Sarwan Singh vs State of Punjab and Others

Jawahar Lal Gupta, J.—The petitioner having been dethroned from the office of President, Municipal Committee, Hoshiarpur, has approached this Court through the present writ petition. He alleges that the proceedings of the meeting of the committee held on May 24, 1993 are vitiated as the Resolution was passed by show of hands and nosecret ballot had taken place. Is it required under the law?

The facts relevant for the decision of the case He within a narrow compass. The petitioner was elected as President of the Municipal Committee in 1992. On April 5, 1993, he received a requisition for "convening a meeting of the Municipal Committee, Hoshiarpur for considering the motion of No Confidence against him." The petitioner convened the meeting for May 24, 1993. In this meeting, the Resolution was duly moved. It is averred that Shri Moti Lal "Municipal Commissioner proposed that the members of the Municipal Committee, have been pressurised by Dr. Kewal Krishan, Minister for Local Self Government, Punjab in bringing the No Confidence Motion and that threats are being advanced to get the Municipal Committee dissolved if No confidence Motion against the petitioner is not carried out. It was also alleged that some members have also been bribed. He demanded that voting on the No Confidence Motion should be done through secret ballot as is done at the time of electing the President of Municipal Committee under the Punjab Municipal Election Rules. However, this proposal was not conceded and the No Confidence Motion as moved by Shri Malkiat Singh was declared to have been passed by show of hands by 19 members out of the 27 members of the Municipal committee, Hoshiarpur vide Resolution No. 111 dated May 24, 1993. Consequently, the petitioner was placed under suspension and the Resolution was sent to the Government for notifying his removal from the office of the President." In pursuance to the Resolution passed by the Committee, a Show Cause Notice dated August 3, 1993 was issued to the petitioner. He submitted his reply dated August 23, 1993, a copy of which has been produced on record as Annexure P-3. Initially, vide Order dated September 24, 1993, the petitioner was not only removed from the office of the President of the Committee but also from its membership. He challenged this order by filing Civil Writ Petition No. 11896 of 1993. Vide Order dated September 28,1993, a Division Bench of this Court directed the issue of notice of motion. Operation of the Order dated September 24, 1993 was also stayed by the Court. The petitioner avers that in pursuance to the orders passed by this Court, he took charge of the office of President. However, the Government substituted the impugned order by another order of even date and number by which he was removed from the office of President w.e.f. May 24, 1993. Aggrieved by this order, the petitioner has approached this Court through the present writ petition.

In the writ petition, it has been inter alia averred that the order has been passed mala fide. Dr. Kewal Krishan, Minister for Finance and Local Self Government, has been impleaded as respondent No. 3 and Mr. N.K. Arora, IAS, Principal Secretary, Department of Home Affairs has been impleaded as respondent No. 4. However, at the hearing of the case, the challenge to the impugned order has been made on two grounds only. Firstly, it has been contended that the procedure adopted by the Committee for passing the Resolution was wrong and illegal and secondly that the action was in violation of the provisions of Section 25 of the Act. The ground of malafide though raised in the writ petition, has not been adverted to at the time of the hearing of the case.

Three separate written statements have been filed. On behalf of the State of Punjab and Mr. N.K. Arora, Principal Secretary, Home Affairs (Respondent Nos. 1 and 4) the written statement has been filed by Mr. Gurbax Singh, Joint Secretary to Government Punjab. Besides certain preliminary objections, it has been inter alia averred that the Resolution was passed by the Committee after following the procedure as laid down in the Act and the Bye-laws. According to the respondents, there is no provision in the Act as well as in the Bye-laws "that a resolution of the Committee is required to be passed by secret ballot..,". It has been further averred that a written request duly signed by 18 members of Municipal Committee, Hoshiarpur was received for calling a meeting to pass no confidence motion against the petitioner. In view of the request having been made in writing, there was no need for carrying out a secret ballot. It has been further averred that the provisions of the Punjab Municipal Election Rules are not applicable in this case because for the removal of the President, the provisions contained in Sections 22 and 25 of the Act have to be followed. The normal practice for passing of a Resolution is by show of hands and the same procedure having been followed, no illegality can be said to have been committed. It has been further averred that by an inadvertent mistake, while passing the Order dated September 24, 1993, the petitioner was not only ordered to be removed from the office of the President of the Committee but also from its membership. However, the mistake was later on rectified and the original order was substituted. It has also been averred that the petitioner is politicising the matter out of the sheer frustration. According to the respondents, the impugned orders have been passed after giving the petitioner an opportunity to show cause and by following the prescribed procedure. Accordingly, the writ petition has no merit and deserves to be dismissed.

An affidavit has also been filed by Dr. Kewal Krishan, respondent No. 3 denying the allegations levelled against him in the writ petition. However, since the learned counsel for the petitioner has not raised any argument with regard to the allegations of malafide, the contents of this affidavit need not be noticed.

On behalf of the Municipal Committee, a written statement has been filed by Mr. Sat Pal, the Acting President. In this written statement, it has been inter alia averred that on May 24, 1993, a meeting of the Municipal Committee was held to consider the No Confidence Motion against the petitioner. The resolution was passed by raising of hands "under the circumstances as alleged in para 4 of the writ petition." From that date, the petitioner was placed under suspension and the Resolution was forwarded to the State Government. In paragraph 4 of the this written statement, it has been averred that "in the very beginning of the meeting some members raised objection (to) the passing of the Resolution by raising of hands for the reasons mentioned in Para No. 4 of the writ petition." In paragraph 13, it has been further averred that "there is procedure prescribed in the Municipal Act for electing President/Vice President of the Municipal committee through secret ballot. Since in the instant case No Confidence Motion against the petition was passed not be secret ballot but by raising of hands, the Hon''ble Court may direct the committee to consider afresh the No Confidence Motion against the petitioner through secret ballot and may also fix date for the same."

These are all the pleadings of the parties. The contentions raised by learned counsel for the parties may be considered.

Mr. Nasib Singh Gill, learned counsel for the petitioner has contended that in conformity with the principles of a democratic set up, a detailed procedure for election of the President and the Vice President of a committee has been laid down in the Punjab Municipal Election Rules 1952. He submits that in the interest of democratic principles, the same procedure should be followed even at the time of consideration of a motion of ''No Confidence''. Learned counsel has further contended that even if it is held that the procedure as prescribed under Rule 47 is not applicable in the present case, the action is still vitiated in as much as the meeting for considering the requisition was not held in accordance with the provisions of Section 25 of the Punjab Municipal Act, 1911. The claim made on behalf of the petitioner has been controverted by Mr. T.S. Doabia, who has appeared on behalf of respondent No. 2.

At the outset, the provisions of the Act, Rules and Bye laws relevant for the decision of the case may be briefly noticed. Section 20 provides for the election and appointment of President and Vice President. Section 21 lays down the term of office. Section 22 which is relevant for the decision of this case may be usefully reproduced. It reads as under:-

"22. Resignation of President and Vice-President:

Whenever a president or vice-president vacates his seat or lenders in writing to the committee his resignation of his office, he shall vacate his office; and any president or vice-present may be removed from office by the State Government on the ground of abuse of his powers or of habitual failure to perform his duties or in pursuance of a resolution requesting his removal passed by two-thirds of the members of the committee:

Provided that if a resolution requesting the removal of the President or the Vice President is passed by two third of the members of the committee the present or, as the case may be the Vice President shall be deemed to be under suspension immediately after such resolution is passed:

Provided further that before the State Government notifies his removal; the reasons for his proposed removal shall be communicated to him by means of a registered letter in which he shall be invited to tender within twenty-one days an explanation in writing and if no such explanation is received in the office of the appropriate Secretary to Government within twenty one days of the despatch of the said registered letter, the State Government may proceed to notify his removal."

The provisions regarding the conduct of business by the committees are contained in Sections 25 to 29. Learned counsel for the parties have referred to the provisions of Section 25. These are as under:-

"25. Times of holding Meetings - (1) Every committee shall meet for the transaction of business at least once in every month at such time as may, from time to time, be fixed by the bye-laws.

(2) The President or, in the absence or during the vacancy of his office or during his suspension u/s 22 a vice-president may, whenever he thinks fit and shall on a requisition specifying the purpose of the meeting made in writing by not less than one fifth of the members of the committee, convene either an ordinary or a special meeting at any other time.

(3) If the president or the vice-president, as the case may be, fails to call a meeting of the committee within a period of fourteen days from the date of receipt of requisition, the members who had signed the requisition may convene a meeting of the committee in accordance with the bye-laws of the committee within a period of thirty days of the making of such requisition and notwithstanding anything contained in this Act such meeting shall be deemed to be a validly convened meeting:

Provided that no business other than that specified in the requisition shall be transacted in such meeting and the quorum for such a meeting shall be as provided for a special meeting under Sub-section (1) of Section 27."

Section 31 provides for the framing of Bye-laws. A perusal of this provision shows that every committee can frame bye-laws consistent with the Act and the Rules for regulating the manner in which the meeting shall be held and the conduct of proceedings of those meetings. Section 32 of the Act authorises the Deputy Commissioner to suspend the execution of any resolution or order of a committee or to prohibit doing of any act etc. by an order in writing. Section 240 of the Act empowers the State Government to frame Rules to carry out the purposes of the Act.

In exercise of the power u/s 31, Bye-laws have been framed by the committee laying down inter alia the time and place of meeting, the manner in which the notice of the meeting shall be given and regarding the conduct of meetings. Bye-laws 25 and 26 to which a reference has been made by learned counsel for the parties provide as under-

"25. Every motion, resolution or amendment voted on shall be put to the meeting both for and against.

Proviso :- Nothing in this and the following bye-laws shall effect the provisions of the Rules for the election of the President and Vice President in force for the time being.

Unless a poll is demanded by any member present at the meeting, a declaration made at the meeting by the Chairman that a motion, resolution or amendment has been carried or lost shall be sufficient warrant for making any entry to that effect in the minutes. If a poll is demanded by any member present, it shall be taken by show of hands and the results of such poll as declared by the Chairman shall be deemed to be the resolution of the committee; provided that the name of any member dissenting from any resolution of the committee shall be recorded in the minutes. Any members who wishes to get his dissenting note recorded will do so on a separate paper and not in the minute book which shall be retained in Municipal Record."

A perusal of Section 22 shows that a President of a committee can be removed from office either on the ground of abuse of his powers/habitual failure to perform his duties or in pursuance to a resolution passed by two-thirds of the members of the committee requesting for his removal. In a case where a resolution is passed by two-thirds of the members of the committee, the President is by fiction of law deemed to have been placed under suspension. Furthermore, the State Government is required to give an opportunity to the person concerned to explain his position in writing before it proceeds to notify his removal. Admittedly, there was no violation of Section 22 in the present case.

A word about Section 232 is apt at this stage. This provision gives a general power to the Deputy Commissioner to suspend any order or resolution of a committee. In view of the specific provision contained in Section 22 of the Act relating to the removal of a President or a Vice President, it appears that the general provision contained in Section 232 of the Act shall have no application to a resolution of the committee regarding the removal or suspension of a President.

Learned counsel for the Petitioner, however, contends that provisions of Section 25 of the Act have not been complied with in the present case. Particularly he relies on the provision in Clause (3) to submit that 18 members of the committee having submitted a requisition dated April 5,1993 to the President, the meeting had to be called within 14 days. The President having failed to call the meeting, the members could have met on or before May 4, 1993. They did not actually hold the meeting and consequently, the proceedings of the meeting held on May 24,1993 are vitiated.

To put the record straight, it may be noticed that Mrs. Charu Tuli appearing for respondents Nos. 1 and 4 has stated that according to the record available with the Department, the requisition bears the date May 10, 1993 and not April 5,1993. She further states that in pursuance to this requisition, the meeting had been fixed for May 24, 1993 and was thus in complete conformity with the provisions of Section 25.

Leaving aside the fact that no challenge on this ground has been raised in the petition. It may be mentioned that Mr. Nasib Singh Gill learned counsel for the petitioner has very fairly produced a copy of Resolution No. 111 passed by the committee. This resolution which is in Gurmukhi script is placed on record as Mark ''A''. A perusal of this document shows that at Item No. 111, reference has been made to the requisition dated May 10, 1993 submitted by 18 members for convening a meeting of the committee to consider the motion of No Confidence against the petitioner. The document further shows that the requisition had been submitted by 18 members of the committee on May 10, 1993. The meeting was actually held on May 24, 1993. There was thus no violation of any provision of Section 25 of the Act. Consequently, without going into the distinction between ''call'' & ''convene'', on his short ground alone, the contention raised by the learned counsel is rejected.

This brings me to the consideration of the primary contention raised on behalf of the petitioner. It is no doubt correct that Municipal Committee are important instruments of local Self Government, Democratic Principles should be strictly observed and adhered to. However, matters relating to elections to the committees and the removal of members or office bearers relate to questions of policy. While it is the prerogative of the Legislature to legislate, the primary job of the Courts is to find out whether or not the Executive has acted in conformity with the laws which have been validly enacted. Even if it appears desirable that the secrecy of ballot should be maintained at all levels and in the conduct of all proceedings, no action or order can be quashed till it is found to have been passed in violation of the law. What is the position in the present case?

Rule 47 of the Punjab Municipal Election Rules, 1952 (hereinafter referred to as the Rules) lays down the procedure for the holding of a meeting and the service of notice in regard thereto. Rule 48 specifically provides that voting for the office of President and Vice President "shall be by ballot. Special papers shall be used for such voting, each bearing an official mark to be placed thereon by the Deputy Commissioner." Rule 49 lays down the detailed procedure for the election of the President and the Vice President. The Legislative policy is clear. u/s 240 of the Act, the State Government was competent to frame rules to carry out the purposes of the Act. While rules have been framed for the conduct of the ''election'' which has been defined to include even the co-option of a member, the rule making authority has in its wisdom not considered it necessary to frame any special rules for regulating the proceedings of a meeting convened to consider the motion for removal of a President or a Vice President. Still further, a detailed provision has been made in the bye-laws framed u/s 31 of the Act to govern the conduct of meetings. Bye-law 26 specifically provides that-if a poll is demanded by any member, it shall be taken by show of hands and the result of such poll as declared by the Chairman shall be deemed to be a resolution of the committee. Admittedly, this procedure was followed. 19 .members had voted in favour of the motion while 8 had voted against it. As a result, the motion was carried. There was no infirmity in the proceedings conducted by the committee. The provision having been followed in letter and spirit, it cannot be said that the resolution passed by the committee is vitiated. Consequently, the contention raised by the learned counsel cannot be sustained.

Mr. Gill has referred to the decision of this Court in Dharma Singh and Anr. v. State of Haryana 1973 PLJ 554 and Dharam Singh v. State of Haryana 1974 PLJ 365 and in Suresh Kumar v. Haryana State 1993 PLR 122. In Dharam Singh''s case, it was held that in the absence of a specific provision having been made for the conduct of meeting to consider the motion for No Confidence, the procedure as prescribed for election could be validly followed. This view was sustained by the Division Bench in the later decision viz. Dharam Singh and Anr. v. State of Haryana and Ors. 1974 PLJ 365. There is no quarrel with this proposition. However, these decisions cannot be read to mean that even though no specific procedure has been prescribed for passing of a motion of ''No Confidence'', yet the committee is bound to follow the procedure prescribed for election.

Before parting with the case, it may be mentioned that in paragraph 4 of the writ petition, it has been averred that Mr. Moti Lal had demanded secret ballot. This averment appears to have been accepted by Mr. Sat Pal who has filed the written statement on behalf of the Municipal Committee. However, there is nothing on record to. support it. It may be mentioned that even in the reply to the show cause notice filed by the petitioner, a copy of which has been produced as P-3 with the writ petition, such a statement was not made by the petitioner. In any event, since the provisions of Bye-law 26 are clear and were applicable to the proceedings, there was no warrant for any member to ask for secret ballot.

No other point has been raised.

Accordingly, there is no merit in this petition. It is dismissed. In the circumstances of the case, there would be no order as to costs.