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S. Shivashankarappa and ors. Vs. the Davangere City Municipality, Davangere and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 1297 of 1978
Judge
Reported inAIR1978Kant140; 1978(1)KarLJ448
ActsKarnataka Municipalities Act, 1964 - Sections 2(6), 11, 11(1), 18(1), 19, 42(9) and 80(4); Karnataka Village Panchayats and Local Boards Act, 1959 - Sections 37; Assam Gram Panchayats Act - Sections 27(1)
AppellantS. Shivashankarappa and ors.
RespondentThe Davangere City Municipality, Davangere and ors.
Appellant AdvocateC.N. Kamath, Adv.
Respondent AdvocateG. Masilamani and ;K. Shivashankar Bhat, Govt. Adv.
Excerpt:
- labour & services. dismissal from service: [subhash b. adi, j] dispensation of disciplinary enquiry - electricity (supply) act (54 of 1948) section 79 and karnataka electricity board employees (conduct, discipline, control & appeal) regulations, 1987, regulation 14 petitioner alleged to have been involved in theft - criminal complaint also lodged in this regard - however, based on same evidence criminal court held that charge of theft is not proved and also recovery is not proved by prosecution - disciplinary authority relying upon admission of criminal charge by petitioner before investigation officer and in charge sheet, passing order of dismissal held, not proper, particularly, when enquiry was dispensed with and petitioner had no opportunity before disciplinary authority. further,..........number of councilors required for tha resolution expressing want of confidence in a president or vice-president of a municipal council by which, they stand removed from their respective offices under section 42(9) of the karnataka municipalities act, 1964 (hereinafter referred to as 'the act'), is two-thirds of the actual number of councilors or two-thirds of the total number of councilors prescribed under section 11 of the act.2. the petitioners in this writ petition are six municipal councilors of the davangere city municipal council which is functioning under the provisions of the act.3. it is not disputed that number of councilors of davangere city municipal council fixed under section 11 of the act, is 35. it is also not disputed that out of 35 councilors elected, one councillor.....
Judgment:
ORDER

1. The question that arises for consideration in this writ petition is whether the number of councilors required for tha resolution expressing want of confidence in a President or Vice-President of a Municipal Council by which, they stand removed from their respective offices under Section 42(9) of the Karnataka Municipalities Act, 1964 (hereinafter referred to as 'the Act'), is two-thirds of the actual number of councilors or two-thirds of the total number of councilors prescribed under Section 11 of the Act.

2. The petitioners in this writ petition are six Municipal councilors of the Davangere City Municipal Council which is functioning under the provisions of the Act.

3. It is not disputed that number of councilors of Davangere City Municipal Council fixed under Section 11 of the Act, is 35. It is also not disputed that out of 35 councilors elected, one councillor died and another ceased to he a councillor and consequently, there are only 33 councilors. Two resolutions dated 19-1-1978 (Exhibits A and B) expressing want of confidence in the President and the Vice-President were passed by a majority of 23 councilors out of 33 as against 11 councilors opposing the resolutions. Respondent No. 5 was the President and respondent No. 6 was the Vice President of the Davangere City Municipal Council.

4. The case of the petitioners is that notwithstanding the passing of resolutions expressing want of confidence in respondents Nos. 5 and 6, they are continuing in tha office of the President and Vice-President respectively, though they must be deemed to have vacated the offices in view of Section 42(9) of the Act.

5. On the other hand, it is contended on behalf of respondents Nos. 5 and 6 that as the resolutions were passed by less than two-thirds of the total number of councilors, those resolutions are invalid and therefore, they are not obliged to vacate then offices.

6. Section 42(9) of the Act prescribes the procedure for removing President Or Vice-President as the case may he by passing resolution expressing want of confidence. The said Section reads as follows:

'Every President and every Vice-President of a Municipal Council shall forthwith be deemed to have vacated his office if a resolution expressing want of confidence in him is passed by a majority of not less than two-thirds of the total number of councilors at a special general meeting convened for the purpose:

Provided that no such resolution shall be moved unless notice of the resolution is signed by not less than One-third of the total number of councilors and at least ten days' notice has been given of the intention to move the resolution; Provided further that where a resolution expressing want of confidence in any President or Vice-President has been considered and negatived by a Municipal Council, a similar resolution in respect of the same President or Vice-President shall not be given notice of or moved within one year from the date of the decision of the Municipal Council.'

7. As can be seen from the first proviso to Sub-section (9) of Section 42 of the Act, before passing a resolution expressing want of confidence in any President or Vice-President, a notice in writing signed by not less than one-third of the total number of councilors with at least ten days' notice has to be given to the concerned person. Thereafter, the resolution is required to be passed by a special general meeting and in such meeting, if two-thirds of the 'total number of councilors' pass a resolution expressing want of confidence in the President or the Vice-President as the case may be, they shall be deemed to have vacated the office forthwith.

8. According to the petitioners for purposes of Section 42(9) of the Act the requisite majority of two-thirds of the councilors has to be calculated with reference to the existing number of councilors viz., 33 and not to the total number of 35 councilors of the Davanagere City Municipal Council. Shri C. n. Karnath, learned Counsel appearing for the petitioners, contended that the two-thirds majority has to be calculated only with reference to the existing number of 33 councilors and the two vacancies should not be taken into account. In support of his contention, he relied upon the definition contained in Section 2(6) of the Act, in which the word 'councillor' is defined. The said subsection reads as follows:

' 'Councillor' means any person who is legally a member of a Municipal Council.'

On the basis of the definition contained in Section 2(6) of the Act, he contended that the word 'councillor' used in Section 42(9) of the Act means, any person who is legally a member of the Municipal Council and therefore, cannot include a person who was a councillor who is dead or who has ceased to be a councillor.

9. On the other hand, Sri G. Masilamani, learned Counsel appearing for respondents Nos. 5 and 6 and Sri K. Shivashankara Bhat, learned High Court Government Advocate appearing for respondents Nos. 2 to 4, submitted that requisite majority of two-thirds as per Section 42(9) has to be calculated with reference to the total number of councilors fixed for the municipality.

10. The controversy has to be resolved on the -interpretation of the relevant provisions of the Act. Sub-sec. (1) of Section 11 prescribes total number of councilors for various town and City Municipal Councils on the basis of population. The said Section reads as follows:

'11. Constitution of Municipal Councils.-

(1) The Municipal Council shall consist ot such number of councilors as is indicated in the following table:--

TABLE

Population of municipality

Number of councilors.

(i) to (v)

xx

XX

(vi)

fora municipality with a population exceeding one lakh.

35

As already stated, Davanagere City Municipal Council is a municipality with a population exceeding one lakh and the total number of councilors fixed for that municipality is 35. In view of the wording of Section 11, it becomes clear that every municipality constituted under the Act has to consist of such number of councilors as prescribed in the said Section. Section 19 of the Act provides how casual vacancies arising after election in any municipality on account of resignation, non-acceptance of office or for any other reason, are required to be filled up. Proviso to Section 19 also provides that no election shall be held to fill a casual vacancy occurring with in six months prior to the expiry of the term of office of councilors trader Sub-section (1) of Section 18. When vacancies arise in any Municipal Council, the Municipal Council will be incomplete with reference to the strength prescribed in Section 11 of the Act. Therefore, in order to enable the Municipal Councils to function in spite of there being vacancies until the vacancies are filled up, a legal fiction is created by Sub-section (4) of Section 80 of the Act and enables the remaining councilors to continue to function as Municipal Council. Sub-section (4) of Section 80 reads as follows:

'During any vacancy in a Municipal Council or committee the continuing councilors or members may act as if no vacancy had occurred.' The clear effect of Sub-section (4) of Section 80 is that when there is any vacancy in a Municipal Council, the rest of the councilors are authorised to continue and function as full Municipal Council as if no vacancy had occurred. In other words, the effect is that though actually vacancies exist and are required to be filled up in accordance with Section 19 of the Act, or they are not required to be filled up in view of the proviso to Section 19, by legal fiction, the Municipal Council is deemed to consist of all the councilors as prescribed in Section 11 of the Act. Therefore, the total number of councilors referred to in Section 42(9) of the Act has reference to the number of municipal councilors fixed under Section 11 of the Act. I am unable to accept the contention urged for the petitioners that the requisite majority of two-thirds of the councilors required for a resolution expressing want of confidence which has the effect of removing a person from the office of a President or a Vice-President as the case may be, under Section 42(9) of the Act, has to be calculated only with reference to the existing number of councilors. If the intention of the legislature was that the two-thirds of the existing number of councilors, on any given day, when a resolution expressing want of confidence is passed against a President or a Vice-President as the case may be, alone should be taken into account, the legislature would have used the words 'existing number of councilors' instead of the words 'total number of councilors' in Section 42(9) of the Act. The acceptance of the contention of the petitioners would amount to substituting the word 'existing' in place of the word 'total' in Section 42(9) of the Act, which is not permissible. There is also a specific legislative object in prescribing the stringent requirement of two-thirds of the total number of councilors for passing a resolution against the President or Vice-President as the case may be, expressing want of confidence. Under the Act, a President or a Vice-President of a Municipal Council can be elected by the votes of an ordinary majority of members present and voting. Having been so elected, Presidents and Vice-Presidents hold important and high executive offices under the Act in the concerned Municipal Council. The legislature has thought fit to provide security of tenure in the interest of ensuring the proper discharge of duties and responsibilities of President or Vice-President as the case may be, without the fear of being removed from the respective offices by the change of loyalties of a few municipal councilors. It is with this object in view that the majority of two-thirds of the total number of councilors has been prescribed for the validity of a resolution expressing want ot confidence against a President or a Vice-President, as the case may be, under Section 42(9) of the Act. Therefore, this provision has to be construed strictly. When it is so construed, the conclusion is inevitable that the requisite majority of two-thirds of the councilors for the purpose of Sub-section (9) of Section 42 of the Act, has to be calculated on the basis ot the 'total number of councilors' and not on the basis of the 'number of existing councilors.'

11. I am unable to agree with the contention submitted on behalf of the petitioners that the definition of the word 'councillor' given in Section 2(6) of the Act makes any difference. The said definition only states a 'councillor' means any person who is legally a member of a Municipal Council and this is so unless the context otherwise requires. In the context of Section 42(9) of the Act, which prescribes that two-thirds of 'the total number of councilors', is the requisite majority for passing a resolution expressing want of confidence against a President or a Vice-President, as the case may be, the words 'the total number of councilors' can be understood only with reference to Section 11 of the Act which prescribes the total number of councilors for Municipal Councils and when so understood, it becomes clear that calculation must be made with reference to the total number of councilors prescribed (or any Municipal Council under the said Section, and not with reference to the actual number of councilors in office on the day when resolution expressing want of confidence in a President or Vice-President is moved.

12. The above view receives support from the decision of this Court in Bharamappa v. Town Panchayat Committee, Sounshi (1977) 2 Kant LJ 58 interpreting Section 37 of the Karnataka Village Panchayats and Local Boards Act, 1959 and also the decision ot tho Assam High Court reported in AIR 1971 Assam 163 (Samiruddin Ahmed v. SDO, Mangaldoi) interpreting -- Section 27 (1) (b) of the Assam Gram Panchayats Act.

13. In the present case, the number of municipal councilors fixed for Davanagere City Municipal Council under Section 11 of the Act is 35. The two resolutions passed on 19-1-1978 were supported by 22 councilors. Though, the said number constitutes two thirds of the existing number of councilors i. e., 33, it falls short of the two-thirds majority of the total number of councilors i. e., 35. Therefore, for the aforesaid reasons, I hold that the two resolutions dated 19-1-1978 (Exhibits A and B) passed by 22 councilors out of 33 of Davangere City Municipal Council expressing want of confidence in the President and the Vice-President who are impleaded as respondents Nos. 5 and 6 in this petition, not having been passed with the requisite majority as prescribed under Section 42(9) of the Act, have not the effect of removing them from their respective offices.

14. In the result, the Rule is discharged and the writ petition is dismissed. No costs.

15. Sri K. Shivashankara Bhat, learned High Court Government Advocate, is permitted to file his memo of appearance within one week.

16. Petition dismissed.


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