Madhya Pradesh High Court
Smt. Urmila Katare vs State Of Madhya Pradesh on 2 December, 2019
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1 WP-25519-2019
The High Court Of Madhya Pradesh
WP-25519-2019
(SMT. URMILA KATARE Vs STATE OF MADHYA PRADESH)
Jabalpur, Dated : 02-12-2019
Shri Anil Khare, learned Senior Advocate with Shri Arpan J. Pawar,
learned counsel for the petitioner.
Shri Shekhar Sharma, learned Additional Advocate General for the
State/respondents No.1,2, 3 & 5.
Shri P.N. Pathak, learned counsel for the respondent No.22.
The petitioner has invoked writ jurisdiction under Article 226 of the Constitution of India seeking quashment of the letter dated 8-11-2019 issued by the State Government directing the Collector, Shahdol to take fresh action on the motion of no confidence against the petitioner, who is the President of the Municipal Council, Shahdol in accordance with the provisions of Section 43-A of the M.P. Municipalities Act, 1961 [hereafter referred to as "the Act 1961"] and also the communication and also letter dated 21-11-2019 issued by the Collector, Shahdol convening a meeting of no-confidence motion to be held on 3-12-2019 at 11:00 a.m. This is second visit of the petitioner before this Court. Earlier, a resolution was passed for recalling the petitioner under Section 47 of the Act 1961 and an ordinance, namely, M.P. Nagar Palik Vidhi (Sansodhan) Ddhyadesh, 2019 was promulgated on 9-10-2019 whereby the provision of Section 47 was deleted and the words "President" before the words "Vice President" was inserted in the marginal heading as well as in the Section.
The said petition came for hearing on 11-11-2019. With the consent of the parties the matter was disposed of in the following terms :
"During course of hearing, learned counsel for the parties fairly admitted that impugned order dated 25.10.2019 is passed by the learned Collector in exercise of power under Section 47 of M.P. Municipalities Act, 1961 whereas Section 47 was already deleted from the statute book by Gazette Notification dated 9.10.2019. Thus, on
2 WP-25519-2019 25.10.2019, learned Collector was not competent to exercise the powers under Section 47 of the said Act.
Learned counsel for the parties also agreed that in view of Gazette Notification dated 9.10.2019, Annexure P-6, the procedure to bring 'No Confidence Motion' against the Vice President i.e. Section 43-A shall now include the 'President' also. It is also agreed that the procedure and machanism to bring 'No Confidence Motion' against the President is totally different as per Section 43 A of the Act, if it is compared with the previously existing provision i.e. Section 47 of the Act which stood deleted w.e.f. 9.10.2019.
For the reasons stated above, learned counsel for the parties fairly submitted that impugned order dated 25.10.2019 Annexure P-3 may be set aside because on the said date, Section 47 stood deleted from the statute book. Shri Ghildiyal, learned counsel for the petitioner urged that two subsequent letters shown by Shri Pathak dated 8.11.2019 issued by the Urban Administration and Housing Department and order of Collector dated 6.11.2019 are also bad in law.
He submits that impugned order may be set aside but no liberty be given to the respondents to proceed against the petitioner. Pertinently, respondents fairly admitted that impugned order dated 25.10.2019 is liable to be axed, but liberty may be reserved to proceed against the petitioner in accordance with law.
In view of the aforesaid consensus arrived at, impugned order dated 25.10.2019 is set aside. The directions issued in letters dated 8.11.2019 and corrigendum dated 6.11.2019 issued by the Collector will also be inoperative and cannot be pressed into service against the petitioner. However, since, the impugned order is set aside only on the ground that on 25.10.2019, Section 47 was already deleted from the statute book, liberty is reserved to the respondents to proceed against the petitioner in accordance with law.
Registry shall keep the aforesaid orders dated 3 WP-25519-2019 6.11.2019 and 8.11.2019 in the file carefully.
It is made clear that this Court has not expressed any opinion on the merits of the case. The writ petition is disposed of. "
[Emphasis supplied] Learned counsel for the petitioner argued that the petitioner is a direct elected President under the provisions of the Act 1961 and, therefore, he cannot be sought to be removed by indirect method, i.e. motion of no confidence by the councillors of the Municipal Council. It is submitted that substantive right has accrued in favour of the petitioner and the same cannot be curtailed by a subsequent ordinance. It is submitted that the procedure envisaged under the Ordinance dated 9-10-2019 is prospective in nature and does not have retrospective effect. In order to bolster his submissions he has referred to the judgment passed by the Apex Court in the case of Ramesh Kumar Soni vs. State of M.P., (2013) 14 SCC 696 and also a Co-ordinate Bench decision of this Court in the case of Sangeeta Bansal Vs. State of M.P. & Ors., 2015 (2) MPLJ 472 which has been confirmed by a Division Bench in the writ appeal. He also argued that once the order of recall dated 25-10-2019 was set aside and the Court has held that the directions contained in the letter dated 8-11-2019 and corrigendum dated 6-11-2019 issued by the Collector is inoperative then the second motion of no confidence is barred under the proviso to Section 43-A of the Act 1961 as the subsequent motion of confidence cannot be brought within one year from the date of which the previous motion of no-confidence was rejected.
It is further urged that the special meeting called by the Collector/Upper Collector is contrary to the provisions of Section 56 of the Act 1961.
Learned Additional Advocate General for the State supported the order and proceedings and submitted that the proceedings of recall and no confidence motion under Section 43-A of the 1961 Act are totally different. He further submitted that no vested right is created in favour of the petitioner. The provisions of Ordinance notified on 9-10-2019 are not retrospective but 4 WP-25519-2019 are prospective. After the deletion of the provision of Section 47 of the Act 1961 and insertion of the word "President" before the words "Vice President", the only mechanism to take action against an elected President by the Councillors of the Municipal Council is only by way of motion of no- confidence.
He further submitted that the petitions challenging the validity of the Ordinance - the M.P. Nagar Palik Vidhi (Sansodhan) Ddhyadesh, 2019 has already been dismissed. He has placed reliance on orders passed by Division Bench of this Court dated 14-11-2019 in W.P. No.23589/2019 (Anwar Hussain vs. State of M.P. and another] and W.P. No.24898/2019 (Dr. P.G. Najpandey vs. State of M.P. and others, dated 27-11-2019).
Shri Pathak, learned counsel appearing for the respondent No.22 - Councillor submitted that no substantive right is created in favour of the petitioner. He further submitted that the petitioner has already lost confidence of the House as many as 31 councillors have signed on the requisition out of 39 against the present petitioner.
I have heard the learned counsel for the parties.
From a perusal of the order passed in the previous petition, it is crystal clear that the said order was passed on the consensus arrived at between the parties. The proceeding of the recall dated 25-10-2019 was set aside. The Court further held that the directions issued in the letter dated 8-11-2019 and the corrigendum dated 6-11-2019 issued by the Collector will also be in operative but the Court observed that since the order is set aside only on the ground that Section 47 of the Act 1961 was already deleted from the Statute Book, the liberty was granted to the respondents to proceed against the petitioner in accordance with law. At the last, the Court also observed that the Court has not expressed any opinion on the merits of the case.
Thus, it is luminescent that the liberty was granted to the respondents to proceed against the petitioner in accordance with the provisions of Section 5 WP-25519-2019 43-A of the Act 1961 and the Court has not passed any order on merit In view of the aforesaid, the contention of the learned Senior Counsel for the petitioner cannot be accepted that this Court has already quashed the proceedings and, therefore, the earlier motion moved against the petitioner under Section 47 of the Act 1961 shall be deemed to be rejected, therefore, the bar under the proviso to Section 43-A Act 1961 would attract. The relevant part of the said proviso reads thus :
"43-A. No-Confidence motion against Speaker or Vice-President.- (1) A Motion of no â€"
confidence may be moved against the Vice-
President by any elected Councillor at a meeting specially convened for the purpose under sub- section (2) and if the motion, is carried by a majority of two thirds of the elected Councillors present and voting in the meeting and if such majority is more than half of the total number of elected Councillors constituting the Council, the office of the Vice- President, shall be deemed to have become vacant forthwith. A copy of such motion shall be sent by the Chief Municipal Officer to the Collector forthwith for filling up the vacancy:
Provided that no such resolution shall lie against the Vice-President within a period of â€"
(i) two years from the date on which the Vice- President enters upon his office;
(ii) one year from the date on which previous motion of non-confidence was rejected. "
From the aforesaid provision it is clear that the bar under the proviso comes into play within a period of one year from the date of which the previous motion of no confidence was rejected. In the present case, there was no consideration or rejection to the previous motion of no confidence, therefore, the said argument cannot be accepted. Even otherwise, this Court has already granted liberty to the respondents to proceed afresh under Section 43-A of the Act 1961.
Another argument of the learned senior counsel for the petitioner that 6 WP-25519-2019 vested right is created in favour of the petitioner, I am of the considered view that the right of the President and Vice President of the Municipal Councils is governed by the statutory provisions of the M.P. Municipalities Act, 1961. Once by the Ordinance 2019 the provision of Section 47 of the Act 1961 itself has been deleted and the words "President" has been inserted under Section 43-A, the rights of the petitioner shall be governed by the Statute itself. The aforesaid provisions are not applied retrospectively. The provisions are prospective in nature. Immediately after the Ordinance 2019, the Presidents and the Vice Presidents of the Municipal Councils shall be governed by the provisions of the Ordinance 2019 and by the provisions of Section 43-A of the Act 1961 for their removal by the councillors. There cannot be a vacuum in respect of taking action against the President by the elected councillors.
The argument of the learned senior counsel for the petitioner that the Ordinance shall govern only those presidents who shall be elected after enforcement of the Ordinance, i.e. 9th October, 2019 and would not apply to the existing President of the Municipal Council has no merit, if that would have been the object of the Legislature, the same would have been incorporated in the Ordinance itself. A thing which does not exist in the Statute cannot be read by implication.
In view of the aforesaid, the judgments relied upon by the learned senior counsel for the petitioner would not render any assistance to him in the facts of the present case.
From the return filed by the respondent No.5 it is evident that after the order passed by this Court on 11-11-2019, a fresh requisition was submitted by the Concillor for calling a meeting of motion of no confidence under the provisions of Section 43-A of the Act 1961. The said requisition is in conformity with the provisions of Section 43-A of the Act 1961 and it fulfills the requirement of clause (i) of sub-section (2) of Section 43-A of the Act 1961 as it is signed by 31 councillors out of 39. Thereafter, the Collector after 7 WP-25519-2019 being satisfied with the aforesaid convened a meeting for motion of no- confidence.
As the validity of the Ordinance has already been examined and in absence of any challenge to the resolution and the requisition of the meeting, the argument of the learned counsel for the petitioner that the said meeting called for motion of no confidence is contrary to Section 57 of the Act 1961 cannot be appreciated. Even otherwise, the procedure prescribed under Section 43-A of the Act 1961 itself is self contained procedure prescribed for motion of no confidence.
In view of the aforesaid, I do not find any merit in the present writ petition and the same is dismissed. There shall be no order as to costs.
VIJAY KUMAR SHUKLA) JUDGE ac Digitally signed by AJAY KUMAR CHATURVEDI Date: 2019.12.02 19:20:39 +05'30'