Madhya Pradesh High Court
Smt. Anubha Munjare vs State Election Commission And Ors. on 5 September, 2007
Equivalent citations: AIR 2008 (NOC) 461 (M.P.), 2008 (2) AKAR (NOC) 297 (M.P.)
Author: Dipak Misra
Bench: Dipak Misra, R.S. Jha
ORDER Dipak Misra, J.
1. Substantiality and legal acceptability of the order dated 27-7-2007 passed by the learned Single Judge in W.P. No. 9663/2003 is called in question in this appeal preferred under Section 2(1) of the M.P. Uchch Nayalaya (Nyay Khandpeeth Ko Appeal) Adhiniyam, 2001 [for brevity `the Act'].
2. The facts which are imperative to be adumbrated are that the appellant had contested in the election of the President, Municipal Council, Balaghat as an independent candidate in the election held in November, 2004. The election was a direct one. As pleaded, he had defeated the rival candidate by large margin of votes. The Municipal Council, Balaghat consists of 33 councilors. Various asseverations have been made about the political rivalry and how adroit endeavours have been made to dislodge her from the post. It is put forth that she has been functioning in the President, Municipal Council, Balaghat from January, 2005 and while holding the said post she had done extensive work for improvement of civil amenities of the Municipality. Reference has been made to Section 41-A of the M.P. Municipalities Act, 1961 [hereinafter referred to as 'the Act'] to highlight that an elected President can either be removed under Section 41A of the Act or recalled under Section 47 of the Act. It is contended that Section 41A empowers the State Government to remove a President or a Vice-President on certain conditions precedent being satisfied. In the case at hand we are not required to dwell upon the said facet. We, as the factual matrix commands, are required to deal with the basic conception and the ultimate conceptual eventuality as engrafted under Section 47 of the Act.
3. The further expose' of facts are that 3/4th of the councilors of the Municipal Council filed affidavits before the Collector, Balaghat moving a no confidence motion against the petitioner as a result of which the Collector took a decisions to send the proposal to the Government for taking appropriate decisions as contemplated under Section 47(2) of the Act. The State Government as envisaged under Sub-section (2) of Section 47 of the Act made reference to the State Election Commission which under Sub-section (3) arranged a voting on the proposal of recall.
4. The date was fixed on 8-8-2007 by the State Election Commission for voting for recall of the President.
5. Being dissatisfied with the aforesaid action taken the petitioner invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India contending, inter alia, that the affidavits were filed before the Collector in support of no confidence motion though the Act does not envisage any kind of no confidence motion as the same has been repealed from the enactment and second the proposal, as is understood in law, was not there before the Collector but the Collector in a perfunctory and mechanical manner recommended the matter to the State Government and the concerned authorities acted on the recommendation and directed for holding of election. It was canvassed before the learned Single Judge that the sending of a proposal is the pre requisite and is an imperative facet of Section 47 of the Act but in the case at hand, the Collector, despite no proposal, had recommended on the basis of affidavits which were only meant for passing of a vote of no confidence motion.
6. The learned Single Judge referred to the affidavits, language contained in Section 47 of the Act, the knowledge of the petitioner as evincible from Annexure-P/2, she had admitted that a proposal for recall-cum-no confidence motion against her had been submitted came to hold that it could not be stated that there was no proposal for recall of the petitioner from the post of the President of Municipal Council, Balaghat. Being of this view the learned Single Judge dismissed the writ petition.
7. Mr. Rohit Arya, learned Senior Counsel appearing for the appellant questioning the correctness of the order has raised the following contentions:
(A) The affidavits which have been placed reliance upon cannot constitute, by any stretch of imagination, a proposal as is understood in law, more so, when the affidavits clearly show that the deponents wanted to have a vote of no confidence against the petitioner.
(B) The concept of recall is totally different than the move or motion for vote of no confidence and when the provision relating to vote of no confidence motion has been repealed a proposal has to be passed showing the intention in exactitude for recall and in the absence of it the said action cannot be taken recourse to as that would be an anathema to fundamental facet of democracy.
(C) A proposal must show in an unequivocal manner that there has been a resolution from which meeting of minds would get reflected, because solemnity of proposal inherently engulfs meeting of minds, combination of thoughts and culmination of the same in a resolve.
(D) The duty of the Collector as per enactment is a sacrosanct one and the verification of the proposal has to be done in a strict manner and any kind of deviation is totally impermissible as a step towards recall of a democratically elected person has serious consequences.
(E) The verification which is required to be done by the Collector is to be carried out by himself from the beginning till the end and there cannot be any kind of delegation of any aspect as that would tantamount to negation of duty giving an indecent burial to the requirement of the provision.
(F) In the case at hand there has been no proposal in law, therefore, the recommendation by the Collector and the subsequent decision to hold the election for recall of the petitioner is totally improper, unjust and unfair.
8. Mr. T.S. Ruprah, learned Additional Advocate General and Mr.Kumaresh Pathak, learned Deputy Advocate General for the State, countering the aforesaid submissions of Mr. Arya, have propounded as under:
(i) The proposal cannot be equated with the motion of no confidence, for Section 47 of the Act is a complete Code in itself and nothing should be read into it.
(ii) The proposal must show intention and if the intention is clear and decipherable the Collector is bound to proceed to record his satisfaction with regard to factum enumerated under Sub-section (1) of Section 47 and not beyond the same.
(iii) When an application is signed it is a proposal and the same need not be in the form of a resolution because passing of a resolution is not the requirement of law.
(iv) No proforma has been prescribed for passing of a proposal and, therefore, the colossal complaint that there should have been a meeting of minds in a combined manner is neither the prescription of law nor does the same flow by taking aid of any interpretation of any of the words used in Section 47 of the Act.
(v) The Collector has not delegated the power to anyone but has religiously recorded his satisfaction and hence, his recording of satisfaction cannot be found fault with.
9. Mr.V.S.Shroti, learned senior counsel appearing for the respondent No. 1, State Election Commission, has raised the following contentions:
(a) The meeting of minds for any kind of resolution is not a condition precedent to send the proposal for recall to the Collector concerned.
(b) The satisfaction of the Collector does not envisage any kind of causation of enquiry with regard to any other aspect than what has been provided for in the statute. The Collector's satisfaction is a limited one and he is not required to dwell into the merits of the proposal.
(c) In the absence of any format when there is a proposal and there is a further support by the affidavit that they want a vote of 'No Confidence Motion' against the President both are to be read conjointly and on such effective conjoint reading it would be crystal as clear that the council had lost faith in the President for various reasons and that is a ground for which the procedure for recall should be adverted to and the President should face the electorate again.
10. At the outset it is condign to state, as the edifice of argument of Mr.Arya was built on the primary factum that there was no proposal, this Court had directed the Additional Advocate General to produce the original record and accordingly the original record has been produced. We have carefully perused the original record.
11. Prior to referring to the documents that find place in the original record it is seemly to refer to the provisions and the law in the field. A President of Municipality is the Chairperson and is elected by direct election from the municipal area as per Section 19(1)(a) of the Act. The election of a President should be challenged as per the provision contained in Section 20 of the Act. Section 41-A deals with removal of President by the State Government if in the opinion of the government his continuance as such is not desirable in public interest or in the interest of the councillor and on certain other grounds. The provision dealing with 'No Confidence Motion' against the President has been substituted and the present Section 47 has been brought on the statute book by amending Act No. 11 of 1999. The provision as amended reads as under:
47. Recalling of President. (1) Every President of a Council shall forthwith be deemed to have vacated his office if he is recalled through a secret ballot by a majority of more than half of the total number of voters of the municipal area casting the vote in accordance with the procedure as may be prescribed:
Provided that no such process of recall shall be initiated unless a proposal is signed by not less than three fourth of the total number of the elected Councillors and presented to the Collector: Provided further that no such process shall be initiated:
(i) within a period of two years from the date on which such President is elected and enters his office;
(ii) if half of the period of tenure of the President elected in a by-election has not expired:
Provided also that process for recall of the President shall be initiated once in his whole term.
(2) The Collector, after satisfying himself and verifying that the three fourth of the Councillors specified in Sub-section (1) have the proposal of recall shall send the proposal to the State Government and the State Government shall make a reference to the State Election Commission.
(3) On receipt of the reference, the State Election Commission shall arrange for voting on the proposal of recall in such manner as may be prescribed." The constitutional validity of the said provision has been upheld in the case of Smt.Pallvika Patel v. State Election Commission and Ors. .
12. The Full Bench of this Court in the case of Smt.Naravadi Bai Choudhary and Ors. v. State of M.P. and Ors. 2005 (2) MPHT 119 (FB) dealt with certain aspects of Section 47 of the Act. They are of immense significance. The Full Bench after reproducing the provision came to hold in paragraphs 12, 13, 14 and 16 as under:
12. Again we have to refer to the language used in Section 47 of the Act. Sub-section (2) of this section requires that the Collector, after satisfying himself and verifying that the 3/4th of the Councillors specified in Sub-section (1) have signed the proposal of recall, shall send the proposal to the State Government. The provision nowhere mandates that the verification shall be made in the presence of signatories. Need not to say that verification of signatures of signatories after procuring their presence may be one of the modes for such verification but it is not the only or exclusively provided mode, because nothing can be read in the proviso itself to this effect, therefore, to put fetters on the discretion of the Collector in selecting the mode of verification by making the personal presence of signatories mandatory while the law is framed to give him more elbow room in the matter would be clearly against the legislative intent.
13. The authorities, entrusted with the task of verification of signatures, being responsible, are expected to conduct themselves in an independent and unbiased manner. The process of verification may be akin to the one adopted by the bank authorities regarding genuineness of signatures of the drawer on a cheque.
14. If the physical presence of the Councillor concerned is made a sine qua non for verification of the signatures, at times it may defeat the purpose. There may be a situation where a Councillor may not be able to appear before the authority concerned due to old age, infirmity, serious illness etc., though he/she was certainly in a position to put his/her signatures on the proposal. In such a situation if the authority can not forward the proposal to the State Government for want of personal appearance though sufficient material is placed before the authority for his satisfaction regarding the genuineness of the signatures, such as filing of the affidavit or submission of specimen signature of the Councillor duly attested, then the same will defeat the proposal itself and in turn the democratic process.
15. xxx xxx xxx
16. Therefore, we hold that proviso to Section 47 of the Act does not contemplate that the proposal should be presented by the 3/4th of the Councillors in person or that for the purpose of verification of signatures of the signatories their personal presence is necessary.
13. In State of Madhya Pradesh and Anr. v. Mahendra Kumar Saraf and Ors. 2005 (4) MPHT 185 (FB) the Full Bench of this Court reiterated the principle in paragraph 21 as under:
21. Therefore, we hold that proviso to Section 47 of the Act does not contemplate that the proposal should be presented by the 3/4th of the Councillors in person or that for the purpose of verification of signatures of the signatories their personal presence is necessary.
Thereafter, the Full Bench proceeded to state as under:
47. Therefore, we are in complete agreement with the learned Single Judge that after having sent the proposal to the State Government, Collector becomes functus officio.
48. Section 47 of the Act does not give any authority to the State Government to entertain any objection to the proposal sent by the Collector to it. Therefore, the State Government can not entertain any objection to the proposal duly forwarded by the Collector. In the absence of any express provision to that effect in Section 47 of the Act. State Government can not sit over the finding of the Collector.
49. xxx xxx xxx
50. When the law requires the satisfaction of the Collector, the same can not be interpreted in a manner so as to substitute it by the satisfaction of the State Government. Once the proposal has been sent by the collector after verification and satisfaction the State Government has no role but to forward the same to the State Election Commission.
14. Keeping in view the aforesaid enunciation of law, the factual matrix is required to be scrutinized. Submission of Mr.Arya is that the recall is a serious affair and a candidate elected by a direct election is supposed to be recalled by proposal moved by 3/4th total number of elected councillors and presented to the Collector. It is also canvassed by him that the Collector has to record his satisfaction. On a reading of Section 47 in entirety and especially Sub-section 2 of Section 47 there can be no scintilla of doubt that the Collector has to satisfy himself with regard to the conditions precedent engrafted under Section 47(1), namely, that the proposal has been signed by not less than 3/4th of total number of elected councillors, the proposal has not been initiated within a period of two years from the date on which such President is elected and enters his/her office; that half of the period of tenure of the President elected in by-election has expired; and that the process for recall is the first proposal in the whole term of the elected candidate and he must verify the proposal that 3/4th of the total number of elected councillors have signed the proposal for recall. Further submission of Mr.Arya is that the Collector himself shall record his satisfaction that there has been any kind of malfunctioning or non-functioning of the President and, therefore, recall is warrantable. In our considered opinion, the aforesaid submission is extremely spacious and is not in consonance and accord with the provisions contained in Section 47 which deals with recalling of the President. Section 47 is a complete Code in itself which deals with recall and nothing should be added to or extracted from it. As we understand the provision, such a kind of recording of satisfaction, as propounded by Mr.Arya, is alien to the provisons and hence, not acceptable.
15. It is further contended by learned senior counsel for the petitioner that in a democratic polity an elected candidate should not be lightly thrown. As has been indicated earlier, the provision is held to be constitutional in the case of Smt.Pallvika Patel (supra). In this context, we may refer with profit to the decision rendered in Mohanlal Tripathi v. District Magistrate, Rai Bareli wherein it has been held as under:
Democracy is a concept, a political philosophy, an ideal pratised by resorting to governance by representatives of the people elected directly or indirectly. But electing representatives to govern is neither a 'fundamental right' nor a 'common law right' but a special right created by statutes, or a 'political right' or 'privilege' and not a 'natural', 'absolute' or 'vested right.' "Concepts familiar to common law and equality must remain stranger to 'election law' unless statutorily recognized". Right to remove an elected representative, too, must stem out of the statute as 'in the absence of constitutional restriction it is within the power of a Legislature to enact a law or recall of officers.' Its existence or validity can be decided on the provision of the Act and not, as a matter of policy. Therefore, the validity or otherwise of a no-confidence motion of removal of a President would have to be examined on applicability of statutory provision and not on political philosophy....
16. Democracy as is understood today, still is a government 'of the people, by the people and for the people'. The said definition, as we are disposed to think, is the quintessential definition and has to reign supreme. A democratic process has to be democratic and no one's lawful rights are to be taken away by any prejudiced, motivated, fraudulent unhesitatingly undemocratic methods, but, a true democracy cannot live without the respect of rule of law. Law in a democratic set up has to be given due veneration and it must have paramountacy. The safeguard of democracy has to be real and cannot be a facade, for true and efficient governance in a democracy the right of a voter, as by law prescribed, has to be given due weightage. Not for nothing it has been said as follows:
The foundation of all democracy is that the people have the right to vote.... At the bottom of all the tributes paid to democracy is the little man, walking into the little booth....
Keeping the aforesaid pronouncement of law and the basic conception of democracy in view it has to be seen that whether there has been any proposal. On a perusal of the original records it is clear as noon day that a proposal was putforth before the Collector for recall. The term of the proposal uses the word "Prithak" which means 'recall'. The Collector has given a note to his 'Reader'. Submission of Mr.Arya is that the 'Reader' of the Collector has written the note. On a keener scrutiny of the record the Collector has himself written directing what has to be done by the 'Reader'. The Collector had noted that on 28.3.2007 barring two councillors, namely, signatories No. 8 and 19 all the twenty five (25) councillors were present. The said twenty five (25) councillors signed the proposal letter in presence of the Collector. As the Collector had doubt with regard to the signatory No. 27 he took exception to the same. Therafter, signatory No. 27 remained present and signed the proposal and verified the earlier signatures. After obtaining the said signatures the Collector expressed the opinion that out of 33 councillors, 26 had signed the proposal and as a result thereof the requirement as contemplated under Section 47(2) was met with. Thereafter, he recommended the proposal.
17. Quite apart from that affidavits have been brought on record. Each deponent has stated about the irregularities committed by the petitioner and there was a desire to move a vote of no confidence motion and pass it against him. We would like to clarify that the proposal, as submitted to the Collector, clearly indicates for recall of the President. Affidavits have been produced. Affidavits may indicate vote of no confidence motion but if the same are read conjointly with the proposal for recall there can be no scintilla of doubt that the Collector had rightly and correctly verified the signatures and recorded his satisfaction with regard to the signatures purforth by the councillors. Affidavits only reinforce the same. Submission of Mr.Arya is that the affidavits alone cannot substitute the proposal of recall. What could have been the effect of the affidavits alone without the proposal duly signed by the councillors could have been a matter of interesting debate but the same does not ensue as there is a proposal. Submission of Mr.Ruprah, learned Additional Advocate General is that if the affidavits are not taken into consideration still then the proposal would hold the field. The term of vote of no confidence motion would go a long way to show that they have lost the confidence in the elected President and they desired a recall. The affidavits and proposal can be read conjointly to show the desire of recall of the President. There is no necessity to delve into the same as there is satisfaction that there was proposal before the Collector and the Collector was satisfied with regard to the condition precedent as engrafted under Section 47 of the Act.
18. Be it placed on record that barring signatures all other conditions have been satisfied. The said facets have been conceded to before us at the Bar. What is contended by Mr.Arya is that all the members should have sat at a combined place and passed a resolution and then only there would have been a proposal for recall, is without any substance as the provision contained in Section 47 does not so postulate. The postulates engrafted under Section 47 have been satisfied.
19. We may also hasten to add that the present case frescoes a picture and projects a scenario whereby the councillors had gone before the Collector and signed. As per the decision rendered in Mahendra Kumar Saraf (supra) there was no need to present the proposal for recall of the President. But, in the case at hand, the requisite councillors had gone to the office of the Collector. The statutory requirement has been met with. At this juncture, we may add that the councillor who had presented the proposal and had sworn the affidavits have intervened in the petition and stated that they have signed the proposal. True it is, had there been any deficiency in the proposal that could not have been cured by such affidavits before this Court. But we have only taken note of the same for the sake of completeness.
20. Consequently, the writ appeal, being sans substratum, stands dismissed. However, in the peculiar facts and circumstances of the case there shall be no order as to costs.