Bombay High Court
Shivdas Govind Lanjewar vs Municipal Council And Ors. on 6 March, 1986
Equivalent citations: AIR1986BOM268, AIR 1986 BOMBAY 268, (1986) MAH LJ 216 (1986) MAHLR 708, (1986) MAHLR 708
JUDGMENT Parekh, J.
1. By this writ petition the petitioner seeks a writ quashing an order dated 20th December, 1985 passed by Shri R.T. Kharche, Sub-Divisional Officer, Bhandara, holding invalid a resolution dated 20th December 1985 removing the President, Nagar Parishad, Bhandara, from the Presidentship of the Municipal Council.
2. The undisputed facts are that in the Municipal Council, Bhandara, there are 38 seats for Councillors, excluding the Councillors who are to be co-opted. That respondent No. 3 Nandurkar was elected President of the Council. On 13th December 1985, 25 Councillors submitted a requisition to the Collector for convening a Special Meeting to move a Motion of No-confidence against the President, i.e. respondent No. 3. The Collector issued a notice dated 15-12-1985 for holding a Special Meeting on 20th December 1985 at 1 p.m. At this meeting 36 councillors assembled, one of them being a co-opted councillor. Out of these 36 Councillors, 10 refused to mark their presence and left the meeting hall leaving behind 26 Councillors including a co-opted councillor. The motion was then put to vote. As the co-opted Councillor had no vote he refrained from voting. The other 25 Councillors voted against the President. The Presiding Officer, who was a Deputy Collector, then gave a finding that the requisite strength (i.e. two-thirds of the total number of councillors) was not reached and hence the motion of no-confidence stood rejected. Being aggrieved by this decision the petitioner has filed the present petition challenging the order of the Presiding Officer.
3. The petitioner has contended that the provisions of Section 55 of the Maharashtra Municipalities Act, 1965 ('Municipalities Act' for short) required a resolution for a no-confidence to be passed by not less than two-thirds of the total number of Councillors, which means Councillors who are entitled to sit and vote. That since out of the total strength of 38 one of the Councillor had resigned earlier, the Council consisted of 37 members only. That two-thirds of this 37 would mean a voting of 24.66 per cent. That since 25 persons had voted, there was a clear majority of two-thirds, and the resolution was, therefore, valid. The respondents on the other hand have contended that it is true that out of the total 38 Councillors, one had resigned, but they have maintained that in computing the two-thirds of the total number of Councillors, the vacant seat must be taken into account. In other words, the voting must be not less than two-thirds of the total seats i.e. 38, in which case the requisite votes required would be 25.33. That as the voting by 25 members was less than 25.33 the rejection of the motion by respondent No. 2 was proper. The dispute, therefore, clearly turns on the interpretation of Section 55 of the Municipalities Act and more particularly as to what is meant by the words, "by a majority of not less than two-thirds of the total number of Councillors" appearing therein.
4. Now Section 55 reads as follows:
"55.(1) A President shall cease to be President, if the Council by a resolution passed by a majority of not less than two-thirds of the total number of Councillors (excluding the co-opted Councillors) at a special meeting so decides.
(2) The requisition for such special meeting shall be signed by not less than one-half of the total number of Councillors (excluding the co-opted Councillors) and shall be sent to the Collector.
(3) The Collector shall, within ten days of the receipt of a requisition under Sub-section (2), convene a special meeting of the Council:
Provided that, when the Collector convenes a special meeting, he shall give intimation thereof to the President.
(4) A meeting to consider a resolution under Sub-section (1) shall be presided over by the Collector or any other officer authorised by him in this behalf, but the Collector or such either (sic) officer shall have no right to vote.
(5) The co-opted Councillors present at any meeting mentioned in Sub-section (4) shall have no right to vote on any resolution relating to the removal of the President".
The word "Councillor' has been defined in Section 2(7) whilst the phrase "total number of Councillors" is defined in Section 2 Sub-section (49). The same are as under:
Section 2(7):
" 'Councillor' means a person who is duly elected or co-opted or nominated as a member of the Council."
"total number of Councillors" in relation to a Council, means the total number of the elected and the co-opted and nominated Councillors, if any, of that Council;
To analyse, the definition in Section 2(49) speaks of the total number of elected, co-opted and nominated Councillors. It would be inconceivable to think of a vacant seat being as co-opted or nominated. A vacant seat must remain a vacant seat. Hence the words 'total number of Councillors' must in this case mean, only 37 Councillors out of the total strength of 38 one having resigned earlier, apart from the co-opted members who have no right to vote. Since this meaning must now be imported in Section 55, it must follow that in computing two-thirds of the 'total number of Councillors' the number of Councillors to be taken into account would be 37. Further more since 25 have voted, the voting would come to 24.66, that is to say, it is more than two-thirds of the 'total number of Councillors'. The resolution would hence be valid.
5. Then again the word 'Councillor' is defined in Section 2(7) (reproduced above). Here again the definition makes it clear that it must refer to a person who is duly elected or co-opted or nominated as a member of the Council. Now if this definition is to apply to the word "Councillor" appearing in Section 55, it must lead to the same conclusion, namely, that the expression 'total number of Councillors' must mean the total number of Councillors who are entitled to sit and vote and not the total number of seats (some of which could be vacant), of which 'Councillor' to the word 'seats' would be doing violence to the language used in Section 2(49) and Section 2(7) of the Municipalities Act.
6. Then again, Sub-section (1) of Section 55 (reproduced above) also speaks of 'excluding the co-opted Councillors'. This expression must again indicate in relation to the Councillor, a person and not a seat, because there can be no question of a seat being co-opted. The argument, therefore, that in computing the two-thirds of "total number of Councillors" if is the total strength of the Council that must be taken into account, i.e. in this case 38 and not the actual number of Councillors who are entitled to sit and vote i.e. in this case 37 is untenable.
7. The scheme of the Municipalities Act also supports this position. Section 10 of the Act provides for division of municipal area into words and reservation of wards for women, Scheduled Castes and Scheduled Tribes and inter alia provides as follows:
"..........The Collector shall specify in the order the wards in which seats are reserved for women, but in so doing he shall ensure that such seats are reserved from time to time by rotation in different wards of the municipal area. He shall by a like order specify the Wards in which seats are reserved for Scheduled Castes or Scheduled Tribes, having regard to the concentration of population of those castes or, as the case may be, of those tribes, in any particular wards:"
Sub-section (2) of Section 10 reads as follows:
"Each of the wards shall elect only one Councillor".
Sub-section (4) of Section 10 reads as under:
"(4) Nothing in this section shall be deemed to prevent women or persons belonging to the Scheduled Castes or Scheduled Tribes for whom seats are reserved in any Council from standing for election and being elected to any of the seats which are not reserved."
The section itself makes a distinction between the words 'seats' and 'councillors' and hence in reference to the phrase "total number of councillors", appearing in Section 55, the meaning to be attributed must be in harmony with other sections. In other words, the contention that the words "total number of Councillors" appearing in Section 55 must mean total number of seats of the Council must be discarded.
8. Then again Section 19(1) reads as follows:
"(1) As soon as possible after the counting of votes in a ward if it is a by-election and in all the wards if it is a general election in a municipal area is over, the Collector shall publish the result in Official Gazette, as soon as conveniently may be.
If at a general election, the poll could not be taken in any ward or wards for any reason on the date originally fixed for the purpose but it was taken on that date in more than two-thirds of all the wards, the Collector shall, as soon as possible after the counting of votes in the said wards is over, publish the available results in the Official Gazette, and as regards the remaining ward or wards the Collector shall subsequently publish the results in the Official Gazette as and when the poll is taken and counting of votes therein is over. In determining two-thirds of the number of the wards, a fraction shall be ignored. After every general election, upon the publication of the results, or, as the case may be, the first publication of the results, in the Official Gazette, under this sub-section, the council shall be deemed to be duly constituted.
This section by a deemed fiction provides that if an election in two-thirds of the wards is completed and although the election of the other one-third of the wards is not completed, the Collector will proceed to publish the names of the persons elected from those wards and on the publication of the results of this two-thirds, the Council shall be deemed to be duly constituted. Hence a reference to the word 'Councillor' or 'Councillors' in relation to a Council must mean persons who are actually elected and actually entitled to sit and vote and not vacant seats. Hence if a two-thirds majority has to be ascertained, it must be with reference to persons who are entitled to sit and vote and cannot mean two-thirds of the total sanctioned strength (which may include vacant seats.)
9. At this stage it would be convenient to look at the provisions of Sections 51 and 52 which provide the mode in which a President is to be appointed. Sections 51(1) and 51(2) read as under:
"51(1). Every Council shall have a President, who shall be elected from amongst the Councillors, who are elected or deemed to be elected.
(2) Within twnety-five days from the date on which the names of Councillors elected to a Council are published or, as the case may be, first published, under Sub-section (1) of Section 19, in the Official Gazette, the Collector shall convene a special meeting of the Councillors for election of a President:
Provided that, such meeting shall not be held before the expiry of the term of office of outgoing Councillors as determined under Section 40."
Hence, if one were to read Section 19 along with Section 51, then one can envisage a case where an election of two-thirds of the strength of the wards has taken place whilst the election of the other one-third has not taken place, and of the Collector publishing the names of the two-thirds of the candidates so returned. As stated earlier by a deemed fiction provided by Section 19, these two-thirds would constitute the Council. Then again by reason of Section 51(2) the Collector would have to, within twenty-five days of the formation of this Council, convene special meeting of the Councillors for election of a President subject to the proviso in Sub-section (2). This must mean that two-thirds of the members who are actually elected and who have become entitled to sit and vote, would be entitled to elect a President irrespective of the fact that the election in the other one-third of the wards has not taken place. In other words the phrase "total number of Councillors" must mean councillors who are entitled to sit and vote and does not include vacant seats.
10. To hark back, Section 55 Sub-section (1) (reproduced above) of the Municipalities Act speaks of a special meeting to be held in which the Councillors are entitled to participate and vote, in accordance with Section 81 which prescribes a procedure for the meeting. On the text of Section 55, persons who are not Councillors cannot possibly participate in the meeting and/or show their preference for or against the President. Whether a Councillor has attended a particular meeting or not, Section 55 predicts of a possibility of their attending and participating in the special meeting. Hence Section 55 cannot possibly be construed vis-a-vis voting rights as referring to vacant seats, because the section speaks of giving a preference which can be given only by living men i.e. Councillors. Then again if vacant seats were to be counted the section could- be rendered inoperative. For instance in a 'C class municipality having 20 seats if 7 seats are vacant and the total strength is to be counted a no-confidence motion can never be passed. The section would be rendered inoperative. The section must hence necessarily be construed as to be operative, and not dead, in the sense, where a no-confidence motion can never be passed. The definition of the phrase "total number of Councillors" as defined in Sub-section (49) of Section 2, of the Municipalities Act is clearly intended to advance the purpose of the Act and not to freeze the same.
11. What emanates from this discussion is that in computing two-thirds of the "total number of Councillors", the phrase "total number of Councilors" must mean councillors who are entitled to sit and vote and not the sanctioned strength which may include vacant seats.
12. In Namdeorao v. Dulaji, 1969 Man LJ 74 (FB) a similar position arose where a motion of no-confidence against the President came to be passed by a special meeting under the provisions of Section 49 of the Maharashtra Zilla Parishads and Panchayats Samitis Act, 1961 and the question that arose was as to what was meant by the words, "total number of Councillors" used in Section 49 of the said Act. Five different shades of meaning were canvassed before the said Court, which Wjere as follows:
"(a) the total number of Councillors other than associate Councillors who would compose the Zilla Parishad if there is no overlapping of the Councillors elected under Section 9(1)(a), the Councillors co-opted under Section 9(1)(b), and the Councillors who become ex-officio members under Section 9 (1)(c);
(b) the total number of Councillors of the categories under Clauses (a), (b) and (c) of Section 9(1) who actually constituted the Zilla Parishad immediately after the general election of the Zilla Parishad and after the whole procedure under Section 9 is gone through:
(c) the total number of Councillors, other than associate Councillors who are entitled to sit at the time of the vote of no-confidence plus the number of vacancies then existing;
(d) the actual number of Councillors, other than associate Councillors, who are entitled to sit at the time of the motion of no-confidence;
(e) the actual number of Councillors present and voting at any meeting (the view negatived in Vishwasrao v. Vallabhdas, ;"
In dealing with these different shades, the Court held that the expression "total number of Councillors" could only mean those who are entitled to sit and vote and no more. In the present case, the petitioner's contention is akin to the one reflected in Clause (d) above while the respondents' contention is akin to one reflected in Clause (b) above. In dealing with the category (b), the Court observed as follows:
"31. So far as category (b) is concerned, the possible construction of the section there canvassed is that the expression "total number of councillors" means the total number of councillors under Clauses (a), (b) and (c) of Section 9(1) who became councillors and who actually constituted the Zilla Parishad immediately after the first constitution of the Zilla Parishad and after the whole procedure under Section 9 had been gone through. This contruction, however, was not canvassed by any of the counsel before us, but since it has been referred to in the order of the Division Bench we may say something about it. The construction in the first place seeks to fix once and for all the total number of councillors as on the date on which the Zilla Parishad is first constituted. In doing so, it necessarily gives a go-by to all subsequent changes that may take place in the constitution of the Zilla Parishad, and consequent fluctuation in the total number whereas we have shown that by Section 41 there is a direct provision made for filling in the casual vacancies and how they are to be filled in. The construction would suggest that the total number of councillors is fixed at the very first moment of time when the Zilla Parishad was constittued, but a position may arise in the course of the life of the Zilla Parishad when more than half of the original councillors go out on account of various causes such as we have already referred to and yet the total number would remain constant. For example in the present case after the election, the total number of councillors (excluding Kothavade) was 64 but if in the course of a year or two 32 members go out for any of the several causes specified still according to the contention the total number will be 64. That would make it impossible for the remaining 32 members ever to pass a resolution of no-confidence because they can never have a majority of the total number of councillors, i.e. 64. The contention, therefore, leads to absurd results. Such a construction should, therefore, be avoided. Similarly by the provisions of Section 41 new councillors would have to fill up casual vacancies, and if there were overlapping seats, the total would increase if some of the seats ceased to overlap but according to the contention it is only the total number as it existed on the date of its first constitution that must be looked at and not the number of councillors of which the Zilla Parishad may be composed at any subsequent time. By the operation of Section 41 number can change and yet the changes brought about by filling up those casual vacancies must necessarily be disregarded. That would make the provisions of Section 49(7) ineffectual. We do not think that such a construction which militates against another provision of the statute itself can be accepted and fortunately it is also not supported by any of the counsel appearing before us. The construction referred to in category (b), also, therefore, cannot be accepted."
While in dealing with category (d) the Court observed as follows in para 32:
"Then we come to the construction suggested on behalf of the petitioners by Mr. Rane and referred to in category (d) mentioned in the referring order. The construction canvassed is that the words "total number of councillors" can only mean the actual number of councillors other than associate councillors who are in fact entitled to sit and vote at any given time. We may say first of all that this construction is in consonance with the two definitions of "councillor" and "Zilla Parishad" in Section 2(9) and Section 2(35). As we have pointed out the definition of "councillor" refers to the state of facts as they exist after the Zilla Parishad is constituted and so does the definition of "Zilla Parishad" in Section 2(35) which defines "Zilla Parishad" to mean a Zilla Parishad constituted under Section 9 . It was clearly the intention by each to indicate that one must have regard to the actual state of facts as they exist i.e. have regard to the number of councillors as they exist at any given time, excluding of course the associate councillors who have no right to vote. This construction is also in consonance with the object and purpose of the Act and its spirit. Section 49(7) says that a no confidence motion shall be carried by a majority of the total number of councillors other than associate councillors. Since the Zilla Parishad is a democratic body and brought into existence with a view to promoting the development of democratic institutions normally also it would be the majority of a body consisting of its then members that would be entitled to vote upon any resolution and in our opinion, Sub-section (7) of Section 49 was enacted to indicate no more and no less than that. In other words, it was enacted to indicate that the resolution must be passed by a majority of the councillors who are on the date of the no-confidence motion entitled to sit in the Zilla Parishad and vote on the no-confidence motion. Any other construction would be doing violence not merely to the object and purpose of the Act but also as we have shown to one or more of the legal provisions. This is, therefore, a construction which commends itself to us as the construction most in consonance with the provisions of the Act and with the purpose and object of the Act."
Hence in the said matter the Full Bench accepted the proposition (d). These observations, therefore, support the view taken by us as to the meaning of the words "two-thirds of the total number of Councillors", as the number of councillors as they exist at any given time.
13. Mr. Manohar, the learned counsel for the respondents, contended that the Full Bench was dealing with the case where a motion of no-confidence was moved against President of the Zilla Parishad under Section 49(7) of the Maharashtra Zilla Parishads and Panchayat Samitis Act (No. 5 of 1962). That the constitution of the Zilla Parishad was not fixed but was variable. That in the Zilla Parishad if there were no female candidates elected in the general election, two women councillors would have to be co-opted. That if there was only one woman candidate elected, one more would have to be co-opted. That the Chairman of the Panchayat Samiti within the jurisdiction of the Zilla Parishad ipso facto became a Councillor of the Zilla Parishad. Furthermore if some of the Chairmen of the Panchayat Samitis were already elected Councillors of the Zilla Parishad, then there could be vacancies in the Zilla Parishad and those seals had again to be filled up. Thus there was no fixity in the total number of Councillors in the Zilla Parishad and it was fluctuating, i.e. membership could be added to or subtracted. That in so far as the Municipalities Act was concerned, that was not the position. Us constitution provided for a fixed number which could not be varied in any circumstance. That it is because of this difference, that in the Municipalities Act the words "total number of Councillors" have come to be defined in Section 2(49) whilst no such definition appears in the Zilla Parishad Act. That the inclusion of this definition of the phrase in the Municipalities Act and the omission in the Zilla Parishad Act must itself indicate, that a different meaning would have to be given to the words 'total number of councillors' appearing in the Municipalities Act, for, if the same meaning was to be given to the said words as was given to the words in the Zilla Parishad Act, there was no reason as to why this definition could not have been included in the Zilla Parishad Act. That it is because the number of Councillors was fixed under the Municipalities Act, that the "total number of Councillors" must mean the total strength, i.e. the total number of seats and not only persons who can sit and vote.
14. Now in so far as Mr. Manohar's argument is concerned, it may be stated that Section 9 of the Zilla Parishad Act provides the composition of the Zilla Parishad whilst Section 9 of the Municipalities Act provides the composition of the Municipal Council. A comparison of these two sections shows that but for the provision of seats concerning women, there is really no difference between the compositions of the two bodies. What is of importance is that both, under the Zilla Parishad Act and the Municipalities Act, the composition prescribes that there must be a minimum of 40 Councillors, but not exceeding 60. In other words, the structure of the law is the same. There is hence no magic in saying that merely because this phrase "total number of Councillors" is defined in Section 2(49) of the Municipalities Act, it must be given a different meaning because there is no such definition included in the Zilla Parishads Act. The definition in Section 2 (49) of the Municipalities Act is, as submitted by Mr. Bobde, the learned counsel for the petitioner, to crystallise a concept and no more. In view of this, the contention canvassed must be negatived.
15. In support of his argument Mr. Manohar relied upon the decision in Bhaskar v. S.G. Daithankar, wherein a similar line of argument was advanced and the view taken was that total number of Councillors in Section 55 of the Municipalities Act would mean the total sanctioned strength of the Council, i.e. total seats whether vacant or filled, and not only persons entitled to sit and vote. We have given our anxious thought to the same and with respect to the learned Judges we are unable to subscribe to the view taken by them and feel obliged to follow the view taken by the Full Bench in Re: Namdeorao v. Dolaji, 1969 Mah. LJ 74 regarding interpretation given to the construction of the said words.
16. What emerges from the discussion is that the expression "not less than two-thirds of the total number of Councillors" must mean two-thirds of the Councillors who are entitled to sit and vote and not the total strength which can include vacant seats. In this case two thirds of the total number of Councillors must mean two-thirds of the 37 which comes 24.33, and since 25 Councillors have voted, this must mean that the resolution has been passed by the requisite majority. The petitioner would hence be entitled to relief.
17. It may be added that at the hearing of this matter there was an argument as regards to what is to happen to the fraction. Mr. Manohar, the learned counsel for the respondents, pointed out that in the Municipalities Act three situations were contemplated: (a) where a fraction was to be ignored; (b) where a fraction needed to be rounded off and (c) where a fraction invited arithmetical precision. That Section 9 (2)(b), Section 19 Sub-section (1) and Section 63 Sub-section (1), Section 65 (1) and Section 9(a)(ii), Sections 82 (2) and 82(4) in terms provided that where there was a fraction it should be ignored. That Section 9 (2)(c) provided for rounding off the fraction. In so far as Section 55 was concerned, it only referred to two-thirds of the majority and nothing was said as to whether fraction should be ignored or rounded off. In other words, it invited arithmetical precision. Mr. Bobde the learned counsel for the petitioner, on the other hand urged that Section 55 contemplated the taking place of a special meeting. That Section 55 was an "activating" section, and what was to be computed were heads and not numbers as provided in the other sections to which the respondents' counsel had referred to. Mr. Bobde contended that if in such a case voting worked out to a fraction, then the principle that had to be followed was that if the fraction was less than one-half, it should be ignored or if the fraction was more than half, it should be rounded off to the next number. In support of this argument Mr. Bobde relied upon a decision in Koneru Ramakrishna v. Director of Medical Service . However, in the view we have taken of the matter it is wholly unnecessary to dilate on this aspect.
18. In the result the petitioner must succeed. Rule is made absolute. The respondents will pay the costs of this petition to the petitioner.