SCA/3125/1995 of PUSHPENDRA C SHARMA Vs NAGSHI MALSHI MATANG on 7 July 1995

ORAL JUDGMENT

Can the President of a municipality invested with powersto call a special general meeting on requisition forconsideration of a no confidence motion against him call ameeting after a considerable lapse of time? Can the term "tocall" a meeting be equated with the term "to hold" a meetingfor the purpose of consideration of the no confidence motionmore particularly against the president of a municipality?These are the basic questions arising in this petition underArt. 226 of the Constitution of India.

2. The factual backdrop giving rise to this petition may beexamined. The municipality involved in this case is the oneat Gandhidham. The petitioner was elected as its presidentwith effect from 13th January 1995. Our country has adoptedthe democratic set up even for governance of local affairs.The affairs of a municipality constituted under the GujaratMunicipalities Act, 1963 ('the Municipalities Act' for brief)are also managed by an elected body. The president and thevice president thereof are elected at the first meeting to beheld after elections of municipal councillors as provided insec. 32 thereof. The term of office of such electedpresident is for a period of one year. Such elected personas the president of the concerned municipality will be theleader of the majority party or most elected councillors. Hehas therefore to enjoy the confidence of the municipalcouncillors or a majority of them not only at the time of hiselection but has to continue to enjoy such confidence duringhis term as the president thereof. If at any point of timehe looses confidence of the requisite majority of municipalcouncillors, he has to vacate his office as its president.In that regard provisions are made for bringing no confidencemotion. In order to see that anybody or everybody may not bring a motion of no confidence for its own sake, somestringent provisions have been laid down. As provided insec. 51(2) of the Municipalities Act, such motion of noconfidence has to be by means of a written request of notless than the one-third of the councillors of the concernedmunicipality. This statutory provision refers to the noconfidence motion against the president as well as thevice-president. Since the no confidence motion in this caseis against the petitioner as the president of themunicipality at Gandhidham, the statutory provisionpertaining to that office only will be considered. Onreceipt of a written request in that regard, the president ofthe municipality is required to call a special generalmeeting on a day not later than 15 days after thepresentation of such request. It has further been providedthat, in case the president fails to do so, the

vice-president shall call such meeting on a day not laterthan 30 days after the presentation of such request. Themunicipality at Gandhidham consists of total 42 councillors.Twenty three councillors thereof made a written request on23rd March 1995 for calling a special general meeting forconsidering a motion of no confidence against the president.Further requisition from 7 more councillors in that regardwas received on 31st March 1995. On that very day thepetitioner issued a notice for calling a meeting for the saidpurpose to be held on 28th July 1995. A copy of the circularin that regard is at Annexure A to this petition. It appearsthat the vice-president of the Gandhidham Nagarpalika tookthe view that the petitioner had to hold the meeting within aperiod of 15 days from the date of receipt of the writtenrequest from the councillors and, since it was not heldwithin 15 days from the date of such written request, heissued a notice on 7th April 1995 for holding a specialgeneral meeting on 15th April 1995 for consideration of theno confidence motion against the petitioner. A copy of thenotice together with the agenda is at Annexure B to thispetition. The special general meeting as called by thevice-president thereof was held on 15th April 1995. In thatmeeting Resolution No.30 was passed expressing no confidenceagainst the petitioner. A copy of the minutes of the saidmeeting with respect to the said resolution is at Annexure Cto this petition. The requisite majority for the purpose isthe two-thirds of the total number of the then councillors ofthe municipality as provided in sec. 36 of theMunicipalities Act. But according to the petitioner, themotion was carried by only 26 members and the requisitemajority for the purpose would be 28 members. It appearsthat the petitioner thereupon approached the DistrictCollector (Respondent No.3 herein) against the aforesaidresolution bearing No. 30 passed on 15th April 1995expressing no confidence against him. That attempt of thepetitioner proved to be an exercise in futility. Accordingto respondent No.3, the motion was passed with the requisitemajority, and as such he thought it fit not to interfere withthe resolution in question. He conveyed his decision in thatregard on 17th April 1995 to the petitioner. Its copy is atAnnexure D to this petition. The aggrieved petitioner hasthereupon approached this court by means of this petitionunder Art. 226 of the Constitution of India for questioningthe validity of the resolution bearing No. 30 passed on 15thApril 1995 at Annexure C to this petition and the order ofrespondent No. 3 at Annexure D to this petition.

3. According to Shri Vakharia for the petitioner, what sec.51(2) requires the president to do is to call a specialgeneral meeting for consideration of the no confidence motionwithin 15 days from the receipt of a written request from the

specified number of councillors or more in that regard andnot to hold the meeting within the specified time-limit. Ithas been urged that the requisition was received on 22ndMarch 1995 and the notice of the meeting was issued on 31stMarch 1995, that is, very much within the specified period of15 days. In that view of the matter, runs the submission ofShri Vakharia for the petitioner, the meeting called by thevice-president by his notice at Annexure C to this petitionand held on 15th April 1995 was without any authority of law;and the resolution passed thereat in terms of the minutes atAnnexure C to this petition has to be ignored as of noconsequence. As against this, both Kum. Shah and Shri Shahfor the respondents have submitted that the law is very clearin that regard and the meeting for consideration of the noconfidence motion has to be held within the specifiedtime-limit of 15 days from the date of receipt of arequisition in that regard and, if such meeting is not heldwithin the specified time-limit, the vice-president of themunicipality was justified in issuing a notice on 7th April1995 for holding a special general meeting for the purpose on15th April 1995. It has been urged by both Kum. Shah andShri Shah for the respondents that the meeting held on 15thApril 1995 was validly held and the resolution bearing No.30 passed thereat was quite legal and valid.

4. In order to appreciate the rival submissions urgedbefore me, it would be quite proper to look at certainprovisions of the Municipalities Act. The relevantprovisions are Sec. 32 (1) and (2), Sec. 36 and Sec. 51 (1)to (4). They are reproduced below:

Section 32 (1) After a general election to a municipality,the Collector shall call the first general meeting of themunicipality for the determination of the term of office ofthe president and the vice-president of the municipality andfor the election of the president and vice-president. Suchmeeting shall be called within twenty five days from the dateon which the names of the councillors of the municipalitywere published in the Official Gazette under section 6.

��(2) The meeting called under sub-section (1)shall be presided over by the Collector or such officer asthe Collector may by order in writing appoint in this behalf.The procedure of the meeting shall be as prescribed by rulesmade by the State Government and the Collector or suchofficer shall have such powers as may be prescribed by thesaid rules but shall not have the right to vote.

Section 36 (1) Any councillor of a municipality whointends to move a motion of no confidence against its president or vice-president may give a notice thereof, insuch form as may be prescribed by the State Government, tothe municipality. If the notice is supported by not lessthan one third of the total number of the then councillors ofthe municipality, the motion may be moved.

��(2) If the motion is carried by a majority of not less than two-thirds of the total number of the thencouncillors of the municipality, the president or, as thecase may be, the vice-president shall cease to hold officeafter a period of three days from the date on which themotion is carried unless he has earlier resigned; andthereupon the office held by him shall be declared to bevacant.

��(3) Notwithstanding anything contained in

this Act or the rules made thereunder, the president, or asthe case may be, the vice-president shall not preside over ameeting in which a motion of no confidence against him isdiscussed; but he shall have the right to speak in orotherwise take part in the proceedings of such meeting(including the right to vote).

Section 51 The following provisions shall be observed withrespect to the meetings of a municipality:- ��(1) There shall be held four ordinary general meetings in each year for the disposal of general business,in the months of January, April, July and October,respectively, and such other ordinary general meetings as thepresident may find necessary. It shall be the duty of thepresident to fix the dates for all ordinary general meetings.

��(2) The president may, whenever he thinks fit, and shall, upon the written request of not less thanone-third of the councillors in the case of a motion of noconfidence against the president or vice-president andone-fourth of the councillors in any other case and on a daynot later than fifteen days after the presentation of suchrequest, call a special general meeting. If the presidentfails to call a special general meeting as provided in thisclause the vice-president shall call such meeting on a daynot later than thirty days after the presentation of suchrequest :

��Provided that where the president and the vice-president fail to call such meeting the chief officershall make a report thereof to the Collector who shall callthe meeting on a day not later than thirty days after the ��(3) Seven clear days' notice of an ordinarygeneral meeting, and three clear days' notice of a specialgeneral meting, specifying the time and place at which suchmeeting is to be held and the business to be transactedthereat shall be served upon the councillors, and posted upat the municipal office or the local kacheri or some otherpublic building in the municipal borough. The said noticeshall include any motion or proposition whereof a councillorshall have given written notice, not less than ten clear daysprevious to the meeting of his intention to bring forwardthereat, and in the case of a special general meeting anymotion or proposition mentioned in any written request madefor such meeting.

��(4) Every meeting of a municipality shall,except for special reasons to be mentioned in the noticeconvening the meeting, be held in the building used as amunicipal office by such municipality. (Emphasis supplied)

5. The crucial word for the purpose of interpretation isthe word "call" occurring in sec. 51(2) of the Municipalities Act. Ordinarily, the expression "to call" ameeting would connote to convene a meeting or to invitemembers to a meeting to be held on a particular day. Thiswould be the dictionary meaning of the term. The latestedition of Law Lexicon also conveys the same meaning.However, whether or not the word has to be meant in that wayfor the purpose of sec. 51(2) of the Act is the mainquestion.

6. It cannot be gainsaid that the term "to call" hasdifferent shades of meaning. "To call a meeting" can alsomean "to hold a meeting". The context in which theexpression is used would furnish the guidelines forinterpretation of the said term. The use of the same word inthe same statutory provision conveying different meanings inthe context in which it is used is not unknown to theLegislature. The word "evidence" has been used in sec.207-A of the Code of Criminal Procedure at three differentplaces and conveying three different meanings as held by theSupreme Court in its binding ruling in the case of RamnarayanMor v. State of Maharashtra reported in AIR 1964 SC 949.Similarly, the use of the word "term" at two places insec.7(3) of the Bengal Non-agricultural Tenancy Act, 1949 isdesigned to give two different meanings as held by theSupreme Court in the case of Indian Iron and Steel Co. Ltd.v. Biswanath Sonar reported in AIR 1967 SC 77. The word"regulating" found occurring in sec. 3(1) and (2) of the Essential Commodities Act, 1955 conveys two differentmeanings in view of the binding ruling of the Supreme Courtin the case of K. Ramanathan v. State of Tamil Nadureported in AIR 1985 SC 660. It thus becomes clear that theLegislature often uses a word, a phrase or a term to conveydifferent meanings in different contexts in the samestatutory provision or in different statutory provisions ofthe same enactment.

7. This court however is concerned with the interpretationof the word "call" used in sec. 51(2) of the MunicipalitiesAct. At this stage it would be quite worthwhile to look atsec. 32(1) and (2) of the Municipalities Act. There theword "call" has been used at two different places. After ageneral election to a municipality, the concerned Collectorhas been empowered to call the first general meeting of themunicipality for the determination of the term of office ofthe president and the vice-president thereof and for theirelection. Here the word "call" would connote to convene orto summon. The latter part of that provision enjoins uponthe Collector to call such meeting within 25 days from thedate on which the list of elected councillors is published inthe official gazette. Here the word "call" would suggest"hold" in the context in which it is used. To interpretotherwise would allow the Collector to hold the meetingbeyond the period of 25 days from the date of elections tothe municipality. This could not have been contemplated bythe Legislature in its wisdom. The same word "call" is usedby the Legislature in sec. 32(1) of the Municipalities Actconveying two different meanings. Sub-section (2) of sec.32 also uses the word "call" as meaning "hold". It says themeeting called under sub-section (1) shall be presided overby the Collector or such officer as the Collector may byorder in writing appoint in this behalf. The expressionwould mean that the meeting to be held under sub-section (1)shall be presided by the Collector and so on. In the contextof the use of the word "call" in the relevant provisionscontained in sec. 32 of the Act to convey differentmeanings, the statutory provisions contained in sec. 51(2)thereof will have to be examined.

8. As aforesaid, in a parliamentary democratic set up, theleader of the house has to be responsible to the House. Hehas to continue to enjoy its confidence throughout his tenureas its leader. The president of a municipality wouldobviously be a leader of the elected body of the councillorsthereof. He has to enjoy their confidence throughout histenure as the president. When a motion of no confidence isbrought for consideration, it has to be considered asexpeditiously as possible. In a parliamentary system ofdemocracy, no leader who does not enjoy the confidence of the

House is allowed to continue in his office as such. In orderto find out whether or not he continues to enjoy theconfidence of the elected body in the wake of a no confidencemotion, he is required to summon a special general meeting asexpeditiously as possible. The Legislature in its wisdomcould not be said to be unmindful of this. In that context,sec. 51(2) has to be interpreted. As indicated hereinabove,the no confidence motion in this case concerns the petitioneras the president of the municipality of Gandhidham. Section51(2) of the Act requires him to call a meeting forconsideration of the no confidence motion against him within15 days from the date of receipt of a valid requisition inthat regard. The requisition made by 23 councillors on 22ndMarch 1995 was a valid requisition. The no confidence motionwas required to be considered as expeditiously as possible.This was with a view to avoiding any horse-trading activityas is popularly known in the world of politics. It cannot beleft to the sweet will of the president to call a meeting atany time he likes. As aforesaid, the term of the electedpresident of a municipality is one year. If no time-limitfor holding a meeting is fixed, the president may call ameeting for consideration of the no confidence motion againsthim after expiry of the term of his office. This would becontrary to the parliamentary system of democracy which ourcountry has adopted even at the grass-root level. Examiningthe aforesaid statutory provision contained in sec. 51(2) ofthe Municipalities Act in this light, there is no escape fromthe conclusion that the meeting for consideration of the noconfidence motion against the president of a municipality hasto be held within 15 days from the date of receipt of a validrequisition in that regard.

9. I am supported in my view by the Division Bench rulingof the Patna High Court in the case of Sukhdeo Narayan andOrs. v. Municipal Commissioners of Arrah, Municipality andOrs. reported in AIR 1956 Patna 367. In practically similarset of circumstances, it has been held by the Patna HighCourt that the expression "to call a meeting" occurring inthe concerned statutory provision has to be interpreted as"to hold a meeting". I am in respectful agreement with theprinciple of law enunciated by the Patna High Court in itsaforesaid ruling.

10. The ruling of this court in the case of GopaldasBakubhai Rana v. Lunavada Nagar Panchayat and Ors. reportedin 1985(2) 26(2) G.L.R. 1047, relied on by Shri Vakharia forthe petitioner, is distinguishable on the ground that it wasrendered in the context of the relevant provisions containedin the Gujarat Panchayats Act, 1961 ('the Panchayats Act' forbrief). The provisions of the Panchayats Act and theMunicipalities Act cannot be said to be pari materia. It is

true that in the relevant provisions contained in thePanchayats Act the Legislature used different words forconveying different meanings. When the Legislature used theexpression "to call a meeting" in the Panchayats Act, itmeant calling a meeting and not holding a meeting. However,Rules 17 and 18 of the Gujarat Gram and Nagar Panchayats(Procedure) Rules, 1963 ('the Rules' for brief) framed underthe Panchayats Act clinch the issue in that regard. Thetime-limit for holding a meeting for consideration of a noconfidence motion against the leader of an elected body hasbeen specified in Rule 18 of the Rules. In that context,this court has come to the conclusion in its aforesaid rulingin the case of Gopaldas Rana (supra) that the expression "tocall" would not mean "to hold" a meeting for the purpose ofconsideration of a no confidence motion. It may be mentionedthat the provisions of sec. 44 (1) and (2) of the PanchayatsAct have been practically incorporated in sec. 32(1) of theMunicipalities Act. The distinction occurring in sec. 44(1)and (2) in the Panchayats Act will stand obliterated bylooking at the relevant provisions contained in sec. 32(1)of the Municipalities Act as indicated hereinabove.Similarly, the provision of rule 18 of the Rules under thePanchayats Act is found missing in the Municipalities Act orany rules framed thereunder. In fact, no rules are framedunder the Municipalities Act which would be comparable withthe above-referred rules framed under the Panchayats Act. Inthat view of the matter, the aforesaid ruling of this courtin the case of Gopaldas Rana (supra) is distinguishable onthe ground that the provisions are not pari materia.

11. Shri Vakharia for the petitioner has brought to mynotice the ruling of this court in the case of Patel ManubhaiKhodidas v. Shri Sonara and Ors. reported in 1989(2) 30(2)G.L.R. 1215 holding that the provisions of the PanchayatsAct with respect to the no confidence motion are in parimateria with the provisions in that regard contained in theMunicipalities Act. As rightly submitted by Shri Vakhariafor the petitioner, sitting as a single Judge, I am bound bythe aforesaid ruling of a learned single Judge of this court.It may however be noted that what was involved in theaforesaid ruling of this court in the case of ManubhaiKhodidas (supra) was the validity of the notice ofrequisition for summoning a special general meeting forconsideration of the no confidence motion. In that case therequisite number of members had in the requisition stated"the members have lost confidence" and such requisition waschallenged as invalid. In that context, this court in itsaforesaid ruling in the case of Manubhai Khodidas (supra) hasfound the provisions of the Panchayats Act and theMunicipalities Act as pari materia. This court had nooccasion to examine the provisions in the Panchayats Act and the Municipalities Act with respect to the no confidencemotion in toto. It cannot be gainsaid that a part does notinclude or mean a whole. Simply because some part of aprovision in both the Acts are found to be pari materia, itcannot be said that the entire provisions of both the Actswere found to be pari materia by this court in its aforesaidruling in the case of Manubhai Khodidas (supra).

12. The Division Bench ruling of this court in the case ofBalugiri Manigiri Goswami v. Additional DevelopmentCommission, Gujarat State and Ors. reported in 1989(2) 30(2)G.L.R. 808 is again distinguishable on the grounds on whichthe aforesaid ruling of the learned single Judge in the caseof Gopaldas Rana (supra) is distinguished. The aforesaidDivision Bench ruling has been rendered in the context of therelevant provisions contained in the Panchayats Act.

13. In view of my aforesaid discussion, I am of the opinionthat the meeting for consideration of the no confidencemotion for the purposes of sec. 51(2) of the MunicipalitiesAct was required to be held by the president within 15 daysfrom the date of receipt of the requisition in that regard.As provided in sec. 51(3) thereof, such meeting could havebeen convened by giving three days' clear notice. He oughtto have therefore issued a notice for convening the meetinglatest by 6th April 1995 as the valid requisition wasreceived on 22nd March 1995. The notice in that regard couldhave been issued latest by 3rd April 1995. Since the meetingwas not held by 6th April 1995 for consideration of the noconfidence motion, in my humble opinion, the Vice-Presidentwas justified in issuing a notice on 7th April 1995 forholding the meeting for the purpose on 15th April 1995. Theact of the Vice-President in that regard was perfectly legaland valid. In that view of the matter, the holding of themeeting on 15th April 1995 for consideration of the noconfidence motion against the petitioner as the the presidentof the municipality was also quite legal and valid. Theresolution passed thereat cannot be said to be tainted withany illegality or invalidity.

14. I have found no merit or substance in the submissionurged before me by Shri Vakharia for the petitioner to theeffect that the resolution expressing no confidence againstthe petitioner as the president was not carried by therequisite majority. Respondent No.3 in his decision atAnnexure D to this petition has, on examination of theregister of members, found that 28 members were present inthe meeting held for the purpose on 15th April 1995 and theresolution was carried unanimously. Since the total numberof councillors of the municipality was 42 at the relevanttime, the resolution passed by 28 members would certainly constitute its two-third majority. This court obviously doesnot sit in appeal over the decision of the Collector who is afact finding authority. Besides, the decision contained atAnnexure D to this petition is on the basis of scrutiny ofthe material on record. The finding contained therein cannotbe said to be perverse in any manner. Such finding cannot beupset in this petition under Art. 226 of the Constitution ofIndia.

15. In view of my aforesaid discussion, I find no merit orsubstance in this petition. It deserves to be rejected.

16. In the result, this petition fails. It is herebyrejected. Rule is accordingly discharged with no order as tocosts.

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hn/sca.3125.95