Rakesh Kumar vs Urban Development Department on 26 April, 2016

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Jharkhand High Court

Rakesh Kumar vs Urban Development Department on 26 April, 2016

Petitioner, who is the Vice Chairperson of Giridih Nagar Parishad elected on 4th May, 2013, has challenged the initiation of no confidence motion as directed to be voted upon before the prescribed authority i.e. the Additional Collector, Giridih cum Presiding Officer 2 (respondent no.3) under the directions of the competent authority i.e. the Deputy Commissioner, Giridih through the impugned order contained in memo no.367 dated 25th February, 2016 (Annexure-4). 17 out of 30 Councilors moved an application for no confidence motion whereupon the impugned direction has been issued by the Deputy Commissioner, Giridih. Petitioner has made the challenge to the impugned action on the following grounds :-

(i) The petitioner under the Jharkhand Municipality (Procedure for No Confidence Motion against Deputy Mayor/Vice-

Chairperson) Rules, 2014 notified on 28th August, 2014 and gazetted on 11th February, 2015 was not acting as a Chairperson in terms of Rule-3(1) in the absence of which no confidence motion would have been moved.

(ii) The amendment in the Rules of 2014 notified on 22nd October, 2014 gazetted on 5th November, 2014 which amends Rule-3(1) to the effect that requirement of acting as a Chairperson has been done away for moving a no confidence motion against any such Chairperson, Vice-Chairperson or Councilors would not over-ride the provisions of Rules, 2014 which has been gazetted thereafter on 11th February, 2015 and which contains the specific unamended provisions of Rule-3(1).

(iii) The process of initiation of no confidence motion leading to its vote before the House should incorporate specific provisions for conduct of enquiry in respect of the charges alleged in the no confidence motion with opportunity to the 3 person i.e. the petitioner herein, before it is put to vote before the House i.e. the Nagar Parishad. Failure to comply with the aforesaid requirement is a denial of the due process of law and any such procedure suffers from the vice of unfairness, unreasonableness and requirement of being just as held in the case of Smt. Maneka Gandhi vs. Union of India and another, reported in AIR 1978 Supreme Court 597. Such a procedure would therefore be violative of Articles 14 and 21 of the Constitution of India and would hit the entire exercise of the no confidence motion. Reliance has been placed upon the judgment rendered by Apex Court in Sharda Kailash Mittal Vs. State of Madhya Pradesh and others, reported in (2010) 2 SCC 319, para-24 and 26 also in support of the same submission.

Per contra, learned counsel for the respondents-State and the private respondents have supported the impugned action. It is pointed out that the amendment to the Rules of 2014 removing the requirement of acting as a Chairperson for moving a no confidence motion has been notified on 22nd October, 2014 and gazetted on 5th November, 2014. The amendment has, therefore, been promulgated and has come on the statute book, though the original Rule has later on been gazetted on 11 th February, 2015. The original rule has been notified on 28 th August, 2014 and has been gazetted on 11th February, 2015. The impugned action has been taken much after the aforesaid amendments have been gazetted and the petitioner cannot take the benefit of aforesaid proposition that before the gazette notification of original rules on 11 th 4 February, 2015 the amended Rules 3(1) notified on 22nd October, 2014 would be of no legal consequence. Therefore, there was no requirement of committing acts while acting as Chairperson on the part of the petitioner for the no confidence motion to lie. It is submitted that the Rules of 2014 specify the procedure which is just, fair and reasonable. Before the no confidence motion is laid on the table of the House, the Presiding Authority i.e. Additional Collector in the present case appointed by the Deputy Commissioner, Giridih has to satisfy himself about the admissibility of the charges forming part of no confidence motion moved by the aggrieved Councilors. That exercise has been done by the Additional Collector as is apparent from the enclosed Annexure-G dated 3rd March, 2016 to the counter affidavit of respondent no.4 and Annexure- E to the counter affidavit of respondent nos.2 and 3. It is submitted that after the satisfaction of the admissibility of the charges by the prescribed authority in the present case, the exercise of no confidence motion has also been carried out on 11th March, 2016 within fifteen days from the date of receipt of impugned communication dated 25 th February, 2016 on 29th February 2016 by the prescribed authority i.e. the Additional Collector, Giridih. The motion has been put to vote but the results thereof have been kept in sealed cover in terms of the interim order dated 11 th March, 2016 passed by this Court. Impugned actions are, therefore, fully in consonance with the letters of law contained in Rules of 2014 with its amendments carried out on 22nd October, 2014. It conforms to the procedure prescribed under the Rules. Petitioner cannot allege violation of principle of natural justice as the motion itself is carried out in his presence after discussion though he does not have a right to vote. 5 Therefore, there are no procedural irregularity or illegality in the entire exercise warranting interference by this Court in exercise of powers of judicial review. Respondent no.4 has supported the said submissions and have also filed their counter affidavit.

I have considered the submissions of the parties in light of the material facts pleaded.

From perusal of the notification dated 28th August, 2014 gazetted on 11th February, 2015 which is Annexure-2 to the writ application also, it appears that the rules have been made effective from the date of notification i.e. 28.08.2014 though the gazette notification also says that the rules would be effective from the date it is published in the Gazette. The amendment to the original rules are contained in notification dated 22nd October, 2014 which have been gazetted on 5 th November, 2014 (Annexure-3). A combined reading of the notification dated 28 th August, 2014 contained at Annexure-2 with the gazette notification dated 5th November, 2014 notifying the amendment to the Rules leads to the conclusion that the provisions of rule 3(1) have been duly amended by the rule making authority in exercise of the powers conferred under Section 590(1) of the Jharkhand Municipal Act, 2011 and have come on the statute book. The gazette notification of the original rules on 11 th February, 2015 after the amendment to the original rules have been already gazetted on 5th November, 2014 would in no way dilute the force of the amendment to Rule-3(1) carried out by the competent authority i.e. the delegatee, State Government. Petitioner, therefore, cannot seek reliance upon the unamended rules containing the original Rule-3(1) which require that for moving of no confidence motion against a 6 Chairperson/Vice Chairperson of Nagar Parishad, the person concerned was required to be acting in such capacity and would have discharged the duties and responsibilities of such post. That requirement having been done away with the amended Rules notified on 5th November, 2014 and impugned no confidence motion having been moved on 23 rd February, 2016, the initiation of no confidence motion conforms to the amended rules. Therefore, it was not a requirement of law that the Vice- Chairperson should be acting in the capacity of a Chairperson and discharging the duties and responsibilities of the Chairperson in respect of which the no-confidence can only be moved. The first ground of challenge raised by the petitioner, therefore, does not succeed.

Now let me address the second ground of challenge. Upon consideration of the materials available on record and perusal of the relevant Rules 3(7) read with Rule 3(8) and 3(11) it is evident that they specify a particular procedure to be followed in the matter of initiation and carrying out of no confidence motion. Rule 3(7) provides for a conscious exercise on the part of the prescribed Authority cum Presiding Officer, appointed by the Deputy Commissioner, to express his clear opinion on the admissibility of the charges raised in Form-1 on a no confidence motion moved by a minimum of 1/3 rd of the Councilors. In the present scheme of the Rules the motion of no confidence is to be put to vote before the House of Nagar Parishad i.e. within a period of 15 days, where the person concerned i.e. the Vice-Chairperson in the present case, is also required to be present. As per Rule-3(11) he has been granted freedom to express his comments and views with the permission of the Presiding Officer on the motion. The procedure prescribed in the instant 7 rules have an inbuilt provision for compliance of the principles of natural justice. The exercise undertaken by the Presiding Officer while expressing his opinion on the admissibility of the charges contained in the no confidence motion is not such a stage like that of an enquiry officer where the guilt or innocence of a person is determined which may require an opportunity of hearing to the aggrieved person. That opportunity of hearing being inbuilt in the provisions of Rule-3(11) itself when the no confidence motion is put to vote, petitioner cannot allege that the principle of natural justice has been violated when the Presiding Officer has expressed his opinion after taking the statement of the aggrieved Councilors on the admissibility of the charges. The procedure prescribed under the instant rules is not under challenge. However, when tested on the principles of fairness, non-arbitrariness and reasonableness, this Court is of the considered opinion that they do not suffer from failing to conform to the requirements of Articles 14 and 21 of the Constitution of India as held in the case of Maneka Gandhi (Supra). Reliance on the judgment rendered by the Apex Court in the case of Sharda Kailash Mittal (supra) would not be of help to petitioner in the present facts of the case. In the instant case the no confidence motion is put to vote before a House of electorate who exercise their conscious decision to vote for or against the motion where the person against whom no confidence motion is moved has also adequate opportunity to present his views and opinion. In case of Sharda Kailash Mittal (supra) it is found that the Chief Secretary, City Administration and Development Department had removed the appellant from the post of Chairman of Nagar Palika, Zora which did not conform to the requirement of a fair procedure where a 8 reasonable opportunity was afforded to the office bearers being proceeded against. The facts of the instant case are, therefore, distinguishable from the said case. The rules are not under challenge in that matter. However, as has been held herein above, the procedure prescribed and followed in the matter of a no confidence motion does not appear to suffer from any vice of arbitrariness, unreasonableness or violation of principles of natural justice.

Though learned senior counsel for the petitioner has commented on the merits of allegation contained in the motion of no confidence moved by 17 aggrieved Councilors, but that is an exercise required to be undertaken by the Electorate who had to vote on the motion of no confidence. Though this Court is not required to scrutinize the merit of allegation in this judicial review proceedings, but the exercise undertaken by the prescribed presiding officer as contained in Annexure- G dated 3rd March, 2016 enclosed to the counter affidavit of respondent nos. 2 and 3 reflect that the Councilors appear to have supported their allegations in the statements made before the prescribed authority. The decision on the motion of no confidence is within the domain of the house upon which this Court is not required to comment herein.

In such circumstances, petitioner has failed to substantiate the ground of challenge to the impugned action. Writ petition, therefore, deserves to be dismissed and it is accordingly dismissed.

The interim order dated 11th March, 2016 stands vacated.

(Aparesh Kumar Singh, J.) Shamim/Kamlesh

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