Rajasthan High Court - Jodhpur
Jairuparam Mali vs State & Ors on 12 January, 2012
Author: Arun Mishra
Bench: Arun Mishra
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B.CIVIL WRIT PETITION NO.297/2011
Jairuparam Mali
Vs.
State of Raj. & Ors.
Date of Order :: 12.01.2011
HON'BLE THE CHIEF JUSTICE MR.ARUN MISHRA
HON'BLE MR.JUSTICE PRAKASH TATIA
Mr.Sanjeet Purohit, for the petitioner. Mr.Anand Purohit, AAG for the respondent Nos. 1 & 2.
<><><> This writ petition has been filed by the petitioner assailing the vires of the provision in the Ordinance, 2010 amending the Rajasthan Municipalities Act. The Ordinance has been issued on 24th November, 2010 and has been published in the Official Gazette on 25th November, 2010, by which while introducing Clause 3, Section 53 of the Rajasthan Municipalities Act, 2009, as existed in the principal Act, has been deleted.
Section 53 of the Rajasthan Municipalities Act, 2009 provided for motion of no-confidence against Chairperson. The no-confidence motion could be moved against the Chairperson or the Vice-Chairperson of the Municipal Council on lapse of one year of the assumption of office by a Chairperson or a Vice-Chairperson. The said provision has been deleted which provided for bringing of no-confidence motion against the 2 Chairperson or the Vice-Chairperson.
It is submitted on behalf of the petitioner that the provision was for ensuring the accountability and transparency in the activities of Chairperson or Vice-Chairperson of concerned Municipality. The deletion of such provision is illegal, arbitrary and unconstitutional. Such a provision is necessary to remain on the Statute Book to ensure accountability of elected representatives. Otherwise, the action will go unchallenged, even if it is derogative to the public interest. It is also submitted on behalf of the petitioner that now, the post of Chairperson/Vice Chairperson of the Municipal Board has become immune from any process of removal by the other members of the Board even though they are not enjoying the confidence of requisite majority. The provision of no-confidence motion could not have been deleted. Learned counsel has placed reliance on the decisions of the Apex Court in (1) Bhanumati & Ors. Vs. State of Uttar Pradesh through its Principal Secretary & Ors. reported in 2010 SC 3796; (2) Mohan Lal Tripathi Vs. District Magistrate, Rai Bareilly & Ors, reported in 1992 (4) SCC 80 and (3) Ram Beti Vs. District Panchayat Raj Adhikari & Ors. Reported in 1998(1) SCC 680, in which it has been held that provision of no confidence motion is wholesome for the purpose and it is not unconstitutional nor does it infringe the principle of democracy or provision under Article 14 of the Constitution of India.
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Shri Anand Purohit, Additional Advocate General appearing on behalf of the respondent Nos. 1 & 2 submitted that it is open to the legislature to delete such provision. No case for interim stay has been made out.
The Apex Court in Bhanumati & Ors.. Vs. State of Uttar Pradesh through its Principal Secretary & Ors. (supra) has laid down that the provision of no-confidence motion is wholly compatible and consistent with the rejuvenated Panchayat contemplated in Part IX of the Constitution and is not at all inconsistent with the same. Democracy demands accountability and transparency in the activities of the Chairperson especially in view of the important functions entrusted with the Chairperson in the running of Panchayati Raj Institutions. Such duties can be discharged by the Chairperson only if he/she enjoys the continuous confidence of the majority members in the Panchayat. So any statutory provision to demonstrate that the Chairperson has lost the confidence of the majority is conducive to public interest and adds strength to such bodies of self Governance. Such a statutory provision cannot be called either unreasonable or ultra vires Part IX of the Constitution. The Apex Court further emphasised in Bhanumati's case (supra) that head of a democratic institution must be prepared to face the test of confidence. Neither the democratically elected Prime Minister of the Country nor the Chief Minister of a State is immune from such a test of confidence under the Rules of Procedure 4 framed under Articles 118 and 208 of the Constitution. The argument raised that the Chairperson should have the same immunity was held to be the arguments of desperation. Even the President of India is subject to impeachment proceedings under Article 61 of the Constitution, no one is an imperium in imperio in our constitutional set up. The Apex court has referred to the decisions given in Mohan Lal Tripathi and Ram Beti (supra). The Apex Court has laid down thus:
"84. Such a provision is wholly compatible and consistent with the rejuvenated Panchayat contemplated in Part IX of the Constitution and is not at all inconsistent with the same.
85. Democracy demands accountability and transparency in the activities of the Chairperson especially in view of the important functions entrusted with the Chairperson in the running of Panchayati Raj Institutions. Such duties can be discharged by the Chairperson only if he/she enjoys the continuous confidence of the majority members in the Panchayat. So any statutory provision to demonstrate that the Chairperson has lost the confidence of the majority is conducive to public interest and adds strength to such bodies of self Governance. Such a statutory provision cannot be called either unreasonable or ultra vires Part IX of the Constitution.
86. Any head of a democratic institution must be prepared to face the test of confidence. Neither the democratically elected Prime Minister of the Country nor the Chief Minister of a State is immune from such a test of confidence under the Rules of Procedure framed under Articles 118 and 208 of the Constitution. Both the Prime Minister of India and Chief Ministers of several States heading the Council of Ministers at the Centre and in several States respectively have to adhere to the principles of collective responsibilities to their respective houses in accordance with Articles 75(3) and 164 (2) of the Constitution.
87. The learned Counsel for the appellant therefore 5 compared the position of the Chairperson of a Panchayat with that of the President of India and argued that both are elected for five years and President's continuance in office is not subject to any vote of no-confidence. The post of Chairperson should have the same immunity.
88. This is an argument of desperation and has been advanced, with respect, without any regard to the vast difference in Constitutional status and position between the two posts. The two posts are not comparable at all by any standards. Even the President of India is subject to impeachment proceedings under Article 61 of the Constitution.
No one is an 'imperium in imperio' in our Constitutional set up.
89. In this matter various judgments have been cited by the learned Counsel for the appellant. Of those judgments only the judgment in Mohan Lal Tripathi v. District Magistrate, Rai Bareilly and Ors.; 1992(4) SCC 80 is on the question of the no- confidence motion against President of the municipality elected directly by the electorate. No- confidence motion was passed by the board against the said President and not by the electorate. That was challenged. This Court replelled the challenge and upheld the no- confidence motion holding that the recall by the Board amounts to recall by the electorate itself.
90. Upholding the aforesaid provision of no- confidence which is virtually a power of recall, this Court in Mohan Lal Tripathi (supra) held that the recall of the elected representative, so long it is in accordance with law, cannot be assailed on abstract laws of democracy.
91. Upholding the concept of vote of no-confidence in Mohan Lal Tripathi (supra) this Court further elaborated the concept as follows:-
..... Vote of no-confidence against elected representative is direct check flowing from accountability. Today democracy is not a rule of 'Poor' as said by Aristotle or of 'Masses' as opposed to 'Classes' but by the majority elected from out of the people on basis of broad franchise. Recall of elected representative is advancement of political democracy ensuring true, fair, honest and just representation of the electorate. Therefore, a provision in a statute 6 for recall of an elected representative has to be tested not on general or vague notions but on practical possibility and electoral feasibility of entrusting the power of recall to a body which is representative in character and is capable of projecting views of the electorate. Even though there was no provision in the Act initially for recall of a President it came to be introduced in 1926 and since then it has continued and the power always vested in the Board irrespective of whether the President was elected by the electorate or Board. Rationale for it is apparent from the provisions of the Act...."
92. In Ram Beti Vs. District Panchayat Raj Adhikari and Ors.; 1998 (1) SCC 680, this Court has upheld the provisions of Section 14 of U.P.Panchayat Raj Act, 1947 as amended by U.P.Act No.9 of 1994 which empowers members of the Gram Panchayat to remove the Pradhan of Gram Sabha by vote of no-confidence. This Court held that such a provision is not unconstitutional nor does it infringe the principle of democracy or provisions of Article
14. This decision was rendered in 1997, which is after the incorporation of Part IX of the Constitution."
In view of the aforesaid discussion of the concept of said wholesome provision in the Statute Book, prima facie there is force in the submission that such a provision is necessary to remain on Statute Book in order to help the office bearers accountability and make the functioning transparent. The head of a democratic institution must be prepared to face the test of confidence. The elected officer cannot be immune from the test. It is not shown that any provision left for removal of Chairperson or Vice Chairperson. Thus, without hesitation, we are of the opinion that operation of Section 3 of the Ordinance deleting Section 53 deserves to be stayed and is hereby stayed.
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Let return be filed by respondent Nos. 1 and 2, as prayed, within a period of 15 days from today.
Issue notice to the respondent Nos. 3 and 4. Requisites steps be taken by tomorrow. Process fee be paid by registered post with acknowledgement due. Notice be made returnable within two weeks.
List the matter after 15 days.
(PRAKASH TATIA), J. (ARUN MISHRA), C.J.
NK