S.B.CIVIL WRIT PETITION NO. 3190/2008 (Goverdhan Lal Mogara Vs. The State of Rajasthan & others) Date of Order :: 28th April 2009 HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.A.K. Rajvanshy and Ms. Kausar Praveen, for the petitioner Ms. Pratishtha Dave for the respondents Mr. S.G. Ojha for the intervener … BY THE COURT: The petitioner had been holding the office of the Chairperson of Municipal Board, Gangapur District Bhilwara since his election on 22.08.2005; but a motion of no- confidence was declared passed against him in the meeting convened and held for the purpose on 01.03.2008. By way of this writ petition, the petitioner seeks to question the legality, validity, and correctness of the proceedings as adopted in convening the said meeting dated 01.03.2008 and the result of the meeting as declared. The said Municipal Board is composed of 20 elected members, 2 nominated members, and 1 member of legislative assembly of the area concerned (MLA). On 07.02.2008, 15 of its elected members submitted to the Collector of the District a written notice of intention of making a motion of no-confidence against the petitioner together with a copy of motion proposed 1 to be made. Upon receipt of such notice, as per the requirements of Rule 3 of the Rajasthan Municipalities (Motion of No-Confidence against Chairperson/Vice-Chairperson) Rules, 2007 ['the Rules of 2007'] that have been framed under the Rajasthan Municipalities Act, 1959 [‘the Act of 1959’] the Collector, Bhilwara proceeded to convene a meeting for consideration the motion at 11:00 a.m. on 01.03.2008; sent the requisite notices of the meeting to the concerned members on 13.02.2008; and nominated the Sub Divisional Officer, Gangapur as his nominee to preside over such meeting dated 01.03.2008. In the meeting on the said motion of no-confidence as convened and held on 01.03.2008 at the Meeting Hall of the Municipal Board, Gangapur, the motion of no confidence was put to debate and thereafter to vote; and 17 members of the Municipal Board voted in favour of the motion. The Sub Divisional Officer presiding over the said meeting declared the motion passed for having been carried by the requisite majority of 3/4 number of eligible members while taking the total number of eligible members as 21; and its 3/4 as 16. Three contentions have been put forward by the learned counsel Mr.A.K.Rajvanshy while arguing in support of the petition and while questioning the validity of the proceedings 2 taken in convening the said meeting and legality and correctness of the result of the meeting as declared. In the first place, the learned counsel contended that the entire proceedings of the said meeting are vitiated because the Collector concerned proceeded to issue notices while convening this meeting for the purpose of consideration of no- confidence motion without even verifying the identity of the persons allegedly submitting the notice of motion. Learned counsel contended next that the notice of meeting as issued by the learned Collector had been incomplete and invalid inasmuch as the copy of the proposed motion was not supplied along with the notice and hence, the meeting held on such notice could not be considered legal and valid. Learned counsel made the third submission to the effect that the motion has wrongly been held passed though not carried by the requisite majority. Learned counsel submitted that the motion of no-confidence could be considered passed only when voted in favour by at least 3/4 of the members of the Board; and when the concerned Board comprised at least of 23 members including 20 elected members, 2 nominated members and 1 MLA, such motion could have been considered passed only when carried by 18 members, three- fourth of 23 being 17.25; and when only 17 members voted in 3 favour of the motion, the same had fallen and ought to have been declared so. Learned counsel has referred to and relied upon the decisions in Raees Ahmad Vs. State of U.P. and others: (2000) 1 SCC 432 and Prakash Chand Saini Vs. State of Rajasthan and others: 2002 (2) RLW 1121. The submissions aforesaid have been opposed by the learned Government Counsel Ms. Pratishtha Dave and the learned counsel Mr. S.G.Ojha appearing for the intervener with reference to the provisions of the Rules of 2007 and the decision of the Hon'ble Supreme Court in the case of Ramesh Mehta Vs. Sanwal Chand Singhvi: AIR 2004 SC 2258. Learned counsel submitted that the nominated members are not included in the definition of 'eligible members' for the purpose of quorum and for the purpose of counting the requisite number for carrying the motion; and there being 20 elected embers and 1 MLA, the requisite number has rightly been counted at 16, being three-fourth of 21, while excluding 2 nominated members. Learned counsel submitted that there had not been any illegality or irregularity in convening and holding the meeting dated 01.03.2008 and in declaration of its result. Having considered the submissions made and the material placed on record with reference to the law applicable, 4 this Court is unable to find any substance in this writ petition. The argument about the Collector having not verified on the identity of the persons serving the notice of motion remains entirely baseless. In the scheme of the Act of 1959 and the Rules of 2007 made specifically for the purpose of consideration of such motion of no-confidence, there does not appear any such requirement for the Collector to enter into a fishing enquiry on the identity of the persons serving the notice of motion. Moreover, no such question seems to have been raised by anybody including the petitioner on the identity of any of the signatories to the notice and the proposed motion whether before or even during the course of meeting dated 01.03.2008. In fact, it appears from the proceedings of the meeting placed on record as Annexure-7 that the said meeting for consideration of the motion of no-confidence commenced at 1125 hrs. on 01.03.2008 with 18 members being present including the MLA and one nominated member; and the Executive Officer of the Municipal Board duly identified the members present. The petitioner himself chose to attend the meeting only at 1205 hrs. However, the petitioner did participate in the debate without any question on the identity of the persons making the motion. The other argument about want of supply of copy of the 5 proposed motion does not carry even a technical value what to say of substance. From the documents as placed on record by the petitioner, it appears that 15 members making the motion stated the points of their grievances, said to be the basis of their expressing want of confidence in the petitioner; and, while issuing notice for the purpose of the meeting dated 01.03.2008, the learned Collector did endorse a copy of proposed motion to the addressee, as distinctly stated at the foot of the notice dated 13.02.2008 (Annex.2). Again, it does not appear that the petitioner stated any such objection in the meeting held on 01.03.2008. There does not appear any illegality or irregularity in the process adopted by the learned Collector. The question as sought to be posed by the petitioner on the count of the number of members for the purpose of holding the meeting and passing the motion also remains entirely baseless. The argument has been advanced essentially on the premise that the nominated members were required to be counted for the purpose of considering the requisite number; and the decision of the Hon'ble Supreme Court in Raees Ahmad's case (supra) has been relied upon. The submission remains untenable for the very specific provisions contained in the Rules of 2007. For ready reference, the entire text of the 6 Rules of 2007 is reproduced hereunder:- “1. Short title and commencement.- (1) These rules may be called the Rajasthan Municipalities (Motion of No- confidence Against Chairperson or Vice-Chairperson) Rules, 2007. (2) They shall come into force with immediate effect. 2. Definitions.- (1) In these rules, unless the context otherwise requires:- (i) “Act” means the Rajasthan Municipalities Act, 1959; (ii) “Vice Chairperson” means the Vice-Chairman of the Board or Vice-President of a Municipal Council or Deputy Mayor of a Corporation; and (iii) “Eligible Member” means Members of a Board or a Council or a Corporation, but shall not include nominated members and any member disqualified or suspended under the provisions of the Act. (2) Words and expressions used but not defined in these rules shall have the meanings assigned to them in the Act. 3. Procedure etc.- (1) A written notice of intention to make motion of no confidence in the Chairperson or Vice- Chairperson signed by one-third members of the Board or Council or Corporation, as the case may be together with a copy of the motion which is proposed to be made, shall be sent to the Collector of the District, who shall thereupon convene a meeting for the consideration of the motion to be held at the office of the Board or Council or Corporation, as the case may be, on the date and at the time appointed by him, which shall not be earlier than twenty or later than thirty days from the date of the receipt of the notice. (2) The Collector shall send by registered post not less than seven clear days before the date of the meeting a notice of such meeting and of the date and time fixed therefor to every member of the Board or Council or Corporation. (3) The Collector or his nominee shall preside at such meeting and if within half an hour from the time appointed for the meeting Collector or his nominee is not present or is unable for any unavoidable cause to preside at the meeting, the meeting shall stand adjourned to the date and the time to be fixed and notified to the members. (4) A meeting convened for the purpose of consideration of the motion of no-confidence under these rules shall not for any reason except stated at sub-rule (3) be adjourned. (5) Three-fourth of the number of eligible members shall be required for the quorum. (6) No meeting for the consideration of the motion of no- confidence shall be held in absence of quorum. 7 (7) The motion of no-confidence against the Chairperson or Vice-Chairperson, as the case may be, shall be deemed to have been lost if required members for the quorum are not present within an hour from the time appointed for the meeting. (8) As soon as the quorum is complete, the Collector or his nominee shall read the motion for the consideration for which the meeting has been convened and declare it to be open for discussion. (9) Such discussion shall not be adjourned and shall automatically terminate on the expiry of four hours from the time fixed for the commencement of the meeting unless it is concluded earlier. (10) On the conclusion of the debate or upon the expiry of the said period of four hours, as the case may be, the motion shall be put to the vote of the Board or Council or Corporation. The Collector or his nominee shall neither speak on the merits thereof nor comment thereon. The voting shall be carried out by way of secret ballot. (11) If the motion is not carried by a 3/4 number of eligible members, the motion of no-confidence against Chairperson or Vice-Chairperson, as the case may be, shall be deemed to have been lost. (12) If the motion is carried by a majority of 3/4 number of eligible members, the motion shall be deemed to have been passed against the Chairperson or Vice-Chairperson, as the case may be and such Chairperson or Vice- Chairperson shall forthwith be deemed to have vacated his office. 4. Repeal and Savings.- The Rajasthan Municipalities (Motion of No-confidence Against Chairman and Vice- Chairman) Rules, 1974 is hereby repealed: Provided that any action taken or any thing done or order passed under the rules so repealed, shall be deemed to be taken or done or passed under these rules. " (underlining supplied) It is at once clear that a motion of no-confidence against the Chairperson of the Municipality is passed when carried by a majority of 3/4 number of the eligible members; and the nominated members are not to be included in the count of eligible members. Such provision as contained in clause (iii) of Rule 2 of the Rules of 2007 is precisely in conformity with the 8 amended Section 9 of the Act of 1959 that reads as under:- "9. Composition of boards.- (1) Subject to the provisions contained in the succeeding sub-sections, but save as provided in the following provisions of this sub-section, all seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies known as wards, the number of such seats, not being less than thirteen, being fixed by the State Government from time to time by Notification in the Official Gazette :- (a) the following shall be represented on the board, council or corporation, as the case may be, viz. :- (i) a member of the Rajasthan Legislative Assembly representing a constituency which comprises wholly or partly the area of a Municipality; and (ii) three persons or ten per cent. of the number of elected members of the Municipality, whichever is less, having special knowledge or experience in Municipal administration, to be nominated by the State Government by Notification in the Official Gazette : Provided that- (i) the provisions contained in S. 26 and S. 59 of this Act shall be applicable to the persons to be nominated or nominated under sub-clause (ii); (ii) the State Government shall have power to withdraw a member nominated under sub-clause (ii) at any time; (iii) the term of co-opted members, if any, who were co- opted and are continuing as such on the date of commencement of the Rajasthan Municipalities (Second Amendment) Act, 2000 (Act No. 22 of 2000) shall come to an end upon such commencement: Provided further that a member referred to in sub-clause (ii) shall not have the right to vote in the meetings of a board, council or corporation as the case may be; (b) A member of the house of people representing a constituency which comprises wholly or partly the area of a Municipality with a Municipal Council or as the case may be, a Municipal Corporation shall be represented on the Council or Corporation of such Municipality : Provided that a member referred to in sub-clause (i) of Cl. (a) shall have a right to vote in the meetings of a Board, Council or Corporation and a member referred to in Cl. (b) shall have a right to vote in the meetings of a Council or Corporation;" (underlining supplied) The above quoted amended Section 9 of the Act of 1959 stands in conformity with Article 243-R of the 9 Constitution of India that reads as under:- "Article 243-R. Composition of Municipalities. (1) Save as provided in clause (2), all the seats in a Municipality shall be filled 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. (2) The Legislature of a State may, by law, provide- (a) for the representation in a Municipality of- (i) persons having special knowledge or experience in Municipal administration; (ii) the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Municipal area; (iii) the members of the Council of States and the members of the Legislative Council of the State registered as electors within the Municipal area; (iv) the Chairpersons of the Committees constituted under Clause (5) of Article 243-S: Provided that the persons referred to in paragraph (i) shall not have the right to vote in the meetings of the Municipality; (b) the manner of election of the Chairperson of a Municipality." It is evident that as per the constitutional requirement, the State Legislature has made the provision for representation, by way of nomination, of a particular number of persons, 3 to the maximum, in a Municipality in the State of Rajasthan who are having special knowledge or experience in Municipal Administration. However, such nominated members are not to have the voting rights as per the constitutional mandate that has been incorporated in the second proviso to clause (a) of sub-section (1) of Section 9 of the Act of 1959. Even when the Rules relating to consideration of the motion of no-confidence in the present form were made only in 10 the year 2007 and earlier the Rajasthan Municipalities (Motion of No-Confidence against Chairman/Vice-Chairman) Rules, 1974 were in operation wherein the motion of no-confidence was considered passed when carried by ‘a majority of 2/3 number of whole number of members’; and the expression ‘eligible members’ had not been used, yet the Hon'ble Supreme Court made it absolutely clear in Ramesh Mehta's case (supra) that the Chairperson could be removed on passing of the motion of no-confidence by the requisite majority of the members having the right to vote; and, in that regard, the Hon'ble Supreme Court agreed with the submissions that the nominated members were not to be taken into consideration for the purpose of counting the whole member or total number of members. The Hon'ble Supreme Court also pointed out inapplicability of Raees Ahmad's case (supra) to the Rajasthan Act of 1959 thus: ''In the said case this Court was concerned with the provisions of U.P. Municipalities Act under which the chairman is elected by direct election. Under Section 43 of the U.P. Act the chairman is elected directly by the electorate on the basis of adult franchise exercised by the voters of the area. It is the case of direct election. On the other hand, in the present case under Section 65 of the Rajasthan Municipalities Act with which we are concerned the chairman is elected from amongst the elected members of the board. This distinction, in our view, is very important. As stated above prior to 1994 the co-opted and the elected members were put on par. Both the categories had the right to vote. The chairman was elected from amongst the members of the board. Consequently, the chairman/vice-chairman had to vacate the office when such members voted in support of the motion. In the circumstances, the judgment of this Court in the case of 11 Raees Ahmad (supra) has no application to the facts of the present case.'' In the concurring opinion in the said decision in Ramesh Mehta's case (supra), it has been pointed out that a nominated member has no role to play as regards removal of Chairman or Vice-Chairman thus: ''…. Nominated members are persons with special knowledge in the subject. They are nominated so that they may render their advices properly to the members of the Board which would enable it to run the municipal affairs efficiently. They remain as member of the Board irrespective of the fact that as to who is the person occupying the post or his political affinity. He is not concerned with election. He does not take part in it. A fortiori he has also not been assigned any role to play as regard removal of the Chairman or Vice-Chairman.'' And further,- ''43. By reason of the amendment in the Constitution and consequent amendment by the State Legislature in the Rajasthan Municipalities Act, however, no indication has been given that by reason thereof a special right is sought to be created in the nominated members although they would not participate in such a proceedings and would not have any voting right either at the election of the Chairman or in the proceedings for his removal. 44. We, therefore, are of the opinion that the rules which were made in the year 1974 having not been amended; with a view to give an effective and proper meaning must be construed to mean that only members with voting right are entitled to participate in that proceedings and not the nominated members.'' The Rules of 2007 that have been promulgated after the decision in Ramesh Mehta's case (supra), now contain clear provisions that the requisite quorum for holding of the meeting for consideration of motion of no-confidence is three-fourth of the number of eligible members; and the motion could be 12 passed only when voted in favour by three-fourth of the number of eligible members; and the expression 'eligible member' has distinctly been defined in clause (iii) of Rule 2 making it certain and crystal clear that the nominated members are not to be included in the count of eligible members. There is not a pale of doubt that the nominated members are not to be counted in the number of eligible members for the purpose of the Rules of 2007. The entire basis of submissions of the petitioner had been that the nominated members were required to be counted. When such a basis is found to be fundamentally incorrect and contrary to the relevant provisions, it is obvious that the calculation as suggested on behalf of the petitioner, while taking 23 as the relevant number of eligible members, is incorrect because this figure includes 2 nominated members of the said Board. Such nominated members have rightly been excluded for the purpose of the count of eligible members; and the total number of eligible members has rightly been counted as 21. Three-fourth of 21 being 15.75, it has rightly been rounded up to 16 to arrive at the requisite figure for passing of the motion under the Rules of 2007. It remains indisputable that 17 members have voted in 13 favour of the motion of no-confidence against the petitioner. The motion having been carried, rather by 1 number above the requisite majority, has rightly been declared passed. The petition fails and is, therefore, dismissed; however, in the circumstances, without any order as to costs. (DINESH MAHESHWARI),J. MK 14