Jammu & Kashmir High Court
Makhan Lal vs Union Territory Of J&K And Others on 15 October, 2020
Equivalent citations: AIR 2021 (NOC) 623 (J.&K.)
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
WP(C) No. 1171/2020
CM Nos.3395 & 3396 of 2020
Reserved on : 01.10.2020
Pronounced on: 15.10.2020
Makhan Lal ...Petitioner(s)
Through :- Mr. Abhinav Sharma, Advocate
v/s
Union Territory of J&K and others ...Respondent(s)
Through :- Mr. S.S.Nanda, Sr. AAG
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT
1. The petitioner, claiming to be the duly elected President of Municipal Committee, Ramnagar, is aggrieved and has challenged Section 25 of the Jammu & Kashmir Municipal Act, 2000 ["the Act"] being ultra vires the Constitution of India. He also seeks a mandamus to the respondents to frame rules under the Act, more particularly, with regard to procedure and grounds for carrying out „no confidence motion‟ on the lines of Sections 7 and 30 of the Jammu & Kashmir Panchyati Raj Act, 1989 read with Rule 81 of the rules framed thereunder. The grievance of the petitioner, as projected in this petition, is two-fold:- 2 WP(C) No. 1171/2020
i) Section 25 of the Act, which makes provision for moving a motion of no confidence against the president or vice-
president, is ultra vires the constitution, in that, it gives arbitrary and unfettered powers to the members of the Council/Committee to throw out a duly elected President by sheer majority, whereas under the Panchyati Raj Act, the Sarpanch in terms of Section 7 and a Chairman of the Block Development Council, in term of Section 30, can only be removed on the specified grounds and after following the procedure, as laid down in Rule 81 of the Panchyati Raj Rules, 1989. The grievance of the petitioner is that in the absence of similar provisions providing for specific grounds for removal of the President and Vice-President of the Municipal Committee/Council, Section 25 confers wide and unbridled powers on the members to remove duly elected President or Vice-President by sheer majority.
ii) In the alternative, it is the plea of the petitioner that unless the rules in terms of Section 280 of the Act are framed by the government by way of delegated legislation, Section 25 of the Act cannot be operated or given effect to. In short, the argument is that Section 25, as it is and without framing of requisite rules laying down procedure for moving motion for no confidence, is unworkable.
2. In the backdrop of aforesaid submissions, Mr. Abhinav Sharma, learned counsel appearing for the petitioner, urges that this 3 WP(C) No. 1171/2020 Court must issue mandamus to the respondents to perform their statutory duty enjoined by Section 280 of the Act and frame Rules, so as to give effect to the provisions of Section 25. He further submits that the government while framing rules in terms of Section 280 of the Act must also specify the grounds on which motion of „no confidence‟ can be moved against the President or Vice President of the Council/Committee.
3. Per contra, Mr. S.S.Nanda, learned Senior Additional Advocate General appearing for the respondents, submits that Section 25 read with sections that follow it is a complete code in itself and elaborately provides for the procedure to be followed in the no confidence motion. He places strong reliance on the Bye-Laws framed by the government in terms of Section 34 of the Act and urges that the Bye- Laws lay down elaborately as to how a requisition/motion can be moved and also the authority who is competent to convene a meeting pursuant to such requisition/motion. He takes this Court to different provisions of the Act viz. Sections 25 to 32 in particular and submits that these provisions when read together lay down a complete procedure for moving „no confidence motion‟ for removal of the President or Vice President of the Council/Committee. He argues that Sections 25 to 32 do not require any aid of the rules to make them workable.
4. Having heard learned counsel for the parties and perused the record, the petition in hand raises following questions of seminal importance:-
i) Whether a writ of mandamus lies to direct the government/executive to frame rules under the Act? 4 WP(C) No. 1171/2020
ii) Whether the vires of an Act of legislature can be questioned by having reference to the provisions of some other legislation on the ground that absence of similar provisions in the impugned Act is arbitrary and violative of Article 14 of the Constitution of India?
iii) Whether Section 25, vires whereof is challenged in this petition, is unworkable in the absence of rules laying down procedure to be followed for no confidence motion, to be framed in terms of Section 280 of the Act?
Re-Question No.(i)
5. It is well settled principle of law that a writ of mandamus cannot be issued to the legislature to frame a law. This is in deference to the doctrine of separation of powers of the three pillars of the democracy. The legislature under the Constitution is entrusted the duty of framing legislations; executive is to ensure that the Acts of legislature are carried into effect and implemented in letter and spirit; judiciary is to see and ensure that the legislature does not transgress its boundaries and enact a law, which is not in consonance with the Constitution. It also has a duty to ensure that the executive performs its statutory duties. Although, the Indian Constitution does not strictly adhere to the doctrine of complete separation of power, as is the case under the United State‟s Constitution, yet all the three organs of the democracy have their separate spheres of activity. It is not that there is no overlapping whatsoever, yet self imposed restrictions and a bit of circumspection ensures that each one of the organs remain within their domain while performing their 5 WP(C) No. 1171/2020 duties enjoined by the Constitution. It is in deference to this doctrine, the constitutional courts are loath to issue mandamus to the executive to frame rules under the act of legislature.
6. Legislating laws whether by way of primary legislation or under a delegated legislation is essentially a legislative function falling squarely within the domain of the legislature and, therefore, the Courts are more than reluctant to issue mandamus compelling the legislature or the government to perform its legislative function. While the position of law in this regard is well established, yet in the case of delegated legislation it is to be seen as to whether the duty enjoined by the primary legislation (Parent Act) on the government to frame rules is mandatory or discretionary. If the duty cast on the government/executive is mandatory in nature, then any neglect or indolence on the part of the government/executive to perform its statutory duty would invite the wrath of mandamus.
7. Once it is demonstrated that the government/executive under a Statute or Act of legislature is enjoined a duty to frame rules to carry out its purposes and that there is corresponding right vested in the citizens or a class of citizens to have that duty enforced, writ of mandamus cannot be denied. The position, however, would be different, if the duty enjoined on the government/executive to frame rules is discretionary, in that, the government/executive has been left free to act in its discretion to frame rules, this Court would not issue mandamus to direct it to perform its delegated legislative function. A distinction, therefore, has to be drawn 6 WP(C) No. 1171/2020 on the basis of nature of duty that is cast on the government/executive to frame rules under the Act of legislature.
8. I am aware that the Supreme Court in the cases of State of J&K v. A.R.Zakki and others, 1992 Supp (1) SCC 548, Employees Welfare Association v. Union of India (1989) 4 SCC 187, A.K.Roy v. Union of India (1980) 2 SCC 710 and few others has categorically held that a writ of mandamus cannot be issued to the legislature to enact a particular legislation and same is true as regards the executive when it exercises the power to frame rules, which are in the nature of subordinate legislations. In paragraph No.51 of the Employees Welfare Association (supra), Hon‟ble the Supreme Court held thus:-
"There can be no doubt that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority."
9. In another seven-Judge Bench judgment in P.Ramachandra Rao v. State of Karnataka, AIR 2002 SC 1856, the Apex Court observed thus:-
"Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the legislature."
10. A Division Bench of this Court in the case of B.R.Manhas v. State of Jammu & Kashmir and others, 2015(3) JKJ 239 was also 7 WP(C) No. 1171/2020 confronted with the similar question and after referring to the judgment of the Supreme Court (supra) in paragraph No.20 held as under:-
"It needs to be pointed out that even though the petitioner in this case seeks issue of certiorari to quash the Rules of 2012, nothing against the legality of its provisions is alleged or stated. Petitioners grievance as a matter of fact is against repeal of the Rules of 2010 by virtue of section 13 of the Rules of 2012. The petitioner rather expects that this Court should issue a direction in the nature of mandamus directing the Government to restore the Rules of 2010. Such a prayer, however, we cannot allow while exercising the power of judicial review of this Court, because it is a settled principle of law that a writ of mandamus will not lie to compel legislature/Government to exercise a legislative function, primary or delegated, in a particular manner. Law in this regard is well settled by the Supreme Court in A. K. Roy v Union of India, AIR 1982 SC 710. We therefore, do not intend to accord consideration to the plea that we may direct the Government to restore the Rules of 2010. This Court, nonetheless, has the power to and must examine the administrative process leading to exercise of the power of delegated legislation under an Act and we hereafter, besides examining the administrative process leading to repeal of the Rules of 2010, proceed to examine whether the repeal of the Rules of 2010, in fact, has supplemented or supplanted the provisions of the Act."
11. On the conspectus of judicial opinion on the issue, it clearly emerges that our constitution, though does not propagate complete separation of power of three organs of the democracy, but it does demarcate the ambit of power and the sphere of activity of these organs. Subordinate legislations are framed by the executive by exercising delegated legislative powers conferred by the Statute, which is also known as rule making power of the government/executive. 8 WP(C) No. 1171/2020 Government/Executive has been vested with the power to enact the aforesaid legislations and to give effect to them. It is, therefore, appropriate and for the best interest of healthy democracy that each of the organs functions within its domain. It is inappropriate for the Court to issue a mandamus to legislate an Act as also to make a subordinate legislation in a particular manner.
12. In the instant case, Section 280 of the Act confers rule making power on the government for carrying out the purposes thereof. Without prejudice to the generality of the rule making powers conferred upon the government, certain specific subjects have been incorporated in the Section with respect to which the government is enjoined to frame rules. The procedure for moving a motion of „no confidence‟ against the President or Vice President of the Municipal Council is, however, not amongst the enumerated matters, but, as is rightly contended by Mr. Abhinav Sharma, the power to frame rules for laying down the procedure for moving a „no confidence motion‟ would definitely fall within the ambit of "to carry out the purposes of the Act".
13. The expression "The Government may frame forms for any proceeding of municipality and may make any rules consistent with this Act" clearly indicates that the legislature has given discretion to the government in the matter of framing of rules generally for carrying out the purposes of the Act and in particular with respect to the enumerated matters. I am aware that use of the word "may" does not always signify "discretion". It depends upon the context in which it has been used. In many cases, looking to the object of legislation and the context, the word 9 WP(C) No. 1171/2020 "may" has been read and understood as "shall". When we look to Section 25 and the Sections following it, which lay down elaborate procedure for moving and carrying out a "Motion of No Confidence", it becomes clearly discernible that the task of framing rules assigned to the government in terms of Section 280, in particular, with respect to „no confidence motion‟ is not mandatory but lies in the discretion of the government. This aspect, I shall elaborate a little later.
14. Suffice it to say that Section 280 of the Act does not contain a mandate to the government to necessarily frame rules providing for the procedure to be followed in „no confidence motion‟ in terms of Section 25 of the Act. Rather the Section confers a discretion on the government and if the government is of the view that Sections 25 to 32 of the Act read conjointly along with Bye-Laws framed by the government under Section 34 is a complete code in itself insofar as vote of no confidence motion is concerned, it is not necessary for it to frame specific rules virtually repeating the same procedure, as has already been provided under the substantive provisions and the Bye-Laws.
15. Viewed thus, my answer to the question No.(i) precisely is that the rule making power of the government under an Act of legislature is also an Act of subordinate legislation, referred to as delegated legislation. As is the mandate of law, this Court, in deference to assignment of different spheres of activity to the three organs of the democracy, is of the considered view that ordinarily a writ of mandamus does not lie to command the executive to perform its legislative function (rule making), which the constitution has exclusively assigned to it. 10 WP(C) No. 1171/2020 However, if a Statute confers upon the executive a mandatory duty to do a particular thing viz. framing of rules by way of subordinate legislation then this statutory duty, if not performed, would become amenable to the writ of mandamus. And a person, who has a corresponding right to have the mandatory duty cast on the executive performed, shall have the locus to seek mandamus. The position, however, would be different, if the duty to frame rules by way of delegated legislation is discretionary in nature.
16. There is nothing in the precedents cited before me to indicate that in no case the government or the executive can be directed by way of mandamus to perform its statutory duty to frame rules. Re-Question No.(ii)
17. In the instant case the vires of Section 25 of the Act has been challenged by the petitioner on the ground that it confers unfettered, unbridled and arbitrary power on the members of the Municipal Council to remove its duly elected President or Vice President. The contention of the petitioner is that under the Jammu & Kashmir Panchayati Raj Act, 1989 there are similar provisions for removal of Sarpanch and Naib- Sarpanch of a Halqa Panchayat (Section 7) and for removal of Chairman of the Block Development Council (Section 30) and in both these Sections specific grounds have been prescribed for moving of „No Confidence Motion‟. It is argued that a „no confidence motion‟ against the Sarpanch and Naib Sarpanch of a Halqa Panchayat in terms of Section 7 and against the Chairman of the Block Development Council, in terms of Section 30, can be moved only on the grounds of:- 11 WP(C) No. 1171/2020
(i) Misconduct
(ii) Neglect of duty
(iii) Any disqualification prescribed under Section 6 etc etc.
18. The argument of Mr. Abhinav Sharma is that Section 25 of the Act, does not provide any such ground to be established before a no confidence motion is moved against the President or Vice President of the Council and, therefore, gives arbitrary and unbridled power to the members to remove the President or Vice President without assigning or attributing any fault or misconduct.
19. Having given my thoughtful consideration to the contentions made by Mr. Sharma, I find no good ground to hold Section 25 of the Act as ultra vires the Constitution. Needless to say the Municipal Council is a democratic institution consisting of elected representatives of the people. As is clear from a reading of Section 10, a Municipality constituted under Section 3 of the Act shall consist of elected members, as may be determined by the government and the same shall not be less than seven. The members of the Municipality are chosen by direct election. Each Municipality/Municipal area is divided into wards and each ward is represented by one elected member. The electorate of the ward shall elect the member by adult franchise. The members so elected for a particular Municipality shall in terms of Section 22 of the Act, elect the President and Vice President. The President and the Vice-President of the Municipal Committee/Municipal Council are elected by the members in a democratic manner. Since the President and the Vice-President are not elected by direct election and are rather elected by the members chosen 12 WP(C) No. 1171/2020 by the electorate, it is always within the province of the members to remove him, if they loose confidence and trust in such President or Vice President, as the case may be. It is, thus, not necessary for the members moving no confidence motion against the President or Vice-President to indicate specific reasons. It is enough, if they show their no confidence and lack of trust in their elected President or Vice-President. The position under Panchayati Raj Act is totally different. The Sarpanch is elected by way of direct election by the voters of the Panchayat Halqa and, therefore, it is necessary that he is not removed by the members/Panches by sheer majority. It is in keeping in view the fact that a Sarpanch is an elected representative of the people, he is afforded a protection by providing that no confidence against him by the members of the Panchayat shall only be moved and convened on the specified grounds of misconduct, neglect of duty etc. Similar is the position with regard to the Chairman of the Block Development Council. The Chairman of the Block Development Council is elected by the electoral college comprising of Panches and Sarpanches of the Halqa Panchayat falling in the Block but in terms of Section 30 of the Act, he can be removed by a vote of no confidence carried out by a majority of not less than two-third of the total number of Sarpanches of Halqa Panchayat of the Block. It is because of this reason, a Chairman is afforded protection in the matter of no confidence motion by enumerating specific grounds to be demonstrated before a motion of no confidence against the Chairman is convened. Looking to the two legislations i.e. Panchayati Raj Act and the 13 WP(C) No. 1171/2020 Jammu & Kashmir Municipal Act, 2000, the distinction between the two is well discernible.
20. That apart, it is not within the province of this Court to issue direction to the legislature to frame a particular provision in a particular manner nor is there any warrant for the proposition that the Government should necessarily incorporate in Section 25 of the Act what is incorporated by the legislature in Sections 7 and 30 of the Panchayati Raj Act. Needles to say that there is always a presumption of constitutionality attached to the Act of legislature and a heavy burden lies on the head of a person, who chooses to assail it. The petitioner has not brought on record enough material to demonstrate that Section 25 of the Act, as it stands, violates Article 14 of the Constitution of India and, therefore, ultra vires.
21. Many democratic institutions function on the premise that it is the view of the majority that must prevail. It is not disputed before me that the petitioner was elected as President of the Municipal Council by majority from the electoral college consisting of members of the council. It was the faith and confidence of the majority of the members of the Municipality/Council that elevated the petitioner from member to President. If, at a given point of time, these members loose faith and trust in its President, they are free to move a vote of no confidence and in case the majority of elected members show their lack of confidence in its President, the motion of no confidence shall be carried and the elected President removed. I find nothing wrong in this regard, much-less, something which could be said to be against the spirit of Article 14 of the Constitution of India.
14 WP(C) No. 1171/2020Re-Question No.(iii)
22. This brings us to the most important question involved in this petition. With a view to appreciating the contention of Mr. Abhinav Sharma that provisions of Section 25 are unworkable in the absence of Rules framed under Section 280 of the Act, it is necessary to set out Sections 25 to 32, which read as under:-
"25. Motion of no confidence against President or Vice- President (1) A motion of no confidence against the President or Vice-President, may be made in accordance with the procedure laid down in the rules.
(2) Where a notice of intention to move a resolution requiring the President or Vice-President of the municipality to vacate his office, signed by not less than majority of its total elected members is given and if a motion of no-confidence is carried by a resolution passed by a majority of elected members present and voting at its general or special meeting, the quorum of which is not less than one-half of its total elected members, the President orthe Vice-President against whom such resolution is passed shall cease to hold office forthwith.
(3) Notwithstanding anything contained in this Act or the rules made thereunder the President or Vice-President of the municipality shall not preside over a meeting in which a motion of no-confidence is discussed against him. Such meeting shall be presided over by such a person, and convened in such manner, as may be prescribed and the persons against whom a motion of no-confidence is moved, shall have a right to vote and to take part in the proceedings of such a meeting.
(4) Motion of no-confidence under this section shall not be maintainable within one year of the date of his election to such office and any subsequent motion of no-confidence shall not be maintainable within the interval of one year of the last motion of no-confidence.15 WP(C) No. 1171/2020
26. Removal of President or Vice-President The Government may, at any time, by notification, remove a President or Vice-President from his office on the ground of abuse of his powers or of habitual failure to perform his duties:
Provided that no removal of the President or Vice- President shall be notified unless the matter has been enquired into by an officer, appointed by the Government and the President or Vice-President, as the case may be, has been given a reasonable opportunity of being heard.
27. Notification of elections and nominations. --
(1) Every election or nomination of a member and election of President and Vice-President of a Municipal Committee or Municipal Council shall be notified in the Government Gazette and no member shall enter upon his duties until his election or nomination has been so notified and until, he has made or subscribed at a meeting of the Municipal Committee or Municipal Council, an oath or affirmation of his allegiance to the Constitution of India in the following form, namely:--
"I, AB, having been elected (or nominated)
Member/President/Vice-President of a Municipal
Committee or Municipal Council of _________do
swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established and I will faithfully discharge the duties upon which I am about to enter.". (2) Every election of a member shall be notified in the Government Gazette by the Chief Electoral Officer and every election of a President and Vice-President shall be notified by the Government in the Government Gazette within thirty days from the date of declaration of the result of such election.
(3) lf any such person omits or refuses to take or make the oath or affirmation as required by sub-section (1) within thirty days of the date of notification of his election or nomination, as the case may be, his election or nomination, as the case may be, shall be deemed to be invalid, and his seat shall become vacant.
16 WP(C) No. 1171/2020
28. Time for holding meetings. --
(1) Every election or nomination of a member at such time as may from time to time be fixed by the bye-laws.
(2) The President, or in his absence during his incapability to attend to his duties or during the vacancy of his office, the Vice-President may ,whenever he thinks fit and shall, within a period of ten days from the date of receipt of a requisition signed by not less than one half of the total number of members of the municipality, convene either an ordinary or a special meeting at any other time :Provided that the requisition shall specify the purpose for which the meeting is to be held.
(3) If the President or the Vice-President fails to convene a meeting of the municipality within a period of ten days from the date of receipt of such requisition, the member who signed the requisition may request the officer nominated by the Government to convene the meeting.
(4) The officer appointed by the Government on receipt of request under sub-section (3) shall within a period of ten days of such request, convene the meeting.
29. Ordinary and special meetings.
(1) Every meeting of municipality shall be either ordinary or special.
(2) All business may be transacted at an ordinary meeting unless required by this Act or the rules framed thereunder to be transacted at a special meeting.
30. Quorum.
(1) The quorum necessary for the transaction of business at a special meeting of a municipality shall be one- half of the number of sitting members of the municipality.
(2) The quorum necessary for the transaction of business at an ordinary meeting of a municipality shall be such number or proportion of the members of the municipality as may, from time to time, be fixed by the bye-laws, but shall not be less than three:
Provided that, if at any ordinary or special meeting of a municipality, a quorum is not present, the Chairman shall adjourn the meeting to such other day, as he may think fit and 17 WP(C) No. 1171/2020 the business which would have been brought before the original meeting if there had been a quorum present, shall be brought before, and transacted at the adjourned meeting.
31. Chairman of meeting At every meeting of a municipality the President, or, in his absence or during the vacancy of his office, the Vice- President and if there be no President or Vice-President, then such one of the members, as the members present may elect, shall preside.
32. Vote of majority decisive Except as otherwise provided by this Act or the rules, all questions which come before any meeting of a municipality shall be decided by a majority of the votes of the members present, and incase of an equality of votes the Chairman of the meeting shall have a second or casting vote."
23. Sub Section (1) of Section 25 of the Act, as is apparent, does provide for a motion of no confidence against the President or Vice- President, to be made in accordance with the procedure laid down in the rules. Admittedly, the government has not framed any rules in this regard in exercise of powers conferred upon it under Section 280 of the Act, but does that mean that unless the rules are framed by the government laying down the procedure, the motion of no confidence cannot be moved against the President or Vice President of the Municipality/Municipal Council. The answer to this question, in my considered opinion, is no and emphatic no and I explain why. Sections 25 to 32 of the Act, when read together, do provide a complete code for moving and carrying out a motion of no confidence against the President or Vice President, as the case may be. Let us see the steps, which are required to be taken right from moving of the motion of no confidence to its culmination. 18 WP(C) No. 1171/2020
i) First step in this regard is to give a notice of intention to move a resolution/motion for no confidence against the President or Vice President of the Municipality/Council signed by not less than majority of total elected members.
ii) In terms of Section 28(2) of the Act, the President or in his absence or during his incapability to attend his duties, Vice President shall, within a period of ten days from the date of receipt of requisition, convene a special meeting. If it is requisitioned for a purpose other than for removal of President or Vice President of the Municipal Committee, it is required to be signed by at least one-half of the total members. However, requisition to move a vote of no confidence is required to be signed by not less than majority of total elected members of the Committee.
iii) Sub Section (3) of Section 28 of the Act further provides that in case President or Vice President, as the case may be, fails to convene a meeting within a period of ten days from the date of receipt of such requisition, the members who have signed the requisition may request the officer nominated by the Government to convene the meeting. It may be noted that the officer to convene the meeting in such situation has been nominated in the bye-laws. It is further noteworthy that such officer, who is approached on failure of the President or Vice President to convene meeting, shall 19 WP(C) No. 1171/2020 within a period of ten days of such requisition do the needful and convene the meeting.
iv) As is ordained in Section 31 of the Act, a general or special meeting of the Municipality convened under Section 28 of the Act, shall be chaired by the President and in his absence by the Vice-President. It further provides that if there is no President or Vice President then one of such members, as the members present may elect, shall preside the meeting. However, in terms of Sub Section 3 of Section 25 of the Act, President or Vice President of the Municipality, against whom motion of no confidence is to be discussed, shall not preside over such meeting. It, thus, comes out that, if motion of no confidence is against the President, the Vice-President shall preside over the meeting and if it is moved against the Vice-President, the President would chair the meeting. For any reason, if no confidence motion is moved against both, it is such member of the Committee, as is elected by the members present in the meeting, who shall preside over the meeting.
v) The quorum of meeting of no confidence shall be not less than one-half of the total elected members and if the resolution is carried by a majority of elected members present and voting in such meeting, the President or Vice- President against whom such resolution is passed shall cease to hold office forthwith.
20 WP(C) No. 1171/2020
24. Viewed, thus, I do not find any gap or lacuna, which is required to be supplied by the government by framing rules in exercise of its rule making power conferred by Section 280 of the Act. The Jammu & Kashmir Municipality (Procedure for Conduct of Meetings) Bye-Laws, 2005 framed by the government in exercise of power conferred by Section 34 of the Act lay down an elaborate procedure for holding ordinary, general or special meetings of the municipalities. For carrying out a motion of no confidence against the President or Vice President, as the case may be, what is required is to follow each step as is vividly laid down in Sections 25 to 32, which clearly provide how a requisition for no confidence is to be moved; how many persons must should sign it; who should convene the meeting and within what time; who shall preside over such meeting, quorum of the meeting and the requisite majority required for carrying out a motion of no confidence.
25. In the face of aforesaid provisions specifically made in the Act itself, I fail to understand how the rules, if any, framed under Section 280 of the Act, would be of any help to the petitioner or any person feeling aggrieved of no confidence motion moved against him or her. It is, thus, concluded that even in the absence of rules, the provisions of Section 25 of the Act do not become redundant and can be given full effect with the aid of Sections 26 to 32.
26. It may be noted that this petition, on the face of it, is premature, in that, there is nothing brought on record by the petitioner to indicate that any motion of no confidence has been moved or is contemplated to be moved against him. He appears to have rushed to the 21 WP(C) No. 1171/2020 Court on mere apprehension that the moment he loses confidence of the majority of members of the Municipal Council, he would be removed from his office by resort to Section 25 of the Act. This Court would have declined to entertain this petition on this score only but for the reason that some questions having wider ramification were involved, it was decided otherwise.
27. Be that as it is, this petition is found to be devoid of any merit and the same is, accordingly, dismissed. However, before parting, I would like to point out that though the rules, to be framed for providing procedure for moving a „no confidence motion‟ are in the discretion of the government, yet it is always in the fitness of the things, if the discretion is exercised and apprehensions entertained by stake holders are allayed. Anyway, I leave it for the respondents to take a call on this aspect.
(SANJEEV KUMAR) JUDGE Jammu 15.10.2020 Vinod Whether the order is speaking : Yes Whether the order is reportable: Yes VINOD KUMAR 2020.10.20 17:54 I attest to the accuracy and integrity of this document