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". BackgroundThe 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 retrospectiveThe 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...

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

Siddhi Nigam

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