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2005(3) JLJ 251
(FULL BENCH)
Rajeev Gupta, S.L. Jain and S.S. Kemkar, JJ.
State of M.P. and another v. Mahendra Kumar Saraf and others
Letters Patent Appeal No. 411 of 2003 : against the order of Single Bench passed in Writ Petition No. 1491 of 2002;
Decided on 4.11.2004.
Respondent No.1, Mahendra Kumar Saraf is the President of Municipal Council, Shahdol, having been elected on 28.12.1999. First meeting of the Municipal Council was held on 11.1.2000. Out of the 30 elected Councillors, 26 moved a proposal of recall of President under section 47 of the Municipalities Act (hereinafter referred to as the ‘Act‘). This proposal was presented before the Collector on 9.1.2002 by one of the Councillors, Rakesh Katare. The proposal was forwarded by the Collector to the State Government on the same day.
On the next day, i.e., on 10.1.2002, 12 Councillors filed affidavits before the Collector to the effect that they did not present the proposal of recall and that their signatures on the alleged proposal were obtained by misrepresentation on the pretext that the said proposal was to be submitted in the party office.
The State Government remitted the proposal to the Collector for proper verification. Those 12 Councillors reiterated before the Collector that they did not present the proposal of recall. They also submitted that their signatures were obtained by misrepresentation. One of the Councillors, Rajendra Singh informed the Collector that his signatures were obtained when he was intoxicated. Collector, Shahdol, again forwarded the proposal to the State Government stating that the proposal sent by him earlier was proper. Collector also disqualified the Councillor Rajendra Singh under section 41 of the Act.
Petitioner challenged the proposal. [Paras 3 to 6
By the impugned order it was held that the proposal was presented to the Collector by only one Councillor and it could not have been forwarded unless the same was presented in person by 3/4th of the Councillors. It has also been found that the first meeting of the Councillors was held on 11.1.2000 and the proposal was forwarded on 9.1.2002, i.e., within two years from the date of first meeting which is against the express provisions contained in clause (i) of second proviso to section 47 of the Act. It has further been found that the satisfaction of the Collector regarding the genuineness of the signatures on the proposal was not properly arrived at. On the above findings, the writ petition was allowed and the proposal of recall and forwarding of the same by the Collector was quashed. [Para 7
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 15
(2) Municipalities Act, 1961 (M.P.)--S. 36(4)--word co-terminus as used under -- means that term of President shall end with term of Council whether office bearer has completed five years‘ term or not. [Para 39
(3) Municipalities Act, 1961 (M.P.)--Ss. 47(1) (i), 49(1), 45 and 36(4)--use of phrase ‘elected and enters his office‘ under S. 47(1) (i)--is deliberate--period of two years for initiating proposal of recall--shall have to be computed from date of election of President as notified u/s 45. [Paras 43 & 44
(4) Municipalities Act, 1961 (M.P.)--Ss. 36(4), 45, 49 and 55--Ss. 47(1) proviso II (i), 36(1)--bar of proposal of recall within two years--is of within two years from election and entrance in office-genesis lies in the provisions of S. 49(1)--President and Vice-President are deemed to enter their offices from date of election--which is the date of notification of election. [Paras 26 & 33
(5) Municipalities Act, 1961 (M.P.)--S. 47(2)--verification of signatures of elected Councillors on the proposal of recall of President--personal presence of signatories is not necessary--it may be one of the modes but is not the only or exclusive mode--if presence is made sine qua non, it may defeat the purpose. 2003(1) Vidhi Bhasvar 119 distinguished. [Paras 17 and 18
(6) Interpretation of Statutes--deeming provision in statute -should be confined to the limited purpose for which it has been made. AIR 1966 SC 870 followed. [Para 29
(7) Interpretation of Statutes-title/heading of a section--should not mislead in interpreting the section itself--title may not be guiding factor for its interpretation. [Para 32
(8) Municipalities Act, 1961 (M.P.)--S.47--does not give any authority to state Government to sit in judgment over finding of Collector--it cannot entertain any objection to proposal duly forwarded by Collector. [Para 48
¼1½ uxjikfydk vf/kfu;e] 1961 ¼e-ç-½& &/kkjk 47¼1½ ijarqd&v/;{k dks okil cqyk, tkus dk çLrko&gLrk{kj fd;k tkuk vkSj çLrqr fd;k tkuk] fHkUu&fHkUu gSa&;g visf{kr ugha gS fd çLrko dh çLrqfr Hkh fuokZfpr ik"kZnksa dh dqy la[;k ds 3@4 ls vU;wu }kjk dh tk,A çR;FkhZ Ø-1 egsanz dqekj ljkQ] 28-12-1999 dks fuokZfpr] uxjikfydk ifj"kn] ‘kgMksy dk v/;{k gSA uxjikfydk ifj"kn dk çFke lfEeyu 11-1-2000 dks gqvk FkkA 30 fuokZfpr ik"kZnksa esa ls 26 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 cqyk, tkus dk çLrko fd;kA ;g çLrko] ik"kZnksa esa ls ,d] jkds‘k dVkjs }kjk 9-1-2002 dks dyDVj ds le{k çLrqr fd;k x;kA çLrko] dyDVj }kjk mlh fnu jkT; ljdkj dh vksj Hkst fn;k x;kA nwljs fnu] vFkkZr 10-1-2002 dks 12 ik"kZnksa us dyDVj ds le{k bl vk‘k; ds ‘kiFki= çLrqr fd, fd mUgksaus okil cqyk, tkus dk çLrko çLrqr ugha fd;k gS vkSj vfHkdfFkr çLrko ij muds gLrk{kj nqO;Zins‘ku }kjk bl cgkus ls vfHkçkIr dj fy, x, fd mDr çLrko ikVhZ dk;kZy; esa çLrqr fd;k tkuk FkkA jkT; ljdkj us çLrko leqfpr lR;kiu gsrq dyDVj dh vksj çsf"kr dj fn;kA mu 12 ik"kZnksa us dyDVj ds le{k iqu% nksgjk;k fd okil cqyk, tkus dk çLrko mUgksaus çLrqr ugha fd;kA mUgksaus ;g Hkh fuosnu fd;k fd muds gLrk{kj nqO;Zins‘ku }kjk vfHkçkIr fd, x, FksA ik"kZnksa esa ls ,d jktsanz flag us dyDVj dks lwpuk nh fd mlds gLrk{kj ml le; vfHkçkIr fd, x, Fks tc og u‘ks esa FkkA dyDVj] ‘kgMksy us iqu% çLrko jkT; ljdkj dh vksj ;g Li"V djrs gq, vxzsf"kr dj fn;k fd iwoZ esa mlds }kjk Hkstk x;k çLrko mfpr FkkA dyDVj us ik"kZn jktsanz flag dks vf/kfu;e dh /kkjk 41 ds v/khu fujfgZr Hkh dj fn;kA ;kph us çLrko ij vk{ksi fd;kA ¼iSjk 3 ls 6½ vk{ksfir vkns‘k }kjk ;g vfHkfu/kkZfjr fd;k x;k Fkk fd çLrko dyDVj dks dsoy ,d ik"kZn }kjk çLrqr fd;k x;k Fkk vkSj og tc ik"kZnksa ds 3@4 }kjk oS;fDrd :i ls çLrqr ugha fd;k tkrk] vxzsf"kr ugha fd;k tk ldrk FkkA ;g Hkh fu"d"kZ fudkyk x;k fd ik"kZnksa dk çFke lfEeyu 11-1-2000 dks gqvk Fkk vkSj çLrko 9-1-2002 dks vFkkZr~ çFke lfEeyu ls nks o"kZ ds Hkhrj vxzsf"kr fd;k x;k Fkk tks vf/kfu;e dh /kkjk 47 ds f}rh; ijarqd ds [kaM ¼,d½ esa varfoZ"V vfHkO;Dr mica/kksa ds foijhr gSA ;g vkSj Hkh fu"d"kZ fudkyk x;k Fkk fd çLrko ij gLrk{kjksa dh vlyh;r ds ckjs esa dyDVj us lek/kku leqfpr :i ls ugha fd;k FkkA mi;qDr fu"d"kks± ij ls fjV ;kfpdk eatwj dh xbZ Fkh vkSj okil cqyk, tkus dk çLrko rFkk dyDVj }kjk mldk vxzs"k.k vfHk[kafMr dj fn, x, FksA ¼iSjk 7½ vfHkfu/kkZfjr % gekjh n`<+ jk; gS fd ijarqd esa ;Fkk vfHkfu/kkZfjr] çLrko ij gLrk{kj djus vkSj mls çLrqr djus dh nksuksa vis{kk,¡ fHkUu&fHkUu gSa rFkk og 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 15½ ¼2½ uxjikfydk vf/kfu;e] 1961 ¼e-ç-½& &/kkjk 36¼4½&;Fkk ç;qDr ‘‘kCn ^^lg&foLrkjh**&vFkZ gS] v/;{k dh inkof/k ifj"kn dh vof/k ds lkFk lekIr gks tk,xh] in/kkjh us ik¡p o"kZ dh inkof/k iwjh dh gks vFkok ughaA ¼iSjk 39½ ¼3½ uxjikfydk vf/kfu;e] 1961 ¼e-ç-½& &/kkjk 47¼1½¼,d½] 49¼1½] 45 rFkk 36¼4½& &/kkjk 47¼1½¼,d½ ds varxZr okD;ka‘k ^^fuokZfpr gksrk gS vkSj viuk in /kkj.k djrk gS** dk ç;ksx&lqfopkfjr gS&okil cqyk, tkus ds fy, çLrko ds miØe ds fy, nks o"kZ dh vof/k&lax.kuk] /kkjk 45 ds v/khu ;Fkk vf/klwfpr v/;{k ds fuokZpu ds fnukad ls dh tk,xhA ¼iSjk 43 ,oa 44½ ¼4½ uxjikfydk vf/kfu;e] 1961 ¼e-ç-½& &/kkjk 36¼4½] 45] 49 rFkk 55&/kkjk 47¼1½ f}rh; ijarqd ¼,d½] 36¼1½&nks o"kZ ds Hkhrj okil cqyk, tkus ds çLrko dk otZu&fuokZpu vkSj in /kkj.k djus ls nks o"kZ ds Hkhrj dk gS&ewy L=ksr /kkjk 49¼1½ ds mica/kksa esa gSa&v/;{k rFkk mik/;{k }kjk vius in xzg.k fd;k tkuk fuokZpu dh rkjh[k ls le>k tk,xk&tks fuokZpu dh vf/klwpuk dh rkjh[k gSA ¼iSjk 26 ,oa 33½ ¼5½ uxjikfydk vf/kfu;e] 1961 ¼e-ç-½&/kkjk 47¼2½&okil cqyk, tkus ds çLrko ij fuokZfpr ik"kZnksa ds gLrk{kjksa dk lR;kiu&gLrk{kjdrkZvksa dh oS;fDrd mifLFkfr vko‘;d ugha&;g ,d <ax gks ldrk gS fdarq ,dek= vFkok vuU; <ax ugha gSa&mifLFkfr vfuok;Z cuk nh tkus ij ç;kstu gh foQy gks tk,xkA 2003¼1½ fof/k HkkLoj 119 çHksfnrA ¼iSjk 17 ,oa 18½ ¼6½ fof/k dk fuokZpu&dkuwu esa /kkj.kk mica/k&ml lhfer ç;kstu rd ifjlhfer j[kk tkuk pkfg, ftlds fy, mldh fojpuk dh xbZA , vkb vkj 1966 ,l lh 870 vuqlfjrA ¼iSjk 29½ ¼7½ fof/k dk fuoZpu&/kkjk ds ‘kh"kZd ls&Loa /kkjk fuokZpu fd, tkus esa Hkzfer ugha gksuk pkfg,&‘kh"kZd] /kkjk dk fuoZpu fd, tkus esa ekxZn‘kZd dkjd ugha Hkh gks ldrkA ¼iSjk 32½ ¼8½ uxjikfydk vf/kfu;e] 1961 ¼e-ç-½& &/kkjk 47&jkT ljdkj dks dyDVj ds fu"d"kZ ij fu.kZ; nsus dk çkf/kdkj ugha fn;k x;k gS&og dyDVj }kjk lE;d~ :i ls Hksts x, çLrko ij vkifRrÙk xzg.k ugha dj ldrhA ¼iSjk 48½
Jain, J.--1. Being aggrieved by the order dated 11.2.2003 passed in writ petition No. 1491/02, appellant has filed this Letters Patent Appeal under Clause 10 of the Letters Patent.
2. A brief resume of the facts required to be stated for disposal of this appeal is thus:
3. Respondent No.1, Mahendra Kumar Saraf is the President of Municipal Council, Shahdol, having been elected on 28.12.1999. First meeting of the Municipal Council was held on 11.1.2000. Out of the 30 elected Councillors, 26 moved a proposal of recall of President under section 47 of the Municipalities Act (hereinafter referred to as the 'Act'). This proposal was presented before the Collector on 9.1.2002 by one of the Councillors, Rakesh Katare. The proposal was forwarded by the Collector to the State Government on the same day.
4. On the next day, i.e., on 10.1.2002, 12 Councillors filed affidavits before the Collector to the effect that they did not present the proposal of recall and that their signatures on the alleged proposal were obtained by misrepresentation on the pretext that the said proposal was to be submitted in the party office.
5. The State Government remitted the proposal to the Collector for proper verification. Those 12 Councillors reiterated before the Collector that they did not present the proposal of recall. They also submitted that their signatures were obtained by misrepresentation. One of the Councillors, Rajendra Singh informed the Collector that his signatures were obtained when he was intoxicated. Collector, Shahdol, again forwarded the proposal to the State Government stating that the proposal sent by him earlier was proper. Collector also disqualified the Councillor Rajendra Singh under section 41 of the Act.
6. Petitioner challenged the proposal on the ground that it was not presented to the Collector by 3/4th of the Councillors and was presented by only one Councillor. It was also submitted that the Collector did not verify the signatures of the Councillors. The proposal was submitted within two years from the date on which the President entered his office which was against the express provisions contained in clause (i) of second proviso to section 47 of the Act. It was also averred that 12 Councillors alleged to be the signatories informed the Collector that they never intended to recall the President. It was also a ground of writ petition that the proposal ought to have been passed in a meeting of the Councillors. Without holding any formal meeting, the proposal could not have been moved.
7. By the impugned order it was held that the proposal was presented to the Collector by only one Councillor and it could not have been forwarded unless the same was presented in person by 3/4th of the Councillors. It has also been found that the first meeting of the Councillors was held on 11.1.2000 and the proposal was forwarded on 9.1.2002, i.e., within two years from the date of first meeting which is against the express provisions contained in c1ause (i) of second proviso to section 47 of the Act. It has further been found that the satisfaction of the Collector regarding the genuineness of the signatures on the proposal was not properly arrived at. On the above findings, the writ petition was allowed and the proposal of recall and forwarding of the same by the Collector was quashed.
8. We have heard Shri R.,S. Jha, learned Deputy Advocate General appearing on behalf of the State, Shri Mirgendra Singh, learned counsel for respondent No.1. Shri UK. Sharma, learned senior counsel with Shri Suyash Tripathi for respondents Nos. 3, 4, 7, 9, 10 and 14 to 16, 19 to 21, 25 and 29 to 31 and Shri P.N. Pathak, learned counsel for respondents Nos. 2, 5, 6, 8, 11 to 13, 17, 18, 22 to 24 and 26 to 28.
9. 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)
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