HI6H COURT OF CHHATTIS6ARH AT BILASPUR W.P.fCl N0.4458 OF 2007 o POST FOR ORDER ON o^f -3-2008 ^'^^ ^^^ f PETITIONER Sitaram Gedekar Vs RESPONDENTS State of Chhattisgarh & others HI6H CQURT OF CHHATTIS6ARH ATBILASPUR W.P. (C) No.4458 OF 2007 PETITIONER RESPONDENTS Vs Sitaram Sedekar, S/o Late Shri Sriram Sedekar, Aged about 67 years, R/o Ward No.IO, Nawagarh, Tehsil Nawagarh, District; Durg, Chhattisgarh 1.5tate of Chhattisgarh, Through the Secretary, t5epartment of Environment and Urban Administration, Mantralaya, &.K.S. Bha»uan,, Raipur, Chhattisgarh.. 2. Collector, burg, District Durg, ChhattiS9arh. 3. Deputy Collector, Durg, District Durg, Chhattisgarh. 4. State Election Commission, Through the Chief Electoral Officer, State Election Commission, Raipur, Chhattisgarh. 5. Nagar Panchayat: Nawagarh, through the Chief Municipal Officer, Nagar Panchayat: Nawagarh, District: Durg, Chhatti.sgarh 6. Shri 6hagu>ani Tandon, S/o Shri Manglu, Aged about 40 years, Councillor Ward No.Ol, Nagar Panchayat; Nawiagarh, Distt; t)urg, Chhattisgarh. 7. Shri Vikasdhar Diwan, S/o Shri Kumardhar Diwan, Aged about 28 years, Councitlor Ward No.02, Nagar Panchayat: Nawagarh, Distt; Durg, Chhattisgarh. 8. Shri Asharam Dhruuv, S/o Mansharam Dhruw, Aged about 26 years, Councillor Ward No.3, Nagar Panchayat: Nawagarh, Distt: burg, Chhattisgarh. 9. Shri Santosh Tamrakar, S/o Shri Phaguram Tamrakar, Aged about 40 years, Councillor Ward No.4, Nagar Panchayat; Nawa9arh, t)istt: Durg. Chhattisgarh. 10. Smt. Jasbeer Kaur, W/o Harban Singh Khurana,aged about 51 years, Councillor Ward No.5, Nagar Panchayat; Nawa9arh, Distt; Durg, Chhattisgarh. 11.5hri Jahid Beg, S/oShri Habib Beg, Aged about 26 years, Councillor Ward No.7, Na9ar Panchayat: Nawagarh, Distt: &urg, Chhattisgarh. 12.5mt. Sammat Bai, W/o 5hri Nainudas Daharre, aged about 40 years, Councillor Ward No.8, Nagar Panchayat: Nawagarh, Distt; Durg, Chhattisgarh. 13.5hri Rekhraj Banjare, S/o An]uram. Page 2 of 11 Banjare, aged about 32 years, Councillor Ward No.9, Nagar Panchayat; Nawagarh, Distt; Durg, Chhattisgarh. 14.5hri Kanthu Yadav, S/o Shri Bedu Yadav.Aged about 25 years, Councillor Ward No.IO, Nagar Panchayat; Nawagarh, Distt; Qurg, Chhattisgarh. 15.5hri Chaitram 5hrivas, S/o Shri Sovind Shrivas, Aged about 60 years, Councillor Ward No.ll, Nagar Panchayat: Nawagarh, Distt: Durg, Chhattisgarh. 16.5hri Dwarika Prasad Boyare, S/o, aged about years, Councillor Ward No. Nagar Panchayat: Nawagarh, bistt: Durg, ChhattiS9arh. 17.5hri Shaktidhar Diwan, S/o Shri Banshidhar Diwan, Aged about 32 years, Councillor Ward No.15, Nagar Panchayat: Nawagarh, Distt: Durg, Chhattisgarh. Present: Mr. Sanjay K Agarwal with Mr. Saurabh Sharma & Mr. A.L. Singroul, Advocates. Mr. Sushil Dubey, Sovernment Advocate None for respondent No.4 [hAr. Arun Sao & Mr. Ali Asgar, Advocates Mr. Sanjay S Agarwal, Advocate For the petitioner. For respondent No.l & 3. For respondent No.5. For respondent No.6 to 17. OR b E R (Passed on _6LrtMarch, 2008) bhirendra Mishra. J 1. The petitioner is the directly elected President of Nagar Panchayat Nawagarh, whereas, respondent No.6 to 17 are the elected Councillors. The strength of ttie Nagar Panchayat is 15. 2. On 11.7.2007 respondent No.ll-Shri Jahid Beg moved an . application (Annexure P-2) before respondent No.Z-Collector, Durg for recalling the petitioner from the post of President, Nagar Panchayat Nawagarh claiming that 11 other Councillors havealso signed the application for recalling the petitioner. Respondent No.3-Deputy Collector vide memo of Annexure P-3 PageSof 11 summoned all the Councillors, who have signed the application of Annexure P-2 on 13.7.2007 in his office. 3. The Collector, vide memo dated 13.7.2007 (Annexure P-6) addressed to the Secretary, Local Administration and Development, sent a report under Section 47 (2)of the C.6. Municipalities Act, 1961 (for brevity 'the Act') mentioning therein that proposal of "recall against the petitioner" was received on 11.7.2007, 12 Councillors out of total 15 have signed the proposal, their signatures were duly verified. All the Councillors were duly identified by the Chief Municipal Officer'and their statements were duly certified. Proposal has been moved on the following grounds;- i. The 3/4 of total elected Councillors have signed the 'proposal for recall', which is proved from their statements. ii. Two years have already completed since the election of President; and iii. He is satisfied that the proposal moved against Shri Sitaram Sedekar is in order and the same has been duly verified. 4. The petitioner, being aggrieved by the proposal of Annexure P-6, has filed the instant petition under Article 226 of the Constitution of India on following grounds;- a) Motion of recall has not been validly presented by 3/4 of total number of elected Councillors. b) Proposal was never placed before the Collector for verification and recording his satisfaction, as required under Section 47 (2) of the Act. c) Statements were recorded by respondent No.S-Deputy Collector without any authority and that too before the time fixed i.e. at 11.00 a.m. on 13.7.2007. d) Objections of the petitioner with regard to the genuineness & correctness of the propoSAl tq_recall has Page4of 11 not been considered and the whole exercise was held without any notice to the petitioner and she was not given opportunity to be present during the course of verification. e) The Collector was duty bound tQ verify the genuineness of the proposal and he could not have entrusted the job of verification to the Deputy Collector, as Section 47 (2) of the Act does not empower the Collector to delegate his powers to the Deputy Collector. 5. Learned counsel for the petitioner submits that the Collector while exercising power under Section 47 (2) of the Act was duty bound to verify the genuineness of the proposal i.e. it was duly signed by not less than 3/4 Councillors of Nagar Panchayat and only thereafter he could have recorded his satisfaction and forwarded the proposal to the State Sovernment. He had no power to direct the Deputy Collector or any other authority for the purpose of verification of the proposal. The Deputy Collector issued notice to the Councillors summoning them to remain present before him for verification and the Chief Municipal Officer of Nagar Panchayat, Nawagarh has clearly stated in his return that he had verified each of the Councillors before the Deputy Collector. Thus, from the above it is clear that whole exercise of verification was in fact done by the Deputy Collector in presence of the Chief Municipal Officer and the same has not been done by the Collector. It was further argued that act of recall under Section 47 (2) of the Act has penal consequences and therefore, the same has to be construed strictly. 6. On the other hand, learned counsel for the respondents submitted that 12 Councillors out of total 15 have submitted the proposal under Section 47 of the Act in writing for recall of the petitioner. They were duly summoned in the presence of the Collector, their signatures wereduly verified and only Page 5 of 11 after recording statements of individual Councillor, the Collector has recorded his satisfaction that necessary requirements of Section 47 of the Act existsand forwarded the proposal. Memo of Annexure P-2 signed by 12 Councillors clearly mentions the grounds for recall and by this memo they have tabled the proposal for recall of the petitioner from the post of President of Nagar Panchayat, Nawagarh. It was further argued that under Section 47 (2) of the Act the only duty assigned to the Collector is that he shall send the proposal to the State Sovernment after satisfying himself and verifying that 3/4 Councilors, as specified in sub-section (1), have tabled the proposal. The proposal has been sent under Section 47 (2) of the Act for further action to the State Government. So far as the objection that the Councillors were summoned by the Deputy Collector for verification is concerned, the only requirement of Section 47 is that the Collector shouldsatisfy himself that the proposal has been placed by the Councillors who are not less than 3/4th of the total number of Councillors. 7. I have heard learned counsel for the parties. 8. Objections of the petitioner against the submission of proposal by the Collector vide Annexure P-6 are;- • Proposal is to be presented to the Collector by the 3/4th of the- total number of elected Councillors, however, there is no evidence that the Rroposal was submitted to the Collector by the Councillors and therefore, its presentation is not valid. • After receiving proposal, the Deputy Collector sent the memos to the Councillors, who have signed the proposal, and asked them to appear before him. Respondent No.5 has also stated in Para-4 of his return that all the Councillors we.re present in the office of Collector where Page6ofll he verified each of the Councillors before the Deputy Collector, Durg as the persons who have signed the application. Thus, the Collector did not verify the signatures of the Councillors present in the proposal personally, as required under Section 47 (2) of the Act. 9. Before adverting to the arguments advanced by learned counsel for the parties it would be appropriate To refer to Section 47 of the Act, which is reproduced herein below;- "47. Recalling of President. (1) Every President of Council shall forthwith be deemed to have vacated his office if he is recalled through a secret ballot by a majority of more than half of the total number of voters of the municipal area casting the vote in accordance with the procedure as may provided. 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 Collector. Provided further that no such process shall be initiated;- (i) within a period of two years from the date on which such President is elected and enters his office; (ii) if half of the period of tenure of the President elected in a by-election has not expired. Provided also that process for recall of the President shall be initiated once in his whole term. (2) The Collector, after satisfying himself and verifying that the three fourth of the Councillors specified in sub-section (1) have the proposal of recall, shall send the proposal to the State Sovernment and the State Sovernment shall make a reference to the State Election Commission. ~—- — ~ L-- p^ 1-^ffi ^ Page7ofll (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" 10. On analysis of Section 47 of the Act the requirements for initiating the process of recall are as under;- 1. Proposal is to be signed by not less than 3/4th of the totol number of elected Councillors. 2. The proposal must be presented to the Collector. 3. The process of recall cannot be initiated. a) Within a period of 2 years from the date on which such President is elected and enters his/her office. b) Unless half of the tenure of the President elected in a by-election has not expired. 4. Process for recall of the President shall be initiated only once in his/her whole term. 5. The Collector shall satisfy himself and verify that 3/4t of the total number of the elected Councillors have signed the proposal of recatt. 6. After such satisfaction and verification, the Collector shall send the proposal to the State Government. 7. The State Government shall make a reference to the State Election Commission which shall arrange for voting on the proposal of recall in the prescribed manner." 11. Now coming to the first submission of learned counsel for the petitioner that the proposal was not validly submitted before the Collector, as all the Councillors have not submitted the proposal to the Collector is concerned, the requirement of the above provision is that the proposal is to be signed by not less than 3/4th of the total number of elected Councillors and the proposal must be presented to the Collector. After receiving proposal the Collector has to satisfy himself and verify that 3/4th of the total number of elected Councillors have signed the proposal of recall. The fact that duty has f/ PageSofll been cast upon the Collector to satisfy himself after due verification makes the intention of the legislature very clear that it is not the requirement of law that all the Councillors, who have signed the proposal, should remain personally present at the time of presentation of the proposal to the Collector. The Full Bench of High Court of Madhya Pradesh in the matter of State of M.P. Vs. Mahendra Kumar Saraf elaborately considered the above objection and held thus:- 13. Whether the presence of Councillors who have signed the proposal, in person before the Collector is a legislative requirement or not depends upon the true construction and interpretation of proviso to sub- section (1) of section 47 of the Act which has been reproduced in earlier part of this order. If we scan and put apart the two aspects regarding si9ning and presentation of the proposal, it appears in the following form;- i. Signed by not less than 3/4t of the total numbers of the elected Councillors; and ii. Presented to the Collector. Had the phrase "and presented to the Collector" as used in the closing part of the proviso, been placed immediately after the word signed", then the shape of this proviso would have been as under;- "Provided that no such process of recall shall be initiated unless a proposal is signed (and presented to the Collector) by not less than 3/4th of the total members of the elected Councillors." 14. Had the language of the proviso been as mentioned above, it would have meant that the proposal should not only be signed by not less than 3/4th of the total number of the elected Councillors but it should also be A. • 2005 (3) JLJ 251 Page 9 of 11 presented by them to the Collector. But this is not the case as we find from the language used by the Legislature in the proviso. 15. In view of the aforesaid reconstruction of the proviso to sub-section (1) of section 47, we are of the firm view that the two requirements of signing and presenting the proposal as provided in the proviso, are different and it is not the requirement that presentation also should be by not less than 3/4+ of the total number of the elected Councillors." I am in respectful agreement with the above view of the Full Bench of the High Court of M.P. and the argument advanced by learned counsel for the . petitioner that presentation of proposalwas invalid cannot be accepted. 12. So far as the second argument advanced on behalf of the petitioner that the Collector did not verify the contents of the proposal submitted by the Councillors personally is concerned, in the memo of Annexure P-6, a report under Section 47 (2) of the Act sent to the State Government, the Collector has mentioned that preliminary enquiry was got conducted, signatures of 12 Councillors out of 15 were duly proved, Councillors we.re got identified by the Chief Municipal Officer and the contents of the Councillors were also verified by recording statement in person and therefore, he is satisfied that the necessary con^jtions, as required under Section 47 (2) of the Act, for tabling 'recall of the petitioner' exists. 13. The question for consideration is whether verification of signatures by the Collector requires personal presence of the Councillors. According to the opinion of this Court, the only duty cast upon the Collector is to satisfy himself about the veracity of the proposal that the same has been in facj^ submitted by not less than 3/4th members of total etected Councillors. The satisfaction is to be recorded on the basis of verification. Section no where mandates any particular mode of verification and therefore, submission of tearned counsel for the petitioner that the Collector was duty bound to personally verify from the concerned Councillors that they have put the signatures in fhe proposal, is not the intention of the tegislature. In the considered opinion of this Court it is the discretion of the Collector to select the mode of verification and only after such verification, if he is satisfied that the proposal has been submitted by requisite number of Councillors, then only it is to be forwarded to the State Government under Section 47 (2) of the Act. In the matter of Mahendra Kumar Saraf1 this aspect has also been dealt with thus;- "16.Now comes the question as to whether verification of the signatures requires presence of the Councillors. 17. Again we have to refer to the language used in section 47 of the Act. Sub-section (2) of this section requires that the Collector after satisfying himself and verifying that the 3/4th of the Councillors specified in sub-section (1) have signed the proposal of recall, shall send the proposal of the State Sovernment. The provision nowhere mandates that the verification shall be made in the presence of signatories. Need not to say that verification of signatures of,..signatories after procuring their presence may be one of the modes for such verification but it is not the only or exclusive mode, because nothing can be read in the proviso itself to This effect. Therefore, to put fetters on the discretion of the Collector in selecting the mode of verification by making the personal presence of signatories mandatory while the law is framed to give him more elbow room in Page 11 of 11 ..sy the matter would be clearly against the legislative intent." 14. In the instant case the Deputy Collector has sent the notice to the concerned Councillors calling upon them to remain present in the office of Collector, thereafter they were duly identified by the Chief Municipal Officer, their statements were recorded and after being fully satisfied the Collector has sent the proposal to the State Government. There is no evidence available on record that any of the Councillors, who submitted the proposal, denied his/her signature. No such document in the form of application or affidavit was submitted before the Collector neither by the said Councillors nor by the petitioner. No affidavit of the said Councillors has been filed before this Court denying the signatures in the proposal. On the contrary, the Councillors after due notice have appeared before this Court through their counsel and stated that the Collector forwarded their proposal afterdue verification as per procedure prescribed under the Act. 15. On the basis of aforesaid analysis, I am of the considered opinion that there is no illegality, infirmity or jurisdictional error committed by the respondent authorities, which has occasioned manifest injustice to the petitioner warranting interference in the exercise of extraordinary jurisdiction under Article 226of the Constitution of India. (a- 16. In the result, the petition has no merit, the same deserves to be dismissed and accordingly, it is hereby dismissed. 17. No order as to costs. _/^ '' . Roshan/- ^^ ^lSl