Madhya Pradesh High Court: In a writ petition challenging an order dated 23-8-2024 issued by the Collector and Add. Collector, Damoh, fixing the meeting to consider the no-confidence motion against the petitioner, the President of the Municipal Council, Damoh, a single-judge bench of G.S. Ahluwalia, J., quashed the impugned order and held that the Madhya Pradesh Municipalities (Second Amendment) Ordinance, 2024 had retroactive operation and would apply to all cases where the no-confidence motion was moved before the Ordinance’s promulgation but considered after it.
Factual Matrix
In the instant matter, the petitioner was serving as the President of the Municipal Council, Damoh, since 05-08-2022. After the completion of two years in office, a no-confidence motion was moved, and the Collector of Damoh, by order dated 23-08-2024, authorised the Additional Collector to convene a meeting to consider the no-confidence motion on 04-09-2024.
The petitioner filed a petition seeking the issuance of a writ of certiorari to quash the impugned order dated 23-08-2024 passed by Respondent 4, in light of a cabinet policy decision dated 20-08-2024 and a similar order passed by the Collector, District-Sagar, on the same date and a writ of mandamus directing Respondent 3 to act in accordance with the cabinet policy and the order passed by the Collector, District-Sagar, in a similar case.
Meanwhile, during the pendency of the petition, the Madhya Pradesh Government promulgated “The Madhya Pradesh Municipalities (Second Amendment) Ordinance, 2024”, which amended Section 42-A(1)(a) and Section 43-A of the Madhya Pradesh Municipalities Act, thereby, increasing the immunity period for a municipal president from two years to three years.
Parties’ Contentions
The petitioner argued that the amended ordinance, extending the period from two to three years, should be treated as retrospective or retroactive in nature, not merely prospective. It was contended that in other districts, similar no-confidence motions were dropped by Collectors on the grounds that the ordinance applied retrospectively, and the petitioner should receive the same treatment. The petitioner relied on Ramesh Kumar Soni v. State of M.P., (2013) 14 SCC 696; Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 and SEBI v. Classic Credit Ltd., (2018) 13 SCC 1, to support the retroactive application of the ordinance, including:
However, the respondents opposed the petition and asserted that just because other Collectors had dropped similar motions, it did not entitle the petitioner to the same outcome. It was contended that the ordinance should be treated as prospective in nature since it introduced a new substantive right (extending the tenure from two years to three years), which cannot be applied retroactively unless explicitly stated. It was argued that the principle of “negative equality” should not apply, and the Ordinance is prospective unless explicitly stated otherwise. It was further contended that the right to move a no-confidence motion is a statutory right for the Councilors once the statutory period is over. The respondents cited Harla v. State of Rajasthan, (1951) AIR SC 467 and Rajendra Agricultural University v. Ashok Kumar Prasad, (2010) 1 SCC 730, and argued that statutory rights are not vested rights and can be modified or taken away by legislation, including:
Moot Point
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Whether “the Madhya Pradesh Municipalities (Second Amendment) Ordinance, 2024” is prospective, retrospective, or retroactive in nature?
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Whether the right to contest an election is a statutory right or a substantive right?
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Whether the performance of an elected President of a Municipal Council is a relevant consideration for a no-confidence motion.
Court’s Analysis
Right to Election – Statutory Right or Vested Right?
The Court discussed the nature of statutory rights and whether the right to contest an election and hold a position is a statutory or substantive right. The Court noted that “a Statutory Right is a right which is created by a Statute, which can be taken away, created etc. by the Statute, whereas the Substantive Right are rights that are inherent and Fundamental.”
The Court held that the right to contest, elect, and hold an office is purely a statutory right, not a fundamental or vested right. The Court held that “such a right can always be created or taken away. In the other words, the Right to contest election is always regulated by Statute.”
Ordinance 2024’s nature – Prospective v. Retrospective
The Court examined whether the Ordinance is procedural or substantive. The Court stated that the Ordinance merely extends the period for bringing a no-confidence motion and does not create new rights but modifies existing procedural norms. The Court noted 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 referred to several precedents and asserted that the procedural amendments are generally retrospective unless explicitly stated otherwise.
The Court further asserted that 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 Court further noted that “there is nothing to indicate that the Ordinance has been given prospective effect.”
Relevancy of President’s performance to No-confidence motion
The Court rejected the respondents’ argument that the performance of the elected President is relevant to the no-confidence motion. The Court stated that the elected President holds office based on the confidence of three-fourths of the elected Councilors present and voting in the no-confidence meeting, therefore, the quality of the President’s performance is not a prerequisite for moving a no-confidence motion. Instead, the State Government has specific provisions under Section 41-A of the M.P. Municipalities Act to remove an inefficient President if it is deemed in the interest of the Council or the general public.
Ordinance’s Applicability
The Court stated that since the Ordinance has a retroactive operation, therefore the Ordinance applies to cases where the no-confidence motion was moved before the Ordinance’s promulgation but considered after it. The Court held that that the Madhya Pradesh Municipalities (Second Amendment) Ordinance, 2024 have retroactive operation and would apply to the ongoing proceeding which was initiated under Section 43-A of Municipalities Act, by moving a motion of no-confidence against the President, Municipal Council, Damoh.
Court’s Decision
The Court allowed the petition based on the finding that the Ordinance should be applied retroactively in the present matter and quashed the impugned order issued by the Collector and Additional Collector of Damoh, which had scheduled the meeting to consider the no-confidence motion on 04-09-2024
[Manju Rai v. State of M.P., 2024 SCC OnLine MP 5517, Decided on 06-09-2024]
Advocates who appeared in this case :
Shri Vivek Krishna Tankha, Senior Advocate with Shri Harshit Bari, Counsel for the Petitioner
Shri Prashant Singh, Advocate General with Shri Amit Seth, Additional Advocate General, Counsel for the Respondent No. 1 to 4/State
