1. This writ petition take exception to the order dated 09.09.2014 passed by the respondent No.2 as also the final order dated 25.09.2014 passed by the respondent No.1 accepting the proposal made for recall of the petitioner as President of the Municipal Council, Harda. Undisputedly the petitioner was elected as President of the said Municipal Council and such election was notified in the year 2011. The Municipal Council, Harda consists of 30 wards and 30 members have been elected as Councillors. Such notification of election was issued on 9 th November, 2011 in the M.P. Gazette (Extraordinary).
2. It is the contention of the petitioner that in terms of Section 47 of the Madhya Pradesh Municipalities Act, 1961 (herein after referred to as 'Act'), a proposal was made by 23 Councillors before the Collector for recall of the petitioner. The fact stated in the said application/proposal was that the manner of working of the petitioner was not in the interest of the Municipal Council and, therefore, such proposal was made. It is contended by the petitioner that in fact the strength of 23 elected Councillors was short of three-fourth elected Councillors of the Municipal Council and, therefore, the proposal was liable to be rejected. When the petitioner came to know about this fact that such proposal was made, she immediately made an objection on 08.09.2014 but the objection was not looked into. No document was made available to the petitioner even when a demand was made and matter was referred to the State Government. Without there being any justified reason or complete satisfaction of the authorities, the matter was referred to the State Election Commission to take action under Section 47(3) of the Act. That being so, the order passed in that respect was liable to be quashed. Hence this petition has been filed by the petitioner.
3. The writ petition was entertained and interim stay was granted to the petitioner to the effect that the Election Commission may take all steps and process for recall but the notification of the date of election shall not be issued till the next date of hearing.
4. A return has been filed by the respondents No.1 and 2 contending inter alia that the procedure as laid-down under Section 47 of the Act was complied with and after being satisfied with the proposal made by the Councillors, the Collector has forwarded the same to the State Government, which has been further sent to the State Election Commission to take action in accordance to law. In fact the voting has to be done on the proposal so made in the matter of recall of the petitioner and in case the votes are cast against the petitioner and in favour of proposal of recall then only the petitioner would be liable to vacate the seat of the President of Municipal Council. It is contended that no wrong has been committed by the respondents in doing so and as such the writ petition is liable to be dismissed.
5. The intervenors have filed applications seeking permission to intervene in the writ petition to oppose the same. I.A. No.12964/2014 has been filed by one Lokesh Rao, son of Shri Ram Chandra Rao, an elected Councillor of Municipal Council, Harda to oppose the prayer made by the petitioner in the writ petition and I.A. No.13970/2014 has been filed by Dilawar Khan, son of Majid Khan, Councillor of Municipal Council, Harda, for the same purpose. The applications for intervention have been treated as reply of the aforesaid intervenors and they are also granted permission to be heard. Such intervenors were also heard at the time of final hearing. The contentions raised by the intervenors are that since there were 30 elected Councillors of Municipal Council, Harda, three-fourth of the same would be 22.5, rounding of which would mean 23 and, therefore, if 23 Councillors have signed the proposal for recall of the petitioner, the same is in accordance to the provisions of Section 47 of the Act. Therefore, proposal has rightly been accepted by the Collector, forwarded to the State Government and action has been taken by the State Government in appropriate manner. It is, thus, contended that the claim made in the writ petition cannot be granted to the petitioner and the same deserves to be dismissed.
6. The only submission made by learned Counsel for the State Election Commission is that the Commission is duty bound to comply with the requirement of Section 47(3) of the Act, the moment proposal is sent by the State Government to the Commission for recall of any elected President of the Municipal Council. For the said purposes entire process has to be done, voting is required to be done and then only on the basis of the votes cast, the proposal to recall is to be accepted or to be denied. It is submitted that since such a process is held up because of interim order passed by this Court, it would be just and expedient to decide the controversy at an early date.
7. To buttress the submissions and the grounds raised in the writ petition, learned senior Counsel for the petitioner has submitted that the composition of a municipality is prescribed under Article 243R of the Constitution of India. It is nothing but the enabling power of the State Legislature to make laws with respect to the filling in the seats in the municipality, making of territorial constituencies in the name of wards within the municipal area and the law for representation in a municipality but nominated members are not authorized to cast a vote in the meeting of the municipality. The other special power provided to the Legislature for making of the law is the manner of election of the Chairperson of a Municipality. For the purposes of election of the Chairperson of the Municipality, it is contended that the entire area of Municipal Council is to be treated as constituency and, therefore, the Chairperson of a municipality is also to be treated as a Councillor having all rights to vote in such meetings of the Municipal Council. It is, thus, contended that the composition of the Municipal Council would be number of wards made by the Legislature in particular municipality plus the Chairperson of the Municipal Council. Thus, the submission is made that the strength of the Municipal Council should be calculated on the basis of the number of wards, elected Councillors and adding in it the President as a Councillor. According to learned senior Counsel for the petitioner, the notified strength of the wards in Municipal Council, Harda is 30 and as one President is elected in the entire municipal area, adding the same as one of the Councillor, the total strength of the elected Councillors of Municipal Council would be 31. In any case if three-fourth elected Councillors of the Municipal Council, Harda are calculated, it would be more than 23 and not 23 as is claimed by the respondents and the intervenors. The submission is that the proposal made by the elected Councillors was short of the strength and, therefore, was not required to be referred to the State Government for its transmission to the Election Commission for initiating any action of recall of the petitioner.
8. The other submission made by learned senior Counsel for the petitioner is that one of the elected Councillor was subjected to an election dispute before the Election Tribunal and his election was set aside by the Election Tribunal. A civil revision was preferred before this Court against the said order and an interim stay was granted in respect of the said elected Councillor. However, the said interim stay was not made absolute and was not extended and, therefore, the said Councillor was not authorized to sign the proposal for recall of the petitioner. If that Councillor is removed from the list of Councillors, who have made proposal against the petitioner, there would be only 22 elected Councillors available to propose the action for recall of the petitioner and that being not in consonance of Section 47(1) of the Act, the proposal was liable to be turned down. It is further submitted by learned senior Counsel for the petitioner that no subjective satisfaction was recorded by the Collector in respect of making of the proposal to recall the petitioner and, therefore, the forwarding letter of the Collector itself was bad in law. That being so, no action could be founded on such a forwarding memo and, therefore, the action initiated against the petitioner for her recall is liable to be quashed. Lastly, it is submitted that an elected member like petitioner is not to be thrown out without assigning any reason. The proposal made by the elected Councillors for recall of the petitioner contains no reason except that the working of the petitioner was not in the interest of Municipal Council. There was no valid ground raised for recall of the petitioner from the post of President of the Municipal Council concerned and, therefore, the proposal was liable to be rejected. Rather it has been accepted and forwarded to the State Government for taking action against the petitioner, which in turn has been transmitted to the Election Commission, therefore, entire proceedings in that respect are bad in law and are liable to be quashed. Putting great reliance in the provisions of Section 47 of the Act, seeking interpretation of the said provisions in terms of the orders passed by this Court in earlier occasion, it is contended that the action taken by the respondents was per se illegal and thus liable to be quashed.
9. Per contra learned Government Advocate has contended that the action is rightly taken, in the original proceedings placed before the Court, subjective satisfaction was recorded by the Collector after verifying the correctness of the proposal, therefore, no interference in such proceedings is called for. As is referred to herein above, learned Counsel for the State Election Commission has submitted only this much that the election process for recall of the petitioner is held up because of the interim stay granted by this Court, therefore, an early disposal is required.
10. Much stress has been placed by learned senior Counsel for the intervenor that the provisions of Article 243R of the Constitution of India are nothing but the enabling provisions to constitute the municipality in terms of the provisions made in Part-IXA of the Constitution of India. It is contended that in terms of the provisions of Article 243Q, a municipality is to be constituted for a smaller urban area. The law has been made by the State Government in terms of the provisions of the Act, therefore, relevant amendments have been made after coming into force of provisions of Part-IXA of the Constitution of India in the Act. It is contended that the elections of the ward members after making of a ward within municipal area are differently conducted. Section 19 of the Act deals with such composition where the President is to be elected by direct election from the municipal area whereas the Councillors are elected by direct election from the wards. Undisputedly the municipal area of Harda is distributed in 30 wards and, therefore, Councillors will mean the Councillors elected from the said wards excluding the Chairperson or the President, who is to be elected directly from the municipal area. Reading out the provisions of Section 47 of the Act, learned senior Counsel for the intervenor has emphatically contended that the word used by the Legislature is, only the Councillors in appropriate number, as indicated in sub- section (2) of Section 47 of the Act, who are required to make the proposal and that has to be verified by the Collector and is required to be referred to the State Government. According to learned senior Counsel for the intervenor, since there were only 30 wards within the municipal area of Harda, 22.5 was the required number of the Councillors to make a proposal and, therefore, if 23 elected Councillors have made the proposal for recall of the petitioner, the same was in consonance to the provisions of sub-section (2) of Section 47 of the Act. The Collector has got the proposal verified through his subordinate Officer, that too of the rank of Joint Collector and after verifying the relevant documents annexed with the proposal, he personally called the Councillors, satisfied himself with respect to making of proposal by each of them and then only forwarded the same to the State Government. Therefore, according to learned senior Counsel for the respondents, there is no violation of the provisions of law by the Collector, Harda, in forwarding the proposal for recall of the petitioner. It is contended that the reasons are not required to be mentioned in the proposal for recall of the elected President as such would be tested by cast of votes by the electors and, therefore, it was not necessary to mention any such reason for recall of the petitioner in her capacity as President of the Municipal Council. Sufficient reason was mentioned if it was said in the proposal that the working of the petitioner was not in the interest of the Municipal Council. Lastly, it is submitted by learned senior Counsel for the intervenor that there was no vacation of interim order granted in favour of the elected Councillor, who has suffered an order in the Election Tribunal in an election petition as in the civil revision, till the same was dismissed, there was no vacation of interim stay. Interpreting the word "till the next date of hearing", learned senior Counsel for the intervenor submitted that since there was no vacation of interim order, no hearing had taken place on the date when the matter though was listed but was adjourned on account of non-availability of the Counsel for the parties because of call of the lawyers for abstaining the Court work. Therefore, it is submitted that the order of interim stay was in operation and, therefore, said Councillor has rightly signed the proposal for recall of the petitioner. It is, thus, contended that the entire claim in the writ petition is baseless and misconceived and such petition deserves to be dismissed.
11. This Court has directed the respondents to produce the original record for perusal, which has been produced in sealed cover and is examined. Heard learned Counsel for the parties at length and perused the record.
12. First of all it would be necessary to interpret the provisions of the law made in respect of controversy involved and, therefore, relevant provisions are to be quoted. Undisputedly, constitution of municipalities is prescribed under Article 243Q of the Constitution of India, which simply says that there shall be constituted in every State a Municipal Council for a smaller urban area. Nothing more is added except exclusion of certain areas or non-constitution of a municipality in particular area, subject to the satisfaction of the Governor having regard to the size of the area and municipal services being provided or proposed to be provided. The most important aspect is in Article 243R of the Constitution of India where the composition of the municipalities is prescribed. Since the same is relevant for the purposes of adjudication of the claim made in the present writ petition, the provisions of Article 243R of the Constitution of India are reproduced below, which read thus:
"243R. Composition of Municipalities.--(1) Save as provided in clause (2), all the seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be known as wards. (2) The Legislature of a State may, by law, provide--
(a) for the representation in a Municipality of--
(i) persons having special knowledge or experience in Municipal administration;
(ii) the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Municipal area;
(iii) the members of the Council of States and the members of the Legislative Council of the State registered as electors within the Municipal area;
(iv) the Chairpersons of the Committees constituted under clause (5) of article 243S:
Provided that the persons referred to in paragraph (i) shall not have the right to vote in the meetings of the Municipality;
( b ) the manner of election of the Chairperson of a Municipality."
13. As has been pointed out herein above, the provision of Part-IXA of the Constitution of India was inserted by 74 th amendment in the Constitution with effect from 01.06.1993. In the State of Madhya Pradesh the Municipalities Act was made in the year 1961 by the Legislature. The relevant provisions have been inserted in the Act aforesaid after coming into force of the 74 th amendment in the Constitution of India. Certain provisions have been omitted, which were not in consonance to the prescribed law in the Constitution of India. However, the provisions of Section 19 of the Act were inserted vide an amendment made on 21.04.1997 by M.P. Act No.18 of 1997. The provisions of Section 19 consisting of composition of Municipal Council or Nagar Panchayat read thus :
"19. Composition of Municipal Council or Nagar Parishad.- (1) A Municipal Council or a Nagar Parishad, shall consist of-
(a) President, that is Chairperson, elected by direct election from the Municipal area;
(b) Councillors elected by direct election from the wards;
(c) Not more than four persons in the case of Municipal Councils and not more than two persons in the case of Nagar Parishads having special knowledge or experience in Municipal Administration nominated by the State Government:
Provided that only a person residing within the Municipal area and being otherwise not ineligible for election as a Councillor may be nominated;
(d) Members of the House of the people and the Members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the municipal area;
(e) Members of the Council of State registered as electors within the municipal area;
Provided that a member of the House of the people and a member of the State Legislative Assembly as mentioned in clause (d) or a member of council of State, as mentioned in clause (e) may nominate his representative, who possesses such qualifications as may be prescribed in this behalf to attend the meeting of the Council.
(2) The persons nominated under clause (c) of sub- section (1) shall hold office during the pleasure of the State Government.
(3) Persons referred to in clauses (c), (d), and (e) of sub-section (1) shall be deemed to be councillors, but shall not have the right to vote in the meetings of the Council.
(4) If any municipal area fails to elect a President or any ward fails to elect a Councillor, fresh election proceedings shall be commenced for such municipal area or ward, as the case may be, within six months to fill the seat, and until the seat is filled it shall be treated as casual vacancy :
Provided that proceedings of election of Vice- President, or any of the Committees under the Act shall not be stayed, pending the election of such seat."
A perusal of this will leave no doubt that the municipal area is required to be divided into wards and each ward is to be represented by a Councillor, who is to be elected directly by the electors of the concerning ward. The definition of Councillor, as given in Section 3(7) of the Act means any person who is legally a member of a Council. However, the definition of President or the Chairperson is not given in the Act. For the said purpose if the provisions of Article 243 of the Constitution of India are seen, the State Legislature is given the power to make laws for the manner of election of the Chairperson of a Municipality. In Section 19 of the Act, while prescribing the composition of Municipal Council or Nagar Parishad, it is said that the Municipal Council or a Nagar Parishad, as the case may be, shall consist of the President, i.e. the Chairperson, elected by direct election from the municipal area. The other part of the composition is the elected Councillors from the wards, therefore, at any rate the President of the Municipal Council may be an elected person but he is not to be treated as a Councillor in either case because of the reason that in the definition of the Councillor given under the Act, such persons are the elected representatives of the wards of municipal area but not the representative of the entire municipal area. The President or a Chairperson of the Municipality is to be treated as representative of the entire municipal area. Therefore, the submission which is made that the President of the Municipal Council is also to be treated as a Councillor, cannot be accepted.
14. The other aspect is that every Municipal Council is required to be bifurcated in wards and a notification is required to be issued in that respect. The petitioner herself has placed on record Annexure P-1 indicating that the notification of election of the Municipal Council, Harda was issued on 9th November, 2011 where the petitioner was shown to be elected as President and there were 30 Councillors elected. Therefore, though the petitioner has taken part in the election of Vice President, has cast her vote but that would not mean that the petitioner became a Councillor. The Councillor is otherwise defined under the Act and, therefore, at any rate the petitioner is not to be treated as a Councillor nor to be included in the number of Councillors. She was elected as a President of the Municipal Council and she was to be treated as President of the Municipal Council.
15. Now in the context of the aforesaid, if provisions of Section 47 of the Act are seen, which provisions again have been inserted by amendment made in the Act on 23.04.1999 by M.P. Act No.11 of 1999, it is clear that only the Councillors are required to make a proposal for recall of the President. Since the interpretation of the said provisions is also required, the amended provisions of Section 47 of the Act are reproduced, which read thus :
"47. Recalling of President.- (1) Every President of a Council shall forthwith be deemed to have vacated his office if he is recalled through a secret ballot by a majority of more than half of the total number of voters of the municipal area casting the vote in accordance with the procedure as may be prescribed :
Provided that no such process of recall shall be initiated unless a proposal is signed by not less than three-fourth of the total number of the elected Councillors and presented to the Collector :
Provided further that no such process shall be initiated :-
(i) within a period of two years from the date on which such President is elected and enters his office;
(ii) If half of the period of tenure of the President elected in a bye-election has not expired.
Provided also that process for recall of the President shall be initiated once in his whole term.
(2) The Collector, after satisfying himself and verifying that the three-fourth of the Councillors specified in sub-section (1) have the proposal of recall, shall send the proposal to the State Government and the State Government shall make a reference to the State Election Commission.
(3) On receipt of the reference, the State Election Commission shall arrange for voting on the proposal of recall in such manner as may be prescribed."
16. It is not in dispute that the proposal was made on 08.09.2014 for recall of the petitioner. It is also not in dispute that on the date of making of the proposal the same was signed by 23 elected Councillors. The said proposal was required to be verified by the Collector in terms of provisions of Section 47(2) of the Act. The original record produced before the Court indicates that when the Collector received the proposal, he got the same verified. Certain affidavits, photocopy of identity cards and certificate of elections were produced along with the said proposal. It appears that for the verification of the said documents and signatures, the Collector asked all the Councillors to remain present before him, who came at 12.30 AM in his office and their documents were got verified, signatures were compared. All those proceedings were written by the Collector in presence of one of the Joint Collector posted in his office and facts were recorded that all those 23 elected Councillors have verified the documents annexed with the proposal for recall of the petitioner, verified their signatures and stated that they have signed such proposal without any fear or duress. The Joint Collector witnessed such proceedings and did nothing. The entire proceedings were signed by the Collector himself.
17. After undergoing this requirement, the Collector forwarded the proposal to the respondent No.1 vide his memo dated 08.09.2014, a copy of which is already placed on record as Annexure R-3 with the return of the respondents No.1 and 2. From the recital in the said memo and from the perusal of the original record, it is clear that in none than the definite words the Collector recorded his satisfaction with respect to making of the proposal for recall of the petitioner and referred the matter to the respondent- State for onward action in terms of provisions of sub-section (3) of Section 47 of the Act.
18. It is the submission made by learned senior Counsel for the petitioner that such an act of the Collector was not in accordance to the law. Placing reliance in the case of Laxmi Narayan Garg vs. Municipal Council Sardarpur and others, M.P. No.90/1976, decided on 12.04.1977 (1977 JLJ SN 63), it is contended by learned senior Counsel for the petitioner that if the total strength of the Municipal Council was one President plus 30 Councillors, that would be 31 as the President is also elected from amongst the persons, who were not the Councillors and, therefore, the total number of Councillors determined shall, in respect of such Municipality, be deemed to have been increased by one. First of all the provisions of Section 43 of the Act, which were dealt with in the said case are not pari materia to the provisions of Section 47 of the Act. The Act as amended did not contain any provision for No Confidence Motion against the President of the Municipal Council. Secondly it is to be seen that even in the case of No Confidence Motion, two-third of elected Councillors present and voting in the meeting was the requirement for passing of the said No Confidence Motion whereas in the new provisions of recall of President, making of a proposal by three-fourth of the total number of elected Councillors is the requirement of law. As has been pointed out, in that situation the petitioner who is not to be treated as an elected Councillor, was not to be included amongst the elected Councillors. Therefore, such a decision is not helpful to the petitioner.
19. Essentially it has to be seen that earlier the procedure which was prescribed under the Act was for moving of a notice of No Confidence against the President of the Municipal Council but subsequently by amending the provisions since the election of the President of Municipal Council is prescribed directly and all the electors of the municipal area are required to elect the President of the Municipal Council, only a proposal is required to be made by the elected Councillors to initiate such process of recall of President. By making the provisions in Madhya Pradesh Nagar Palika Nirvachan Niyam, 1994, the process for recall of the President of Municipal Council is prescribed. A time and schedule for the poll aforesaid is to be notified in the manner indicated in the Rules, polling stations are to be established, symbols are to be alloted and then polling is to commence. All electors of the municipal area are required to cast their votes either in favour or against recall of the President of Municipal Council. Thus, mere making of proposal will not be enough for stepping down the President of the Municipal Council by initiation of process of recall under the provisions of Section 47 of the Act. On the other hand, if the proposal of recall is not acceptable to the electors and they vote against it, the said proposal would be turned down and the elected President will continue on the post till completion of the term of office. This being a special feature, the President of the Municipal Council cannot be termed as a Councillor in any manner after the amendment in the Act. Earlier the No Confidence Motion was moved against a President, who was elected by the elected Councillors themselves and who was one of them. Therefore, the proposition of law laid-down by the Division Bench of this Court in the case of Laxmi Narayan Garg (supra) would not be attracted at all in the present situation after the change of law.
20. The interpretation of the provisions of Section 47 of the Act have to be done to ascertain what was the intention of the Legislature to prescribe three-fourth of the total number of elected Councillors, as is mentioned in the proviso to sub-section (1) of Section 47 of the Act. The simple interpretation of total number of the elected Councillors would mean the available elected Councillors and not otherwise the total strength of the elected Councillors constituting the Municipal Council for the simple reason that had it been so, instead of mentioning the total number of elected Councillors, it would have been specifically mentioned by the Legislature the total strength of the elected Councillors constituting the Municipal Council. Therefore, it has to be held that total number of the elected Councillors available on the date of signing of the proposal would be taken into consideration and on the basis of that calculation, the three-fourth strength of the said elected Councillors is to be worked out. Having said so, now it has to be examined whether the proposal as was made was in consonance to the provisions of Section 47(1) of the Act or not.
21. Reliance is placed by learned senior Counsel for the petitioner in the case of Madan Lal Narvariya vs. Smt. Satya Prakashi Parsedia and others, [2008(4) MPLJ 316] and it is contended that the satisfaction of the Collector as prescribed in sub-section (2) of Section 47 of the Act means personal satisfaction of the Collector concerned and it has a much higher degree, therefore, mechanically proposal was not to be sent to the State Government. The distinction between the case in hand and case of Madan Lal Narvariya (supra) is that the Collector in the case of Madan Lal Narvariya (supra) has approved the decision taken by his subordinate, who verified the documents of Councillors, who have made proposal for recall of the President in that Municipal Council whereas in the case in hand, the Collector himself has recorded the satisfaction with respect to verification of documents, eligibility of the Councillors and their intention of making proposal for recall of the petitioner by verifying their signatures on the said proposal. The Joint Collector has simply witnessed such proceedings and did nothing else. Therefore, it cannot be said that the Collector has not personally satisfied himself with the intention of making of proposal for recall of the petitioner by the elected Councillors and as such the submission made by learned senior Counsel for the petitioner is not to be accepted at all. Further reliance is placed by learned senior Counsel for the petitioner in Full Bench decision of this Court in the case of State of M.P. and another vs. Mahendra Kumar Saraf, [2005(3) MPLJ 578] contending inter alia that the requirement is that signing the proposal has to be verified by the Collector as the State Government is nothing but required to forward the proposal to the State Election Commission like a Postoffice after its receipt from the Collector. For the reasons and finding recorded herein above, such submission is not acceptable as the correctness of signing of the proposal was tested by the Collector himself as has been held by this Court after perusal of the original record produced before it.
22. It is submitted on behalf of learned senior Counsel for the petitioner that even if it is taken for the sake of arguments that total strength of elected Councillors of Municipal Council was 30, even then when the proposal was made, one of the Councillor signing proposal was ineligible as he has already suffered a decision against him in the election dispute before the Election Tribunal and the interim stay granted by this Court was not in operation. Thus, the contention raised by learned senior Counsel for the petitioner is that such a person was ineligible and if his number is excluded, there would be only 22 elected Councillors available to sign the proposal to recall the petitioner and that would be short of total strength of three- fourth elected Councillors and, thus, the proposal was not to be forwarded at all. Main emphasis has been placed on the interim order passed by this Court in Civil Revision No.64/2014, which order was passed with a condition that the same was to remain in force till the next date of hearing. It is the contention that the interim order was passed on 10.02.2014. The matter was again posted on 06.05.2014 on which date the interim order was made to remain continue again till the next date of hearing. On 04.07.2014 since the Advocates were adjusted, the matter was adjourned and the interim order was not extended. As a result, there was no interim order after 04.07.2014 and the said person namely Deepak Kumar Soni was not authorized to sign the proposal of recall of the petitioner as made on 08.09.2014. It is, thus, contended that there would be only 22 elected Councillors available on that date and three-fourth of the total elected Councillors would mean more than 22 elected Councillors and as such the proposal was not to be forwarded. For the purposes of rounding off, learned senior Counsel has relied in the case of State of U.P. and another vs. Pawan Kumar Tiwari, AIR 2005 SC 658.
23. First of all the submissions made by learned senior Counsel for the intervenor in respect of continuance of interim stay is required to be tested and it is to be examined whether the said stay was continuing on the date when the proposal was made or not. It is the contention of learned senior Counsel for the intervenor that the interim stay has to be vacated specifically if an order is passed to the effect that interim stay would remain in operation till the next date of hearing. Placing reliance in the Devision Bench decision in the case of Kunal Kanti Majee vs. Chancellor, Rani Durgawati Vishvavidyalaya, Jabalpur and others, [2008(1) MPLJ 577], it is contended that unless an interim stay is specifically vacated, it will remain in operation. Reading paragraph 18 of the aforesaid decision, it is contended that there is a distinction between the quashment of an order and stay of an order. The stay of an order will remain effective from the date of its passing and if the action in terms of the order sought to be stayed has been taken, the said action is not required to be interfered with as the doctrine of relation back does not come to play to an executed order. However, there was no execution of the order passed in respect of the said intervenor as after the decision in the election petition against him, the seat was not declared vacant by the competent authority nor any action was taken for filling the said seat. Further placing reliance in the case of Mahadev Govind Gharge and others vs. Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, (2011) 6 SCC 321 , it is contended that the date of hearing is to be only when the Court applies its mind and it should not be confused with the expression step in the proceedings. Since there was no application of mind on the date when the Civil Revision filed by said Councillor was adjourned on 04.07.2014, there was no vacation of interim stay as the same was made to remain in operation till next date of hearing.
24. After giving thoughtful consideration and looking to the law laid-down by the Apex Court, one thing is clear that though an interim stay was granted by this Court in the case of the said Councillor, by name Deepak Kumar Soni in Civil Revision No.64/2014, but the said interim stay was not vacated specifically. On 04.07.2014 for the reasons of non- availability of the Counsel, the case was simply adjourned and there was no hearing which had taken place. Precisely this is what the ratio of the law laid-down by the Apex Court in the case of Mahadev Govind Gharge (supra) in paragraphs 39 to 42 of the report, which reads thus :
"39. First and foremost, we must explain what is meant by `hearing the appeal'. Hearing of the appeal can be classified in two different stages; one at the admission stage and the other at the final stage. Date of hearing has normally been defined as the date on which the court applies its mind to the merits of the case. If the appeal is heard ex- parte for admission under Order XLI Rule 11 of the Code, the Court could dismiss it at that very stage or admit the same for regular hearing. Such appeal could be heard in the presence of the other party at the admission stage itself, particularly, in cases where a caveat is lodged by the respondent to the appeal.
40. The concept of `hearing by the Court', in fact, has common application both under Civil and Criminal jurisprudence. Even in a criminal matter the hearing of the case is said to be commenced by the Court only when it applies its mind to frame a charge etc. Similarly, under civil law also it is only when the Court actually applies its mind to averments made by the party/parties, can it be considered as hearing of the case.
41. This Court in Siraj Ahmad Siddiqui v. Prem Nath Kapoor while dealing with the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, referring to the concept of first hearing, held as under : (SCC p.412, para 13) "13. The date of first hearing of a suit under the Code is ordinarily understood to be the date on which the court proposes to apply its mind to the contentions in the pleadings of the parties to the suit and in the documents filed by them for the purpose of framing the issues to be decided in the suit. .................We are of the view, therefore, that the date of first hearing as defined in the said Act is the date on which the court proposes to apply its mind to determine the points in controversy between the parties to the suit and to frame issues, if necessary."
42. The date of hearing must not be confused with the expression `step in the proceedings'. These are two different concepts of procedural law and have different connotation and application. What may be a `step in the proceeding', essentially, may not mean a `hearing' by the Court. Necessary ingredients of `hearing' thus are application of mind by the court and address by the party to the suits."
Therefore, in the considered opinion of this Court, the stay was in operation and the said Councillor was competent to sign the proposal for recall of the petitioner.
25. Even otherwise if such analogy is not applied, since it has already been held herein above that the petitioner was not to be treated as elected Councillor, there would be only 29 elected Councillors, who were available and from amongst them, 22 have signed the proposal for recall of the petitioner, if one Councillor is excluded from amongst 23 elected Councillors, who have signed the proposal. The available Councillors who have signed the proposal for recall of the petitioner were in fact just more than three-fourth of the elected Councillors. In that case, the requirement was only of 21.75 and rounding off in terms of the law laid-down by the Apex Court in the case of Pawan Kumar Tiwari (supra), the figure would reach to 22 elected Councillors and accordingly those Councillors have signed the proposal for recall of the petitioner. In that circumstances as well, the proposal sent by the Collector against the petitioner for her recall, as made by the elected Councillors, cannot be said to be bad in law. Such a finding is further fortified by a Division Bench decision of this Court in the case of Kamal Kant Bhardwaj vs. State of Madhya Pradesh and others, W.A. No.663/2014, decided on 25.08.2014. This has been held by this Court that in case the procedure is properly followed and if it is found that the requirement of law was satisfied, interference in such an action is not called for.
26. In the totality of the circumstances and specially after the perusal of the original proceedings, this Court finds no error of law in making proposal for recall of the petitioner. Consequently, the writ petition fails and is hereby dismissed. However, there shall be no order as to costs