Dharmendra Patwa vs State of C.G.

Sunil Kumar Sinha, J.

These appeals are directed against a common order passed in W.P. (C) Nos. 887/2013 and 908/2013 on 12th December, 2013. By the impugned common order, the Writ Court has directed the Collector to immediately forward the proposal moved by 19 Councilors for recall of the President to the State Government under Section 47 of the Chhattisgarh Municipalities Act, 1961 (the Act or the Act, 1961). The facts, briefly stated, are as under:-

1.1. Appellant-Dharmendra Patwa is an elected President of Municipal Council, Manendragarh, District Korea, CG (the Council). The election had taken place in the year 2009. There are 21 Councilors in the Council. On 12-6-2013, 18 Councilors, including the private respondents/petitioners, moved an application under Section 47 of the Act, 1961 for recalling the appellant. Thereafter, on 17-6-2013 all of them filed affidavits in support of their application dated 12-6-2013.

1.2. On 28-6-2013, the Collector passed an order directing the Chief Municipal Officer (CMO) for holding a meeting of the Councilors on no confidence motion by giving them 10 days notice. The CMO, in compliance of the order of the Collector, issued notices to the Councilors informing them that the proposal of no confidence motion against the appellant was moved and a meeting would be convened on 10-7-2013 at 12.00 noon.

1.3. It is at this stage, two writ petitions namely W.P. (C) Nos. 887 and 908 of 2013 were filed by the two Councilors, respondent No. 4 herein, challenging the order dated 28-6-2013 passed by the Collector as also notice dated 29-6-2013 issued by the CMO to the Councilors.

1.4. It was contended before the Writ Court that the Collector, in view of the provisions of Section 47 of the Act, 1961, was not right in procedure while sending the matter to the CMO and CMO was also not having any authority to call a meeting for consideration of the application/proposal moved by the Councilors for recall of the President.

1.5. The Writ Court, elaborately discussing the provisions of Section 47 of the Act, 1961, and held that in light of the said provisions the action taken by the Collector and the CMO both were contrary to law. It was also held that filing of the application for recall by 18 Councilors on 12-6-2013, which was subsequent to filing of the similar application by 15 Councilors on 6-6-2013, was well in order and the same was maintainable as it cannot be held to be the second application in terms of Section 47 of the Act, 1961. The Writ Court held vide Para 15 of the impugned order that after receiving the application/proposal by 18 Councilors there was little scope for the Collector to retain their application and the Collector completely lost sight of the provisions of Section 47 of the Act, 1961 as the Collector was obliged after his satisfaction to immediately forward the application/proposal to the State Government for further action as provided under the law. The Writ Court, therefore, quashed the order dated 28-6-2013 passed by the Collector as also the notice dated 29-6-2013 issued by the CMO and issued following mandamus vide Para 21 of the impugned order:--

"21. The Collector is directed to immediately forward the application moved by 18 Councilors for recall of the President to the State Government and the State Government in turn is expected to proceed further in accordance with law."

Hence these appeals.

We have heard Counsel for the parties.

Mr. Prateek Sharma, learned Counsel appearing on behalf of the appellant, has not assailed the findings that the Collector and the CMO both had acted contrary to law. According to him, the two orders impugned by writ petitioners were rightly quashed by the Writ Court. He argued that the Writ Court was not justified in issuing a mandamus to the Collector to immediately forward the proposal moved by 18 Councilors to the State Government, as according to him, it was not possible unless the Collector satisfies himself in terms of sub-section (2) of Section 47 of the Act, 1961. He also argued that after filing of the application and affidavits on 12-6-2013 and 17-6-2013 out of 18 Councilors, 3 Councilors had withdrawn their support from the said application/proposal on 26-6-2013 and thereafter, the coram of 3/4th was not complete.

Learned Counsel for the respondents have argued that the action of the Collector and the contents of the relevant note-sheets would show that the Collector was fully satisfied as per Section 47(2), but he failed to send the proposal to the State Government, thereafter, a right mandamus was issued by the Writ Court About the withdrawal of support by 3 Councilors, they argued that once they had supported the proposal by giving their affidavits on 17-6-2013, and the Collector was satisfied in terms of sub-section (2) of Section 47, their later withdrawal would not make any difference and the Collector had no option except to send the proposal to the State Government.

We have perused the provisions of Section 47 as also the various note-sheets recorded by the Collector.

A perusal of the provisions of Section 47 would show that after presentation of the proposal for recall, signed by not less than 3/4th of the total number of the elected Councilors, the Collector, after satisfying himself and verifying that the 3/4th of the Councilors specified in sub-section (1) have signed the proposal of recall, shall send the proposal to the State Government and then further action shall be taken under the law.

In the instant case, there is nothing on record to show that the Collector had satisfied himself in terms of Section 47(2) of the Act, 1961. Sub-section (2) of Section 47 does not lay down the manner in which the Collector would satisfy himself about the proposal of recall. It is also not mentioned in sub-section (2) as to whether the satisfaction shall be recorded in writing or it may be without recording the same, but one thing is very clear that the Collector has not to work mechanically like a post-box and simply forward the proposal after its presentation by the required number of Councilors. When the law talks about satisfaction by the concerned authority, that casts a duty on the said authority to apply his mind in the facts and circumstances of the case and then take a decision in accordance with law. In the instant case, the Collector has not recorded his satisfaction in the concerned note-sheets. Even his conduct would also not show that he has applied his mind to the facts and circumstances of the case and was satisfied about the proposal of recall presented before him. All this would be clear from the order dated 28-6-2013 passed by the Collector in his note-sheet in this regard, we quote:--

Therefore, this is a case in which the act of the Collector does not show that he was satisfied about the proposal of the recall presented before him and the matter was pending for his consideration. The direction issued to the Collector by the Writ Court in the above terms does not appear to be correct because in case the Collector sends the proposal to the State Government as per order of the Writ Court, it shall amount to sending the proposal even without satisfaction of the Collector and thereby usurping the provisions of Section 47(2) of the Act, 1961.

Now the question arises as to whether the mandamus issued by the learned Single Judge, in the above form was justified?

In U.P. State Road Transport Corporation and another Vs. Mohd. Ismail and others, , the Supreme Court held that the Court cannot dictate the decision of the Statutory Authority that ought to be made in the exercise of discretion in a given case. The Court cannot direct the Statutory Authority to exercise the discretion in a particular manner not expressly required by law. The Court could only command the Statutory Authority by a writ of mandamus to perform its duty by exercising the discretion according to law.

In The Rajasthan State Industrial Development and Investment Corporation and Another Vs. Diamond and Gem Development Corporation Ltd. and Another, , it was held that writ of mandamus does not lie to create or establish a legal right, but to enforce the legal right that is already established. The said writ is equitable in nature and its issuance is governed by equitable principles. Promotion of substantial justice is the prime consideration for issuance of said writ. Discretion of Court in grant or refusal of said writ must be exercised on grounds of public policy, public interest and public good, taking into consideration various circumstances such as facts of the case, exigency that warrants exercise of said discretion, consequences of grant or refusal of writ, and nature and extent of injury that is likely to ensue by such grant or refusal.

In Comptroller and Auditor-general of India, Gian Prakash, New Delhi and Another Vs. K.S. Jagannathan and Another, , it was held that Article 226 is designedly couched in a wide language in order not to confine the power conferred by it on the High Courts only to the power to issue prerogative writs as understood in English. The High Courts exercising jurisdiction under Article 226 can issue "directions, orders or writs" so as to enable the High Courts to reach injustice wherever, it is found and to mould the reliefs to meet the peculiar and complicated requirements of this country. The High Courts have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion malafide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing, which such discretion has been conferred. In all such cases and in any other fit and proper case, a High Court can compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions, which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion. Reference was also made to Dwarka Nath Vs. Income Tax Officer, Special Circle D-ward, Kanpur and Another, , Hochtief Gammon Vs. State of Orissa and Others, , Mayor of Rochester Vs. Regina, (1858) EB & E 1024; King Vs. Revising Barrister for the Borough of Hanley, (1912) 3 KB 518, Padfield Vs. Minister of Agriculture, Fisheries and Food, (1968) AC 997 and Halsbury''s Laws of England, 4th Edition, Vol. I, Para 89.

It is thus clear, that normally, the Statutory Authorities cannot be dictated in the matter of their discretion, which ought to be exercised by them and the limit would be only to command the Statutory Authorities to perform their duty by exercising the discretion in accordance with law. However, in suitable cases in order to prevent injustice resulting to the parties concerned, the Court may itself pass an order or give directions, which the Government or the Public Authority should have passed or given had it properly and lawfully exercised its discretion.

In the instant case, the Writ Court has issued mandamus to the concerned Collector to send the proposal to the State Government immediately, which according to law was not possible without the satisfaction of the Collector in terms of Section 47(2) of the Act, 1961. We are of the view that instead of directing the Collector in the above manner, the Writ Court ought to have directed to act in accordance with law keeping in mind the entire provisions of Section 47 of the Act. Therefore, the above directions issued by the Writ Court cannot be sustained.

In the result, the directions issued by the Writ Court in Para 21 of the impugned order are modified and instead of directing the Collector to immediately forward the application/proposal moved by 18 Councilors for recall, we direct him to consider the said application in the prevailing facts and circumstances of the case and take a decision in accordance with the provisions of Section 47 of the Act, 1961.

The appeals are allowed to the extent indicated above. There shall be no order(s) as to cost(s).