S.L. Jain, J.
1. Being aggrieved by the order dated 11-2-2003 passed in Writ Petition No. 5461/2002, appellants have filed this Letters Patent Appeal under Clause 10 of the Letters Patent.
2. The facts leading to the filing of this appeal tersely recited are thus:--
2.1. Respondent Smt. Manorama Gour, is the elected Mayor of Municipal Corporation, Sagar, having been elected on 28-12-99. Out of 48 elected Councillors, 38 moved a proposal of recall of Mayor under Section 24 of Municipal Corporation Act (hereinafter referred to as 'the Act') and presented the same to the Divisional Commissioner, Sagar (hereinafter referred to as 'the Commissioner'). The Mayor took the objection before the Commissioner that some of the signatures on the proposal were forged and signatures of some of the Councillors were obtained by misrepresentation. The plea of respondent did not find favour with the Commissioner and the Commissioner forwarded the proposal of recall to the State Government.
2.2. Respondent/Mayor filed a writ petition before this Court for quashing the proposal of recall. It was alleged by the Mayor in the petition that affidavits of 48 Councillors were filed before the Commissioner, but the Commissioner, without making any enquiry about the genuineness of signatures of Councillors on the proposal of recall and other allegations forwarded the same to the State Government.
2.3. Mayor, Smt. Manorama Gour also alleged that the proposal was not presented to the Commissioner by requisite number of Councillors.
2.4. The learned Single Judge allowed the petition holding that the Commissioner did not ensure that proposal was presented by requisite number of Councillors and also did not verity their signatures on the proposal. The learned Judge directed a fresh enquiry in the matter in terms of the observations made in the order. It has also been held that Dinesh Soni and Ganga Ram Ahirwar were not present at the time of presenting the proposal and out of 38 persons alleged to have been present at the time of presenting the proposal, Uday Yadav, not being a signatory to the proposal, his presence at the time of presentation was inconsequential.
3. We have heard Shri R.S. Jha, learned Deputy Advocate General for the State and Shri V.S. Choudhary, learned Counsel for respondent.
4. Before adverting to the rival contentions raised by the learned Counsel for the parties, it is necessary to refer to Section 24 of the Act as substituted by amending Act of 1999, which is relevant is quoted hereinbelow :--
"24. Recalling of Mayor.-- (1) Every Mayor of a Corporation shall forthwith be deemed to have vacate 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 Corporation 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 Divisional Commissioner :
Provided further that no such process shall be initiated :
(i) Within a period of two years from the date on which such Mayor is elected and enters his office;
(ii) If half of the period of tenures of the Mayor elected in a by-election has not expired :
Provided also that process for recall of the Mayor shall be initiated once in his whole term.
(2) The Divisional Commissioner, after satisfying himself and verifying that the three fourth of the Councillors specified in Sub-section (1) have signed the proposal of recall, shall send the proposal to the State Govt. and the State Govt. 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."
5. On an analysis of Section 24 of the Act, we find that following are the requirements for the process of recall:--
(1) Proposal is to be signed by not less than 3/4th of the total number of elected Councillors.
(2) The proposal must be presented to the Divisional Commissioner.
(3) The process of recall can not be initiated :--
(a) Within a period of 2 years from the date on which such enters his/her office.
(b) Unless half of the tenure of Mayor elected in a bye-election has expired.
(4) Process for recall of the Mayor shall be initiated only once in his/her whole term.
(5) The Commissioner shall satisfy himself and verify that 3/4th of the total number of the elected Councillors have signed the proposal.
(6), After such satisfaction and verification, the Commissioner shall send the proposal to the State Government.
(7) The State Government shall make a reference to the State Election Commission which shall arrange for voting on the proposal of recall in the prescribed manner.
6. Learned Counsel appearing for the State vehemently submitted that the law does not require that the proposal of recall should be presented by 3/4th of the total number of elected Councillors. Even if it is presented by any one of them, it is sufficient compliance of Section 24 of the Act. Therefore, order impugned whereby proposal and forwarding thereof has been quashed is not sustainable.
7. This issue has been considered in Paragraph 16 of the impugned order:--
"First proviso to Sub-section (1) of Section 47 of the Municipalities Act provides that "provided that no such process of recall shall be initiated unless a proposal is 'signed', by not less than 3/4th of the total elected Councillors and 'presented' to the Collector, proviso leaves no room for doubt read with Sub-section (2) of Section 47 that the provision requires that proposal of recall has to be 'signed' by not less than 3/4th of the elected Councillors and 'presented' to the Collector. The sword 'presented' is qualified by 3/4th Councillors. Proviso requires 'signing' and 'presentation' both by not less than 3/4th of the Councillors. Thus, the requisite number of Councillors must put the signatures on the proposal of recall and signatories must present it to the Collector. 'Presentation' can not be made by one of the Councillors or by a person who is not a Councillor. The 'signatories' comprising not less than 3/4th of the Councillors must also present it to the Collector. If it is not so done proviso to Section 47 (1) mandates that "no such process of recall shall be initiated" unless the aforesaid requirements exist. Section 47 of the Municipalities Act is pari materia to Section 24 of the Municipal Corporation Act. Same is the interpretation of first proviso of Sub-section (1) of Section 24 of the Municipal Corporation Act. In my opinion, proposal which is not 'presented' in the manner prescribed by the first proviso to Sub-section (1) of Section 47 of the Municipalities Act or first proviso to Section 24 (1) of the Municipal Corporation Act, no process of recall shall be initiated by the Collector or the Commissioner, as the case may be."
8. Whether the presence of Councillors who have signed the proposal, in person before the Commissioner is a legislative requirement or not depends upon the true construction and interpretation of proviso to Sub-section (1) of Section 24 of the Act which has been reproduced in earlier part of this order. If we scan and put apart the two aspects regarding signing and presentation of the proposal, it appears in the following form:--
(i) signed by not less than 3/4th of the total members of the elected Councillors; and
(ii) presented to the Commissioner.
Had the phrase "and presented to the Commissioner" as used in the closing part of the proviso, been placed immediately after the word 'signed', then the shape of this proviso would have been as under:--
"Provided that no such process of recall shall be initiated unless a proposal is signed (and presented to the Commissioner) by not less than 3/4th of the total members of the elected Councillors."
Had the language of the proviso been as mentioned above, it would have meant that the proposal should not only be signed by not less than 3/4th of the total number of the elected Councillors but it should also be presented by them to the Commissioner. But this is not the case as we find from the language used by the legislature in the proviso.
9. In view of the aforesaid, reconstruction of the proviso to Sub-section (1) of Section 24, we are of the firm view that the two requirements of signing and presenting the proposal as provided in the proviso, are different and it is not the requirement that presentation also should be by not less than 3/4th of the total number of the elected Councillors.
10. Now comes the question as to whether verification of the signatures requires presence of the Councillors.
11. Again we have to refer to the language used in Section 24 of the Act. Sub-section (2) of this section requires that the Commissioner, after satisfying himself and verifying that the 3/4th of the Councillors specified in Sub-section (1) have signed the proposal of recall, shall send the proposal to the State Government, The provision nowhere mandates that the verification shall be made in the presence of signatories. Need not to say that verification of signatures after procuring their presence may be one of the modes for such verification but it is not the only or exclusively provided mode, because nothing can be read in the proviso itself to this effect, therefore, to put fetters on the discreation of the Commissioner in selecting the mode of verification by making the person presence of signatories mandatory while the law is framed to give him more elbowroom in the matter would be clearly against the legislative intent.
12. The authorities, entrusted with the task of verification of signatures, being responsible, are expected to conduct themselves in an independent and unbiased manner. The process of verification may be akin to the one adopted by the bank authorities regarding genuineness of signatures of the drawer on a cheque.
13. If the physical presence of the Councillor concerned is made a sine qua non for verification of the signatures, at times it may defeat the purpose. There may be a situation where a Councillor may not be able to appear before the authority concerned due to old age, infirmity, serious illness etc., though he/she was certainly in a position to put his/her signatures on the proposal. In such a situation if the authority can not forward the proposal to the State Government for want of personal appearance though sufficient material is placed before the authority for his satisfaction regarding the genuineness of the signatures, such as filing of the affidavit or submission of specimen signature of the Councillor duly attested, then the same will defeat the proposal itself and in turn the democratic process.
14. In the case of Gopal Yadav v. State of M.P. and Ors., 2002 (4) MPLJ 369, referred in the impugned order, the petitioner, who was Sarpanch of Municipal Council, Sabagarh, challenged his recall (under Section 47 of the Municipalities Act) by way of Writ Petition. The petition was allowed against which in LPA an objection was raised to the maintainability of the writ petition as the petitioner had an alternative remedy of filing election petition. The objection found favour with the Division Bench and the petition was dismissed as not maintainable. In this case, the question whether presentation of the proposal of recall should be made in person by the Councillors, was neither raised nor it was considered or discussed, therefore, any observation in this respect may not be of much help in deciding the above question.
15. Therefore, we hold that proviso to Section 24 of the Act does not contemplate that the proposal should be presented by the 3/4th of the Councillors in person or that for the purpose of verification of signatures of the signatories their personal presence is necessary.
16. In the impugned order it has been held that Dinesh Soni and Ganga Ram Ahirwar were not present at the time of presentation of the proposal and out of the 38 persons alleged to have been present at the time of presentation of the proposal, Uday Yadav, not being a signatory to the proposal, his presence at the time of presentation was inconsequential.
17. This finding is not sustainable for the reasons that signatures of Uday Yadav find place in Annexure-1, at item No. 20 and as such, it can not be said that he was not a signatory to the proposal. Therefore, even if Dinesh Soni was not present at the time of presentation of the proposal, other 36 Councillors who signed Annexure-3, jointly presented by not less than 3/4th of the total number of elected Councillors, they being 48 in number.
18. Even if we accept, for the sake of argument that the proposal was not presented by 36 members, then that will not vitiated the presentation because as held earlier, it is not a legal requirement that the proposal should be presented by 3/4th of the total number of elected Councillors. Therefore, the order impugned, whereby the proposal and forwarding thereof has been quashed, is not sustainable.
19. The learned Single Judge also recorded a finding that the proposal (Annexure-3) was not prepared in the office of the Commissioner.
20. Letters of Annexure-1 and Annexure-3 appear to have been got typed from one and the same computer or electronic typewriter. On comparison of Annexure-1 and Annexure-3, it can not be said that they were got prepared from different computers or typewriters. Even if the list was readily available with the persons presenting the proposal and the same was used by the Commissioner, the action of the Commissioner would not be illegal.
21. The Commissioner has submitted and affidavit that the signatures of the Councillors were put on Annexure-3 in his presence. Merely because the Commissioner at the bottom of the document has stated that Annexure-3 was signed by 38 members which appears to be an inadvertent slip can not be a ground to make this document suspicious. Therefore, the same does not vitiate the proceedings.
22. When Annexure-3 was signed by 36 Councillors, and on the comparison of the signatures, the Commissioner was satisfied that the proposal bears the signatures of the 36 Councillors, the requirement of Section 24 of the Act stands satisfied. When the Commissioner was satisfied that the signatures of Uday Yadav were on the proposal, then merely on the basis of the affidavit of Uday Yadav, it can not be said that Annexure-1 does not bear his signatures.
23. Comparison of signature is a recognized mode of verifying signatures of a person. Transactions of billions and billions of rupees take place in the banks only on the basis of comparison of signatures. Therefore, when the Commissioner was satisfied regarding genuineness of the signatures of 3/4th of the Councillors on the basis of comparison of their signatures, the forwarding of the proposal could not have been quashed on the ground that method of comparison of signatures is a hazardous mode.
24. Commissioner, Sagar submitted an affidavit in the writ petition depositing that 36 Councillors put their signatures on Annexure-3 in his presence. On the basis of these signatures he verified the signatures of Annexure-1. Thus, the Commissioner was satisfied that the proposal is signed by 36 out of 48 Councillors, that being 3/4th of the total number of elected Councillors of the requirement of Section 24 of the Act stood satisfied.
25. When there is no fault in the verification process adopted by the Commissioner, it would not be permissible for the Court to substitute its own satisfaction for the satisfaction of the Commissioner.
26. Shri R.S. Jha, learned Dy. Advocate General appearing for the State vehemently argued that the process of recall as envisaged in Section 24 above is nothing but an election process and once the election process had begun, the writ petition could not have been entertained. Our attention was invited to Article 243ZG of the Constitution of India which reads as under:--
"243.ZG. Bar to interfere by Courts in electoral matters.--
Notwithstanding anything in this Constitution,--
(a) "the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243ZA shall not be called in question in any Court;
(b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as it provided for by or under any law made by the Legislature of a State."
27. It is true that aforesaid Clause (b) provides that no election to any municipality can be called in question except by an election petition. True it is that the process of recall is also election. But the election process commences only when the Election Commission notifies the election. Forwarding of proposal by the Commissioner to the State Government can not by itself be termed as election process. Even if we give a liberal meaning to the word 'election process' the same will begin when the Election Commission declares schedule for election. Simply because the Election Commission directed finalisation of voter list, it can not be said that the election process had begun.
28. What was challenged in the writ petition was not the election but the initiation of process of recall on the grounds that the proposal was not presented by the requisite number of Councillors; that there was no proper verification; and the 3/4th of the elected members did not sign the proposal out of their free will. These questions do not pertain to the election.
29. When the allegation is that the Commissioner failed in discharging his duties as provided by Section 24 above, the only remedy available to the aggrieved person may be to invoke the writ jurisdiction of this Court. It was not the election which was called in question, therefore, the contention of Shri Jha that the writ petition could not have been entertained is without any merit.
30. Prerogative writs are extra-ordinary remedies meant in those cases in which ordinary legal remedies are inadequate. Powers of the High Court under Article 226 are very wide. It is true that general power to issue high prerogative writs conferred by Article 226 can be controlled and limitation on its exercise can be imposed by a subsequent appropriate provision in the Constitution in that behalf but any such provision which put fetters on the exercise of the power has to be construed strictly. The bar put by Articles 243O and 243ZG of the Constitution can not be read in the manner so as to curtail the Constitutional power conferred on the High Court under Article 226 of the Constitution of India. In the present case as the election process has not yet begun, the bar under Articles 243O and 243ZG is not attracted.
31. Shri V.S. Choudhary, learned Counsel for the respondent submitted that the Commissioner was bound to record the facts in a separate note-sheet. His order ought to have been elaborate and note-sheet should have contained as to how the signatures have been verified and how the Councillors were identified. If the Councillors were known to the Commissioner personally, this fact ought to have been recorded in the note- sheet.
32. It is true that where an authority is enjoined with some responsibility, it should reflect from the record that duty was discharged with due care and sense of responsibility and with that end it is necessary to record the grounds and all the relevant facts. The conduct of the authority must be transparent. The satisfaction was proper or not can be judged only when all the facts and circumstances are recorded. In the absence of proper record it may not be possible to know as to whether the satisfaction was properly arrived at or not. Principle of good conscience and fair play is that authority must record all the facts and circumstances as also the events in the note-sheet.
33. The facts can be recorded in a separate note-sheet or on the proposal itself. In the present case, on the proposal itself it was mentioned by the Commissioner that it has presented by Shri Ashok Shrivastava alongwith 37 Councillors before him on 18-9-2000 at 4 P.M. Thereafter, the Commissioner also noted that 37 Councillors signed in his presence. Original record of Commissioner's Office was produced before the learned Single Judge. Therefore, it can not be said that in the absence of separate note-sheet the forwarding of the proposal is vitiated.
34. Shri V.S. Choudhary, learned Counsel appearing for the respondent also submitted that signatures of some of the Councillors were obtained on a misrepresentation that the matter relates to purchase of sodium vapour lamps alleging that the same were purchased at excessive price and were not distributed properly.
35. This contention also can not be accepted. It is difficult to believe that the Councillors who are elected members and responsible persons will sign a document without knowing the contents thereof. An age old saying is that "drink nothing without seeing it and sign nothing without reading it". When the Councillors appeared before the Commissioner and put their signatures for verification they could have informed the Commissioner that their signatures were obtained by misrepresentation or by practising fraud on them. No such complaint was made to the Commissioner. In view of the affidavit filed by the Commissioner, it can not be said that signatures of the Councillors were obtained by misrepresentation or by practising fraud on them. The only possible inference in the circumstances is that the plea of misrepresentation is nothing but an afterthought.
36. For the reasons stated above, the order impugned in the LPA quashing the proposal and forwarding thereof is not sustainable and as such liable to be set aside. Therefore, the LPA is allowed and the impugned order is set aside.
37. No order as to costs.