BABURAO NARAYAN BAGADE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Rule was issued on 12-7-2005. Notice was issued to respondent no. 4. Sheristedar informs that respondent No. 4 has been served.

(2.) Petitioners are all elected councillors of the Municipal Council, Bhandara. They have been elected in the general elections held in January, 2002. Since then the petitioners are in office. After the declaration of results in the year 2002, respondent No. 2 published the names of 32 elected Councillors. Similarly, the name of respondent No. 4 was also published as being elected as a President of the Council. Both publications were in the official gazette. The elected Councillors including the petitioners moved requisition to respondent No. 2 on 7-5- 2005 to hold a special meeting for considering a motion of no-confidence against respondent no. 4. In view of the requisition, respondent no. 2 convened a special meeting of the council on 17-5-2005 to consider the motion of no- confidence against respondent No. 4. Respondent No. 2 appointed respondent No. 3 to preside over the meeting to be held on 17-5-2005. The meeting was held on 17-5-2005 for considering the motion of no-confidence. It is the case of the petitioners that, they apprehended that, respondent No. 3 would commit an error in law by considering respondent No. 4 as elected Councillors and would so count him while calculating the number required for three fourths majority. Therefore, petitioner No. 2 on 17-5-2005 lodged objection with respondent no. 3. It was contended that respondent No. 4 is not an elected Councillor and is not entitled to vote. It was clarified that, if 24 elected members remain present in the meeting and vote in favour of the motion, then the motion will have to be treated to be passed by 3/4th majority. On 17-5-2005 a special meeting was held and as many as 24 elected Councillors out of 32 Councillors along with two co-opted councillors were present for the meeting. As respondent No. 3 found that, there was necessary quorum for the meeting, the requisition was placed for consideration and was put to vote. 24 Councillors voted in favour of passing of no-confidence motion. Inspite of that, respondent No. 3 illegally declared the motion as failed by holding that, 3/4th of the majority would be 25 Councillors and not 24 councillors. It is also pointed out that, respondent No. 3 on 17-5-2005 had passed an order on the objection/representation of the petitioners holding that considering Sub-section (7) of Section 2 of the Maharashtra Municipal councils, Nagar Panchayats and Industrial townships Act, 1965, which defines, "councillors" includes the directly elected president. It is set out that, action of respondent No. 3 of declaring that the motion of no-confidence has failed as 25 Councillors have not voted in favour, is illegal, arbitrary, and such order is totally without jurisdiction and is against established principles of law. It is, therefore, submitted that, action of respondent No. 3 is contrary to the relevant provisions of the Act. It is submitted that, merely because the directly elected President is included in the definition of "councillor", it does not mean that the President of the Council becomes an elected Councillor. The decision, therefore, of respondent No. 3 by order dated 17-5-2005, is clearly contrary to law. It is pointed out that, considering the various provisions of the Act, it would be clear that, directly elected President is not an elected councillor. In other words, it is submitted that, while considering the 3/4th of the majority required for passing the motion of no- confidence, the President being not elected councillor, he cannot be counted for the purpose of determining the total number of councillors, and/or in alternative be counted for or computing the 3/4th required to pass motion of no-confidence. Reliance is placed on the various provisions of the Act to contend that definition of "councillor" contained in Section 2 (7) is merely an extended definition for a specific purpose under the Act. An elected councillor is distinct from the President and/ or the expression "councillor" under section 2 (7) of the Act. It is also pointed out that, section 2 (49) defines the expression "total number of Councillors" to mean the total number of elected Councillors of the Municipal council. The extended definition of Councillor under Section 2 (7) , therefore, cannot be read into section 55 of the Act, to work out the 3/ 4th required for passing of no-confidence motion. On the other hand, on behalf of respondent Nos. 1 to 3, the learned A. G. P. points out that considering the plain language of Section 2 (7) of the Act, the President is also councillor and in such circumstances respondent No. 3 was right in holding the motion of no-confidence was not carried. Reliance is also placed on the judgment of Chandrakant s/o. Ganpatrao Ghuse Vs. State of maharashtra and Ors. , 2000 (4) Mh. L. J. 435, to contend that the President is also an elected councillor.

(3.) Having heard the learned counsels for the parties, the question which this Court has to decide is, whether the expression "total number of Councillors" in Section 55 of the act includes the President. For that purpose, we may first refer to some provisions of the maharashtra Municipal Councils, Nagar panchayats and Industrial Townships Act, 1965, which hereinafter shall be referred to as the Act. Section 2 (7) defines Councillor as under:-" 'councillor' means a person duly elected as the directly elected President and includes the nominated Councillor, who shall not have the right,- (i) to vote at any meeting of the Council and Committees of the Council; and (ii) to get elected as a Chair-person of any of the Committees of the Council. "section 2 (49) of the Act, which is relevant, reads as under :-" 'total number of Councillors' in relation to a Council, means the total number of the elected Councillors of that Council. "we may now refer to some of the provisions of Section 55, which read as under :-"55. (1) Notwithstanding anything contained in this section, after the coming into force of the Maharashtra Municipal corporation and Municipal Councils (Amendment) and Temporary Provisions for Conduct of Elections of Municipal corporations Act, 2001, a president shall cease to be the President if the Councillors by a resolution passed at a special meeting by majority not less than three fourths of the total number of Councillors so decides. Provided that, no such resolution shall be moved within a period of three years from the date of the election of the President. (2) The requisition for such special meeting shall be signed by not less than one-half of the total number of Councillors and shall be sent to the Collector. Provided that any co-opted Councillor co- opted on the council before 31st May, 1994 shall not have the right to sign the requisition for the special meeting and shall also have no right to vote at such special meeting. (3) The Collector shall, within ten days of the receipt of a requisition under sub-section (2) , convene a special meeting of the Council: provided that, when the Collector convenes a special meeting, he shall give intimation thereof to the President. (4) A meeting to consider a resolution under sub-section (1) shall be presided over by the Collector or any other officer authorised by him in this behalf, but the Collector or such other officer shall have no right to vote. (5) The (nominated) Councillors present at any meeting mentioned in sub-section (4) shall have no right to vote on any resolution relating to the removal of the President. "from a literal reading of section 55 (1) and section 2 (49) it would be clear that, 3/4th required is from the total number of elected councillors of that Council. The expression "elected Councillors" in section 55 (1) r/w. section 2 (49) does not include the President as set out under section 2 (7) of the Act. Section 2 (49) defines "total number of Councillors" to mean the total number of the elected Councillors of the Municipal Council. It is, therefore, clear that, the 3/4th must be from the total number of elected Councillors. It is no doubt true that, the President is also elected by the entire body of the voters of the Municipal Council. In the circumstances can it be said that, the definition of Councillor under Section 2 (7) includes the directly elected President. the attempt by the Court should be to first to consider the plain language of the statute, and adopt a literal construction. If the language is clear and not ambiguous, then it is not open to proceed to the other methods of interpretation. It is only in the event, if the literal reading of the provisions makes no sense or would defeat the object with which the Act was enacted would the court proceed to adopt other well known canons of construction, to achieve the object for which the legislation is enacted. It must also be noted that, many a time the legislature adopts an inclusive definition with the limited object of reading the definition for specific purpose and specific object. In such cases, the extended meaning of the definition will have to be considered, bearing in mind the object of the Act. On plain construction of Section 2 (7) read with 2 (49) and section 55 (1) , it would be clear that, only those Councillors can participate in the vote who are the elected Councillors and not the president. It will therefore, be clear that, whilst considering the total number of elected councillors, it is not open to the respondent no. 3 to include the President for computing the 3/4th required for passing the motion of no-confidence.