Telangana High Court
Nethi Chinna Rajamouli vs The State Of Telangana on 6 October, 2023
THE HONOURABLE SRI JUSTICE C.V. BHASKAR REDDY
WRIT PETITION Nos.2516, 2525, 2527, 2788, 2791, 2793, 2945,
3046, 3059, 3108, 3147, 3164, 3244, 3338, 3415, 3431, 3444,
3598, 3905, 4062, 4197, 4339, 4798, 4834, 5184, 6041 AND
6068 of 2023
COMMON ORDER:
Since the issue involved in all these writ petitions is intrinsically interconnected, they are being taken up and heard together and disposed of by this common order.
2. Writ Petition Nos.2516, 2525, 2527, 2788, 2791, 2793, 2945, 3046, 3059, 3108, 3147, 3164, 3244, 3338, 3415, 3431, 3444, 3598, 3905, 4062, 4197, 4339, 4798, 4834, 5184, 6041 and 6068 of 2023 have been filed by the petitioners assailing the validity of Proposed No Confidence Motions dated 28.01.2023, 30.01.2023, 31.01.2023, 01.02.2023, 02.02.2023, 03.02.2023, 04.02.2023, 06.02.2023, 07.02.2023, 09.02.2023, 13.02.2023, 16.02.2023, 20.02.2023 submitted by the Ward members of Vikarabad Municipal Council, Tandur Municipal Council, Ibrahimpatnam Municipal Council, Adibatla Municipal Council, Yadagirigutta Municipal Council, Chandur Municipal Council, Dommaiguda Municipal Council, Medchal Municipal Council, Nandikonda Municipal Council, Alair Municipal Council, Huzurabad Municipal Council, Jangaon Municipal Council, Andol-Jogipet Municipal Council, Sangareddy 2 Municipal Council, Yellandu Municipal Council, Sadasivapet Municipal Council, Gajwel Municipal Council, Sulthanabad Municipal Council, Narsapur Municipal Council, Choutuppal Municipal Council, Wyra Municipal Council and Bhongir Municipal Council, to remove the respective Chairpersons/Vice Chairpersons, as illegal, arbitrary and violative of principles of natural justice and Article 14 and 21 of the Constitution of India and also contrary to the provisions of the Telangana Municipalities Act, 2019 (for short "new Act, 2019") and consequently prayed to direct the respondents not to take any action in pursuance of the proposed no-confidence motion.
3. Heard the learned counsel for both sides and perused the record.
4. The brief facts that are necessary for disposal of these writ petitions are as under:
In all these cases, the petitioners are elected as Chairpersons/ Vice-Chairpersons in the respective Municipal Councils in the elections held in January, 2020. A proposal for no-confidence motions were submitted by the majority members for removal of the petitioners as Chairpersons/Vice Chairpersons. The majority members requested the District Collector concerned to convene a special meeting under Section 37 of the new Act, 2019. It is the case 3 of the petitioners that motion moved against them is not only inconsistent with the statutory provisions i.e, Section 37 of the new Act, 2019 but also liable to be declared as illegal because of the fact that there are no legal provisions in the new Act, 2019 governing removal of Chairperson/Vice Chairperson of a Municipal Council. The Telangana Municipalities Act, 2019 is an enactment to govern all the urban legal bodies except the Greater Hyderabad Municipal Corporation (GHMC) and therefore, it has resulted in repeal of the Telangana Municipalities Act, 1965 (for short "Repealed Act, 1965) governing the Smaller Urban Local Bodies and the Telangana Municipal Corporation Act, 1994 governing the Larger Urban Local Bodies. Section 46 of the Repealed Act, 1965 governs the motion of no-confidence in Chairman/Chairperson/Vice-Chairperson. By virtue of Section 299 of the Telangana Municipalities Act, 2019, both the Telangana Municipalities Act, 1965 and the Telangana Municipal Corporations Act, 1994 were repealed, and the Telangana Municipalities Act, 2019, was made as uniform law governing both the Smaller Urban Local Bodies (Municipal Councils) and Larger Urban Local Bodies (Municipal Corporations). Thus, a common provision under Section 37 of the new Act, 2019 was enacted intending common legislative provision for procedural and substantive law, vis-a-vis no confidence motions to be moved against 4 the Chairpersons and Mayors respectively. However, no rules have been made so far for No-Confidence motion under the Scheme of the new Act, 2019. There is no other provision under the new Act 2019 apart from the statutory provision of merely moving the motion of no confidence, and as such, a bare reading of Section 37, makes it abundantly clear that this statutory provision is contemplated in 'pari materia' with only the sub-section (1) of Section 46 of the Repealed Act, 1965. The Rules precisely called as Municipalities (Motion of No Confidence in Chairperson/Vice Chairperson) Rules, 2008 issued vide G.O.Ms.No.835, Municipal Administration and Urban Development (Elec.II) Dept, dt.03.12.2008 have been issued in exercise of power conferred by sub-Section (1) of Section 326 read with Section 46 of the Repealed Act, 1965. These rules are applicable to all the Municipal Councils earlier functioning under the Repealed Act, 1965. The rules made under G.O.M.S.No.836 dated 3.12.2008, read with Section 91-A of the GHMC Act, 1955, pertains to no- confidence motion for Mayors of Corporations. It is further case of the petitioners that the new Act, 2019 is silent as to what happens after the motion of no confidence is communicated by the ward members to the District Collector under Section 37. The elaborate procedure enunciated under Section 46 and 91-A of the Repealed Acts, vis-à-vis the consequential action to be followed on introduction 5 of motion for no confidence is absent in the new Act, 2019. It is further case of the petitioners that the Rules promulgated vide GO.Ms.Nos.835 and 836, referred to hereinabove, cannot be applied in verbatim for implementation of the new Act, 2019. It is further case of the petitioners that sub-section (6) of Section 46 of the Repealed Act, empowers the Government to remove the Chairperson upon the motion of no confidence being voted successfully. No provision corresponding to the said provision of the Repealed Act, 1965 has been incorporated in the new Act 2019. Therefore, the power of notifying the removal of a chairperson is not vested with any authority under the new Act, 2019. It is further case of the petitioners that as per Section 37 of the new Act 2019, the Government is empowered only to make the rules under Section 37 which pertains to moving the motion of no confidence and does not contemplate any consequential action after the motion of no confidence is moved, precisely to check the genuineness of the signatures of the ward members as provided under sub-section (2) of Section 46 of the repealed Act or issuing Form II by the respondent No.3 intimating and expressing the want of confidence in terms of the Rule 5 of the said Rules. That the appointment of Chairperson/Mayor under the new Act 2019 is done strictly under Section 20(1) and (3) of the new Act 2019, after following the due 6 procedure under the Act in a democratic manner and for the welfare of the local self-governance, strictly following constitutional provisions under Article 243R and 243Q of the Constitution of India, and therefore, the removal/termination of the incumbent Chairperson/Mayor is without any substantive provision and procedure. Therefore, the petitioners case is that whether the incumbent can be removed in the absence of any statutory provision including the delegated power to make rules under the new Act 2019. It is further case of the petitioners that in the absence of any provision made under the new Act, 2019, an elected Chairperson/ Mayor cannot be removed merely citing the rules framed under the Repealed Act. Thus the petitioners prayed this Court to declare the proposed no-confidence motion submitted by the Ward Members of the respective Municipal Councils, without there being any power, authority, procedure and Rules prescribed under the new Act, 2019, to remove the Chairperson/Vice Chairperson, as being illegal, arbitrary, unconstitutional, and violative of Section 37 of the new Act, 2019, and violative of Articles 14 and 21 of the Constitution of India and consequently, prayed to direct the respondents not to take any action in pursuance of the Proposed Motion of No-Confidence.
5. The learned counsel appearing for the petitioners broadly submitted the following contentions:
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i) There are no Rules under the Telangana Municipalities Act, 2019 (new Act, 2019) prescribing the procedure for Conduct of proceedings of no-confidence motion.
ii) The substantial provisions pertaining to No-Confidence Motion under the new Act, 2019 are insufficient and the substantial provisions provided in the repealed Act, 1965 are conspicuously absent in the new Act, 2019.
iii) In the absence of any provision for termination or removal of Chairperson/Vice-Chairperson under the new Act, 2019, an elected Chairperson cannot be removed by merely citing the rules framed under the Repealed Act, 1965.
iv) Section 37 of the new Act, 2019 is only an enabling provision for moving no confidence motion against the Chairperson/Vice Chairperson, but it does not provide substantive provision for mode of service of notice and period of notice, quorum of meeting, disobedience of whip, consequences arise out of the result of no-
confidence motion. Further, Section 37 does not provide substantial provision for cessation of membership, lapses of no-confidence motion, removal of Chairperson etc., Unless substantive provisions are provided under the new Act, 2019, no confidence motion cannot be carried out to its logical conclusion.
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v) Section 37 empowers the Government to only make rules pertaining to moving the motion of No Confidence and does not contemplate any power to make rules pertaining to all consequential actions and ultimately prayed to allow the writ petitions as prayed for.
6. The learned counsel for the respondents argued that majority of the members have moved no confidence motion against the petitioners, who are the Chairpersons/Vice-Chairpersons of the respective Municipal Councils, strictly in accordance with the provisions of the Section 37 of the new Act, 2019. It is also stated that 15 days mandatory notice period as required under the Municipalities (Motion of No Confidence in Chairperson/Vice Chairperson) Rules, 2008 was followed. As such there is no illegality or legal infirmity warranting interference by this Court under Article 226 of the Constitution of India. It is further submitted that in a democratic form of Government, the elected persons will continue to occupy the position as long as they enjoy the pleasure of the majority of the members. It is further submitted that the moment they lose the majority or confidence of the members, continuing them as public representatives would be detrimental to the object of democratic form of Government. These institutions must run on democratic principles. In democracy all persons heading public 9 bodies can continue, provided they enjoy the confidence of the persons who comprises such bodies. Democracy demands accountability and transparency in the activities of the Chairperson especially in view of important functions entrusted with the Chairperson in running the local body institutions. Such duties can be discharged by the Chairperson only if he/she enjoys the continuous confidence of the majority members in the municipal council. So any statutory provision to demonstrate that Chairperson has lost the confidence of the majority is conducive to public interest and adds strength such bodies of self-governance and ultimately prayed to dismiss the writ petitions. The learned counsel for respondents relied upon the following decisions:
i. Chief Inspector of Mines & another vs. Lala Karam Chand Thapar & others 1 ii. State of Madhya Pradesh vs. A.K. Jain and others 2 iii. Fibre Boards Private Limited, Bangalore vs. Commissioner of Income Tax, Bangalore 3 iv. State of Pujab vs. Harnek Singh 4 1 (1962) 1 SCR 9 2 AIR 1958 MP 162 3 (2015) 10 SCC 333 4 (2002) 3 SCC 481 10
7. Before taking into consideration rival submissions of both sides, it is apt and appropriate to refer Section 37 of the Telangana Municipalities Act, 2019 (new Act, 2019) and Section 46 of the Telangana Municipalities Act, 1965 (Repealed Act, 1965). Section 37 of the new Act, 2019 reads as follows:
Section 37-Motion of no Confidence in Chairperson and Vice- Chairperson:
A motion expressing want of confidence in the Chairperson and/or the Vice-Chairperson may be made by giving a written notice of intention to move the motion, in such form as specified under the Rules, signed by not less than one-half of the total number of members of the Municipality having right to vote, together with a copy of the proposed motion, to the District Collector concerned, in accordance with the procedure prescribed under the Rules:
Provided that no notice of motion under this section shall be made within three (3) years of the date of assumption of office by the person against whom the motion is sought to be moved:
Provided further that if the motion is not carried by two thirds majority or if the meeting could not be held for want of a quorum, no notice of any subsequent motion expressing want of confidence in the same person shall be made until after the expiration of one year from the date of such first meeting.
Section 46 of the Repealed Act, 1965, reads as under:
"46. Motion of no confidence in Chairman/Chairperson/Vice-
Chairperson (1) A motion expressing want of confidence in the Chairperson otherwise than directly elected or Vice Chairperson may be made by giving a written notice of intention to move the motion, in such form as may be specified by the Government, signed not less than one half of the total 11 number of members of the Council having right to vote, together with a copy of the proposed motion to the District Collector concerned in accordance with the procedure prescribed:
Provided that no notice of motion under this section shall be made [within four (4) years) of the date of assumption of office by the person against whom the motion is sought to be moved:
Provided further that if the motion is not carried by two thirds majority as prescribed or if the meeting could not be held for want of a quorum, no notice of any subsequent motion expressing want of confidence in the same person shall be made until after the expiration of one year from the date of such first meeting:
Provided also that the membership of a suspended member shall also be taken into consideration for computing the total number of members and he shall also be entitled to vote in a meeting held under this section.
(2) The District Collector shall, then convene a meeting for the consideration of the motion at the office of Municipal Council on the date appointed by him which shall not be later than thirty days from the date on which the notice under sub-section (1) was delivered to him. He shall give to the members, Chairman/Chairperson or Vice-Chairperson as the case may be and the Ex-officio members, notice of not less than fifteen clear days excluding the date of the notice and the date of the proposed meeting of such meeting in such form as may be prescribed by the Government and such notice shall be delivered as may be specified.
Explanation: In computing the period of thirty days specified in this sub- section the period during which a stay order if any issued by a competent court on a petition filed against a notice under sub-section (1) is in force shall be excluded.
(3) The District Collector or the Revenue Divisional Officer nominated by the District Collector (here-in-after referred to as Presiding Officer) shall preside at such meeting. The quorum for such meeting shall be two- thirds of the total number of members. If within half an hour after the 12 time appointed for the meeting, there is no quorum for the meeting the Presiding officer shall adjourn the meeting to some other time on the same date and notify the same in the notice board of the Council. If there is no quorum at the adjourned time of the same day, no further meeting shall be convened for consideration of that motion and the meeting shall stand dissolved and the notice given under subsection (1) shall lapse. (4) As soon as the meeting convened under this section commences, the said presiding officer shall read only the motion for the consideration of which the meeting has been convened and shall put it to vote without any debate. The voting shall be by show of hands duly obeying the party whip given by such functionary of the recognized political party in the manner prescribed:
Provided that a member voting under this sub-section in disobedience of the party whip shall cease to hold office forthwith and the vacancy caused by such cessation shall be filled as a casual vacancy. (5) A copy of the minutes of the meeting together with a copy of the motion and the result of the voting thereon shall be forwarded immediately on the termination of the meeting by the said presiding officer to the District Collector. The District Collector shall forward the same along with his remarks to the Government.
(6) If the motion is carried with the support of two-thirds majority of the total number of the members including the ex-officio members as on the date of the meeting, the Government shall by notification remove the Chairperson or Vice-Chairperson as the case may be from office and the resultant vacancy shall be filled in the same manner as a casual vacancy.
8. The new Act, 2019 i.e, Telangana Municipalities Act, 2019 came into force on 09.10.2019 with an object to replace some of the provisions of the Repealed Act, 1965, which have become redundant and non-relevant due to changed times necessitating their 13 replacement to meet the requirements of time. The legislature in its wisdom while repealing Telangana Municipalities Act, 1965 and enacting Telangana Municipalities Act, 2019 has introduced the provision of Repeal and Savings under Section 299 of the new Act, 2019. Section 299 of the new Act, 2019 reads as follows:
299. Repeal and Savings:
(1) On and from the commencement of this Act, the Telangana Municipalities Act, 1965 and the Telangana Municipal Corporations Act, 1994 are repealed.
(2) On such repeal, the provisions of sections 8 and 18 of the Telangana General Clauses Act, 1891, shall apply, provided that on such repeal, rules or provisions existing are not inconsistent with this Act.
(3) Notwithstanding the repeal of the Acts referred in sub-section (1) the appointment, notification, order, scheme, form, notice, rule, or bye-law, made or issued, and license or permission granted under the Acts, shall, in so far as it is not inconsistent with the provisions of this Act, shall continue in force and be deemed to have been made, issued or granted under the provisions of this Act, unless it is lapsed or superseded by any appointment, notification, order, scheme, form, notice, rule or bye-law made or issued and any license or permission granted under the said provisions.
(4) The members of any Council and Corporation holding office at the commencement of this Act shall be deemed to have been elected as members of that Council and Corporation under this Act, and subject to provisions of section 10, continue to hold office of members until the expiration of their term under the provisions which were applicable to them immediately before such commencement.14
(5) Any division of the Municipality into wards, made or deemed to have been made under the Telangana Municipalities Act, 1965 or Telangana Municipal Corporations Act, 1994 and in force at the commencement of this Act, shall be deemed to be the division of the Municipality into wards made under this Act; and the members representing the wards shall, subject to the provisions under sub-section (4), be deemed to represent them on and from the commencement of this Act.
Sub-section (2) of Section 299 of the new Act, 2019 states that on such repeal, the provisions of Sections 8 and 18 of the Telangana General Clauses Act, 1891, shall apply, provided that on such repeal, rules or provisions existing are not inconsistent with this Act.
9. Sections 8 and 18 of the Telangana General Clauses Act, 1891 reads as under:
8. Effect of repealing an Act: Where any Act, to which this Chapter applies, repeals any other enactment, then the repeal shall not,-
(a) affect anything done or any offence committed, or any fine or penalty incurred or any proceedings begun before the commencement of the repealing Act; or
(b) revive anything not in force or existing at the time at which the repeal takes effect; or
(c) affect the previous operation of any enactment so repealed or anything duly done or suffered under any enactment so repealed; or
(d) affect, any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or 15
(e) affect any fine, penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(f) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, fine, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such fine, penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed.
18. References to provisions in Acts repealed and reenacted:
Where an Act repeals and re-enacts, with or without modification, all or any of the provisions of a former Act, references in any other Act to the provisions so repealed shall be construed as references to the provisions so reenacted, and if notifications have been published, proclamations or certificates issued, powers conferred, forms prescribed, local limits defined, offices established, orders, rules and appointments made, engagements entered into, licences or permits granted, and other things duly done, under the provisions so repealed, the same shall be deemed, so far as the same are consistent with the provisions so re-enacted, to have been respectively published, issued, conferred, prescribed, defined, established, made, entered into, granted or done under the provisions so re-enacted.
A conjoint reading of Sections 8 and 18 of the Telangana General Clauses Act, 1891 (for short "Act, 1891") makes it clear that all the Rules and Regulations, orders, notifications and bye-laws on account of operation of Sections 8 and 18 of the Act, 1891 continue to operate as if such Rules and Regulations etc., have been passed under the new enactment. Admittedly, Section 299(3) of the new Act, 2019 states that notwithstanding the repeal of the Acts referred in 16 sub-section (1) the appointment, notification, order, scheme, form, notice, rule, or bye-law, made or issued, and license or permission granted under the Acts, shall, in so far as it is not inconsistent with the provisions of this Act, shall continue in force and be deemed to have been made, issued or granted under the provisions of this Act, unless it is lapsed or superseded by any appointment, notification, order, scheme, form, notice, rule or bye-law made or issued and any license or permission granted under the said provisions.
10. It is the case of the petitioners that the Rules framed under the Repealed Act, 1965 would not remain in force. Section 18 of the Telangana General Clauses Act, 1891 read with Section 299(3) of the new Act, 2019 states that all the Rules which are made under the provisions of the Repealed Act, 1965 sofaras they are not inconsistent with the provisions of the new Act, 2019 shall continue to be in force and deemed to have been made or issued under the provisions of the new Act. However, a careful reading of Section 37 of the new Act, 2019 and Section 46 of the Repealed Act, 1965, makes no much difference and there is consistency in achieving the object of the Act. Thus there is no substance in the argument of the petitioners that provisions made under two enactments are inconsistent. The consistency referred to in Section 37 of the new Act, 2019 is with respect to acts done in pursuance of the Repealed 17 Act and therefore, it is restricted to such provisions of the Act, which come for the interpretation of the Court and not the whole scheme of the enactment. There is consistency between Section 46 of the Repealed Act, 1965 and Section 37 of the new Act, 2019 and the provisions of the General Clauses Act, would be applicable and with the aid of sub-Section (3) of Section 299 of the new Act, 2019, anything done, or any action taken or purported to have been done or taken in pursuance of the Repealed Act, 1965 shall, in so far as it is not inconsistent with the provisions of the Act, be deemed to have been done or taken under or in pursuance of the corresponding provision of new Act, 2019. Otherwise also, there is no inconsistency in between both the enactments. Both the enactments deal with the same subject matter i.e., motion of no confidence in Chairman/ Chairperson/Vice Chairperson. Cessation of the office of Chairperson/Vice Chairperson on any of the grounds as mentioned under Section 33 of the new Act, 2019 would entitle the Government to fill up the vacancies in the same manner as casual vacancy.
Section 46 of the Repealed Act, 1965 is a composite Section containing the ingredients of the re-enacted Section 37 of the new Act, 2019. The effect of Section 18 of the Telangana General Clauses Act, 1891 insofar as it is material, is that whether the Repealed or re- enacted provisions which are not inconsistent with each other, any 18 order made under the repealed provisions is deemed to be an order made under the re-enacted provisions. Accordingly the relevant order made under Section 37 of the new Act, 2019 is deemed to be an order made as per Section 46 of the Repealed Act, 1965. Further, as per Section 18 of the Telangana General Clauses Act, 1891 (which is in pari materia to Section 24 of the General Clauses Act) all or any other provisions of a former Act, references in any other Act to the provisions so repealed shall be construed as references to the provisions so re-enacted. This implies that Section 46(6) of the Repealed Act, 1965 is applicable to provisions of Section 37 of new Act, 2019.
11. In Chief Inspector of Mines & another vs. Lala Karam Chand Thapar & others (1 supra), the Constitutional Bench of the Hon'ble Supreme Court held as follows:
"....that on the repeal of the Act, when the Act is repealed and reenacted, the regulations will not stand repealed but will continue in force till superseded by regulations made under the re-enacted Act."
12. In Bhanumati and others vs. State of Uttar Pradesh and others 5, the Hon'ble Supreme Court observed as follows: 5
(2010) 12 SCC 1 19 "51. Many issues in our constitutional jurisprudence evolved out of this doctrine of silence. The basic structure doctrine vis-a-vis Article 368 of the Constitution emerged out of this concept of silence in the Constitution. A Constitution which professes to be democratic and republican in character and which brings about a revolutionary change by Seventy-third Constitutional amendment by making detailed provision for democratic decentralization and self Government on the principle of grass root democracy cannot be interpreted to exclude the provision of no-confidence motion in the respect of the office of the Chairperson of the Panchayat just because of its silence on that aspect."
In the instant case, the Telangana Municipalities Act, 1965 was repealed and re-enacted in the form of Telangana Municipalities Act, 2019 with a main objective of making urban local bodies as institutions of self-governance. The legislature in its wisdom has made express saving provision of Repeal and Savings under Section 299 of the Act. As per Section 299 of the Act, whatever the Rules promulgated under Section 326 r/w. 46 of the Repealed Act, 1965 vide G.O.Ms.No.835 dt: 03.12.2008 shall be deemed to be saved and continue to be in force as if they have been passed under the new Act, 2019. The Rules issued vide G.O.Ms.No.835 dated 03.12.2008 have the same effect and purport as that of the provisions of no confidence motion as envisaged under Section 37 of the new Act, 2019. The contention of the petitioners that there is inconsistency between Section 37 of the new Act, 2019 and Section 46 of the 20 Repealed Act, 1965 is unsustainable. Since Section 37 of the new Act, 2019 has taken care of the procedure for moving no confidence motion and as per Section 299 of the new Act, 2019, the Rules framed under Repealed Act, 1965 are applicable to new Act, 2019, there are no legal infirmities in entertaining the representations of the majority members for moving no-confidence motions against the petitioners, who are Chairpersons/Vice Chairpersons in the respective Municipal Councils.
13. In view of the foregoing discussion, there are no merits in these writ petitions and the same are liable to be dismissed.
14. Accordingly, the Writ Petitions are dismissed.
Miscellaneous Petitions, if any, pending in these writ petitions shall stand closed. No order as to costs.
___________________________ C.V. BHASKAR REDDY, J Date: 06.10.2023 scs