A recent judgment from the Madhya Pradesh High Court examines the role of the chairperson vis a vis the Council of a municipality. It also briefly touches upon the state legislature’s role under Article 243R of the Constitution.
In Sangeeta Bansal v the State of Madhya Pradesh (MPHC, WP 14819/2014, December 20, 2014), Justice KK Trivedi heard a dispute concerning Harda Municipal Council in Madhya Pradesh. Harda Municipal Council in Madhya Pradesh has 30 wards. The council consequently consists of 30 elected councillors, one elected chairperson and one elected vice-chairperson. In addition, there are several nominated members, including local MLAs and MPs. Sangeeta Bansal, the petitioner in this case, was the Chairperson of Harda Municipal Corporation.
The Madhya Pradesh Municipal Corporations Act, 1961, provides that the chairperson may be recalled if more than 3/4 of the total number of voters of the corporation area vote for such recall. The Collector has to verify that this procedure is complied with, and then make a reference to the State Election Commission. Once the State Election Commission receives the reference, it has to formally arrange for voting by the general population in that area on recall. If recalls is voted for, the Chairperson steps down, and if not, then the chairperson continues her term.
In Sangeeta Bansal’s case, 23 elected councillors of 30 submitted a proposal for her recall. She objected, but this objection was not considered by the Council, nor was the proposal made available to her despite a request. The Council passed a resolution for her recall. The resolution was referred to the Collector and the Election Commission for action. So she filed a writ petition in the Madhya Pradesh High Court to quash the resolution.
The Madhya Pradesh High Court identified this key question to decide the case:
What should be calculated as the composition of the council, and was the requirement of ¾ members met?
Sangeeta Bansal’s counsel argued that Article 243R of the Constitution only gave the State Legislature enabling powers to frame law to implement the Constitutional provisions. The composition of the municipality, he argued, is provided for in Article 243R. The clear implication of Article 243R is that nominated members can’t vote; only elected members can. Based on this, the strength of the Council to calculate a 2/3 vote should be elected members + Chairperson, i.e. 31 members. For recall, more than 23 votes would accordingly be needed. The counsel also argued that one of the 23 councillors who did vote for her recall was involved in an election petition challenging his election, and his appointment had been stayed by the High Court during the case. His vote, it was argued, should not count. Therefore, the resolution to recall Bansal had not met statutory requirements.
Bansal’s counsel also made two secondary claims: firstly, that the Collector did not record the reasons for his decision to agree with the resolution, so it was bad in law, and secondly, that the resolution has to contain the reasons for recall, otherwise it is invalid. In Bansal’s case, the resolution only made a general claim that her “working .. was not in the interest of Municipal Council”.
The Council’s lawyers, on the other hand, argued that the requirement is that 2/3 of the Councillors, and not the Council (including the mayor) have to pass the resolution, i.e. 22.5 (rounded to 23). The council’s decision, they argued, is sufficient and no reasons are required to be given, either in the resolution or in the Collector’s decision.
The High Court held:
- Article 243R of the Constitution leaves no doubt that there have to be elected councillors from each ward, but leaves the question of the appointment of the Chairperson to the State Legislature. So the Chairperson is not automatically treated as an elected Councillor. (“at any rate the President of the Municipal Council may be an elected person but he is not to be treated as a Councillor” – see para 13)
- The MP Municipal Corporations Act, 1961 makes it clear that for recall of the Chairman, it is only the elected members who can vote, and not the nominated members.
- From evidence placed before the Court it is clear that the Collector followed due process, verified all the signatures, and only then allowed the appeal.
- The councillor whose election is being challenged should not be included. However, that only means that the requirement of 2/3 of 29 councillors (21) would still be met
The Court does not dwell too much on the question of whether the reasons for recall have to be recorded in the resolution for recall, which is unfortunate, as this was an opportunity to clearly state the law on this.