Ordinance Amending Time To Move No Confidence Motion Regarding Municipal Council Head's Tenure Is Retroactive: Madhya Pradesh High Court

The Madhya Pradesh High Court has quashed an order calling for a no confidence motion meeting in connection with the post of President, Municipal Council under the Madhya Pradesh Municipalities Act, noting that the ordinance promulgated subsequently extending the tenure from 2 to 3 years before such a motion is passed would have retroactive application.

This case pertained to whether the right to contest elections is statutory or substantive, and whether the ordinance in question applies retrospectively or prospectively.

A single judge bench of Justice Gurpal Singh Ahluwalia in its order held, "Considering the totality of the facts and circumstances of this case, this Court is of the considered opinion, that The Madhya Pradesh Municipalities (Second Amendment) Ordinance, 2024 has retroactive operation and would apply to all those cases, where although the no confidence motion might have been moved prior to promulgation of the Ordinance, but still the meeting to consider the no-confidence motion was fixed after the promulgation of Ordinance. Therefore, the order dated 23-8- 2024, issued by Collector and Add. Collector, Damoh, thereby, fixing the meeting on 4-9-2024 for considering the no-confidence motion (Annexure P-1) is hereby Quashed". 

Background

The plea was moved by Manju Rai, the petitioner holding the position of President of the Municipal Council challenging the August 23 order of the Collector fixing September 4 as the date for meeting for consideration of no-confidence motion. The petitioner said that she is holding the post from August 5, 2022. It appeared that after completion of the tenure of two years, a no confidence motion was moved and the Collector, Damoh authorized the Add. Collector, Damoh who then convened the meeting to consider the no confidence motion on September 4. 

During the pendency of the plea, an ordinance was promulgated by the State Government , thereby amending Section 42-A(1)(a) of the Madhya Pradesh Municipalities Act. In the opening paragraph, for the words two thirds, the words three fourths have been substituted and in clause (i) of the proviso, for the words, two years, the words, "three years" have been substituted.

Contentions 

The petitioner contended that the ordinance is Retrospective in operation or in alternative it is Retroactive in operation, but it is not Prospective in operation. It is further submitted that in various other Districts, where no confidence motion was moved against the sitting President, the Collectors have dropped the proceedings by treating the Ordinance as Retrospective in nature, and so the Petitioner is also entitled for the same treatment.

Meanwhile the State argued that if Collectors of other Districts have dropped the no-confidence motion under misconceived notions, then it does not mean that the petitioner is entitled for the similar treatment by applying the principle of Negative Equality. It was submitted that two wrong orders cannot make one order correct. It was also submitted that Section 43-A of M.P. Municipalities Act, gives an immunity to the President/Vice-President from his/her removal from the post for a particular period. As soon as the statutory period is over, the Councilors get a substantive right to move a no-confidence motion. It is submitted that the election to the post of President is by way of indirect election, and the President is elected amongst the Councilors. It is further submitted that by the Ordinance, the period of immunity has been extended from two years to three years, therefore, such Ordinance has to be treated as Prospective in operation as there is no provision contrary to it.

Is right to contest election statutory or substantive right?

Justice Ahluwalia in its order first addressed whether the right to contest elections is a statutory or substantive right.

Referring to the Supreme Court's rulings in J.S. Yadav v. State of U.P. and Vishwanath Pratap Singh vs. Election Commission of India, the high court said that the right to contest elections is a statutory right.

Justice Ahluwalia stated that “Thus, the right to elect, the right to contest election and right to hold an elected post is a Statutory Right and cannot be held to be a Substantive Right or Vested Right. Therefore, such a right can always be created or taken away”. 

The court explained that a statutory right is created by law and can be taken away by law, whereas a substantive right is inherent and fundamental. Since election laws are statutory, they are subject to regulation or amendment by the legislature, it added. 

Is Madhya Pradesh Municipalities (Second Amendment) Ordinance prospective or retrospective

The second issue that the high court dealt with pertained to whether the Madhya Pradesh Municipalities (Second Amendment) Ordinance, 2024, which extended the period for bringing a no-confidence motion from two years to three years, was prospective or retrospective in nature.

Justice Ahluwalia in its order referred to various Supreme Court judgments on the meaning of retroactive and retrospective operation of a law. 

The high court thereafter said, "When the right to hold an elected office is merely a statutory right, then the law regulating election, working and tenure of such elected office, would be a procedural law and therefore, any amendment in procedural law has to be treated as retrospective in operation, unless it is otherwise provided in the Ordinance or Amendment Act". 

The petitioner contended that the ordinance should apply retrospectively, barring the no-confidence motion against the President, who was elected in 2022. The State, however, argued that the ordinance is prospective, applying only to future cases.

The high court said that the ordinance in question  merely enhanced the period of bringing no confidence motion from Two Years to Three Years and therefore, it cannot be said that "any new right has been created". Justice Ahluwalia noted that the right to move a no-confidence motion was already in the Statute book, but by the Ordinance in question, it has been provided that the no-confidence motion can be moved after a period of three years, in place of two years.

The high court thereafter said that the ordinance only regulates statutory right to move a no confidence motion and hence is merely a procedural law; it added that unless it has been stated otherwise all changes to procedural laws are retrospective in nature. 

"The Madhya Pradesh Municipalities (Second Amendment) Ordinance, 2024, merely regulates the Statutory Right to move the no-confidence motion, therefore, it is merely a Procedural Law, as it has changed the procedure only.  It is well established principle of law that unless expressed otherwise, all amendments in Procedural Laws would be retrospective in nature and all amendments in Substantive Laws would be Prospective in nature," the court underscored. 

Perusing through the 2024 Ordinance the high court said that from the "plain reading" of the ordinance, it was "clear" that there was nothing therein to indicate that the ordinance had been given a prospective effect.

The high court thereafter held that the Madhya Pradesh Municipalities (Second Amendment) Ordinance, 2024 would "certainly have retroactive operation and would apply to the ongoing proceeding" initiated under Section 43-A of Municipalities Act, by moving a motion of no-confidence against the President, Municipal Council, Damoh.

The high court also rejected the respondent state's submission, that in the democracy, every holder of elected office has to work efficiently, and if it is found that such person is not performing well, then the elected Councilors have a right to move no-confidence motion; therefore the removal of an inefficient elected office bearer is in the interest of Democracy.

The court said that the President of the municipal council is "is elected indirectly by the elected Councilors". So, the court said, the elected President of Municipal Council would hold the office as long as it "enjoys the confidence of three fourths of the elected councilors present and voting in the no-confidence meeting".

"The confidence of three fourths of the elected councilors has nothing to do with the quality of performance of work by the elected President," the court underscored. 

It further said that the assessment of performance of work is "not a sine qua non" (an essential condition) for moving a no-confidence motion under Section 43-A of the Municipalities Act.” It further said that the state government can remove the President of Municipal Council under Section 41-A of M.P. Municipalities Act, if it is found that his continuation is not in the interest of Council or general public or if he is working against the provisions of the Act or rules or if he is incapable of performing his duties. 

Uncertainty in state on retrospective, prospective operation of the ordinance

While concluding the high court in its order commented on the uncertainty regarding the Retrospective/Retroactive/Prospective operation of the ordinance in the state. 

"Before parting with this order, this Court would like to comment upon the state of uncertainty which was prevailing in the State of M.P. with regard to the Retrospective/Retroactive/Prospective operation of The Madhya Pradesh Municipalities (Second Amendment) Ordinance, 2024. For Municipal Council, Devari, Distt. Sagar, the Add. Collector withdrew the letter of convening the meeting to consider no confidence motion, merely on the basis of decision taken by the Cabinet, whereas in other Districts, the meeting was cancelled after the Ordinance was promulgated. Whereas in the present case, the Collector, Damoh had decided to go ahead with the meeting to consider the no-confidence motion. It is true that principle of Negative Equality cannot be applied by the Courts, but in a democratic set up, where there is an element of uncertainty amongst various officers of the State, then it was expected from State Govt. to clarify the situation, so that every no confidence motion could have been dealt with by various officers in the similar manner," the high court said. 

Allowing the plea, the high court went on to quash the August 23 order issued by Collector and Add. Collector, Damoh fixing the meeting on September 4 for considering the no-confidence motion. 

Case title: Smt. Manju Rai Versus The State Of Madhya Pradesh And Others

Case no: WRIT PETITION No. 25382 of 2024

Citation: 2024 LiveLaw (MP) 212

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