSjk 29½
¼6½ Hkkjr dk lafo/kku& &vuq- 226] 243.k rFkk 243;N&vuq- 243.k rFkk 243;N dk 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 ughaA ¼iSjk 30½
¼7½ uxjikfyd fuxe vf/kfu;e] 1956 ¼e-ç-½& &/kkjk 24¼2½& &egkikSj dks okil cqyk, tkus ds çLrko dh çLrqfr uksV‘khV ij ugha vfirq Lo;a çLrko ij uksV dh xbZ& &vkqDr us ;g Hkh uksV fd;k fd 37 ik"kZnksa us mldh mifLFkfr esa gLrk{kj fd,&çLrko dk vxzs"k.k nwf"kr ughaA ¼iSjk 33½
¼8½ çFkk& &^ns[ks fcuk dqN ugha ihuk rFkk i<+s fcuk gLrk{kj ugha djuk*&;g ugha dgk tk ldrk fd ik"kZnksa us egkikSj dks okil cqyk, tkus dk çLrko i<s+ fcuk ml ij gLrk{kj dj fn,&ik"kZnksa }kjk diV ;k nqO;Zins‘ku dh dksbZ Hkh f‘kdk;r ugha&nqOZins‘ku dk vfHkokd vuqcks/k gSA ¼iSjk 35½
Jain, J.--1. Being aggrieved by -the order dated 11.2.2003 passed in Writ Petition No. 5461/02, appellants have filed this Letters Patent appeal under clause 10 of the Letters Patent.
2. The facts leading to the filing of this appeal, tersely recited, are thus:
2.1. Respondent Smt. Manorama Gour is the elected Mayor of Municipal Corporation, Sagar, having been elected on 28.12.1999, Out of 48 elected Councillors, 38 moved a proposal of recall of Mayor under section 24 of Municipal Corporation Act (hereinafter referred to as 'the Act') and presented the same to the Divisional Commissioner, Sagar (hereinafter referred to as 'the Commissioner'), The Mayor took the objection before the Commissioner that some• of the signatures on the proposal were forged and signatures of some of the Councillors were obtained by misrepresentation. The plea of respondent did not find favour with the Commissioner and the Commissioner forwarded the proposal of recall to the State Government.
2.2. Respondent Mayor filed a writ petition before this Court for quashing the proposal of recall. It was alleged by the Mayor in the petition that affidavits of 48 Councillors were filed before the Commissioner but the Commissioner, without making any enquiry about the genuineness of signatures of Councillors on the proposal of recall and other allegation forwarded the same to the State Government.
2.3. Mayor Smt. Manorama Gour also alleged that the proposal was not presented to the Commissioner by requisite number of Councillors.
2.4. The learned Single Judge allowed the petition holding that the Commissioner did not ensure that proposal was presented by requisite number of Councillors and also did not verify their signatures on the proposal. The learned Judge directed a fresh enquiry in the matter in terms of the observations made in the order. It has also been held that Dinesh Soni and Gangaram Ahirwar were not present at the time of presenting the proposal and out of 38 persons alleged to have been present at the time of presenting the proposal,. Uday Yadav not being a signatory to the proposal, his presence at the time of presentation was inconsequential.
3. We have heard Shri R.S. Jha, learned Deputy Advocate General for the State and Shri V.S. Choudhary, learned counsel for respondent.
4. Before adverting to the rival contentions raised by the learned counsel for the parties, it is necessary to refer to section 24 of the Act as substituted by amending Act of 1999, which is relevant is quoted hereinbelow :
"24. Recalling of Mayor--(1) Every Mayor of a Corporation 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 Corporation 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 Divisional Commissioner:
Provided further that no such process shall be initiated
(i) within a period of two years from the date on which such Mayor is elected and enters his office;
(ii) if half of the period of tenures of the Mayor elected in a by-election has not expired :
Provided also that process for recall of the Mayor shall be initiated once in his whole term.
(2) The Divisional Commissioner, 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 an analysis of section 24 of the Act, we find that following are the requirements for the process of recall :
1. Proposal is to be signed by not less than
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