Karnataka High Court
Shahjaha W/O Shaik Tanveer Ahmed And Anr vs The State Of Karnataka And Ors on 26 August, 2015
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W.P.Nos.201399 & 201754/2015
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF AUGUST 2015
BEFORE
THE HON'BLE MR. JUSTICE H.G.RAMESH
R
WRIT PETITION NOS.201399 & 201754/2015 (LB-RES)
BETWEEN:
1. SHAHJAHA W/O SHAIK TANVEER AHMED
AGE ABOUT 34 YEARS
PRESIDENT, CITY MUNICIPAL COUNCIL
BASAVAKALYAN, DIST. BIDAR - 585 327
2. ABDUL GAFFAR
S/O ABDUL AZIZ PESHMAM
AGE ABOUT 46 YEARS
MEMBER, CITY MUNICIPAL COUNCIL
R/O DHARAGIRI LOCALITY
BASAVAKALYAN
DIST. BIDAR - 585 327 ... PETITIONERS
(BY SRI R.J. BHUSARE & SRI G.R. GURUMATH, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA
BY ITS SECRETARY TO THE GOVERNMENT
DEPARTMENT OF URBAN DEVELOPMENT
MS BUILDING, BANGALORE- 560 001
2. THE DY. COMMISSIONER
BIDAR, DIST. BIDAR - 585 401
3. THE COMMISSIONER
CITY MUNICIPAL COUNCIL
BASAVAKALYAN
DIST. BIDAR - 585 327
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W.P.Nos.201399 & 201754/2015
4. BHAGAVANT KHUBA
MEMBER OF PARLIAMENT
R/O SHIV NAGAR LOCALITY
BIDAR, DIST: BIDAR - 585 401
5. MALLIKARJUN S. KHUBA
MEMBER OF LEGISLATIVE ASSEMBLY
BASAVAKALYAN
R/O TRIPURANT-BASAVAKALYAN
DIST. BIDAR - 585 327
6. SULTAN ALI S/O AMEER ALI
AGE: 59 YEARS
OCC: BUSINESS
MEMBER OF CITY MUNICIPAL COUNCIL
BASAVAKALYAN
R/O GULSHAN COLONY
BASAVAKALYAN, DIST: BIDAR - 585 327
7. SMT. ZAIBUN BI W/O MD. KHAJA
AGE: 63 YEARS
MEMBER OF CITY MUNICIPAL COUNCIL
BASAVAKALYAN
R/O SHAH HUSSAIN GALLI
BASAVAKALYAN (AMENDED V.C.O.
DIST: BIDAR - 585 327 DTD. 19.8.2015)
8. THE ASSISTANT COMMISSIONER
CUM ELECTION OFFICER FOR THE
ELECTION OF PRESIDENT
CITY MUNICIPAL COUNCIL
BASAVAKALYAN
DIST: BIDAR - 585 327 ... RESPONDENTS
(BY SRI A SYED HABEEB, AGA FOR R1 & R2;
SRI SACHIN MAHAJAN, ADVOCATE FOR R6 TO R8;
SRI GOURISH S. KHASHAMPUR, ADVOCATE FOR R3;
R4 & R5 ARE SERVED BUT UNREPRESENTED)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT OF CERTIORARI THEREBY QUASHING THE RESOLUTION OF
NO CONFIDENCE MOTION PASSED BY RESPONDENT NO.3 ON
28.1.2015 REMOVING PETITIONER NO.1 FROM THE POST OF
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W.P.Nos.201399 & 201754/2015
PRESIDENT OF CMC, BASAVAKALYAN PRODUCED AT ANNEXURE
'A' BY HOLDING IT AS ILLEGAL.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED ON 19.08.2015 FOR ORDERS AND COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, H.G.RAMESH J.
DELIVERED THE FOLLOWING:
ORDER
The question raised in these writ petitions is whether the members of the house of the people (Lok Sabha) and the members of the State Legislative Assembly (Vidhan Sabha), whose constituencies lie within a municipal area, have voting right at a Special General Meeting convened under Section 42(9) of the Karnataka Municipalities Act, 1964 ('the Act') for the purpose of moving a no-confidence motion against the President and Vice President of a Municipal Council?
The question is answered in the negative.
2. In these writ petitions, the petitioners are challenging the resolution dated 28.01.2015 passed by the Municipal Council expressing 'no-confidence' against petitioner no.1 resulting in her removal from the post of the President of the City Municipal Council, Basavakalyan. The total number of Elected Councillors is 31. It is not in dispute that twenty councillors of the Municipal Council, and, respondent no.4, -4- W.P.Nos.201399 & 201754/2015 who is a member of the Lok Sabha and respondent no.5, who is a member of the Vidhan Sabha, whose constituencies lie within the municipal area of Basavakalyan, had voted in favour of the no-confidence motion and 11 councillors voted against the no-confidence motion.
3. I have heard the learned counsel appearing for the parties and perused the record.
4. Sri G.R.Gurumath, learned counsel appearing for the petitioners submitted that members of the Lok Sabha and members of the Vidhan Sabha referred to in Section 11(1)(c) of the Act are not Councillors, and therefore, voting by respondent nos.4 & 5 for the no-confidence motion is illegal, and hence, removal of petitioner no.1 from the post of the President of the Municipal Council, pursuant to such a no-confidence motion is unsustainable in law. In support of his submission, he relied on an unreported decision of a Division Bench of this Court in Smt. Chandubi v. The Deputy Commissioner in W.P.No.12320 of 1997 (DD 10.12.1997) and also another Division Bench decision of this Court in -5- W.P.Nos.201399 & 201754/2015 Smt. Savitri vs. State of Karnataka & Ors. [ILR 2003 KAR 4653].
5. Learned counsel appearing for respondent nos.6 to 8 submitted that the persons specified in Section 11(1)(c) of the Act are also Councillors and, hence, they also have the right to vote at a Special General meeting convened for the purpose of moving a no-confidence motion against the President and Vice President of a Municipal Council.
6. Learned Additional Government Advocate submitted that members of the Lok Sabha and members of the Vidhan Sabha have no right to vote at a Special General meeting convened for the purpose of moving a no-confidence motion as they are not elected Councillors of a Municipal Council.
7. To examine as to whether members of the Lok Sabha and members of the Vidhan Sabha, whose constituencies lie within a municipal area, have voting right at a Special General meeting convened for the purpose of moving a no-confidence motion against the President and Vice -6- W.P.Nos.201399 & 201754/2015 President of the Municipal Council, it is relevant to refer to the following provisions of the Act:
" Section 2(6). "Councillor" means any person who is legally a member of a municipal council or Town Panchayat. Section 11. Constitution of municipal councils: (1) The municipal council shall consist of,--
(a) such number of directly elected councillors specified in column (3) of the table below in respect of the municipal areas specified in the corresponding entries in column (2) thereof, namely:
TABLE Sl. Population of the municipal area Number of No. Councillors (1) (2) (3)
1. For a municipal area with a population of 23 not less than 20.000 but less than 40.000
2. For a municipal area with a population of 27 not less than 40.000 but less than 50.000
3. For a municipal area with a population of 31 not less than 50.000 but less than one lakh
4. For a municipal area with a population of not less than one lakh but less than three 35 lakhs
(b) not more than five persons nominated by the Government from amongst the residents of the municipal area and who are.-
(i) persons having special knowledge and experience in municipal administration or matters relating to health, town planning or education; or
(ii) social workers;
(c) the members of the House of the People and the members of the State Legislative Assembly, representing a part or whole of the municipal area whose constituencies lie within the municipal area;
(d) the members of the Council of States and members of the State Legislative Council registered as electors within the municipal area;
Provided that the persons referred to in clause (b) shall not have the right to vote in the meetings of the municipal council.
....................................................................................................... Section 18. Term of office of Councillors: (1) The term of a councillor,--
(a) elected at a general election shall be five years:-7-
W.P.Nos.201399 & 201754/2015
(b) nominated under clause (b) of sub-section (1) of Section 11 shall, subject to the pleasure of the Government be five years;
(1-A) The term of office of the councillor elected at a general election or nominated in clause (b) of sub-section (1) of Section 11 shall commence on the date appointed for the first meeting of the municipal council.
............................................................................................................ Section 42. President and Vice-President: (1) For every municipal council, there shall be a President and a Vice-President.
(2) Subject to the provisions of sub-section (2-A) the Councillors shall at the first meeting of the Municipal Council after the general election and at a subsequent meeting held immediately before the expiry of term of office of the president and vice president choose two members from amongest the elected councillors to be respectively president and Vice-President and so often as there is a casual vacancy in the office of the President, or Vice-President shall choose another member from amongst the elected councillors to be the President or Vice-president, as the case may be. ............................................................................................................ (9) Every President and every Vice-President of a municipal council shall forthwith be deemed to have vacated his office if a resolution expressing want of confidence in him is passed by a majority of the total number of Councillors having voting right and by a majority of not less than two- thirds of the Councillors having voting right present and voting at a special general meeting convened for the purpose:
Provided that no such resolution shall be moved unless notice of the resolution is signed by not less than one-third of the total number of Councillors having voting right and at least ten days notice has been given of the intention to move the resolution:
Provided further that where a resolution expressing want of confidence in any President or Vice-President has been considered and negatived by a municipal council, a similar resolution in respect of the same President or Vice- President shall not be given notice of or moved within one year from the date of the decision of the municipal council. .........................................................................................................."
8. As could be seen from Section 18 extracted above, only the persons who are directly elected as Councillors under -8- W.P.Nos.201399 & 201754/2015 Section 11(1)(a) of the Act and the persons nominated under Section 11(1)(b) of the Act are recognised as Councillors of the Municipal Council and their term of office is also specified. As per the proviso to Section 11(1) of the Act, the persons nominated under Section 11(1)(b) of the Act have no voting right in the meetings of the Municipal Council. Therefore, Councillors referred to in Section 42(2) of the Act shall mean only the elected councillors who shall choose the President and Vice President of a Municipal Council.
9. The persons referred to in Section 11(1)(c) & (d) are not recognised as Councillors anywhere in the Act. If the intention of the legislature was to treat them as Councillors, it would have so provided in the Act. In my opinion, a conjoint reading of Sections 11 & 18 of the Act will show that 'the Councillors' referred to in Section 42(9) of the Act shall mean only the elected councillors.
10. In view of the above, only the elected Councillors have the right to choose the President and Vice President of a Municipal Council and similarly, only the elected Councillors -9- W.P.Nos.201399 & 201754/2015 have the right to pass a no-confidence motion against the President and Vice President of a Municipal Council.
11. Members of the Lok Sabha, Vidhan Sabha, Rajya Sabha and Vidhan Parishad referred to in Section 11(1)(c) & (d) of the Act, though have the right to vote in general meetings of the concerned Municipal Council in view of the proviso to Section 11(1) of the Act, they are not given the right to vote at a Special General meeting convened under Section 42(9) of the Act for the purpose of moving a no-confidence motion. As stated above, only the elected Councillors are entitled to vote at such a meeting. As only the Elected Councillors have the right to vote at a Special General meeting convened under Section 42(9) of the Act for the purpose of moving a no-confidence motion, the persons referred to in Section 11(1)(b), (c) & (d) of the Act have no right to vote, and, consequently, it is not permissible for them to attend a Special General meeting and, therefore, they shall not be notified of the Special General meeting. Their presence at such a meeting will unduly influence the elected councillors present at the meeting and hence, their attendance and/or
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W.P.Nos.201399 & 201754/2015 voting at such a meeting will render the no-confidence motion illegal and void.
12. Respondent no.4, who is a member of the Lok Sabha and respondent no.5, who is a member of the Vidhan Sabha, who had no right to vote, had attended the Special General meeting held on 28.01.2015 and voted for the no-confidence motion dated 28.01.2015 (Annexure-A). Therefore, the resolution dated 28.01.2015 (Annexure-A) passed by the Municipal Council expressing no-confidence against petitioner no.1 is liable to be set aside being illegal and void, and it is accordingly set aside. It is clarified that, as the impugned no-confidence motion is held to be void, the second proviso to sub-section (9) of Section 42 of the Act will not come in the way of the elected councillors for moving a fresh motion of no confidence against petitioner no.1.
The writ petitions stand disposed of in terms stated above.
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JUDGE hkh.