No Confidence Motion – against President of Municipal Committee – Secret ballot voting not required – Motion carried if passed by voting by show of hands: Punjab and Haryana High Court

 on 01 06 CWP No.218 1 IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH CWP No.218 Date of decision:31.05.2018 Suresh Kumar & anr.... PetitionersVersusState of Haryana & ors. ... RespondentsCORAM:HON BLE MR. JUSTICE MAHESH GROVERHON BLE MR. JUSTICE RAJBIR SEHRAWATPresent:Mr. S.K.Garg Narwana Sr. Advocate with Mr. Naveen Gupta Advocatefor the petitioners.Mr. Aman Pal Advocatefor the applicants.Mr. Lokesh Sinhal Addl. AG Haryana. Rajbir Sehrawat J.The present petition has been filed challenging the proceedingsdated 02.01.2018 whereby no confidence motion was passed against thepetitioners who were the President and Vice President of MunicipalCouncil Narwana. Further prayer has been made for staying the furtherproceedings for holding fresh election during the pendency of the presentpetition. The brief facts involved in this case as pleaded in the writpetition are that the election of Municipal Council Narwana were held inMay 2016 and thereafter the election for the office of President and VicePresident were held. The petitioners were elected as President and the VicePresident respectively on 07.07.2016 and had taken oath of their officeaccordingly. on 01 06 CWP No.218 2 The Municipal Council has 23 elected Municipal Councilors.Since the members were not satisfied with the functioning of the petitioners therefore a motion was made on 11.12.2017 for calling the special meetingof Municipal Council to discuss the issue with regard to the no confidencemotion against the petitioners. This motion was handed over to the DeputyCommissioner Jind for further proceedings as per the requirement of law.Accordingly the Deputy Commissioner Jind respondent No.2 appointedrespondent No.3 SDM Narwana as Presiding Officer to preside over thisspecial meeting to be held in the office of Municipal Council Narwana with regard to the no confidence motion against the petitioners. On 15.12.2017 respondent No.3 issued a notice for calling thespecial meeting of Municipal Councilors for considering the no confidencemotion on 02.01.2018 at 11.00 am with regard to the post of President andat 12.10 pm with regard to the post of Vice President. This notice wascirculated amongst all the members of the Municipal Council Narwana.Pursuant to the above said notice the special meeting was actually held on02.01.2018 and no confidence motion was passed against the petitioners.Respondent No.3 sent the entire proceedings to respondent No.2 DeputyCommissioner Jind. It is this resolution passing of no confidence motionagainst the petitioners which is under challenge in the present petition. The petitioners assailed the resolution of no confidence motionpassed against them on the ground of alleged procedural lapses on the partof the Presiding Officer. First of all it is pleaded that the Presiding Officerhad wrongly adopted the procedure of show of hands to seek a vote on noconfidence motion. Petitioner No.1 had demanded a secret ballot on the noconfidence motion. On his request the Presiding Officer had even taken the on 01 06 CWP No.218 3 recourse to the secret ballot. The Presiding Officer had asked the votingcouncilors to write on the ballot paper whether he she wanted to remove thePresident or not. In this voting total 17 members had cast their vote.Petitioner No.1 cast his vote against the motion. Another councilor namely Smt. Poonam Devi councilor from ward No.1 had not writtenanything on the ballot paper except putting her signatures whereas she wasrequired to give her response to the question whether she was in favour ofremoving the President or not. In view of this the vote of this councilorwas rendered invalid. Therefore the same could not be counted against thepetitioners and if this vote is excluded then required 2 3rd votes i.e. 16votes are not reached. Hence the resolution shall be deemed to have failed because no confidence motion was required to be passed by 2 3rd majority oftotal 23 elected members of Municipal Council. It is further pleaded thatalthough the motion had not been carried due to invalidity of one vote however the Presiding Officer again wrongly resorted to vote by show ofhands. During this show of hands 16 members again raised their hands infavour of no confidence motion and therefore the impugned proceedingswere recorded and resolution was recorded as having been passed. It ispleaded that by resorting to method of show of hands the secrecy of voteshave been breached which has rendered the election to be void. Still furtherit is pleaded that every ballot was having the signatures of the voter. Hence the identify of voter can be very easily verified. This action has alsobreached the secrecy of voting. It is further pleaded that even at the time ofcounting of ballots the Presiding Officer did not show the votes to anymember of the Municipal Council and announced the result. It is pleaded inthe writ petition that the entire proceedings were stage managed to prevent on 01 06 CWP No.218 4 the free and fair voting. Firstly petitioner no.1 was not permitted to enterthe office of Municipal Council Narwana and only after arguments he waspermitted to enter the office. Secondly on entering the meeting room hewas threatened by respondent No.3. The respondent No.3 did not follow thedue procedure and entire procedure was conducted in an illegal andmalafide manner under political pressure. Against adoption of thisprocedure and alleged resolution passed in the meeting petitioners hadsubmitted their affidavit on the same day to the Deputy Commissioner respondent No.2. However no action was taken by him. Along with thewrit petition the petitioners have also filed a CD of the videography of theproceedings to show how the no confidence motion was passed. After hearing learned counsel for the parties earlier we hadsolicited a report in this regard from the Presiding Officer. It was alsoordered that in the meantime records be sealed. Thereafter report wassubmitted by respondent No.3 on 16.01.2018 and the case was adjournedfor 30.01.2018. However the petitioners again brought to the notice of thisCourt that respondent No.2 had fixed the meeting for election of thePresident and Vice President of the Municipal Council on 29.01.2018.Accordingly vide order dated 29.01.2018 election to the post of Presidentand Vice President of Municipal Council Narwana was stayed. Anotherfactor which needs to be noticed is that all the 16 members who had votedagainst the petitioners in no confidence motion also filed a miscellaneousapplication for being impleaded as party respondent in the petition and tooppose the present petition. In the report submitted by respondent No.3 it is submitted thaton 11.12.2017 16 members of the Municipal Council out of 23 members on 01 06 CWP No.218 5 through a requisition in writing addressed to Deputy Commissioner Jindhad made a motion of no confidence against the present President and VicePresident. This motion was signed by all the 16 members who are detailedin the report submitted by respondent No.3. Thereafter the DeputyCommissioner had appointed respondent No.3 as Presiding Officer as perThe Haryana Municipal Elections Rules 1978 to convene a special meeting regarding no confidence motion againstPresident and Vice President of Municipal Council Narwana. Accordingly a special meeting of all the 23 elected members of Municipal Council wascalled vide notice dated 15.12.2017 by giving 15 days time as requiredunder the Rules. Meeting was scheduled to be held on 02.01.2018.Accordingly the meeting was held and 16 members out of 23 came presentat 11.00 am the time fixed on that date for meeting. One member i.e.President himself came at 11.27 am and started arguing with respondentNo.3. However he was permitted to participate in the proceedings. Theagenda of the meeting was told to all the members. For ascertaining thewish of the members they were asked to raise their hands in support of noconfidence motion. The 16 members out of 17 present raised their hands insupport of no confidence motion against the President and Vice President.Accordingly the motion was carried against the President and VicePresident. But thereafter the President requested for ballot procedure. Thesame was also carried out. However one member left the ballot paper blankand did not mention the clear vote. Therefore to reaffirm the vote again the show of hands was resorted to. Again the same 16 members raised theirhands against the President and Vice President. The whole procedure wascarried out as per Rules. After the motion was carried out the proceedings on 01 06 CWP No.218 6 were written and sent to the Deputy Commissioner Jind respondent No.2.The videography of proceedings was also got done. Besides this 16members of Municipal Council who voted in favour of no confidencemotion also submitted their joint affidavit before the Deputy Commissioner Jind after the completion of special meeting of no confidence motion regarding the convening of the meeting in a just and proper manner andregarding carrying the motion. Hence the dismissal of the writ petition wasprayed for. Thereafter respondent No.3 also filed the written statement tothe writ petition and reiterated almost the same contents which were raisedin the report earlier submitted. While arguing the case learned counsel for the petitioners hassubmitted that procedure adopted for carrying out the no confidence motionwas totally illegal. Once the petitioner No.1 had raised the demand ofsecret ballot then the secret ballot only should have been resorted to. Theshow of hands is not the valid method of taking the vote on no confidencemotion because this is a breach of secrecy. It is further submitted that evenwhen respondent No.3 had taken a vote by ballot then also no secrecy wasmaintained. It is further submitted that since there was a demand for secretballot by the petitioners therefore the secret ballot with complete secrecyshould have been taken on the no confidence motion. In support of hisargument learned counsel for the petitioners has relied upon the judgmentof this Court rendered in Kitab Singh vs. Deputy Commissioner Fatehabad and ors. AIR 2008 P.&.H.133. To the same fact learnedcounsel also relies upon the judgment of Single Bench of this Courtrendered in CWP No.28415 titled as Smt. Sunita and ors. vs.Deputy Commissioner Karnal and orsRCR(Civil) 354. It is his submission that the procedure for voting on noconfidence motion has been conducted in a total fair and transparentmanner. Hence there is no illegality involved in the matter. Learned State counsel further submitted that after carrying outthe no confidence motion the petitioners had even consented for freshelection for the post of President and the Vice President. Accordingly thesame was conducted with due participation of the petitioners. However inview of the interim orders passed by this Court the same was kept in on 01 06 CWP No.218 8 abeyance. Mr. Aman Pal Advocate appearing for the applicants 16Councilors who carried the motion against the petitioners submits that theyall had submitted the notice of motion on no confidence against thepetitioners. They all had voted against the petitioners during the meetingwith their free will and without any external pressure from anybody. All the16 members had given in writing to this effect even to the DeputyCommissioner that the procedure was conducted by respondent No.3 in fairmanner. Therefore the no confidence motion was rightly carried.After hearing learned counsel for the parties and perusing therecord we find that this case has two aspects. Firstly a question is raisedregarding the procedure of voting to be adopted during the consideration forno confidence motion and secondly the illegalities in the procedure reflecting the external influence upon the members have been alleged sayingthat the entire proceedings were stage managed under the political pressure.So far as the procedure to be adopted for voting at the time ofno confidence motion is concerned the same is prescribed under Rule 72 Aof The Haryana Municipal Election Rules 1978 which is reproducedhereinbelow: “ 72 A. no confidence motion against president orvice president A motion of no confidence against the presidentof a committee may be made through a requisition givenin writing addressed to the Deputy Commissioner signed by not less than one third of the total number ofthe members of committee: Provided that the members who have made such a on 01 06 CWP No.218 9 motion may withdraw the same before the meeting isconvened for the purpose. Explanations Any fraction under this rule shallbe taken as a whole. The Deputy Commissioner or such other officernot below the rank of extra Assistant Commissioner asthe Deputy Commissioner may authorize shall circulateto each member a copy of the requisition for the use ofthe members. The Deputy Commissioner or such other officernot below the rank of extra Assistant Commissioner asthe Deputy Commissioner may authorise shall convene aspecial meeting by giving a notice of not less than fifteendays for the consideration of the motion referred to insub ruleand shall preside over at such meetings: Provided that no such meeting for the purposeshall be convened unless a period of six months haselapsed since the date of last meeting convened for thispurpose. If the motion is carried out with the support ofnot less than two third of the members of the committee the President or vice president as the case may be shallbe deemed to have vacated his office. ”However before that Rule 71 of The Haryana MunicipalElection Rules 1978 provides for election of President and Vice Presidentof Municipal Council. The above said rule is reproduced hereinbelow: “71. Ballot to be taken and result thereof [.....](3) All ballot papers used for such voting shall immediately after the counting of votes has beencompleted be enclosed in the stout envelope and sealedby the officer who presided at the meeting in the view ofthe members preset there at and the description of theelection to which the ballot papers relate shall beinscribed thereon and such envelope shall be enclosed inanother large envelope which shall be addressed anddelivered to the Deputy Commissioner. The DeputyCommissioner shall preserve the inner envelope intactuntil the expiry of one year from the date of the election and shall then subject to any direction to the contrarymade by the State Government a competent court or aperson or persons appointed to hold an enquiry into anelection under Part V of these rules cause it to bedestroyed with its contents. is concerned in that casecarrying of the no confidence motion by show of hands was upheld by theDivision Bench of this Court. But the Court had also made observation thathad the petitioner in that case demanded a secret ballot then the PresidingOfficer would have been duty bound to conduct the voting by secret ballot.However while making these observations the Hon ble Bench has gone bydesirability and convenience of secret ballot to hold that it would not haverequired much effort to go by secret ballot had the petitioner in that case sodemanded. However as held above we do not find any statutory supportfor these observations from the Rules covering the consideration of noconfidence motion against the President and Vice President of MunicipalCouncil under the Rules. Rather this would amount to reading in the Rulessomething which does not exist there in the Rules. Therefore we with duedeference fail to agree with these observations made by the Hon bleDivision Bench in kitab Singh s case(supra). It is one thing to perceive thedesirability of a procedure and it is altogether a different thing to insist uponthe legalities of that procedure. Howsoever desirable a procedure may be 1 on 01 06 CWP No.218 13 the same cannot be thrusted upon the administrative machinery unless this isso prescribed or contemplated under the relevant rules. Desirability of aperceived requirement cannot be raised to the level of legal mandate of thatrequirement. The Presiding Officer conducting the proceedings cannot bepresumed in the hindsight to have known what the Court would beconsidering to be the desirable at the subsequent time. Therefore the actionof the Presiding Officer cannot be found fault with only for the reason thatsome desirable thing has not been done by him. The action of an authoritycan be held to be illegal only if some prescribed procedure is violated by theauthority. Therefore there is absolutely no illegality if the motion of noconfidence is considered and carried by show of hands in an otherwiseproperly called and held meeting. So far as the conduct of the proceedings in the present case isconcerned a perusal of the videography shows that the Presiding Officerappears to be little bit inexperienced on the point of conducting proceedingsfor no confidence motion . At the beginning to the meeting whenpetitioner No.1 was not even present she is seen saying that she wouldconduct voting by show of hands as well as by ballot. Then first of all sheseeks the vote by show of hands. All the 16 members raised their hands insupport of motion. Petitioner No.1 is only the person who is seen opposingthis motion. Then the Presiding Officer takes the vote by ballot also whichis not necessarily a secret ballot. Although a vote marking area isseparately made by covering with a cloth yet only the petitioner No.1 hadcast his vote by going into the marking area. All the other members are seenmarking their votes by putting them on a box outside the marking area itself. 1 on 01 06 CWP No.218 14 Respondent No.6 is seen present near the box though not necessarily seeingthe vote marking all the time. He is also seen busy in doing some otherwork simultaneously. But some time he is seen seeing the ballot as well.After this process is undertaken the Presiding Officer herself counts thevotes and announce the result which was the same as was displayed duringthe show off hands. However thereafter once again a show off hands isasked by the Presiding Officer. Again the result remain the same and 16members raised their hands in support of motion. The result of the meetingis declared and the motion is passed. At the end petitioner No.1 also seemsto be accepting the entire proceedings because the Presiding Officer is seenasking everybody whether the proceedings have been conducted properly and at this stage there is no protest or objection by petitioner No.1 whohappens to be present there. Though the procedure adopted by the Presiding Officer inasking for show of hands in first instance which displayed sufficientsupport to pass the resolution of no confidence motion then going for aballot vote in which one member has not voted either in favour of oragainst the motion and then again going for show of hands which againconfirmed passing of no confidence motion may be irregular. However itdoes not vitiate the result of the meeting at all. Rule 72 A of the Rulesprescribes only carrying out a voting on no confidence motion . The samecan be very well by show of hands. The emphasis of the Rule is only to getthe wish and intention of the members present for voting regarding themotion being considered in the meeting. In the present case a perusal of theballot papers produced by the respondents shows that one of the membersi.e. Smt. Poonam Devi probably was not clear as to what she was required 1 on 01 06 CWP No.218 15 to write for voting in favour of no confidence motion. Her confusion can begauged by comparing the performa of ballot paper and what actually thevoting members were asked by respondent No.3 to write for supporting themotion. There does not appear to the coherent relation between the two.Hence this lady member had started writing on the ballot paper to expressher vote. But mid way she stopped writing making her vote to beincomprehensible. So the subsequent expression of votes by show of handsis only justified. By this show of hands the members have only expressedtheir votes. If the votes intention of the members have been sufficientlyexpressed then mere some irregularity here or there would not be sufficientor even relevant for casting a shadow of illegality upon the result of theproceedings. Therefore the resolution of no confidence against thepetitioners withstands judicial scrutiny and cannot be held to be vitiated bymere procedural irregularity. We also find force in the arguments of learned State counselthat petitioner No.1 himself has consented to the entire procedure bysubsequently agreeing to holding of election of the President and VicePresident afresh after the no confidence motion was passed against him.Despite having filed the present writ petition petitioner no.1 participated inthe process of election of the President and Vice President. Even otherwise there is no doubt left qua the fact that the petitioners have lost the support of2 3rd members of the Municipal Council Narwana because all the 16members who had passed the no confidence motion against the petitionershave approached this Court also by moving an application for beingimpleaded as party. All these members have duly reiterated their stand thatthey had voted against the petitioners in the no confidence motion. 1 on 01 06 CWP No.218 16 Therefore the allegation of the petitioners regarding any political pressureupon these members is ruled out per se. Had there been any pressure onanyone of them then having voted for the no confidence motion against thepetitioners they need not come to this Court also to support the result oftheir vote during the no confidence motion. In view of the above we do not find any merit in the presentwrit petition and dismiss the same. (RAJBIR SEHRAWAT) JUDGEJUDGE31.05.2018 sonia Whether speaking non speaking YesWhether reportable Yes 

Summary: It appeared that the allegation of the petitioners regarding any political pressure upon these members is ruled out; per se. Had there been any pressure on any one of them; then having voted for the no-confidence motion against the petitioners, they need not come to this Court also; to support the result of their vote during the no-confidence motion held by Hon’ble Justice Rajbir Sehrawat and Justice MAHESH GROVER in Suresh Kumar &amp; Anr versus State of Haryana &amp; Ors [CWP No.26 of 2018]. The facts leading to this case relate to the as pleaded in the writ petition, are that the election of Municipal Council, Narwana were held in May 2016 and thereafter the election for the office of President and Vice President were held. The petitioners were elected as President and the Vice President; respectively; on 07.07.2016 and had taken the oath of their office accordingly. The Municipal Council has 23 elected Municipal Councillors. Since the members were not satisfied with the functioning of the petitioners, therefore, a motion was made on 11.12.2017 for calling the special meeting of the Municipal Council to discuss the issue with regard to the no-confidence motion against the petitioners. This motion was handed over to the Deputy Commissioner, Jind for further proceedings as per the requirement of law. Accordingly, the Deputy Commissioner, Jind – appointed SDM, Narwana, as Presiding Officer to preside over this special meeting to be held in the office of Municipal Council; Narwana, with regard to the no-confidence motion against the petitioners. On 15.12.2017, the respondent issued a notice for calling the special meeting of Municipal Councillors for considering the no-confidence motion; on 02.01.2018 at 11.00 am with regard to the post of President and at 12.10 pm with regard to the post of Vice President. This notice was circulated amongst all the members of the Municipal Council, Narwana. Pursuant to the above-said notice, the special meeting was actually held on 02.01.2018 and the no-confidence motion was passed against the petitioners. Respondent sent the entire proceedings to Deputy Commissioner, Jind. It is this resolution; passing of no-confidence motion against the petitioners, which is under challenge in the present petition. The petitioners assailed the resolution of the no-confidence motion passed against them on the ground of alleged procedural lapses on the part of the Presiding Officer. First of all, it is pleaded that the Presiding Officer had wrongly adopted the procedure of show of hands to seek a vote of a no-confidence motion. Petitioner had demanded a secret ballot on the no-confidence motion. At his request, the Presiding Officer had even taken the recourse to the secret ballot. The Presiding Officer had asked the voting councillors to write on the ballot paper whether he/she wanted to remove the President or not. In this voting, total of 17 members had cast their vote . Petitioner cast his vote against the motion. Another councillor, namely, Smt. Poonam Devi, councillor had not written anything on the ballot paper except putting her signatures, whereas, she was required to give her response to the question of whether she was in favour of removing the President or not. In view of this, the vote of this councillor was rendered invalid. Therefore, the same could not be counted against the petitioners; and if this vote is excluded; then required 2/3rd votes i.e. 16 votes are not reached. Hence, the resolution shall be deemed to have failed; because a no-confidence motion was required to be passed by a 2/3rd majority of the total 23 elected members of the Municipal Council. It is further pleaded that although the motion had not been carried due to invalidity of one vote, however, the Presiding Officer again wrongly resorted to vote by show of hands. During this show of hands, 16 members again raised their hands in favour of the no-confidence motion and therefore, the impugned proceedings were recorded and the resolution was recorded as having been passed. It is pleaded that by resorting to the method of a show of hands, the secrecy of votes has been breached, which has rendered the election to be void. Still, further, it is pleaded that every ballot was having the signatures of the voter. Hence, the identity of voters can be very easily verified. This action has also breached the secrecy of voting. It is further pleaded that even at the time of counting of ballots, the Presiding Officer did not show the votes to any member of the Municipal Council and announced the result. It is pleaded in the writ petition that the entire proceedings were stage-managed to prevent free and fair voting. Firstly, petitioner no.1 was not permitted to enter the office of Municipal Council, Narwana and only after arguments he was permitted to enter the office. Secondly, on entering the meeting room, he was threatened by respondent No.3. Respondent No.3 did not follow the due procedure and the entire procedure was conducted in an illegal and malafide manner under political pressure. Against adoption of this procedure and the alleged resolution passed in the meeting, petitioners had submitted their affidavit on the same day to the Deputy Commissioner –respondent No.2. However, no action was taken by him. Along with the writ petition, the petitioners have also filed a CD of the videography of the proceedings to show how the no-confidence motion was passed. While arguing the case, learned counsel for the petitioners has submitted that procedure adopted for carrying out the no-confidence motion was totally illegal. On the other hand, learned counsel for the respondents submitted that there is no rule that ‘no-confidence motion is to be carried through secret ballot. He further submits that there is no absolute rule that in case a candidate demands a secret ballot then a secret ballot has, necessarily, to be taken on ‘no-confidence motion’. After hearing learned counsel for the parties they found that this case has two aspects. Firstly, a question is raised regarding the procedure of voting to be adopted during the consideration for no-confidence motion and secondly, the illegalities in the procedure; reflecting the external influence upon the members have been alleged saying that the entire proceedings were stage-managed under the political pressure. So far as the procedure to be adopted for voting at the time of no-confidence motion is concerned, the same is prescribed under Rule 72-A of The Haryana Municipal Election Rules, 1978.  It has to be held that the secret ballot is not required for consideration of a no-confidence motion against the President and the Vice President of the Municipal Council under the Rules. No illegality if the motion of no confidence is considered and carried by show of hands; in an otherwise properly called and held the meeting.