Birbal Sharma etc. vs State of Haryana etc.

V.K. Jhanji, J.—This shall dispose of Civil Writ Petitions No. 10606 and 11094 of 1997.

In both these writ petitions, challenge is to No Confidence Motion dated 4.8.1997 which was carried out against Balraj Sharma, President of the Municipal Committee and proposal dated 24.9.1997 whereby Bhagwan Dass was elected as President of the Municipal Committee, Narwana.

In brief, the facts are that legislature of the State of Haryana introduced Haryana Act No. 3 of 1994 published in the Haryana Government Gazette amending Haryana Municipal Act, 1973 (in short the 1973 Act). Section 9 of the Principal Act was substituted with the following section :

"9. COMPOSITION OF MUNICIPALITIES :-

(1) The Municipalities constituted u/s 2A shall consist of such number of elected members not less than eleven as may be prescribed by rules.

(2) Save as provided in sub-section (3), all the seats in the municipality shall be filled in by persons chosen by direct election from the territorial constituencies in the municipal area and for this purpose each municipal area shall be divided into territorial constituencies to be known as wards.

(3) In addition to persons chosen by direct election from the territorial constituencies, the State Government shall by notification in the Official Gazette, nominate the following categories of persons as member of a municipality :-

i) not more than three persons having special knowledge or experience in municipal administration;

ii) members of the House of the People, and the Legislative Assembly of State, representing constituencies which comprise wholly or partly, the municipal area; and

iii) members of the Council of States, registered as electors within the municipal area;

Provided that the persons referred to in clause (i) above shall not have the right to vote in the meetings of the municipality;

Provided further that the Executive Officer in the case of a Municipal Council and the Secretary in the case of a Municipal Committee, shall have the right to attend all the meetings of the municipality and to take part in discussion but shall not have the right to vote therein."

The elections to the Municipal Committee, Narwana, were held on 28.12.1994. Results were declared on the same day. 17 persons were elected as members of the Committee. The Government of Haryana acting in exercise of its powers u/s 9(3) (i) nominated 3 members to the Committee. Master Narain Singh was member of the Lok Sabha in the year 1995 and Shri O.P. Chautana was Member of Legislative Assembly representing Narwana Assembly Constituency. In the elections of Lok Sabha as also of Legislative Assembly, Haryana held on 27.4.1996, S/Shri R.S. Surjewala and Jai Parkash were elected to the Haryana Legislative Assembly and to the Lok Sabha and resultantly, became members of the committee in terms of Section 9(3) (ii) of the 1973 Act.

On 17.2.1995, Birbal Sharma was elected as President of the Municipal Committee in the election held for the said post. On 15.7.1997, a requisition was moved by 14 members of the Municipal Committee to the Deputy Commissioner with regard to No Confidence Motion against Birbal Sharma, President of the Municipal Committee. Deputy Commissioner referred the matter to S.D.O. (Civil) Narwana. S.D.O. (Civil) issued notice dated 15.7.1997 convening a special meeting of Municipal Committee for consideration of No Confidence Motion. It appears that notices were not issued to the two elected representatives who were members of the Municipal Committee in terms of Section 9(3)(ii) of the 1973 Act. Challenging the notice, the present writ petitions were filed. While the writ petitions were pending notices of the meeting were sent to the elected representatives who were members of the Municipal Committee in terms of Section 9(3)(ii) of the 1973 Act. In the meeting held on 4.8.1997, No Confidence Motion against Birbal Sharma, President of the Municipal Committee, was carried out. As a result, meeting was held on 24.9.1997 to elect new President of the Municipal Committee and Bhagwan Dass was elected as President of the Municipal Committee. The writ petitions were accordingly amended challenging consideration of the No Confidence Motion and also the election of Bhagwan Dass as President of the Municipal Committee. Petitioners have challenged the consideration of No Confidence Motion primarily on the ground that the total strength of the Committee in terms of Section 21(3) of the 1973 Act was 22 and 2/3rd members could only move a motion for No Confidence Motion against the President of the Committee. According to the petitioners, 2/3rd came to 15 members. As per their case, requisition for consideration of No Confidence Motion was given by only 14 members and thus, was not a proper No Confidence Motion as it lacked requisite mandatory strength specified by Statute, i.e., Section 21(3) of the 1973 Act. Since the issue raised in these writ petitions was under consideration of the Full Bench of this Court, the present writ petitions were adjourned sine-die to await the decision of the Full Bench. The Full Bench in Raj Pal Chhabra Vs. State of Haryana and Others, has now authoritatively held that No Confidence Motion is required to be carried by not less than 2/3rd members i.e. elected members and the members specified u/s 9(3) (ii) and (iii). The Full Bench has further declared as ultra-vires the second proviso to sub-section (3) of Section 9 of the 1973 Act. In terms of the judgment of the Full Bench, only elected members and two nominated members, namely, Member of Legislative Assembly and Members of Parliament had a right to vote for considering No Confidence Motion. On the relevant date, there were 17 elected members and two members specified under clause (ii) of subsection (3) of Section 9, meaning thereby that only 19 members had a right to vote on No Confidence Motion. It is not in dispute that No Confidence Motion was carried out by 14 members which was more than 2/3rd of the members having right to vote. Resultantly, the challenge to the consideration and passing of No Confidence Motion is misconceived.

Faced with this situation, learned counsel for the petitioners contended that notices dated 15.7.1997 were issued only to 17 elected members of the committee and no notice was issued to the members appointed u/s 9(3)(ii), namely, R.S. Surjewala, Member Legislative Assembly and Jai Parkash, Member of Parliament. It is contended that the meeting held for consideration of No Confidence Motion against the President of the committee without issuance of notice to Member Legislative Assembly and Member of Parliament was no meeting in the eye of law. I do not find any merit in this contention as well. It is true that initially, notices had not been sent to Member Legislative Assembly and Member of Parliament, but admittedly later, notices had been sent to Member Legislative Assembly and Member of Parliament.

Mr. Raina then contended that 15 days notice was required to be sent, but in case of Member Legislative Assembly and Member of Parliament, notices issued were not of 15 days. It is contended that on this score alone, No Confidence Motion passed on 4.8.1997 and election of President held on 24.9.1997 are liable to be set aside. This contention too is without any merit. Neither the Member Legislative Assembly nor the Member of Parliament has made any grievance that the notices served on them were not sufficient to enable them to attend the meeting. There being no challenge to the notices on their part, no interference is called for.

Consequently, the writ petitions, namely, C.W.P. No. 10606 and 11094 of 1997 being without any merit shall stand dismissed.