SHIOSHANKAR Vs. SHIOSHANKAR, SUB

JUDGEMENT

(1.) The petitioner is one of the Councillors of the Municipal Council, Bhandara to which elections were held on 3-6-1967. The Municipal Council consists of 22 elected Councillors and 2 co-opted Councillors. The respondents Nos. 4 to 24 and the petitioner together with one Fattuji Meshram were the elected Councillors. The respondents Nos. 25 and 26 are the co-opted Councillors. In the election held on 2-7-1967 the respondent No. 5 was elected by the Councillors as the President of the Council. Fattuji Meshram was elected as the Vice-President in the same meeting. Fattuji Meshram, however, died on 18-1-1969 and thereby there was a vacancy in the office of the Vice-President as well as a Councillor. This vacancy of the Vice-President was subsequently filled in by electing the respondent No. 4 Shamlalsing as the Vice-President of the Council. In a meeting of the Council held on 1-2-1969 a resolution was passed that the respondent No. 5 who was then the President shall cease to be the President. This resolution was challenged by the respondent No. 5 in Bhasker Vs. S.G. Daithankar, S.D.O., Spl. C. Appln. No. 157 of 1969. D/d. 6.2.1970 and the election of a fresh President was stayed, with the result that the office of the President remained vacant. The vacancy caused by the death of Fattuji Meshram as a Councillor was also not filled in till 25-5-1969. In the meantime, the respondents Nos. 5 to 14 and the petitioner sent a requisition on 27-3-1969 to the respondent No. 4 purporting to be under section 55(1) of the Maharashtra Municipalities Act, 1965 (hereinafter referred to as the Act) for convening a meeting for moving a resolution that the respondent No. 4 shall cease to be the Vice-President. Such a notice was sent to the respondent No. 4 as he was then performing all the duties and exercising all the powers of the President under section 59(1)(b) of the Act. On 31-3-1969, the respondent No. 5, the Ex-President, wrote to the Collector that a requisition signed by 11 Councillors was delivered on 27-3-1969 to the respondent No. 4 for convening a special meeting of the Council for considering the motion of removal of the Vice-President of the Council. He further stated in that letter that under section 55(3) of the Act such a requisitioned meeting was to be convened by the President. However, there was a casual vacancy in the office of the President and hence the duty to convene a special meeting for the said purpose was cast upon the Vice-President himself, namely, the respondent No. 4, under section 59(1)(b) of the Act. By this letter, he requested the Collector to direct the respondent No. 4 Shamlalsingh to convene a special meeting for considering the subject mentioned in the said requisition.

(2.) The respondent No. 4 did not convene any such meeting. The petitioner and the respondents Nos. 5 to 14, therefore, submitted on 11-4-1969 a written requisition under section 81 of the Act to the Collector, Bhandara, requesting him to convene a special meeting for considering the motion of the removal of the Vice-President. Acting on this requisition, the Collector by his memorandum dated 19-4-1969 ordered a special meeting for 24th April 1969 at 1 p.m. and authorised the Sub-Divisional Officer, Bhandara to preside over that special meeting. The meeting was held on 24-4-1969 at which the respondent No. 1 presided. At this meeting 22 Councillors were present including the petitioner and one co-opted Councillor. The motion of no-confidence was moved in the said meeting. It was put to vote and 11 Councillors voted in favour of the resolution and 10 Councillors voted against the resolution. The co-opted Councillors did not take part in the said voting. The strength of the Municipal Council was of 22 elected Councillors and 2 co-opted Councillors, but at the relevant time, there was one vacancy in the office of the Councillor owing to the death of Fattuji Meshram and there were only 21 Councillors who were entitled to sit and vote. The Presiding Officer took the view that since the total number of Councillors excluding the co-opted Councillors would be 22, the minimum number required to pass the resolution would be 12 and, therefore, he declared that the resolution of no confidence failed inasmuch as the minimum required majority of 12 Councillors did not vote in favour of the resolution. The petitioner, therefore, has filed this petition challenging the order of the Presiding Officer, the respondent No. 1, by which he declared that the resolution has failed. The petitioner asked for a writ that it should be declared that the resolution dated 24-4-1969 for the removal of the Vice-President is validly passed by a majority of the total number of Councillors as required by section 55(2) of the Act and that the respondent No. 4 ceases to be the Vice-President of the Council.

(3.) The petition is opposed by the contesting respondents. It is alleged, in the first place, that the Collector had no power to convene a meeting for the removal of the Vice-President on the requisition given to him by some of the Councillors. It was contended that the power to convene a meeting for passing a resolution of the removal of the Vice-President vests in the President and President alone and the Collector has no power to convene such a meeting. It is further contended that the order passed by the Presiding Officer, the respondent No. 1, is a legal order inasmuch as the total number of Councillors for this Council was 22 and the minimum required majority would be of 12 Councillors and the Councillors voting in favour of the resolution fell short by one vote. It is contended that, in the first place, though under section 59(1)(b), the Vice-President has a duty to exercise all the powers and to perform all the duties of the President pending the election of a new President, he is not a President or a full-fledged President to whom a requisition under section 55(1) could be given for the removal of the Vice-President and secondly, it is urged that even if such a requisition could be validly given to the Vice-President who is performing the duties of a President and such a person refuses to convene a meeting or even the full-fledged President refuses to convene a meeting, there is no power in the Collector to convene such a meeting and hence the meeting itself was illegal.