S.S. Jha, J. - (1.)PRELIMINARY objection is raised by the respondents that the writ petition as filed by the petitioner is not maintainable as the petitioner has alternative remedy of election petition, therefore, petition as filed was not maintainable and consequently, this letters patent appeal arising out of the order passed in the writ petition is also not available and the appeal be dismissed.
(2.)BRIEF facts of the case are that the appellant (petitioner before the Writ court) was elected as Sarpanch of the Municipal Council, Sabalgarh. After his election, the Councillors moved an application for recalling the appellant as President of the Municipal Council under the provisions of section 47 of the Madhya Pradesh Municipalities Act, 1961 (hereinafter, referred to as the 'Act'). Section 47 of the Act is reproduced below:
"Recalling of President. - - (1) Every President of a Council shall forthwith be deemed to have vacated 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 municipal 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 forth of the total number of the ELECTED Councillors and presented to the Collector: Provided further that no such process shall be initiated: - - (i) within a period of two years from the date on which such President is elected and enters his office; (ii) if half of the period of tenure of the President elected in a by -election has not expired; Provided also that process for recall of the President shall be initiated once in his whole term. (2) The Collector, after satisfying himself and verifying that the three fourth of the Councillors specified in sub -section (1) have the proposal of recall, shall send the proposal to the State Government and the State Government 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."

(3.)IT is clear from the proviso to the said provision that said process shall not be initiated within a period of two years from the date on which said President is elected and enters his office and if half of the period of the tenure of the President elected in a by -election has not expired. It further provides that the process for recalling of the President shall be initiated once in his whole term. The essential condition is that no such process shall be initiated unless proposal is signed by not less than 3/4th of the total number of elected Councillors and presented to the Collector of the district.
Only contention of the appellant is that 3/4th of the total number of elected Councillors have not signed the requisition for recalling the appellant as President. Admittedly, the Municipal Council consists of 15 Councillors and strength of 3/4th Councillors is 12. The requisition Annexure P/6 annexed with the writ petition was signed by 12 members. Out of 12 one elected Councillor namely Shrimati Lali Devi Pandey submitted an affidavit before the Collector that she has not asked for recalling the President. She was misled in signing the papers for recalling the President on the pretext that a representation was submitted for development of the city. This affidavit was filed immediately on the subsequent day after presentation of the requisition. However, the Collector forwarded the requisition to the State Government and the State Government thereafter forwarded the papers to the Election Commission for recalling the President.