Dismissed

Lalita Samdani v. State of Rajasthan

Rajasthan HC18 Dec 2019SAW/1529/2019

Case brief

AI extract

What is this about?

Special Appeal dismissed. Bench held constitutional absence of copied motion of no confidence in the District Collector's notice for meeting does not vitiate proceedings under Rule 3 of Rajasthan Municipalities Rules, 2017, dismissing writ against notice.

What did the court decide?

Intra court appeal (Special Appeal) dismissed; High Court's order of dismissal of writ petition upheld.

Lalita Samdani Vs State of Rajasthan — Pension and Retirement Benefits | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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D.B. Spl. Appl. Writ No. 1529/2019

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Lalita Samdani W/o Shri Om Prakash, Aged About 55 Years, Resident of 1-B-14, Shastri Nagar, Bhilwara Rajasthan.

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----Appellant

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Versus

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State of Rajasthan, Through The Principal Secretary, Local Self Department, Secretariat, Jaipur.

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The Director and Joint Secretary, Local Self Department, Jaipur.

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The District Collector, Bhilwara.

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The Municipal Council, Bhilwara, through its Commissioner.

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----Respondents

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For Appellant(s) : Mr. Manoj Bhandari with Mr. Govind Suthar

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For Respondent(s) : Mr. Rajesh Joshi, Senior Advocate assisted by Mr. Rishabh Shrimali and Mr. C.V.S.Shekhawat Mr. Sunil Beniwal, AAG with Mr.Utkarsh Singh

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HON'BLE MR. JUSTICE SANGEET LODHA HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

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Judgment

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18/12/2019

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This intra court appeal is directed against order dated 26.11.19 passed by the learned Single Judge of this Court, whereby the writ petition preferred by the appellant challenging the notice of ‘No Confidence Motion’ on the ground that it was not accompanied by motion of no confidence, has been dismissed.

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(2 of 7)

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[SAW-1529/2019]

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The facts relevant are the appellant was elected as Chairperson of the Municipal Council, Bhilwara on August 20, 2015. On 18.11.19, 45 members of the Municipal Council, Bhilwara sent a written notice with the copy of the motion expressing no confidence in Chairperson of the Municipal Council, the appellant herein, to the District Collector, Bhilwara. The District Collector convened the meeting for consideration of no confidence motion vide notice dated 20.11.19. The appellant was served with the notice, which according to the appellant was accompanied by communication dated 18.11.19 signed by 44 members of Municipal Council, Bhilwara expressing their no confidence in the Chairperson, however, the same was not accompanied by the copy of the no confidence motion.

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Precisely, the legality of the notice was challenged by the appellant on the ground that the notice issued not accompanied by no confidence motion, is contrary to the mandatory provision of Rule 3 of Rajasthan Municipalities (Motion of no confidence against Chairperson or Vice-Chairperson) Rules, 2017 (‘the Rules of 2017’) and thus, the proceedings initiated by the District Collector for consideration of the Motion of no confidence stands vitiated.

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The learned Single Judge arrived at the conclusion that as per provisions of sub-rule (2) of Rule 3 of the Rules of 2017, the notice sent by the District Collector to the members convening a meeting for consideration of the motion to be held at the office of the Municipality is not required to be accompanied by copy of the motion of no confidence submitted by the members. Accordingly, the writ petition has been dismissed.

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(3 of 7)

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[SAW-1529/2019]

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Rule 3 of the Rules of 2017 which provides for the procedure to be adopted for consideration of motion of no confidence reads as under:

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“3. Procedure for no confidence.-(1) A written notice of the intention to make motion of no confidence in the Chairperson or Vice-Chairperson, as the case may be, signed by threeforth eligible members of the Municipality together with a copy of the motion which is proposed to be made, shall be sent to the Collector of the District, who shall thereupon convene a meeting for the consideration of the motion to be held at the office of the Municipality, on the date and at the time appointed on him.

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(2) The collector shall sent by registered post not less than seven clear days before the date of the meeting a notice of such meeting and of the date and time fixed therefore to every eligible member of the Municipality.

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(3) The collector or officer authorized by him shall preside at such meeting and if within half an hour from the time appointed for the meeting, Collector or officer authorized by him is not present or is unable for any unavoidable cause to preside at the meeting, the meeting shall stand adjourned to the date and the time to be fixed and notified to the eligible members.

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(4) A meeting convened for purpose for consideration of the motion of no confidence under these rules shall not for any reason except stated in sub-rule (3), be adjourned.

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(5) Three-fourth of the number of eligible members shall be required to form the quorum.

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(6) No meeting for the consideration of the motion of no confidence shall be held in absence of quorum.

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(7) The motion of no confidence against the Chairperson or Vice-Chairperson shall be deemed to have been lost if required members for the quorum are not present within an hour from the time appointed for the meeting.

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(8) As soon as the quorum is complete, the Collector or his nominee shall read the motion for the consideration for which the meeting has been convened and declare it to be open for discussion.

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(9) Such discussion shall not be adjourned and shall automatically terminate on the expiry of four hours from the time fixed for the commencement of the meeting unless it is concluded earlier.

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(4 of 7)

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[SAW-1529/2019]

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(10) On the conclusion of the debate or upon the expiry of the said period of four hours, as the case may be, the motion shall be put to the vote. The Collector or officer authorized by him shall neither speak on the merits thereof nor comments thereon. The voting shall be carried out by way of secret ballot.

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(11) If the motion is not carried by a three-fourth number of eligible members, the motion of no confidence against the Chairperson or Vice-Chairperson shall be deemed to have been lost.

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(12) If the motion is carried by a majority of three-fourth number of eligible members, the motion shall be deemed to have been passed against the Chairperson or ViceChairperson and such Chairperson or Vice-Chairperson, as the case may be, shall forthwith be deemed to have vacated his office.”

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Learned counsel appearing for the appellant contended that as per sub-rule (1) of Rule 3, a written notice submitted by the members of the Municipality expressing their intention to make motion of no confidence is required to be accompanied by a copy of the motion which is proposed to be made and thus, the District Collector while issuing notice convening the meeting for consideration of the motion in terms of provisions of sub-rule (2) of Rule 3 of the Rules of 2017 is under an obligation to serve the notice of the meeting accompanied by a copy of the motion of no confidence. In this regard, the learned counsel relied upon a decision of Allahabad High Court in Dr. Mahendra Pal vs. Collector, District Hardoi & Ors. wherein in the matter of consideration of no confidence motion against the Block Pramukh of Kshetriya Samiti under Section 15 of U.P. Khestriya Samitis and Zila Parishad Adhiniyam, 1961, the Allahabad High Court held that the meeting convened for consideration of no confidence motion without the copy of the motion of no confidence being sent to the members was invalid.

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(5 of 7)

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[SAW-1529/2019]

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On the other hand, learned Additional Advocate General submitted that a bare look at sub-rule (2) of Rule 3, shows that it nowhere requires that the notice convening the meeting must be accompanied by proposed motion of no confidence and thus, the view taken by the learned Single Judge cannot be faulted with.

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We have considered the rival submissions and perused the material on record. 9. It is noticed that sub-section (9) of Section 42 of the Rajasthan Municipalities Act, 2009 mandates that every Chairperson and every Vice-Chairperson of a Municipality shall forthwith be deemed to have vacated his office, if a resolution expressing want of confidence in him is passed in accordance with the procedure prescribed. Indisputably, the procedure for consideration of motion of no confidence is prescribed under Rule 3 of the Rules of 2017.

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As per sub-rule (1) of Rule 3, a written notice of intention to take motion of no confidence in the Chairperson or ViceChairperson, as the case may be, signed by three-fourth eligible members of the Municipality together with a copy of the motion which is proposed to be made is required to be sent to the District Collector, who in its turn is required to convene a meeting for consideration of the motion to be held at the office of the Municipality on the date and the time appointed by him.

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Sub-rule (2) of Rule 3 mandates that the Collector shall send by registered post not less than seven clear days before the date of meeting a notice of such meeting and on the date and time fixed therefor to every eligible member of the Municipality. Indubitably, sub-rule (2) mandates service of the notice of the meeting of clear seven days but it nowhere mandates that the

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(6 of 7)

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[SAW-1529/2019]

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notice to be issued must accompany a copy of the motion proposed to be made submitted by three-fourth eligible members alongwith the written notice expressing their intention to make motion of no confidence in Chairperson or Vice-Chairperson, as the case may be. As a matter of fact, the appellants wants to read something in sub-rule (2) of Rule 3, which is not there. In the considered opinion of this Court, the provision incorporated in the Rules of 2017 providing for the procedure for no confidence must be construed strictly and it is not permissible under the law to read something in the provision which is not there.

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The intention of the rule making authority further stands clarified by sub-rule (8) of Rule 3 of the Rules of 2017, which mandates that in the meeting convened as soon as quorum is complete, the Collector or his nominee shall read the motion for consideration for which the meeting has been convened and declared it to be open for discussion. 13. Thus, a conjoint reading of the provisions of sub-rule (1), (2) and (8) of Rule 3, makes it abundantly clear that inference sought to be drawn by the appellant regarding the requirement that notice of the meeting must be accompanied by motion of no confidence submitted by the members is absolutely misconceived. 14. Coming to the decision of Allahabad High Court in Dr. Mahendra Pal’s case (supra), suffice it to say that the said decision was rendered taking into consideration the provisions applicable whereunder the format of the notice as prescribed under the rules contains a clear stipulation that ‘A copy of motion is annexed hereto’. Thus, the learned Single Judge has rightly arrived at the conclusion that the decision of Allahabad High Court is of no avail to the appellant herein.

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(7 of 7)

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[SAW-1529/2019]

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There is yet another aspect of the matter. We are informed that in the meeting convened for consideration of no confidence motion, the motion has already been carried out against the appellant by three-fourth majority and thus, the appellant, who has lost confidence of elected representatives otherwise cannot be continued in the office.

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