Chattisgarh High Court
Smt. Aabha Mahendra Shrivastava vs Manish Nagraj on 17 November, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WA No. 597 of 2022
Smt. Aabha Mahendra Shrivastava W/o Shree Mahendra Shrivastava Aged
About 45 Years Upadhyaksha Nagar Panchayat Sahaspur Lohara Nivasi-
Gram Sahaspur Lohara, Tahsil Sahaspur Lohara, District : Kawardha
(Kabirdham), Chhattisgarh
---- Appellant
Versus
1. Manish Nagraj S/o Late Shri Chaitudas Nagraj Aged About 52 Years
Councilor Ward No. 10 Nagar Panchayat Sahaspur Lohara, District :
Kawardha (Kabirdham), Chhattisgarh
2. Ajay Kumar Yadav S/o Late Shri Motiram Yadav Aged About 42 Years
Councilor Ward No. 08 Nagar Panchayat Sahaspur Lohara, District :
Kawardha (Kabirdham), Chhattisgarh
3. Anjuram Patel S/o Shri Kejlal Patel Aged About 28 Years Councilor
Ward No. 14 Nagar Panchayat Sahaspur Lohara, District : Kawardha
(Kabirdham), Chhattisgarh
4. Jagdish Patel S/o Shri Kanaklal Patel Aged About 27 Years Councilor
Ward No. 06 Nagar Panchayat Sahaspur Lohara, District : Kawardha
(Kabirdham), Chhattisgarh
5. State of Chhattisgarh Through The Secretary, School Education
Urban Adminiistration Department Mahanadi Bhawan Capital
Complex, Atal Nagar, New Raipur, District : Raipur, Chhattisgarh
6. Collector / Prescribed Officer Kabirdham, District : Kawardha
(Kabirdham), Chhattisgarh
7. Chief Municipal Officer Nagar Panchayat Sahaspur Lohara, District :
Kawardha (Kabirdham), Chhattisgarh
---- Respondent
(Cause-title taken from Case Information System)
For Appellant : Mr. Abdul Wahab Khan, Advocate.
For Respondents No. 1 to 4 : Mr. Sunil Sahu, Advocate.
For Respondent No. 5 and 6 : Mr. Raghavendra Pradhan, Additional
Advocate General.
For Respondent No. 7 : Mr. Vikram Sharma, Advocate.
Hon'ble Shri Arup Kumar Goswami, Chief Justice
Hon'ble Shri Sanjay Agrawal, Judge
Judgment on Board
Per Arup Kumar Goswami, Chief Justice
17.11.2022
Heard Mr. Abdul Wahab Khan, learned counsel for the appellant. Also
heard Mr. Sunil Sahu, learned counsel, appearing for respondents No. 1 to
4 / writ petitioners, Mr. Raghavendra Pradha, learned Additional Advocate
General, appearing for respondents No. 5 and 6, and Mr. Vikram Sharma,
learned counsel, appearing for respondent No.7.
2. The present appeal is presented against an order dated 10.10.2022
passed by the learned Single Judge in WPC No. 4289 of 2022.
3. The present appellant was not a party in that petition and therefore,
has filed an application seeking leave to prefer an appeal against the
aforesaid order.
4. The writ petition was filed by four Councillors of Nagar Panchayat,
Sahaspur-Lohara, District Kabirdham, essentially, contending that though a
requisition signed by ten Councillors was presented before the Collector /
respondent No. 2 on 19.04.2022 to convene a No Confidence Motion
against the vice president and though such Councillors had presented
themselves before the Office of the Collector, no meeting has been
convened in terms of Section 43-A of the Chhattisgarh Municipalities Act,
1961 (for short, the Act of 1961) to discuss the No Confidence Motion.
5. The learned Single Judge, in view of the provision contained in
Section 43-A of the Act of 1961, without considering the merits of the case,
disposed of the writ petition with a direction to respondent No. 2 to take up
the proceedings initiated on the requisition submitted by the petitioners and
conclude the same within a reasonable time, preferably within 30 days from
the date of receipt of copy of the order.
6. It is submitted by Mr. Khan that since the No Confidence Motion was
sought to be moved against the appellant, the appellant was a necessary
party in the writ petition and as the impugned order has been passed in
absence of the appellant, the same militates against the principles of
natural justice and on that count alone, the impugned order is liable to be
set aside and quashed. It is further submitted by him that it is doubtful as to
whether the signatures appearing in the requisition are genuine and
therefore, without ascertaining the same, no direction could have been
issued for convening a meeting for No Confidence Motion.
7. Mr. Sunil Sahu, learned counsel, appearing for the writ petitioners,
relying on the certified copy of the proceeding in Case
No.202205080200069 dated 28.06.2022, submits that all the ten
signatories of the requisition were present in the Office of the Collector and
had duly recorded their presence by affixing their signatures in the order
sheet. It is submitted that the Collector being absent on that date, their
physical presence was recorded by the In-charge Officer. He submits that
under Section 43-A(2) of the Act of 1961, the Collector is enjoined to
convene a meeting forthwith on the requisition signed by not less than 1/6 th
of the total number of elected Councillors constituting the Council and the
total number of Councillors in the instant case being 15, 9 Councillors
represent more than 1/6th of total number of elected Councillors. He further
submits that in the attending facts and circumstances of the case, the
appellant is not necessary party and therefore, the application to grant of
leave to appeal may not be allowed and the writ appeal may be dismissed.
8. Mr. Pradhan submits that it is a fact that the requisitionists had
appeared, as demonstrated by the order sheet dated 28.06.2022, before
the In-charge Officer, who had recorded signatures of the requisitionists.
9. Mr. Sharma endorses the submission of Mr. Pradhan.
10. Section 43-A reads as follows:
"43-A. No-confidence motion against the President or
Vice President. ― (1) A motion of no- confidence may be
moved against the President or the Vice President by
any elected Councillor at a meeting specially convened
for the purpose under sub-section (2) and if the motion,
is carried by a majority of two thirds of the elected
Councillors present and voting in the meeting and if such
majority is more than half of the total number of elected
Councillors constituting the Council, the office of the
President or the Vice President, shall be deemed to have
become vacant forthwith a copy of such motion shall be
sent by the Chief Municipal Officer to the Collector
forthwith for filling up the Vacancy :
Provided that no such resolution shall lie
against the President or the Vice-President within a
period of ―
(i) two years from the date on which the
President or the Vice President enters
upon his office ;
(ii) one year from the date on which the
previous motion of no-confidence was
rejected.
(2) For the purpose of sub-section (1), a meeting of
the Council shall be convened and presided over by
the Collector or a Class-I Officer in case of a
Municipal Council and a Class II Officer in case of
Nagar Panchayat as nominated by him, in the
following manner, namely :-
(i) the meeting shall be convened forthwith on
a requisition signed by not less than one sixth of the
total number of elected Councillors constituting the
Council for the time being ;
(ii) the notice of such a meeting specifying
the date, time and place shall be despatched to the
President, Vice-President and every Councillor ten
clear days before the meeting ;
(iii) the no confidence motion moved under this
Section shall be decided through secret ballot."
11. In WA No. 284 of 2022, in the case of Satya Gupta v. State of
Chhattisgarh and Others, decided on 10.08.2022, this Court had analyzed
the provision of Section 43-A and had recorded in paragraphs 12, 13, 14,
15 and 16 as follows:
"12. A perusal of Section 43-A(1) as it stands now
(without taking into consideration the proviso part) would
go show that it consists of one sentence. In our
considered opinion, in between the words "forthwith" and
"a copy of such motion", the word "and" should have
found place.
13. Reading of Section 43-A (1) excluding the proviso
would go to show that:
(i) a motion of no confidence may be moved
against the President or the Vice-President by
any elected Councillor at a meeting specially
convened for the purpose under sub-section
43-A(2);
(ii) The office of the President or the Vice-
President shall be deemed to have become
vacant forthwith when twin conditions, namely,
if the motion is carried (a) by majority of two
thirds of the elected Councilors present and
voting in the meeting and (b) if such majority is
more than half of the total number of elected
Councilors constituting the Council, are
satisfied;
(iii) Copy of motion is required to be sent by the
Chief Municipal Officer to the Collector
forthwith for filling up the vacancy.
14. Proviso to Section 43-A lays down that no such
resolution shall lie against the President or Vice-
President within a period of (a) two years from the date
on which the President or the Vice President enters upon
his office and (b) one year from the date on which the
previous motion of no-confidence was rejected.
15. How the meeting is to be convened is delineated in
Section 43-A(2) of the Act of 1961.
16. Section 43-A(2) provides that the meeting is to be
convened forthwith on a requisition signed by not less
than one sixth of the total number of elected Councilors
constituting the Council for the time being."
12. Therefore, in terms of Section 43-A(2), meeting has to be convened
forthwith if the requisite number of councillors had signed the requisition.
13. In a matter of present nature, there may be disputed question of fact,
such as requisition not being signed by the requisite number of Councillors
etc. and therefore, in a writ petition filed, the person against whom a No
Confidence Motion is sought to be moved, in our opinion, is a proper party,
if not a necessary party.
14. In the light of the above, we allow the application for leave to prefer
the appeal filed by the appellant.
15. A perusal of the order dated 28.06.2022 goes to show that the
requisitionists had in person appeared before the In-charge Officer as the
Collector was not available on that date and in the order sheet their
signatures have been affixed and therefore, there is no dispute that
requisite number of requisitionists had submitted the requisition. Therefore,
the Collector was duty bound under provisions of 43-A(2)(i) of the Act of
1961 to convene a meeting forthwith. Instead, the orders dated 05.07.2022,
16.08.2022, 29.09.2022, 11.10.2022, 14.10.2022, 18.10.2022 and
21.10.2022 go to show that on a casual and routine manner issue was not
dealt with by the Collector and he merely went on postponing the direction
that was required to be issued. We are of the opinion that in the facts and
circumstances of the case, no prejudice is caused to the appellant by the
order passed by the learned Single Judge.
16. In the conspectus of facts, as noticed herein above, we find no good
ground to interfere with the order of the learned Single Judge and,
accordingly, the writ appeal fails and is dismissed. No cost.
Sd/- Sd/-
(Arup Kumar Goswami) (Sanjay Agrawal)
Chief Justice Judge
Hem
