Madhya Pradesh High Court
Smt. Naravadi Bai Choudhary And Ors. vs State Of M.P. And Ors. on 4 November, 2004
Equivalent citations: 2005(2)MPHT119
Author: Rajeev Gupta
Bench: Rajeev Gupta
ORDER S.L. Jain, J.
1. Being aggrieved by the order dated 11-2-2003 passed by learned Single Judge in Writ Petition No. 5940/2002, appellants have filed this Letters Patent Appeal under Clause 10 of the Letters Patent.
2. A thumb nail sketch of the case is thus:--
2.1. Respondent No. 7 Suresh Pathak was elected as President of Nagar Panchayat, Bareli, District Raisen on 4-1-2000. First meeting of Nagar Panchayat was held on 7-1-2000. Out of the 15 elected Councillors, 13 moved a proposal of recall of President under Section 47 of the Municipalities Act (hereinafter referred to as 'the Act').
2.2. Suresh Kumar Pathak submitted a representation to the Collector to the effect that five Councillors, who are the signatories of the proposal, have expressed their confidence in him. The affidavits of those five Councillors were also submitted. Collector summoned all the 13 Councillors who signed the proposal but out of them only 11 turned up and verified their signatures on the proposal. On 19-2-2000 two Councillors, Smt. Naravadi Bai Choudhary and Smt. Madhuri Gupta were summoned but only Naravadi Bai Choudhary turned up whose signatures were verified. Madhuri Gupta could not appear as she was pregnant. After being satisfied that out of 15 Councillors, 13 have signed the proposal, the Collector forwarded the proposal to the State Government on 22-2-2002. Subsequently, other three Councillors denied their signatures on the proposal and also denied the verification of signatures by the Collector. An application to this effect was also made by these Councillors but the Collector refused to take note of it. On 11-10-2002 the State Government made a reference to State Election Commission. The Commission notified the election programme on 8-11-2002.
2.3. The proposal was challenged in the writ petition. The case of respondent No. 7 in writ petition was that the proposal of recall was to be presented by all the signatories of the proposal before the Collector. Since the same was not done the presentation was invalid.
2.4. The learned Single Judge allowed the writ petition and held that the proposal of recall is required to be presented by requisite number of Councillors by the Collector.
3. We have heard Shri Prashant Singh, learned Counsel for appellant, Shri Mirgendra Singh, Counsel for respondent No. 7 and Shri R.S. Jha, Deputy Advocate General for the State.
4. Before adverting to the rival contentions raised by the learned Counsel for the parties, it is necessary to refer to Section 47 of the Act as substituted by amending Act No. 11 of 1999, which is relevant is quoted hereinbelow:--
"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 signed the proposal of recall, shall send the proposal to the State Govt. and the State Govt. 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 maybe prescribed."
5. On analysis of Section 47 of the Act, we find that following are the requirements for initiating the process of recall:--
(1) Proposal is to be signed by not less than 3/4th of the total number of elected Councillors.
(2) The proposal must be presented to the Collector.
(3) The process of recall can not be initiated :--
(a) Within a period of 2 years "from the date on which such President is elected and enters his/her office.
(b) Unless half of the tenure of President elected in a by-election has not expired.
(4) Process for recall of the President shall be initiated only once in his/her whole term.
(5) The Collector shall satisfy himself and verity that 3/4th of the total number of the elected Councillors have signed the proposal of recall.
(6) After such satisfaction and verification, the Collector shall send the proposal to the State Government.
(7) The State Government shall make a reference to the State Election Commission which shall arrange for voting on the proposal of recall in the prescribed manner.
6. Learned Counsel appearing for appellant first submitted that proposal was signed by 3/4th of the Councillors and it was not necessary that all the signatories of the proposal should have been physically present before the Collector at the time of its presentation.
7. This issue has been considered in Para 16 of the impugned order:--
"First proviso to Sub-section (1) of Section 47 of the Municipalities Act provides that "provided that no such process of recall shall be initiated unless a proposal is 'signed', by not less than 3/4th of the total elected Councillors and 'presented' to the Collector. Proviso leaves no room for doubt read with Sub-section (2) of Section 47 that the provision requires that proposal of recall has to be 'signed' by not less than 3/4th of the elected Councillors and 'presented' to the Collector. The word 'presented' is qualified by 3/4th Councillors. Proviso requires 'signing' and 'presentation' both by not less than 3/4th of the Councillors. Thus, the requisite number of Councillors must put the signatures on the proposal of recall and signatories must present it to the Collector. 'Presentation' can not be made by one of the Councillors or by a person who is not a Councillor. The 'signatories' comprising not less than 3/4th of the Councillors must also present it to the Collector. If it is not so done proviso to Section 47 (1) mandates that "no such process of recall shall be initiated" unless the aforesaid requirements exist. Section 47 of the Municipalities Act is pari materia to Section 24 of the Municipal Corporation Act. Same is the interpretation of first proviso of Sub-section (1) of Section 24 of the Municipal Corporation Act. In my opinion, proposal which is not 'presented' in the manner prescribed by the first proviso to Sub-section (1) of Section 47 of the Municipalities Act of first proviso to Section 24 (1) of the Municipal Corporation Act, no process of recall shall be initiated by the Collector or the Commissioner, as the case may be."
8. Whether the presence of Councillors who have signed the proposal, in person before the Collector is a legislative requirement or not depends upon the true construction and interpretation of proviso to Sub-section (1) of Section 47 of the Act which has been reproduced in earlier part of this order. If we scan and put apart the two aspects regarding signing and presentation of the proposal, it appears in the following form :--
(i) signed by not less than 3/4th of the total members of the elected Councillors; and
(ii) presented to the Collector.
Had the phrase "and presented to the Collector" as used in the closing part of the proviso, been placed immediately after the word 'signed', then the shape of this proviso would have been as under :--
"Provided that no such process of recall shall be initiated unless a proposal is signed (and presented to the Collector) by not less than 3/4th of the total members of the elected Councillors."
9. Had the language of the proviso been as mentioned above, it would have meant that the proposal should not only be signed by not less than 3/4th of the total number of the elected Councillors but it should also be presented by them to the Collector. But this is not the case as we find from the language used by the legislature in the proviso.
10. In view of the aforesaid, reconstruction of the proviso to Sub-section (1) of Section 47, we are of the firm view that the two requirements of signing and presenting the proposal as provided in the proviso are different and it is not the requirement that presentation also should be by not less than 3/4th of the total number of the elected Councillors.
11. Now comes the question as to whether verification of the signatures requires presence of the Councillors.
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 discreation 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. In the case of Gopal Yadav v. State of M.P. and Ors., 2002 (4) MPLJ 369, referred in the impugned order, the petitioner, who was Sarpanch of Municipal Council, Sabalgarh, challenged his recall (under Section 47 of the Act) by way of Writ Petition. The petition was allowed against which in LPA an objection was raised to the maintainability of the writ petition as the petitioner had an alternative remedy of filing election petition. The objection found favour with the Division Bench and the petition was dismissed as not maintainable. In this case, the question whether presentation of the proposal of recall should be made in person by the Councillors, was neither raised nor it was considered or discussed, therefore, any observation in this respect may not be of much help in deciding the above question.
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.
17. Shri Prashant Singh, Advocate and Shri R.S. Jha, learned Dy. Advocate General appearing for the State vehemently argued that the process of recall as envisaged in Section 47 above is nothing but an election process and once the election process had begun, the writ petition could not have been entertained. Our attention was invited to Article 243ZG of the Constitution of India which reads as under :--
"243.ZG. Bar to interfere by Courts in electoral matters.--
Notwithstanding anything in this Constitution,--
(a) "the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243ZA shall not be called in question in any Court;
(b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as it provided for by or under any law made by the Legislature of a State."
18. It is true that aforesaid Clause (b) provides that no election to any municipality can be called in question except by an election petition. True it is that the process of recall is also election. But the election process commences only when the Election Commission notifies the election. Forwarding of proposal by the Collector to the State Government can not by itself be termed as election process. Even if we give a liberal meaning to the word 'election process' the same will begin when the Election Commission declares schedule for election. Simply because the Election Commission directed finalisation of voter list, it can not be said that the election process had begun.
19. What was challenged in the writ petition was not the election but the initiation of process of recall on the grounds that the proposal was not presented by the requisite number of Councillors, that there was no proper verification and the 3/4th of the elected members did not sign the proposal out of their free will. These questions do not pertain to the election.
20. When the allegation is that the Collector failed in discharging his duties as provided by Section 47 above, the only remedy available to the aggrieved person may be to invoke the writ jurisdiction of this Court. It was not the election which was called in question, therefore, the contention of Shri Jha that the writ petition could not have been entertained is without any merit.
21. Prerogative writs are extra-ordinary remedies meant in those cases in which ordinary legal remedies are inadequate. Powers of the High Court under Article 226 are very wide. It is true that general power to issue high prerogative writs conferred by Article 226 can be controlled and limitation on its exercise can be imposed by a subsequent appropriate provision in the Constitution in that behalf but any such provision which put fetters in the exercise of the power has to be construed strictly. The bar put by Articles 243O and 243ZG of the Constitution can not be read in the manner so as to curtail the Constitutional power conferred on the High Court under Article 226 of the Constitution of India. In the present case as the election process has not yet begun, the bar under Articles 243O and 243ZG is not attracted.
22. Learned Dy, Advocate General submitted that the Election Commission had issued direction for preparation of voter list and registration officer was also appointed but we are of the firm view that preparation and revision of voter lists can never be a part of the process of election. The election process in fact begins only when Election Commission notifies the schedule for the election.
23. The proposal of recall and forwarding of the same by the Collector has been quashed on the ground that the proposal of recall was not presented by all the signatories of the proposal. After an elaborate discussion we have held that the proposal can be presented to the Collector by all or any of the signatory of the proposal, therefore, even if proposal was presented by one of the Councillors it was a valid proposal. Therefore, the order impugned is not sustainable. Accordingly the appeal is allowed and the impugned order passed in W.P. No. 5940/2002 on 11-2-2003 is set aside.