Mool Chand Sharma Vs. State of Uttar
Pradesh  INSC 273 (20 September 1961)
DAYAL, RAGHUBAR DAYAL, RAGHUBAR SINHA,
BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B.
CITATION: 1967 AIR 112 1962 SCR (3) 718
Municipal Board-Member-Incurring of disqualification
If and when becomes incompetent to exercise his right-U.P. Municipalities Act,
1916 (U.P. II of 1916), ss'.13 D(8), 87A, sub-s.2.
The appellant was the President of a
Municipal Committee. A written notice of the intention to move a motion of no
confidence in the President signed by nine members of the Board was delivered
to the District Magistrate under s. 87-A sub-s. (2)of the U.P. Municipalities
Act, 1916. The District Magistrate duly convened a meeting of the Board, but
before the date of the meeting the appellant moved a writ petition in the High
Court and questioned the validity of the notice. The writ petition was
dismissed in limine inter alia as being premature. The Meeting of the Board.
was held on the due date and all the members
present, voted for the motion of no confidence and the Munsif of the area who
had presided declared the motion to have been carried.
The appellant by his second writ petition
before" the High Court desired that the 719 proceeding of the meeting be
quashed and the resolution expressing no confidence in the appellant be not
given effect to, by the State and the District Magistrate, for the reason that
two of the members of the Board who had signed the notice and subsequently
taken part in the proceedings of the meeting and voted, had 'incurred
disqualification under s.
13-D (g) of the U.P. Municipalities Act,
1916, inasmuch as they were in arrears in the payment of municipal tax and
other dues to which s. 166 of the Act applied.
Held, that an order, dismissing a writ
petition in limine not on merits but for the reason that it was premature.
could not operate as res judicata in
does not automatically come under suspension,
or lose his rights to take part in the proceeding of the Board, or perform the
duties of a member or cease to be a member of the Board merely on his incurring
any of the disqualification mentioned in s. 13-D of the U.P.
Municipalities Act, 1916. A member of the
Municipal Board, merely, by incurring the disqualification under cl. (g) of s.
13-D of the U.P. Municipalities Act, 1916, was not incompetent to exercise his
rights as a member of the Board.
Election Commission, India v. Saka Venkata
Subba Rao,  S.C.R. 1144, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 401 of 1961.
Appeal by special leave from the judgment and
order dated May 24, 1961, of the Allahabad' High Court in Civil Misc. Writ No.
846 of 1961.
M. C. Setalvad Attorney-General for India and
J.P. Goyal for the appellant.
C. B. Agarwala and C. P. Lal, for respondents
Nos. 1 and 2.
C. K. Daphtary, Solicitor-General of India,
R. K. Garg, S. C. Agarwala, D. P. Singh and M. K. Ramamurthi, for respondents
Nos. 3 to 13.
1961. September 20. The Judgment of the Court
was delivered by RAGHUBAR DAYAL, J.-This appeal, by special leave, is directed
against the judgment of the, High Court of Allahabad dismissing a writ petition
filed 720 by the appellant praying for the issue of a writ in the nature of
mandamus directing the State of Uttar Pradesh and the District Magistrate,
Meerut, not to give effect to the resolution passed in the meeting of the
members of the Municipal Board, Pilkhuwa, dated February 6. 1961 and for the
quashing of the proceedings of that day.
The appellant was the President of the
Municipal Board, Pilkhuwa, in January-February, 1959. On January 4, 1959, a
written notice of the intention to make a motion of no confidence in the
President signed by nine members of the Board, including Ram Nath and Kesho Ram
Gupta, was delivered to the District Magistrate, Meerut, in Pursuance of sub-s.
(2) of s.87-A of the U.P. Municipalities Act, 1916 (U.P. Act II of 19 16),
hereinafter called the Act. The District Magistrate, Meerut, duly convened a
meeting of the Board on February 6, 1961.
The appellant moved writ petition No. 367 of
1961 in the High Court on February 2, 1961, and questioned the validity of that
notice. That petition was dismissed in limine on the same day. It was held that
unless and until an order of removal is passed actually by the State Government
there could not be any removal of a member or anything which would disentitle a
member to take part in the proceedings of the meeting and that the application
was also premature.
The meeting of the Board took place on
February 6, 1961.
Mr. Agarwala, Munsif, Meerut, presided over
the meeting all the ten members who were present, voted for the motion of no
confidence and the Munsif declared the motion to, have been carried. The
appellant, by his writ petition, desired the proceedings of the meeting to be
quashed and the resolution expressing no confidence in the appellant be not
given effect to by the state of U.P. an-.' the District Magistrate.
721 It was urged before the High Court that
the MO notice of motion delivered to the District Magistrate was invalid and so
were the proceedings of the meeting. Ram Nath and Kesho Ram Gupta who had
signed the notice and also Raghunandan I?,;, Prasad who, along with them took
part in the proceedings of the meeting and voted in support of the no
confidence' resolution, bad incurred, prior to January 4, 1961,
disqualification under s.13-D (g) of the Act inasmuch as they were in arrears
in the payment of municipal tax and other dues in excess of one year's demand
to which s. 166 of the Act applied. The contention was that on account of the
having incurred the aforesaid disqualification, they were disqualified from
being members of the Board and, consequently, were not competent to exercise
the rights of a member of the Municipal Board.
The High Court held that Ram Nath had been
proved to be in arrears in payment of house tax on February 6, 196 1, and that
Kesho Ram Gupta and Raghunandan Prasad were not in arrears in payment of the
Tehbzarai tax for the year 1959-60 and house tax respectively. It held that a
member of the Board did not cease to be a member on his mourning the
disqualification under s.13-D(g) and that he became disqualified merely to
exercise office and to act as a member. The I-earned Judges observed :
"During the continuance of the disqualification
the person's right to act as a member falls into a state of suspension. On
removal of the disqualification the state of suspension disappears and his
right to exercise office as a member of the board revives unless he has been
removed by Government from membership of the board under section 40 of the Act
during the continuance of disqualification." Holding that the motion of no
confidence was valid as it had been passed by the vote of nine members 722 who
constituted the majority of more than half the total number of members of the
Board, that being seventeen, and that those nine members of the Board being
qualified and duly elected members of the Board, Ram Nath's taking part in that
meeting did not vitiate its proceedings in view of the provisions of sub-s. (2)
of s. 113 of the Act, the learned Judges dismissed the writ petition. The
learned Judges did not consider the validity of the notice on merits as they
were of opinion that the order on writ petition No. 397 of 1961 operated as res
judicata, though in view of their opinion the notice of motion of no confidence
would have been invalid if the name of Ram Nath be excluded from the
signatories as in that case the number would be eight and so one short of the number
required by the provisions of sub-s.
(2) of s. 87-A of the Act. The meeting held
in pursuance of a bad notice would also have been invalid.
The learned Attorney General, appearing for
the appellant, has raised the following, contentions :
(i) The order dismissing writ petition No. 397
of 1961 could not operate as res judicata as it had been dismissed mainly on
account of its being premature and not on merits.
(ii) A member of the Municipal Board, on
incurring a disqualification under s. 13-D, ceases to be a member of the Board
so long as the disqualification exists and therefore he cannot act as a member
of the Board for any purpose.
(iii) Kesho Ram Gupta was also a disqualified
member of the Board and the resolution of the Board dated February 6, 1961,
holding that no Tehbazari tax was due from Kesho Ram Gupta and that the amount
deposited by him under protest on February 9, 1961, be refunded., was ultra
vires the power of the Board which had no power to review or revise the
imposition of tax.
723 (iv) Due to the disqualification incurred
by Ram Nath and Kesho Ram Gupta, both the notice of motion of no confidence and
the proceedings of the meeting were bad as, excluding their signatures and
votes, the number of members signing the notice and of those voting at the
meeting becomes less than half the total of the members of the Board.
(v) The proceedings of the meeting were
vitiated even if Ram Nath alone, who was a disqualified member, had taken part
in the meeting and were not saved by the provisions of sub-s. (2) of a. 113, as
the meeting held in pursuance of the provisions of s. 87-A of the Act is not a
meeting of the Board to which the provisions of sub-s. (2) of s. 113 can apply.
The learned counsel for the respondents
conceded that the order dismissing writ No., 397 of 1961 could not operate as
res judicata in' these ,proceedings on the question whether the notice of no
confidence was a valid notice or not.
We do not agree with the second contention
.for the appellant, or with the view expressed by the learned Judges that a
person who incurs disqualification under cl. (g) of a. 13-D of the Act becomes
disqualified to exercise office and to act as a member.
Section 13-C of the Act lays down the
qualifications for membership of the Board and s. 13-D lays down the
disqualifications for membership. Of its ten clauses, the relevant clause of s.
13-D for our purpose is cl. (g). It reads :
"A person, notwithstanding that he is
otherwise qualified, shall be disqualified for being chosen as, and for being,
a member of a Board if he is in arrears in the payment of municipal tax or
other dues in excess of one year's demand to which section 166 applies".
724 Second proviso to this section is:
"'Provided further that in the case of
(g), the disqualification shall cease as soon as the arrears are paid." If
a member of the board falls in arrears in the payment of tax, he incurs this
disqualification. The provisions of s. 13-D do apply to members of the board
incurring disqualification during the period of their membership and are not
confined in their application to the stage previous to the election as, in that
case, the expression "and for being' in the section would have been
unnecessary. This expression has been interpreted in Election Commission, India
v. Saka Venkata Subba Rao (1) in connection with the interpretation of Art.
191, whose relevant provision is "is person shall be disqualified for
being chosen as, and for being, a member of the Legislative Assembly or
Legislative Council of a State......... It was observed at page 1157 :
"Article 191, which lays down the same
set of disqualifications for election as well as for continuing as a member,
and article 193 which prescribes the penalty for sitting and voting when
disqualified, are naturally phrased in terms wide enough to cover both
preexisting and supervening disqualifications." There is nothing in s.
13-D or in any other section of the Act which provides for the suspension or
cessation from membership of a duly elected member on his incurring any of the
disqualifications under s. 13-D. On the other hand the provisions of s. 40 of
the Act lead to the inference that a member incurring such a disqualification,
continues to be entitled to take part in any proceedings of the Board or to
perform the duties of a member. Section 40 deals with the removal of members
and empowers the State Government (1)  S.C.R. 1144.
725 in the case of a city or the Prescribed
Authority in any other case, to remove a member of the board on any of the
grounds mentioned in cls. (a) to (f) of sub-s. (1). The ground for removal
mentioned in cl. (b) is that a member has incurred any of the disqualifications
mentioned in Bs. 12-D and 13-D. Sub-sections (3), (4) and (5) of s. 40 read :
"(3) The State Government may remove
from the board a member who in its opinion has so flagrantly abused in any
manner his position as a member of the board as to render his continuance as a
member detrimental to the public interest:
(4) Provided that when either the State
Government or the Prescribed Authority, as the case may be, proposes to take
action under the foregoing provisions of this section, an opportunity of
explanation shall be given to the member concerned, and when such action is
taken the reasons therefore shall be placed on record.
(5) The State Government may place under
suspension a member, against whom proceeding under sub-sections (3)and (4) has
been commenced, until the conclusion of the enquiry and any member who has been
so suspended shall not so long as the order of suspension continues to remain
in force, be entitled to take part in any proceedings of the board or otherwise
perform the duties of a member." The State Government is empowered to
suspend a member against whom proceedings under sub-s. (4) had commenced, i.e.,
against whom action for removal is being taken on one of the grounds mentioned
'in cls. (a) to (f) of sub-s. (1).
A member so suspended is not entitled to take
part in any proceedings of the board or otherwise perform the duties of a
member during the period of suspension. It can be legitimately inferred from
the provisions 726 of sub-s. (5) that in the absence of an order of suspension
the member who had not only incurred any of the disqualifications mentioned in
s. 13-D, but against whom the Government might have started proceedings, was
entitled to take part in the proceedings of the board or to perform the duties
of a member so long as the Government does not place him under suspension. We
are therefore of opinion that a member of the Municipal Board does not
automatically come under suspension or lose his right to take part in the
proceedings of the board or perform the duties of a member or cease to be a
member of the board merely on his incurring any of the disqualifications
mentioned in a. 13-D. It may be mentioned that any other conclusion can have
very unstable effect and can indefinitely make the validity of the proceedings
and action of the board uncertain as one cannot predicate at any moment of time
as to which of the members of the board has incurred a disqualification, a
matter which must be dependent mostly on the proof of the allegations made.
Such could not have been the intention of the Legislature.
Kesho Ram Gupta and Ragbunandan Prasad had
incurred the disqualification under cl. (g) of s. 13-D of the Act, they were
not incompetent to exercise their rights as members of the board and could
therefore validly sign the notice., of motion of no confidence and take part in
the proceedings of the meeting held in pursuance of the provisions of s. 87-A
of the Act on February 6, 1961. It follows that the proceedings of, and the
resolution passed at the meeting of February 6, 1961, are valid and that the
order of the High Court dismissing the appellant's writ petition is correct,
though for different reasons.
In view of this opinion., it is not necessary
to deal with the other contentions for the appellant. We therefore dismiss the
appeal with costs.