(Sushri) Manorama Gour Vs State of M.P. and Another

@JUDGMENTTAG-ORDER

Dipak Misra, J.

Invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India the Petitioner, a Mayor of the Municipal Corporation, Sagar, has prayed for declaring Section 24 of the M.P. Municipal Corporation Act, 1956 (hereinafter referred to as ''the Act'') as ultra vires the Constitution of India.

The facts which are essential to be stated for the disposal of the case are that the Petitioner is the Mayor of the Municipal Corporation, Sagar having been elected on 28.12.99. The term of the Mayor is five years. An amendment to the 1956 Act was introduced by way of M.P. Nagar Palika Nigam Vidhi (Sanshodhan) Adhiniyam, 1999 which introduced Section 24. It is urged that Sub-Section 2 of Section 24 casts a responsibility on the Divisional Commissioner for satisfying himself and verifying that the 3/4th of the councilors specified in Sub-section (1) have signed the proposal of recall but the legislature has not provided any procedure which should be adopted by the Divisional Commissioner to record his satisfaction in regard to the correctness and genuineness of the signatures of the councillors in the regard to the proposal of recall of the Mayor. It is contended that specific procedure should have been provided to check the correctness of the signature of the councillors so as to avoid any kind of colourable exercise of power of the Divisional Commissioner.

According to the writ Petitioner if without proper verification and without knowing the correctness of the signatures of the councillors on the proposal of recall of Mayor, the proposal is sent to the State Government then the Mayor would suffer immensely and serious problems are likely to crop up including huge wastage of public money. Quite apart from the above various other facts have been asseverated with regard to the Petitioner''s recall which led him to file a writ petition before this Court wherein the learned Single Judge quashed the action of the Commissioner. It has also been brought on record that the order passed by the learned Single Judge has been assailed in L.P.A. No. 124/2003 wherein the Division Bench has passed an interim order. It is contended that the learned Single Judge has observed that there are certain lacunae in Section 24 and he has given certain guidelines. It is putforth that Section 24 of the Act is violative of principles of natural justice as no opportunity of hearing is provided to the Mayor before initiation of recall proceeding. That apart, the Commissioner has been conferred uncontrolled and unbridled power without there being any check or review. It is urged in the petition that in the absence of rules and guidelines for use of power u/s 24 of the Act the provision is ultra vires.

We have heard Mr. v. Choudhary, learned Counsel for the Petitioner and Mr. S.K. Yadav, learned Government Advocate for the Respondent-State.

At the outset we think it proper to state here that as far as the personal grievance of the Petitioner is concerned we are not going to advert to that inasmuch as the matter is subjudice in L.P.A. No. 124/2003. We shall only deal with the fact whether Section 24 or any part of it, is ultra vires the Constitution. Section 24 of the Act reads as under:

Section 24: (1) Every Mayor of a Corporation shall forthwith be deemed to have vacated his office if he is recalled through a secret ballot by a majority of more than of the total number of voters of the Corporation 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 Divisional Commissioner.

Provided further that no such process shall be initiated -

(i) Within a period of two years from the date on which such Mayor is elected and enters his office,

(ii) If half of the period of tenure of the Mayor elected in a by-election has not expired.

Provided also that process for recall of the Mayor shall be intimated once in his whole term.

(2) The Divisional Commissioner, 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 Government 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 may be prescribed.

It is submitted by Mr. Choudhary that the Mayor of the Corporation is elected u/s 9(1)(a) of the Act and as per Section 20 the tenure of his office is five years and when it is curtailed it has serious consequences to follow and, therefore, the provisions are to be strictly construed. At this juncture we may note with profit that in the M.P. Municipalities Act, 1961 Section 47 was introduced by Section 11 of 1999 Act with effect from 23.4.99. The said provision deals with recalling of the President of the Municipal Council. It is appropriate to reproduce the said provision:

"47. No-confidence motion against the President - (1) A motion of no confidence may be moved against the President at a meeting specially convened for the purpose under Sub-section (2) and if the motion is carried by a majority of more than three fourths of the elected Councillors constituting the Council, the copy of such motion shall be sent by the Collector to the State Government forthwith and the President shall cease to hold office from a date to be notified by the State Government within a period of 15 days from the date of receipt of motion and if the State Government fails to issue the notification within the stipulated time, the President shall be deemed to have vacated the scat on the expiry of the said period:

Provided that no such motion shall lie against the President

(i) within a period of two years from the date on which the President enters upon his office,

(ii) within a period of one year from the date on which previous motion of no-confidence was rejected:

(iii) if the remaining period of the Council is less than six months

(2) For the purpose of Sub-section (1), a meeting of the Council

shall be convened and presided over by the Collector or an officer

of Class I in case of Municipal Council and an officer of Class II in case of Nagar Panchayat as nominated by him in the following manner, namely:

(i) the meeting shall be convened if a notice signed by not less than half of the total number of elected Councillors of the Council alongwith the proposed non-confidence motion showing the reasons thereof is given to the Collector;

(ii) the notice of such a meeting specifying the date, time and place shall be despatched to the President and every Councillor ten clear days before the meeting;

(iii) the no-confidence motion moved under this section shall be decided through secret ballot.

The Constitutional validity of the aforesaid provision was called in question in the case of Smt. Pallvika Patel Vs. State Election Commission and others, . In the said case the Division Bench after referring to Article 243-R of the Constitution referred to the deeision rendered in the case of Mohan Lal Tripathi Vs. District Magistrate, Rae Bareilly and others, wherein it has been held as under:

Democracy is a concept, a political philosophy, an ideal practised by resorting to governance by representatives of the people elected directly or indirectly. But electing representatives to govern is neither a ''fundamental right'' nor a ''common law right'' but a special right created by statutes, or a ''political right'' or ''privilege'' and not a ''natural'', ''absolute'' or ''vested right''. "Concepts familiar to common law and equality must remain stranger to election law'' unless statutorily recognised." Right to remove an elected representative, too, must stem out of the statute as ''in the absence of a constitutional restriction it is within the power of a Legislature to enact a law or recall of officers'' its existence or validity can be decided on the provision of the Act and not, as a matter of policy. Therefore, the validity or otherwise of a no-confidence motion of removal of a President would have to be examined on applicability of statutory provision and non on political philosophy...

The Apex Court further said in paragraph 4 that:

Recall of elected representative is advancement of political democracy, ensuring true, fair, honest and just representation of the electorate. Therefore, a provision in statute for recall of an elected representatives has to be tested not on general or vague notions but on practical possibility and electoral feasibility of entrusting the power to recall to a body which is representative in character and is capable of projecting of the electorate...

... An elected representative is accountable to its electorate. That is the inherent philosophy in the policy of recall. For the President, his eletorate to exercise this right, is the the as it comparises representatives of the same constituency from which the President is elected. Purpose of Section 87-A of the Act is, to remove elected representative who has lost confidence of the body which elected him. It may be by people themselves or they may entrust their power through legislation to their representatives. In the Act, it is the latter, Members of the Board are elected from smaller constituencies. They represent the entire electorate as they are representatives of the people, although a smaller in body. The President who is elected by entire electorate when removed by such members of the Board who have also been elected by the people, is in fact removal by the electorate itself. Such provision neither violates the spirit nor purpose of recall of an elected representative. Rather, ensures removal by a responsible body, it cannot be criticised either as irrational or arbitrary or violative of any democratic norm...

Thereafter, the Division Bench referred to the decisions rendered in the cases of N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, ; Jyoti Basu and Others Vs. Debi Ghosal and Others, and the decision rendered in the case of Chandra Bhan Singh Vs. State of M.P. and others, and eventually came to hold in paragraph 9 as under:

9. By amending S. 47, the State has made further advancement by entrusting the power to recall to the voters. Even otherwise, it would be difficult for the Court to question the wisdom of Legislature for enacting the provision. In our view, it is pragmatic and practical.

It is relevant to state here that Section 47(2) of the M.P. Municipalities Act is parimateria to Section 24(2) of the Municipal Corporation Act, 1956. Submission of Mr. Choudhary is that Sub-section (2) of Section 24 of the M.P. Municipal Corporation Act, 1956 is without any guidelines and there is conferral of unbridled and uncanalised power on the Divisional Commissioner and hence, it offends Article 14 of the Constitution. The learned Counsel has drawn inspiration from the decision rendered in the case of A.N. Parasuraman Etc. Vs. State of Tamil Nadu, . In the aforesaid case in paragraph 5 the Apex Court held as under:

5. The point dealing with legislative delegation has been considered in numerous cases of this Court and it is not necessary to discuss this aspect at length. It is well established that determination of legislative policy and formulation of rule of conduct are essential legislative functions which cannot be delegated. What is permissible is to leave to the delegated authority the tast(k) of implementing the object of the Act after the legislature lays down adequate guidelines for the exercise of power. When examined in this light the impugned provisions miserably fail to come to the required standard.

Later on, in the said case their Lordship dealt with Tamil Nadu Private Educational Institutions (Regulation) Act, 1966 and expressed the opinion that the Act does not lay down any guideline for the exercise of the power by the delegated authority as a result of which the authority is in position to act according to his whims and, therefore, the provision: are discriminatory and arbitrary. It is vehemently contended by Mr. V.S. Choudhary, learned Counsel, that the Legislature itself has not laid down how the Divisional Commissioner would satisfy himself and verify that three-fourth of the councillors specified in Sub-section (1) of Section 24 have signed the proposal of recall. It is contended by him that in the absence of such guidelines it tantamounts to excessive delegation. The aforesaid submission, in our considered view is, without any substance. The subordinate legislation is derived from the enabling Act and it is fundamental that delegatee on whom such power is conferred has to act within the limit of authority conferred by the Act. It is well settled in law that neither Regulations nor Rules can be made to supplant the provision of the enabling Act but to supplement it. What is purported is the delegation has to be ancillary or subordinating legislative function or what is provided fill up the gaps. In the case at hand the enactment authorises the Divisional Commissioner to satisfy himself and verify about the signatures of the three-fourth councillors. It cannot be said that the provision made enabling the Divisional Commissioner in the statute is vague or uncertain. True it is, when the statute is vague and there is a facet of uncertainty it may tantamount to absence of any guideline, inviting frown of Article 14 of the Constitution, but when the statute provides a reasonable base and has conferred power on a high officer it cannot be said that it is without any guidance. While dealing with the constitutional validity of Section 29 of State Financial Corporation the High Court of Gujarat in the case of Alka Ceramics Vs. Gujarat State Financial Corporation and Others, held that the "speedy recovery" is to be accepted as having provided guidance. The same view was accepted by the Andhra Pradesh High Court in the case of M/s R.K. Industries Plot No. SPL 35, Industrial Estate, Kallur Vs. The A.P. State Financial Corporation and others, . In the case at hand the language used by the statute clearly and unequivocally states that the Divisional Commissioner after satisfying himself and verifying that three fourth of the councillors specified in sun-section (1) have signed the proposal of recall shall send the proposal to the State Government. Thus, there are two types of safeguards, namely, the Divisional Commissioner shall satisfy himself and verify the signatures. Thus, the conditions are conditions precedent before any action is taken. Needless to emphasize the satisfaction is to be recorded by him after due verification. It is neither vague nor uncertain. It cannot be said that details are to be provided how he would be satisfied. In our considered view the use of the term "satisfy himself" and "verify" provide adequate and sufficient safeguards and guidance and thereby the provision is not hit by Article 14 of the Constitution.

In view of our preceding analysis we do not find any merit in this writ petition and the same is dismissed in limine.