Madhya Pradesh High Court
Kamal Kant Bhardwaj vs The State Of Madhya Pradesh on 25 August, 2014
Author: Alok Verma
Bench: Alok Verma
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT
AT JABALPUR
W.A.No.663/2014
Kamal Kant Bhardwaj
Vs.
State of Madhya Pradesh and others
Present: Hon'ble Shri Rajendra Menon, J. &
Hon'ble Shri Alok Verma, J.
______________________________________________________
Shri T. S. Ruprah, learned Senior Counsel
with Shri Harpreet Ruprah, for the appellant.
Shri Rahul Jain, learned Dy. Advocate
General, for the respondents No.1, 2 and 3.
Shri Rohit Jain, learned counsel appears for
the intervenors namely Smt. Nosar Bai and others.
__________________________________________________
ORDER
(25/8/2014 ) Per : Shri Rajendra Menon, J.
This appeal has been filed by the appellant under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaya Peeth Ko Appeal) Adhiniyam, 2005. The appellant feels aggrieved by an order dated 7.8.2014 passed by the Writ Court in W.P. No.11989/2014 by which the writ petition filed 2 by the petitioner in the matter of proposing to proceed with certain action for recall of a President of a duly elected Municipal Council under Section 47 of the M.P. Municipalities Act, 1961, is decided by the Writ Court.
2. The facts in nut-shell goes to show that appellant is the elected President of Municipal Council, Chhanera (New Harsud), District Khandwa and after he had worked as such for a period of two years four months and 46 days, 12 elected Councillors of Municipal Council (namely the intervenors herein) submitted a No Confidence Motion for recall of the President before the Collector. The Collector having recorded his satisfaction under Section 47(2) of the Municipalities Act, 1961, matter was challenged in the Writ Court and the same having been dismissed, this appeal under Section 2 (1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaya Peeth Ko Appeal) Adhiniyam, 2005.
3. Shri T. S. Ruprah, learned Senior Counsel invited our attention to the provisions of Section 47(2) of the Act of 1961 and argued that before forwarding the proposal for recall to the State Government, the Collector has to record his satisfaction with regard to the fact that 3/4th of the Councillors have signed the proposal for recall and further that they are the elected Councillors. It is said that in this case, recording of satisfaction by the Collector is not in accordance with law. Shri Ruprah invited our attention to the note sheets available on 3 record and maintained in the offi ce of the Collector dated 23.7.2012 Annexure P/2 and the subsequent order sheet Annexure P/3 dated 24.7.2014 to say that without properly verifying the identity and correctness of the 12 Councillors who are said to have appeared before the Collector and submitted the proposal, the Collector has proceeded in the matter which according to Shri Ruprah, learned Senior Counsel, is not a proper way of recording the satisfaction. It was submitted by him that the District Head Quarter, Khandwa, where the Collector sits and the Municipal Council in question is at a distance of 82 kms and the Collector within one day has conducted the verification which is not correct. He tried to emphasize that merely showing the presence of Councillors before him and by accepting the affi davit submitted by them and getting their signatures on the order sheet, the Collector seems to have recorded his satisfaction as required under Section 47(2) which is not proper. It is emphasized that for the purpose of verifying the identity, signatures and various aspects of the matter for recording satisfaction, the Collector should have caused an enquiry into the matter and this having not done, it is stated that the entire statutory requirement as contemplated under Section 47(2) for the purpose of recording the satisfaction of Collector is not done in accordance with law. Shri Ruprah submitted that while dealing with the matter, learned Writ Court has placed reliance on the 4 judgment of Full Bench of this Court in the case of State of M.P. and others Vs. Mahendra Kumar Saraf and others - 2005(3) MPLJ 578 but in this judgment the question considered was with regard to presence of the Councillors at the time of presentation of the motion for No Confidence before the Collector and requirement of their personal presence for the verification and signatures. It is emphasized by Shri Ruprah that in this case, the appellant is not challenging the fact with regard to presence of Councillors but is only challenging the manner in which enquiry required for identification of the Councillors and enquiry as to whether they are elected Councillors or not is undertaken. It is stated that judgment in the case of Mahendra Kumar Saraf (Supra) was wrongly applied by the learned Writ Court and therefore, referring to the meaning of the word "satisfaction" and emphasizing that in the facts and circumstances of the case, recording of satisfaction of the Collector in the manner done, is not in accordance with law, Shri Ruprah sought for interference into the matter.
4. Shri Rahul Jain, learned Dy. Advocate General and Shri Rohit Jain, learned counsel who appears for the intervenors, took us through the proceedintgs held before the Collector on 23.7.2014 and again on 24.7.2014, the manner in which the satisfaction has been recorded by the Collector, as is evident from the Note sheets prepared, the requirement of sub section (2 ) of Section 47 of the 5 Act of 1962 and also referred to the affi davits and the identity card submitted by each of the 12 Councillors to say that the Collector has recorded the satisfaction correctly and in doing so, no procedural irregularity has been committed warranting reconsideration. Shri Rohit Jain, learned counsel placed reliance on the Full Bench judgment of this Court in the case of Mahendra Kumar Saraf (supra) and in the case of State of M.P. and another Vs. Manorama Gour - 2005(2) MPLJ 323 , the affi davits available on record and other aspects of the matter to say that the proceedings have been correctly held and therefore, there is no cause of concern or interference.
5. We have considered the rival contentions and from the record we find that the Municipal Council in question consisted of total 15 elected Members and it is seen that on 23.7.2014, 12 of the Councillors appeared before the Collector and submitted a written requisition for recall of the President. The order sheet of the Collector dated 23.7.2014 indicates that all the 12 Members appeared before the Collector, the Collector recorded their names and other particulars, took the proposal submitted by them along with the affi davits and photo identity cards given by them which is available on record as Annexure AS/2 to AS/13 filed by the intervenors and after obtaining the signatures of all the 12 Councillors in the right hand side of the order sheet, directed the Chief Executive Offi cer of 6 Municipal Council, Chhanera (New Harsud) to submit a report with regard to the following matters :-
(1) The total number of elected Councillors of the Municipal Council along with their names and other details ;
(2) The date on which the President of Municipal Council was elected, the date on which he took charge and other particulars with reference to the period of working of the President;
(3) The period for which the President has discharged the duties and the total period for which the President has discharged the functions of the Council till the date in question.
Thereafter, it was indicated that on receipt of the report, the question of considering the proposal shall be decided. Based on the communication sent, the Chief Executive Offi cer seems to have submitted a report on 24.7.2014 and the order sheet dated 24.7.2014 recorded by the Collector himself goes to show that on going through the report of the Chief Executive Offi cer, it is seen that the President was elected on 17.3.2012, he assumed charge of his offi ce on 30 th March, 2012 and as on date, he has completed a tenure of 2 years 4 months and 6 days. He has a tenure of 2 years 7 months and 24 days remaining. It was also found that prior to this proposal, no other proposal or proceeding for recall of the President was undertaken. It was also found 7 that there were 15 elected Councillors of Nagar Parishad Chhanera (New Harsud). Taking note of the same, the order sheet further indicates that the proposal was directed to be registered and thereafter, the Collector goes on to record his satisfaction as contemplated under the provisions of sub section (2) of Section 47 by saying :-
(1) that the President has completed 2 years of tenure;
(2) against President of the Nagar Parishad in question a proposal has been received for his recall which is signed and presented by 3/4th of the elected Councillors.
As the President has completed the tenure of two years and as the Collector finds that the proposal seems to be in order as required under Section 47(2), he records his satisfaction with regard to the proposal and directed for forwarding the same to the State Government for further action.
6. From the documents and material available on record, it is clear that the 12 Councillors appeared before the Collector on 23.7.2014, submitted their proposals along with affi davits and photo identity card and their signatures are available in the note sheet Annexure P/2. The Collector call for a report from the Chief Executive Offi cer and after being satisfied with regard to the proposal, the signatures of Councillors and other aspects of the matter, he sent the proposal. This is as per the requirement of sub section (2) of Section 47. In the case of Madan 8 Lal Narvariya Vs. Smt. Satya Prakashi Parsedia
- 2008(4) MPLJ 316 a Division Bench of this Court has taken note of the meaning of word 'satisfaction' as is contained in sub section (2) of Section 47 and the learned Court goes to say that 'satisfaction' would mean the act of satisfying or the state of feeling being satisfied with regard to certain things that are present. In fact, the learned Division Bench in para 20 deals with the matter in the following manner :-
"20. .... the word 'satisfaction' means the act of satisfying or the state of feeling being satisfied and the action of satisfaction contemplates adequate deliberation for acceptability of the conclusions. In other words, it means that before recording satisfaction, the concerned Authority must be convinced or persuaded to come to the conclusion."
7. Recording of the satisfaction by a person is a positive physical and mental act and when a question arises as to whether the person concerned has recorded the satisfaction properly or not, the Court of law exercising powers in a judicial proceeding is required to apply its mind on the procedure followed and from the material available on record has to record a conclusion as to whether subjective satisfaction arrived at by the authority fulfills the requirement as contemplated under law. It cannot be said as a matter of rule in all cases that 9 until and unless a particular procedure is followed by conducting enquiry, recording of satisfaction is not proper. Recording of subjective satisfaction and procedure followed would depend upon facts and circumstances of each case and there cannot be a straight jacket formulae, if we examine the procedure followed in this case,it would be seen that on 23.7.2014, 12 elected Councillors appeared before the Collector, they submitted a proposal along with their affi davits and photo identity card and the Collector on receiving the proposal, notes down the name of persons concerned and thereafter, gets a list of elected representative from the Chief Executive Offi cer, does certain verification based on the material available and records a satisfaction that 12 elected Councillors out of 15 have submitted a proposal. Now the appellant wants this Court to hold that this procedure was inadequate, the Collector should have conducted a detailed enquiry with regard to the identity of each of 12 Councillors who submitted the proposal. Except for saying so, the appellant or his counsel are not in a position to demonstrate before us that any of the Councillor has raised any objection or has come out with a case that the proposal has not been filed by him or that there is misrepresentation, forgery etc. On the contrary, proceedings of the Collector goes to show that 12 Councillors were present before him, their photo identity card were before the Collector and after verifying that they are the elected representatives 10 from the Chief Executive Offi cer, the Collector has recorded his satisfaction. The Collector is a responsible offi cer and while discharging the duties in accordance to the statute, an assumption has to be drawn that the Collector has done the proceeding in accordance with law, until and unless material is adduced to show otherwise. If the procedure followed by the Collector is analyzed, we are of the considered view that the recording of satisfaction done by the Collector based on the proceeding as is reflected from the note sheet dated 23.7.2014 and 24.7.2014 seems to be just, fair and reasonable and we hold that the subjective satisfaction arrived at is in accordance to the requirement of law. Merely because the Collector has not conducted any enquiry, it is not appropriate to hold that the satisfaction recorded by the Collector is not proper unless a prima facie case to hold so is made out from the material available on record. Record do show that on 23.7.2014 and again on 24.7.2014, it is the Collector himself who has gone through the papers for recording his satisfaction and merely because particular procedure as is canvassed by the appellant is not followed, we are unable to hold that the recording of satisfaction does not meet the requirement of law.
8. In the facts and circumstances of the case, we are of the considered view that a reasonable procedure has been followed, which does show that procedure adopted by the Collector is in accordance 11 with the requirement of law and on the basis of material adduced, we are unable to hold that record of satisfaction is not proper or does not meet the requirement of law. It is not necessary that the Collector should conduct a enquiry with regard to identity of persons as submitted on behalf of the appellant. The affi davits filed by the 12 Councillors and their photo identity card along with the report of the Chief Executive Offi cer are suffi cient enough to record the satisfaction about their identity and if the list and other documents submitted by the Chief Executive Offi cer also supports the same, the Collector can proceed in the matter by recording the satisfaction and in doing so as is done in this case, we are of the considered view that the Collector has not committed any error.
9. The Writ Court while dealing with the matter has gone into all aspects of the matter and found recording of satisfaction meets the requirement of Section 47(2) and has rejected the petition on due consideration.
10. We see no error in the same warranting any further reconsideration. Appeal being devoid of merits and substance is hereby dismissed.
(Rajendra Menon) (Alok Verma)
Judge Judge
mrs.mishra