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HIGH COURT OF MADHYA PRADESH
P.V. DIXIT AND S.P. BHARGAVA, JJ.
Sojharmal
Vs.
Mun. Council, Kharsia
M.P. No: 403 of 1963 (J)
Decided on: 15-1-64
The settled rule in regard to mode of voting is that where a statute prescribes the mode in which the vote of a body is to be taken then that method must be followed and failure to comply with the same is fatal to any action taken, and that if the mode of voting is not prescribed, then the method of voting by show of hands followed; if necessary, by poll, must prevail. [Para 5
(2) Interpretation of Statutes - meaning of a provision - should be ascertained by comparison with other provisions - one provision should not be read so as to nullify the other.
It is well established that the true meaning, exact scope and significance of any provision occurring in a statute may be found not merely in the words of that particular provision but on a comparison of the same with other provisions of the statute and the intention of the legislature ascertained in that way. (1877) 2 AC 743 and (1898) AC 571 relied on.
The different provisions of the same statute cannot be read in a manner so as to make one provision contradict or nullify the other. [Para 6
(3) Municipalities Act 1961 (M.P.) - Ss.47 & 62 (3) – Bye - laws 11 & 16 - no - confidence motion-voting should be by show of hands - voting by ballot is not legal-bye-law 16 being against the provisions of section 62 is ultra vires.
Having regard to the provisions of section 62, it is impossible to hold that voting on a motion if no confidence moved under section 47 can be by ballet. Section 62 impliedly prohibits such a method of voting. It makes no difference whether the provisions contained in section 62 (3) with regard to the maintenance of the minutes of the proceedings of the Council are mandatory of directory. Even if they are treated as directory that cannot negative the intention of the Legislature that the minutes of the proceedings shall contain inter alia the number of vote, and the names of Councillors voting for and against the question put to the vote of the Council. [Para 6
Bye-law 11 (b) gives to the Chairman the power to regulate the course of all business at a meeting. It is no doubt true that these bye-laws read together enable the President to decide whether voting on any motion should be by ballot in the secret manner indicated in clause (d) of bye-law 16. But clause (d) of bye-law 16 is clearly not in conformity with the provisions of section 62 which provides that the minutes must show the names of the persons voting for and against any motion. The provisions of section 62 cannot be given effect to if the method of voting indicated in bye-law 16 (d) is adopted. That bye-law cannot, therefore, be held to be intra vires the Municipal Council which made it, and it cannot be enforced. [Para 7
(4) Rules and Byelaws - Byelaws framed by a Corporation - against the statute creating the corporation - bylaw is inoperative.
It is well settled that a bye-law framed by a corporation under power conferred by a statute must be intra vires the authority which makes it and it and must not be repugnant to the law of the country and repugnant to the statue conferring on the authority the power to make bye-laws. 1960 JLJ 340 and AIR 1941 Nag. 203 relied on. [Para 7
(5) Municipalities Act 1961 (M.P.) - S.81 - presumption under - relates to matters enumerated in it.
When no question of any kind stated in clauses (i) or (ii) of section 81 is involved, the presumption regarding validity contained in section 81 does not apply. [Para 8
Dixit C.J.- 1. By this application under Articles 226 and 227 of the Constitution, the petitioner Sojharmal who was the Vice-President of the Municipal Council, Kharsia, Raigarh District, seeks a writ of certiorari for quashing a resolution of no-confidence which was passed against him at a meeting of the Municipal Council held on 5th November 1963.
2. Before the commencement of the meeting, the petitioner made a proposal to the President that voting on the no-confidence motion should be 'free" and not by ballot. One Councillor, Mahavirprasad, moved a counterproposal. Ultimately, the President decided that voting on the motion would be by ballot. It is not disputed by the opponents that voting on the resolution was by ballot. As a result of the count it was found that twelve Councillors voted for the motion of no confidence against the petitioner and five against it. The Council consists of eighteen members and seventeen of them were present at the meeting at which the motion of no-confidence was moved. Under section 47 (1) of the Madhya Pradesh Municipalities Act, 1961, (hereinafter referred to as the Act), if a motion of no-confidence is carried by a majority of two-thirds of the Councillors present and voting and if such majority is more than half of the total number of the Councillors constituting the Council for the time being, then the office of the President or the Vice-President, as the case may be, is deemed to have become vacant forthwith. The motion of no-confidence against the petitioner was carried with the majority mentioned in section 47 (1). The result of the passing 'of that motion was that the office of Vice-President of the Council which the petitioner held, became vacant forthwith.
3. In this petition, the applicant has raised several grounds questioning the legality of the proceedings of the meeting held on 5th November 1963 and of the resolution of no-confidence passed against him thereat. He has also made allegations and suggestions in the petition that votes 'were not properly taken, that the ballot boxes were tampered with, that there was substitution of ballot papers, and that the counting of ballot papers was not done openly but secretly. The petitioner's main contention, however, is that the mode of voting adopted at the meeting, namely, by ballot, was illegal and for that reason the resolution expressing no-confidence in him could not be said to have been validly carried.
4. In the return, it has been admitted that voting on the motion of no confidence was by ballot and in that method it was not possible for anyone to know as to who voted for the motion or against it. It is, however, averred that this method was adopted in order to prevent undue influence being brought on the Councillors in the matter of voting and that the bye-laws framed by the Council permitted voting for any motion by the method of ballot.
5. The question, therefore, that arises for determination is whether the ballot-mode of voting on the motion of no-confidence, which was adopted in the case, was legal. Now, the settled rule in regard to mode of voting is that where a statute prescribes the mode in which the vote of a body is to be taken, then that method must be followed and failure to comply with the same is fatal to any action taken; and that if the mode of voting is not prescribed, then the method of voting by show of hands followed, if necessary, by poll, must prevail. It has been stated in Halsbury's Laws of England (3rd edn., vol. 9. p.52, paragraph-106), in regard to mode of voting to be followed at corporation meetings, that:-
"At common law votes at all meetings are taken by a show of hands followed, if necessary by a poll; and. in the absence of any special provision to the contrary in the constitution of a particular corporation, the common law method must prevail Voting by show of hands means counting the persons present entitled to vote and who choose to vote by holding up their hands,"
The above proposition sta
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