Usha Manharan Shrivas vs Manish Nagraj

Heard Mr. Abdul Wahab Khan, learned counsel for the appellant. Also heard Mr. Sunil Sahu, learned counsel, appearing for respondents No. 1 to 4 / writ petitioners, Mr. Raghavendra Pradhan, learned Additional Advocate General, appearing for respondents No. 5 and 6, and Mr. Gagan Tiwari, learned counsel, appearing for respondent No.7.

The present appeal is presented against an order dated 10.10.2022 passed by the learned Single Judge in WPC No. 4289 of 2022.

The present appellant was not a party in that petition and therefore, has filed an application seeking leave to prefer an appeal against the aforesaid order.

The writ petition was filed by four Councillors of Nagar Panchayat, Sahaspur-Lohara, District Kabirdham, essentially, contending that though a requisition signed by ten Councillors was presented before the Collector / respondent No. 2 on 19.04.2022 to convene a No Confidence Motion against the president and though such Councillors had presented themselves before the Office of the Collector, no meeting has been convened in terms of Section 43-A of the Chhattisgarh Municipalities Act, 1961 (for short, the Act of 1961) to discuss the No Confidence Motion.

The learned Single Judge, in view of the provision contained in Section 43-A of the Act of 1961, without considering the merits of the case, disposed of the writ petition with a direction to respondent No. 2 to take up the proceedings initiated on the requisition submitted by the petitioners and conclude the same within a reasonable time, preferably within 30 days from the date of receipt of copy of the order.

It is submitted by Mr. Khan that since the No Confidence Motion was sought to be moved against the appellant, the appellant was a necessary party in the writ petition and as the impugned order has been passed in absence of the appellant, the same militates against the principles of natural justice and on that count alone, the impugned order is liable to be set aside and quashed. It is further submitted by him that it is doubtful as to whether the signatures appearing in the requisition are genuine and therefore, without ascertaining the same, no direction could have been issued for convening a meeting for No Confidence Motion.

Mr. Sunil Sahu, learned counsel, appearing for the writ petitioners, relying on the certified copy of the proceeding in Case No.202205080200069 dated 28.06.2022, submits that all the ten signatories of the requisition were present in the Office of the Collector and had duly recorded their presence by affixing their signatures in the order sheet. It is submitted that the Collector being absent on that date, their physical presence was recorded by the In-charge Officer. He submits that under Section 43-A(2) of the Act of 1961, the Collector is enjoined to convene a meeting forthwith on the requisition signed by not less than 1/6th of the total number of elected Councillors constituting the Council and the total number of Councillors in the instant case being 15, 9 Councillors represent more than 1/6th of total number of elected Councillors. He further submits that in the attending facts and circumstances of the case, the appellant is not necessary party and therefore, the application to grant of leave to appeal may not be allowed and the writ appeal may be dismissed.

Mr. Pradhan submits that it is a fact that the requisitionists had appeared, as demonstrated by the order sheet dated 28.06.2022, before the In-charge Officer, who had recorded signatures of the requisitionists.

Mr. Tiwari endorses the submission of Mr. Pradhan.

Section 43-A reads as follows:

“43-A. No-confidence motion against the President or Vice President. ― (1) A motion of no- confidence may be moved against the President or the Vice President by any elected Councillor at a meeting specially convened for the purpose under sub-section (2) and if the motion, is carried by a majority of two thirds of the elected Councillors present and voting in the meeting and if such majority is more than half of the total number of elected Councillors constituting the Council, the office of the President or the Vice President, shall be deemed to have become vacant forthwith a copy of such motion shall be sent by the Chief Municipal Officer to the Collector forthwith for filling up the Vacancy :

Provided that no such resolution shall lie against the President or the Vice-President within a period of ―

(i) two years from the date on which the President or the Vice President enters upon his office ;

(ii) one year from the date on which the previous motion of no-confidence was rejected.

(2) For the purpose of sub-section (1), a meeting of the Council shall be convened and presided over by the Collector or a Class-I Officer in case of a Municipal Council and a Class II Officer in case of Nagar Panchayat as nominated by him, in the following manner, namely :-

(i) the meeting shall be convened forthwith on a requisition signed by not less than one sixth of the total number of elected Councillors constituting the Council for the time being ;

(ii) the notice of such a meeting specifying the date, time and place shall be despatched to the President, Vice-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.”

In WA No. 284 of 2022, in the case of Satya Gupta v. State of Chhattisgarh and Others, decided on 10.08.2022, this Court had analyzed the provision of Section 43-A and had recorded in paragraphs 12, 13, 14, 15 and 16 as follows:

“12. A perusal of Section 43-A(1) as it stands now (without taking into consideration the proviso part) would go show that it consists of one sentence. In our considered opinion, in between the words "forthwith” and “a copy of such motion", the word "and" should have found place.

Reading of Section 43-A (1) excluding the proviso would go to show that:

(i) a motion of no confidence may be moved against the President or the Vice-President by any elected Councillor at a meeting specially convened for the purpose under sub-section 43-A(2);

(ii) The office of the President or the Vice-President shall be deemed to have become vacant forthwith when twin conditions, namely, if the motion is carried (a) by majority of two thirds of the elected Councilors present and voting in the meeting and (b) if such majority is more than half of the total number of elected Councilors constituting the Council, are satisfied;

(iii) Copy of motion is required to be sent by the Chief Municipal Officer to the Collector forthwith for filling up the vacancy.

Proviso to Section 43-A lays down that no such resolution shall lie against the President or Vice-President within a period of (a) two years from the date on which the President or the Vice President enters upon his office and (b) one year from the date on which the previous motion of no-confidence was rejected.

How the meeting is to be convened is delineated in Section 43-A(2) of the Act of 1961.

Section 43-A(2) provides that the meeting is to be convened forthwith on a requisition signed by not less than one sixth of the total number of elected Councilors constituting the Council for the time being.”

Therefore, in terms of Section 43-A(2), meeting has to be convened forthwith if the requisite number of councillors had signed the requisition.

In a matter of present nature, there may be disputed question of fact, such as requisition not being signed by the requisite number of Councillors etc. and therefore, in a writ petition filed, the person against whom a No Confidence Motion is sought to be moved, in our opinion, is a proper party, if not a necessary party.

In the light of the above, we allow the application for leave to prefer the appeal filed by the appellant.

A perusal of the order dated 28.06.2022 goes to show that the requisitionists had in person appeared before the In-charge Officer as the Collector was not available on that date and in the order sheet their signatures have been affixed and therefore, there is no dispute that requisite number of requisitionists had submitted the requisition. Therefore, the Collector was duty bound under provisions of 43-A(2)(i) of the Act of 1961 to convene a meeting forthwith. Instead, the orders dated 05.07.2022, 16.08.2022, 29.09.2022, 11.10.2022, 14.10.2022, 18.10.2022 and 21.10.2022 go to show that on a casual and routine manner issue was not dealt with by the Collector and he merely went on postponing the direction that was required to be issued. We are of the opinion that in the facts and circumstances of the case, no prejudice is caused to the appellant by the order passed by the learned Single Judge.

In the conspectus of facts, as noticed herein above, we find no good ground to interfere with the order of the learned Single Judge and, accordingly, the writ appeal fails and is dismissed. No cost.