'y^o^y HI6H COURT OF CHHATTIS6ARH AT BILASPUR W.P.tC] N0.2284 OF Z007 POST FOR ORDER ON O^ -3-2008 sdj^^ta .^a p^c^ PETITIONER Bharti Sonkar Vs RESPONOENTS State of Chhattisgarh & others IGH COURT OF CHHATTIS6ARH AT BILASPUR {9-^, W.P. (C) No.2284 OF 2007 PETmONER^ Vs RESPONDENTS \ Bharti Sonkar, W/o Ashwani Sonkar, Aged about 32 years, President, Nagar Panchayat: Sunderdehi, District: Durg, Chhattisgarh 1. State of Chhattisgarh, Through the Secretary, Department of Environment and Urban Administration, Mantralaya, b.K.S. Bhawan,, Raipur, Chhattisgarh. 2. Collector, Durg, District t>urg, Chhattisgarh. 3. P. Tirkey, Deputy Coltector, Durg, District Durg, Chhattisgarh. 4. State Election Commission, Through the Chief Electoral Officer, State Election Commission, Raipur, Chhattisgarh. 5. Nagar Panchayat: Sunderdehi, through the Chief Municipal Officer, Nagar Panchayat: Sunderdehi, District: &urg, Chhattisgarh 6. Pramod Kumar-Jain, 5/o Kawarlal Jain, Aged about 39 years, Vice President/Councillor Ward No.12, Nagar Panchayat; Sunderdehi, District: Durg, Chhattisgarh. 7. 5mt. Vidya &evi Markandey, W/o Domanlal Markandey, Aged about 38 years, Councilor, Ward No.14, Nagar Panchayat: Sunderdehi, bistrict: Durg, ChhattiS9arh. 8. Ramchand Kosaria, S/o Brijlal Kosariya, Aged about 32 years, Councilor Ward No.3, Nagar Panchayat: Sunderdehi, bistrict: Durg, Chhattisgarh. 9. t)esh Kumar Sonkar, 5/o Pyarelal Sonkar, Aged about 34 years, Councilor Ward No.7, Nagar Panchayat; Gunderdehi, District; Durg, Chhattisgarh. lO.Jain Kumar Bhandekar, S/o Sarju Ram, Aged about 47 years, Councilor Ward No.IO, N090? Panchayat: Sunderdehi, District: t>urg, Chhattisgarh. 11. Sheikh Faheem Qureshi, S/o Hanif Qureshi, Aged about 33 years, Councilor Ward No.ll, Nagar Panchayat: Sunderdehi, District: Ourg, Chhattisgarh. 12.5mt. ftashida Tigala, W/o Yushuf, Aged about 35 years, Councilor Ward No.8, Nagar Panchayat: Sunderdehi, &^stri^tL v Page 2 of 13 ^^-6^ Durg, Chhattisgarh. 13.5mt. Uma Bai, W/o Romanlnl, Aged about 35 years, Councilor Ward No.5, Nagar Panchayat: Gunderdehi, District: Durg, Chhattisgarh. 14.Rajesh Namdeo, S/o Narayan Prasad, Aged about 37 years, Councilor Ward No.9, Nagar Panchayat: Gunderdehi, &istrict; Durg, Chhattisgarh. IS.Keshav Ram Sahu, S/o Mohanlal Sahu, Aged about 39 years, Councilor Ward No.13, Nagar Panchayat; Sunderdehi, District: Durg, Chhattisgarh. 16.Jeewan Lal Sonkar, S/o Annkal Sonkar, Aged about 38 years, Councilor Ward No.6, Nggar Panchayat: fiunderdehi, District; Durg, Chhattisgarh. 17.Sewak Mahipal, S/o Pyarelal, Aged about 38 years, Councilor Ward No.15, Nagar Panchayat: Sunderdehi, District; Durg, Chhattisgarh. 18.5mt. Ramshila Sahu, W/o Dr. Dayaram Sahu, Ageda bout 45 years, M.L.A., Gunderdehi Constituency, Sunderdehi, District: Durg, Chhattisgarh. Present: Mr. Sanjay K Agarwal with Mr. Saurabh Sharma <& Mr. A.L. Singroul, Advocates. Mr. Sushil bubey, Sovernment Advocate Mr. B.&. 6uru, Advocate. Mr. Deepak fiupta, Advocate Mr. Prateek Sharma, Advocate For the petitioner. For respondent No.l & 3. For respondent No.4. For respondent No.5. For respondent No.6 to 18, OR & E R (Passed on J^ March, 2008) Dhirendra Mishra, J 1. The petitioner is the directly elected President of Nagar Panchayat Gunderdehi, whereas, respondent No.6 to 17 are the elected Councillors. Respondent No.6 is also elected as Vice- President of the said Nagar Panchayat. The strength of the Nagar Panchayat is 15. 2. On 15.3.2007 respondent No.6-Pramod Kumar Jain moved an application (Annexure P-5) before respondent No.2-Collector, Durg for recalling the petitioner from the post of President, Page 3 of 13 Nagar Panchayat (Sunderdehi claiming that 12 other Councillors have also signed the application for recalling the petitioner. Respondent No.S-Deputy Collector vide memo of Annexure P-6 summoned all the Counciltors, who have signed the application of Annexure P-5 on 22.3.2007 in his office. After learning about the above proceedings through newspapers the petitioner filed an application dated 19.3.2007 (Annexure P-7) before the Collector/District Returning Officer and prayed for setting aside the proceeding of "no confidence motion/ recall". She also requested the Coltector for verification of the signatures of the Councillors. 3. The Collector, vide memo dated 26.3.2007 (Annexure P-10) addressed to the Secretary, Local Administration and bevelopment, sent a report under Section 47 (2) of the C.G. Municipalities Act, 1961 (for brevity 'the Act') mentioning therein that proposal of "no confidence motion against the petitioner" was received on 15.3.2007, 12 Councillors out of total 15 have signed the proposal, their signatures were duly verified, name of Councillor of Ward No.4 Smt. Kaushalya Devi Nishad appears in the memo, however, she has not signed, whereas, Councillors of Ward No.l & 2 have not moved the proposal for 'no confidence motion'. 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. More than 3/4t of the total elected Councillors have signed the proposal for no confidence motion, which is proved from their statements. Election of Nagar Panchayat Sunderdehi had taken place on 19.12.2004 and as such, two years have already elapsed since the election of President; and He is satisfied that the proposal moved against Smt. Bharti Sonkar is inorder. ~ —^—'" II III ^ Page 4 of 13 4. The petitioner, being aggrieved by the proposal of Annexure P-10, 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 3/4t 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 22.3.2007. d) Whole exercise of verification was done at the behest of respondent No.lB-Smt. Ramshila Sahu, M.L.A. of Sunderdehi Constituency. e) Objections of the petitioner with regard to the genuineness <& correctness of the proposal to recall has 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. f) The Collector was duty bound to 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 3/4th 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 B^ < Page 5 of 13 any other authority for the purpose of verification of the proposal. The memo of Annexure P-10 only mentions that 'motion of no confidence' is satisfactory and action under Section 47 (2) of the Act is proposed, however, there is no proposal for recall and therefore, no reference can be made under Section 47 (2) of the Act and the entire proceeding is invalid. 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, Gunderdehi 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 orgued 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 writin9 for recall of the petitioner. They were duly summoned in the presence of the Collector, their signatures were duly verified and only after recording statements of individual Councillor, the Collector has recorded his satisfaction that necessary requirements of Section 47 of the Act exists and forwarded the proposal. Memo of Annexure P-5 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, Sunderdehi. 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 3/4th Councilors, as specified in sub-section-CLV /<T^ <2-&S Page6 of 13 have tabled The proposal. The proposal has been sent under Section 47 (2) of the Act for further action to the State Government and therefore, only because the Collector has used that he is satisfied with the notice of 'no confidence motion', it will not vitiate the entire proceeding of recall. So far as the objection that the Councillors were summoned by the Deputy Cotlector for verification is concerned, the only requirement of Section 47 is that the Collector should satisfy himself that the proposal has been placed by the Councillors who are not less than 3/4t 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-10 are;- • Proposal is to be presented to the Collector by the 3/4 of the total number of elected Councillors, however, there is no evidence that the proposal was submitted to the Collector by the Councillors and therefore, its presentation is not valid. • After receiving proposal, the t)eputy Collector sent the memos to the Councillors, who have signed the proposal, and asked them toappear before him. Respondent No.5 has also stated in Para-4 of his return that all the Councillors were present in the office of Collector where 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. • In the memo of Annexure P-10 the Collector has ctearly mentioned that 'no confidence motion' tabled against the petitioner is in order and thus, the memo does not mention that the proceeding for recall has been sent by S MS rf ^\ ^; Page7of 13 the Collector' to theStdte Gbvernment, as requir'ed uhder Section 47 (2)pf the Aet. 9. Beftlre adverting to the drgumenfs dd^ counsel for the parties it wouid be dppropriate to refer to Section 47 of the Act, whichis reprodyced herein below;- "47. fiecalling 6f Preside.nt. (1) Every Presidenf of Council shall forthwith be deerned to have vacatecl his pfficeifhe is r'eeallecl through a seeret ballot by a majority of mQre than half of the total numbep of voters of tl't® muniei[)al drea casting the vote in accorclarK:e with the procedure ds^^^^^m ProVid6c|^ that no such proeeSs of recal 1 shal 1 be initia^ed unleSS a pl^posal;;Ts Sjgi^ three four'l'h of the totdl ni.it'nber of the elected Councillors lind presented to the Col|ecfor. Pr&vided fut'ther that no such process sliall be initiated;- (i) within a period of two years fromThe date on Which such Pr'esident is elected and enters his office; (ii). if half of the period of tenure of the President elected in a by-eleGtion has not expired. Provtded also that process for recall of the President shall be initiated once in his whole •t'erm. (2) The Gollector, after satisfying himself arid verifying fhat the three •fourth ;of the Councillors specifisd ih Sub-Section (1) have the prbposalof recall, shall send the propdsal to the State Govei''nment and the State Government shall make a referenee to the State Election Commission. (3) On receipt of theceference, the State Electiori " Commissian shall orrahge for voting on the proposaJ of^ recall in such manner as may be prescribed'' Page 8 of 13 s 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 total 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 inhis/her whole term. 5. The Collector shall satisfy himself and verify that 3/4th of the total number of the etected Councillors have signed the proposat of recall. 6. After such satisfaction and verification, the Collector shall send the proposal to the State Sovernment. 7. The State Sovernment shall make a reference to the State Election Commission which shall arrange for voting on the proposal of recall in the prescribed manner." ll.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 3/4t of the total number of elected Councillors have signed the proposal of recall. The fact that duty has 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 Page 9 of 13 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 haye 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 signing and presentation of the proposal, it appears in the following form;- i. Signed by not less than 3/4th 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 immediatety 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 3/4t of the total number of the elected Councillors but it should also be presented by them to the Collector. But this isnot the case as we find from the language used by the Legislature in the proviso. ' 2005 (3) JLJ 251 Page 10 of 13 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 3/4th 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 AA.P. and the argument advanced by learned counsel for the petitioner that presentation of proposal was 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-10, 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 were 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 conditions, as required under Section 47 (2) of the Act, for tabling 'no confidence motion against 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 fact submitted by not less than 3/4th members of total elected Councillors. Thesatisfaction is to be recorded on the basis of verification. Section no where mandates any particular Page 11 of 13 mode of verification and therefore, submission of learned counsel for the petitioner that the Collector was duty bound to personally verify from the concerned Councillors that they have put the signatures in the proposal, is not the intention of the legislature. 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 Saraf this aspect has also been dealt with thus;- "16.Now comes the question as to whether verification of the signatures requires presence of the Couneillors. 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 Government. The provision nowhere mandates that the verifi.cation 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 provisoitself 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 the matter would be clearly against the legislative intent." Page 12 of 13 '^ 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 forni of application or affidavit was submitted before the Collector neither by the said Councillors nor by the petitioner. No any 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 after due verification as per procedure prescribed under the Act. 15. So far as the last submission of learned counsel for the petitioner that memo of Annexure P-10, wherein the Collector has mentioned that he is satisfied that the proposal of no confidence against the petitioner has been properly placed, refers to "no confidence motion" and not to "recall of the petitioner" from the post of Presidentof Nagar Panchayat and as such, the same is not a proposal within the meaning of Section 47 (2) of the Act and therefore, the State Sovernment could not refer the proposal to the State Election Commission for voting on proposal of recall, is concerned, the Madhya Pradesh Nagar Palik Vidhi (Sanshodhan) Adhiniyam, 1999 (No.ll of 1999) was enacted and came into force w.e.f. 23.4.1999. Prior to the amendment there was a provision of no confidence motion" against the President under Section 47 of the Act, which was substituted by the above amendment. The proposal submitted by 12 Page 13 of 13 .ouncillors out of 15 clearly mentions that the signatories of the memo have no confidence in the petitioner, they want to remove her and therefore, They are tabling this no confidence motion for removing her and for recalling her. Thus, the proposal before the Collector was for recalling of the petitioner and only duty cast on the Collector under Section 47 of the Act is to verify the genuineness of the contents of the proposal and the Collector after due verification recorded his satisfaction and forwarded the proposal to the State fiovernment for further action. In these circumstances, mentioning of no confidence motion" in place of "recall of the petitioner" would not invalidate the whole exercise of recall and proceeding for recall cannot be quashed. 16. 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 226 of the Constitution of India. 17.' In the result, the petition has no merit, the same deserves to be dismissed and accordingly, it is hereby dismissed. 18. No order as to costs. Dhiren^ra'Mishra Roshan/-