R. Hari and others v Thodupuzha Municipality and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY ,THE 21ST DAY OF JANUARY 2019 / 1ST MAGHA, 1940** ## **WP(C).No. 1668 of 2019** ## **PETITIONER/S:** - **1 R. HARI, AGED 58 YEARS, S/O. K.P. RAGHAVAN PILLAI, OVOOR HOUSE, KOLANI.P.O, THODUPUZHA, PIN-685 608.** - **2 SABEENA BINJU, AGED 38 YEARS, W/O. BINJU.C.P., CHAKKIYANIKKUNNEL HOUSE, THODUPUZHA EAST P.O, PIN-685 585.** - **3 SHIMNAS.K.K., AGED 35 YEARS, S/O KAREEM, KANJANPARAMBIL HOUSE, VENGALLOOR.P.O, PIN-685 608.** - **4 RAJEEV PUSHPANGATHAN, AGED 54 YEARS, S/O.PUSHPANGATHAN NAIR, SREEKRISHNAVILASOM HOUSE, VENGALLOOR.P.O, PIN-685 608.** **BY ADV. SRI.MANSOOR.B.H.** ## **RESPONDENT/S:** - **1 THODUPUZHA MUNCIPALITY, MUNICIPAL OFFICE, THODUPUZHA, REPRESENTED BY ITS SECRETARY.** - **2 SECRETARY, THODUPUZHA MUNICIPALITY, MUNICIPAL OFFICE, THODUPUZHA.** - **3 REGIONAL JOINT DIRECTOR IN CHARGE, URBAN AFFAIRS, OFFICE OF THE REGIONAL JOINT DIRECTOR, KOCHI-31(AUTHORISED OFFICER DEPUTED BY THE KERALA STATE ELECTION COMMISSION)** W.P.(C) No.1668 of 2019 2 **R1 AND R2 BY SRI. E.S.MOHAMED KABIR, SC R3 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.1668 of 2019 3 ## **JUDGMENT** This writ petition is filed by the petitioners who are elected members of the 1[st] respondent Municipality, seeking to quash Ext.P1 notice of motion issued by the 3[rd] respondent authorized officer, convening a meeting to consider a 'no confidence motion' on 24.01.2019 on the ground that, there is no sufficient notice as is contemplated under Sec.19(3) of the Kerala Municipality Act, 1994, (hereinafter called, 'the Act, 1994'), dealing with no confidence motion. Thereupon, petitioners have submitted Exts.P4 to P7 complaints before the 3[rd] respondent, however, the same was not considered, and it is constrained by the same, this writ petition is filed. 2. A detailed counter affidavit is filed by the 3[rd] respondent, basically stating that appropriate parties are not impleaded in the writ petition. That apart, it is stated that, a notice of intention to move a motion of no confidence against the Chairperson of Thodupuzha Municipality signed by 14 elected councillors of Thodupuzha Municipality was delivered to the 3[rd] respondent in person on 11.01.2019. The sanctioned strength of Thodupuzha Municipality fixed in W.P.(C) No.1668 of 2019 4 terms of Sec.6 of Act, 1994 is 35. The notice of intention to move the motion of no confidence against the Chairperson was signed by not less than 1/3[rd] of the sanctioned strength of the Council and was accompanied by the motion proposed to be moved, produced as Ext.P2 in the writ petition. On receipt of the notice of intention to move the motion, 3[rd] respondent issued Ext.P1 notice, convening a meeting of the elected Councillors of Municipal Council. Ext.P1 notice was issued on 14.01.2019, as 12[th] and 13[th] of January were public holidays. In Ext.P1 notice, the meeting to consider the motion was slated to 24.01.2019 and was sent by Registered Post to all the Councillors of Thodupuzha Municipal Council on 14.01.2019. 3. While so, Exts.P4 to P7 complaints were served on the 3[rd] respondent, stating that there is no ten clear days notice in convening the meeting. On examining the complaints, it was found that there was mistake due to oversight in Ext.P1 notice in respect of the date appointed for the meeting. Thereupon, Ext.R3(a) corrigendum notice was issued, slating the meeting to 25.01.2019. Ext.R3(a) notice was attempted to be served on all the elected Councillors of Thodupuzha Municipal Council by hand delivery through W.P.(C) No.1668 of 2019 5 the 2[nd] respondent, i.e., the Secretary of the Municipality on 18.01.2019 itself, evident from Ext.R3(b) letter dated 18.01.2019, of the 3[rd] respondent instructing the 2[nd] respondent to serve Ext.R3(a) notice to all the Councillors. In Ext.R3(b), the 2[nd] respondent had endorsed that he has published Ext.R3(a) in the notice board of the Municipality on 18.01.2019. However, only 23 members received the notice and 12 Councillors refused to receive the notice. Out of the 12 Councillors who refused to receive notice, 4 persons are the writ petitioners. Ext.R3(c) is the report of service of notice. 4. It is further submitted that, there is no inaction on the part of the 3[rd] respondent in considering Exts.P4 to P7 as alleged, since Ext.R3(a) corrigendum notice was issued considering Exts.P4 to P7 complaints of the petitioners. Therefore, there is no violation of the provisions of Sec.19(3) as alleged, since the meeting to consider the motion of no confidence is now scheduled on 25.01.2019, having 15 days from the date on which the notice under Sec.19(2) was delivered to the 3[rd] respondent and after giving 10 clear days of notice of meeting to the Councillors. W.P.(C) No.1668 of 2019 6 5. That apart, it is pointed out that, this Court had occasion to consider the said situation in ' _**Joseph Varghese v. B.D.O, Ranni**_ ' [2003 (1) KLT 321] and has held that the 'clear days' contemplated need not be between the date of receipt of notice and the date of convening the meeting, and it shall be sufficient that the 'clear days' is counted from the date of despatch of notice. Section 19 of the Kerala Municipality Act does not contemplate service of notice of meeting by Registered Post. It was considered by this Court in ' _**Chathukutty P. v. Kalpetta Municipality and Others**_ ' [2009 (4) KLT 303], and held that, a no confidence motion does not depend on anything other than the support that it may gather on being moved and that the ground, if at all, for a no confidence motion, is not a matter for consideration by any Court or any authority, except that democratic house before which it is moved. 6. I have considered the rival submissions made across the Bar and perused the pleadings and the documents on record. 7. In view of the nature of order I propose to pass, and due to the changed circumstances consequent to issuance of corrigendum notification, notice to respondents 1 and 2 are dispensed with. W.P.(C) No.1668 of 2019 7 8. The issue revolves around Sec.19 of the Act, 1994, and sub-sections (1) to (3) read thus: _“_ _**19. Motion of no-confidence** .--(1) A motion expressing want of confidence in the Chairperson or Deputy Chairperson may be moved in accordance with the procedure laid down in this section._ _(2) Written notice of the intention to make the motion in such form, as may be prescribed, signed by such number of elected Councillors as shall constitute not less than one-third of the sanctioned strength of the Council together with a copy of the motion which is proposed to be made, shall be delivered by any one of the Councillors signing the notice, in person to the officer authorise by the State Election Commission in this behalf._ _(3) The Officer authorised under subsection (2) shall, thereupon, convene a meeting of the elected Councillors of the Council for consideration of the motion, to be held at the office of the Municipality at a time appointed by him which shall not be later than fifteen days from the date on which the notice under the said sub-section was delivered to him. He shall give to the elected Councillors notice of not less than ten clear days of such meeting and of the time appointed therefor and shall exhibit the said notice in the Municipal Office._ **==> picture [341 x 34] intentionally omitted <==** 9. Therefore, on a reading of sub-section (3) of Sec.19 of Act, 1994, it is clear that, the officer authorised under sub-section (2) shall convene a meeting of the elected Councillors of the Council for consideration of the motion, to be held at the office of the Municipality at a time appointed by him which shall not be later than fifteen days from the date on W.P.(C) No.1668 of 2019 8 which the notice under the said sub-section was delivered to him, and further, he shall give to the elected Councillors notice of not less than ten clear days of such meeting and the time appointed therefor, and shall exhibit the said notice in the Municipal Office. Therefore, I find force in the contention advanced by learned Standing Counsel for the 3[rd] respondent. It is true, initially Ext.P1 notice was having an infirmity, since it was not having the requirements as per Sec.19(3) of Act, 1994. However, it was thereupon that a corrigendum notification was issued and the consideration of the motion was adjourned to 25.01.2019. Therefore, in my considered view, whatever infirmities and illegality remaining with Ext.P1 notice were removed, consequent to the issuance of corrigendum notification. 10. Taking into account all these aspects, I am of the considered opinion that, petitioners are not entitled to get any reliefs as is sought for in the writ petition. I also find that the proposition of law laid down in the afore-quoted two judgments makes it clear that, what is important is the consideration of the no confidence motion in the meeting convened for the purpose. W.P.(C) No.1668 of 2019 9 Therefore, the writ petition has no legal sustenance and accordingly dismissed. **Sd/SHAJI P.CHALY JUDGE** St/22.01.2019 W.P.(C) No.1668 of 2019 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 COPY OF THE NOTICE DATED 14.01.2019 BEARING NO.G2/63/2019 ISSUED BY THE 3RD RESPONDENT TO THE 1ST PETITIONER. EXHIBIT P2 TRUE COPY OF THE NO CONFIDENCE MOTION DATED 11/1/2019 SUBMITTED BY SRI.A.M.HARID AND ADV.C.K.JAFFAR. EXHIBIT P3 TRUE COPY OF THE POSTAL ACKNOWLEDGMENT RECEIPT OF FIRST PETITIONER. EXHIBIT P4 COPY OF THE OBJECTION SUBMITTED BY THE FIRST PETITIONER. EXHIBIT P5 COPY OF TE OBJECTION SUBMITTED BY THE SECOND PETITIONER. EXHIBIT P6 COPY OF TE OBJECTION SUBMITTED BY THE THIRD PETITIONER. EXHIBIT P7 COPY OF THE OBJECTION SUBMITTED BY THE FOURTH PETITIONER.** RESPONDENTS' EXHIBITS: **EXHIBIT R3(A) THE PHOTOCOPY OF THE CORRIGENDUM NOTICE NO.G2/63/2019 DATED 18.01.2019 TO EXT.P1 NOTICE. EXHIBIT R3(B) THE PHOTOCOPY OF THE LETTER NO.G2 63/19 DATED 18.01.2019 OF THE 3RD RESPONDENT INSTRUCTING THE 2ND RESPONDENT TO SERVE EXT.R3(A) NOTICE TO ALL THE COUNCILLORS OF THE MUNICIPALITY IN PERSON. EXHIBIT R3(C) THE PHOTOCOPY OF THE REPORT OF THE 2ND RESPONDENT REGARDING SERVICE OF EXT.R3(A) TO THE COUNCILLORS OF THE 1ST RESPONDENT MUNICIPALITY.** //TRUE COPY// P.S. TO JUDGE St/-