Ramesh
Mehta Vs. Sanwal Chand Singhvi & Ors [2004] Insc 294 (20 April 2004)
Cji
V.N. Khare & S.H. Kapadia.
WITH CIVIL
APPEAL Nos.6134-6135, 6136 & 8564 OF 2002 AND CIVIL APPEAL No.2393 OF 2003.
KAPADIA, J.
The
question raised in these civil appeals is whether in counting "the whole
number of members of the municipal board" in terms of rule 3(9) of the
Rajasthan Municipalities (Motion of No-Confidence against
Chairman/Vice-Chairman) Rules 1974, nominated members have to be taken into
consideration? For sake of convenience, we refer to the facts in Civil Appeal
No.6133 of 2002.
On
19.8.2000, elections were held for the Municipal Board, Sanchar, district Jalore.
The appellant Ramesh Mehta was elected as Chairperson of the Municipal Board.
On 24.10.2000, the State Government nominated two members on the Board. On
6.10.2001, the total number of members of the municipal board consisted of 20
elected members, 2 nominated members and one MLA (Ex-officio). Thus, the total number
of members on 6.10.2001 were 23. On that day, the no confidence motion was
moved against the Chairperson, in which 15 members voted for the motion. The
motion was conducted by the SDO, Sanchar as a nominee of the Collector, Jalore.
According
to the SDO, the no confidence motion stood carried out as the whole number of
members on the board, excluding the nominated members, was 21 and 2/3rd of 21
was 14, against which 15 members voted for the motion. According to the
appellant, the decision of SDO was erroneous as the whole number of members of
the board was 23 and not 21 as determined by the SDO and 2/3rd of 23 being
15.33, the motion stood defeated. The decision of the SDO was challenged by the
appellant herein in the High Court by filing petition no.4178 of 2001. By
judgment and order dated 21.5.2002, the learned Single Judge of the Rajasthan
High Court, Jodhpur Bench held that in counting the whole number of members,
nominated members have also to be taken into account even though they had no
right to vote. The learned Single Judge relied upon the judgment of this Court
in the case Raees Ahmad v. State of U.P. reported in [(2000) 1 SCC 432].
Aggrieved by the decision, the respondent herein carried the matter in appeal
to the Division Bench of the High Court, which took the view that the expression
"whole number of members" used in rule 3(9) of Rajasthan
Municipalities (Motion of No-Confidence against Chairman/Vice-Chairman) Rules,
1974 (hereinafter referred to as "the 1974 Rules") excluded nominated
members. It was observed by the Division Bench that the said rule 3(9) of the
1974 Rules is required to be read with section 3(36) and section 9 of the
Rajasthan Municipalities Act, 1959 (hereinafter referred to as "the
Act") and if so read, the expression "whole number of members"
would exclude nominated members.
Consequently,
the appeal was allowed and the decision of the SDO was confirmed. Hence, the
original petitioner, the ousted Chairman of the Municipal Board has come by way
of civil appeal. The question herein is common in all civil appeals herein.
Shri
Manish Singhvi, learned counsel appearing for the appellant submitted that the
right to elect is neither a fundamental right nor a common law right. It is a
statutory right. He submitted that the electoral college which elects a person
may be different from the electoral college which removes such person from the
post. In this connection, he placed reliance for purposes of illustration on
Articles 54 and 61 of the Constitution. He submitted that in each case of
election and removal, the Court has to examine the Act in question. Elaborating
his argument, it was urged that the entire thrust of the argument of the
respondent was that the words "whole number of members" must be
construed as "whole number of elected members" and, therefore, the respondent
is claiming casus omissus. He submitted that this Court has repeatedly held
that a matter which should have been but has not been provided for in a statute
cannot be supplied by the Courts. In this connection, he relied upon the
judgment of the Privy Council in the case of Hansraj Gupta v. Dehra Dun Mussoorie
Electric Tramway Co. Ltd. reported in [AIR 1933 PC 63] and Smt. Hira Devi &
Ors. v. District Board, Shahjahanpur reported in [1952 SCR 1122]. He next
contended that despite the 74th Constitutional Amendment, the legislature did
not amend the definition of "member" under section 3(15) and the
definition of the words "whole number" under section 3(36) which
includes nominated members. Thus, the composition of municipal boards under
section 9(a)(i) and (ii) included nominated members, who formed the part of the
whole number of the members of the board and, therefore, the expression
"whole number of members" in the Act cannot be construed as
"whole number of elected members". He submitted that under Article 243R(2)(b),
the legislature may by law provide for a manner of election of the Chairman. He
submitted that the rules of 1974 provided for removal of chairman, which was
different from election of the chairman.
In
this connection, he submitted that even though a chairperson may be elected
from the electoral college of elected members, the removal could be due to
2/3rd of the members including nominated members. In the circumstances, he
submitted that if one reads rule 3(8) and rule 3(9) of 1974 Rules along with
section 3(36) of the Act, it is clear that the no-confidence motion has to be
carried by requisite majority of 2/3rd of the whole number of members including
nominated members. He, therefore, submitted that the High Court erred in
holding that the words "whole number of members" must be construed as
"whole number of elected members".
Shri
S.K Jain, the learned counsel appearing on behalf of respondent No.1, Shri Sanwal
Chand Singhvi, submitted that Rule 3(9) of 1974 Rules contains the expression
"whole number of members". He urged that one has to read the said
expression in the context of section 3(36) of the Act which is a preliminary
definition section and which states that unless the context otherwise requires
the expression "whole number of members" when used with reference to
the members of a board shall mean the total number of members holding office at
the time. It was further contended that under section 9(5) of the Act, prior to
1994 amendment, the co-opted members had to be treated for all purposes as
elected members of the board which position changed after 1994 Amendment under
which nominated members had no right to vote. It was, therefore, urged that
even prior to 1994 Amendment to the Act the expression "whole number of
members" appearing in Rule 3(8) and (9) meant the "total number of
elected members". Learned counsel for respondent No.1 further pointed out
that in 1994, sections 9, 65 and 72 of the Act were amended in pursuance of the
new chapter XIV-B being inserted in the Constitution by Constitution (Seventy
fourth) Amendment Act, 1994. It was pointed out that under the proviso to
sub-Article (2)(a)(i) of Article 243R, persons nominated were precluded for
voting. In pursuance of the said amendment in the Constitution, Sections 9, 65
and 72 of the Act were amended by which nominated members were denied the right
to vote. It was pointed out that although the Act stood amended, the 1974 Rules
remained unchanged and, therefore, the 1974 Rules have to be construed in
accordance with amended provisions of sections 9, 65 and 72 which debar the
nominated members from voting in the meetings of the Municipal Boards. In
support of the above submissions, reliance was also placed on section 3(36) of
the Act, which, as stated above, is the definition section which begins with
the words "unless the context otherwise requires".
For
the reasons herein, it was submitted on behalf of the respondents that the
"whole number of members" appearing in sub-Rules (5), (8) and (9) of
Rule 3 of 1974 Rules must be construed as "total number of elected
members".
Before
adverting to the arguments advanced on both sides, we reproduce hereinbelow the
relevant provisions of the said Act (pre and post 1994): A comparative chart
showing the provisions of the Rajasthan Municipalities Act, 1959 before and
after the Amendment in 1994: Provisions Prior to Amendment Provisions After
Amendment "9. Composition of boards.
(1)
Subject to the provisions contained in the succeeding sub-sections, every board
shall consist of such number of seats as may be fixed by the State Government
from time to time by notification in the Official Gazette.
(2)-(3)
xxx xxx xxx
4. All
the seats fixed for a board, general as well as reserved, shall be filled up by
election held in the manner provided for by and in the order made under Section
29.
5. To
every board there shall be appointed by co-option in the manner provided for by
order published in the official Gazette
(i)
Two persons belonging to the female sex if no such person has been returned to
the board by election referred in sub- sec.(4), or
(ii)
One person belonging to the female sex if only one such person has been
returned to the board by such election, and such co-opted person or persons
being treated for all purposes of this Act as elected member or members of the
board, and the number of seats fixed for that board under sub-sec.(1) being
deemed to be increased accordingly.
"65.
Every board to have a chairman and a vice-chairman
(1)
For every board, there shall be chairman and a vice-chairman.
(2)
The chairman shall be elected, in accordance with rules made by the State
Government in that behalf, by the members of the board from amongst themselves.
(3)
The vice-chairman shall be elected by the members of the board from amongst
themselves in accordance with rules made in this behalf.
(4)
For every council there shall be a president and a vice-president.
(5)
The president and the vice- president shall be elected in accordance with rules
made by the State Government in that behalf, by the councilors of the council
from amongst themselves.
(6) to
(8) xxx xxx xxxx (9) Every chairman and every vice- chairman of a board shall
forthwith be deemed to have vacated his office, if a resolution expressing want
of confidence in him is passed by the votes of a majority of the whole number
of members at a special general meeting convened for the purpose.
(10 to
(15) xxx xxx xxx"
"72.
Motion of non-confidence against chairman [or vice- chairman].
(1) A
motion expressing non-confidence in the chairman [or vice-chairman] shall be
made only in accordance with the procedure laid down in this section.
(2) A
written notice of intention to make a motion of non confidence in the chairman
[or vice-chairman], signed by such number of members of the board as
constituted not less than one-third of the whole number of such members,
together with a copy of the motion which it is proposed to make, shall be sent
to the prescribed authority, who shall thereupon convene a meeting for the
consideration of the motion to be held at the office of the board on the date
and at the time appointed by him, which shall not be earlier than twenty or
later than thirty days from the date of the receipt of the notice.
(3)
The prescribed authority shall send by registered post not less than seven
clear days before the date of the meeting a notice of such meeting and of the
date and the time to be appointed therefore to every member of the board.
(4) to
(7) xxx xxx xxx (8) Upon the conclusion of the debate or upon the expiry of the
said period of four hours, as the case may be, the motion shall be put to the
vote of the board and the prescribed authority or his nominee shall neither
speak on the merits thereof nor vote thereon.
(9) If
the motion is not carried by a majority specified in sub-section (9) of section
65 or if any meeting cannot be held for want of a quorum, no notice of any
subsequent motion of non-confidence in the same chairman (or vice-chairman)
shall be received until the expiry of a period of six months from the date of
the meeting."
"9.
Composition of boards(1) Subject to the provisions contained in the succeeding
sub-sections, but save as provided in the following provisions of this
sub-section, all seats in a municipality shall be filled by persons chosen by
direct election from the territorial constituencies known as wards, the number
of such seats, not being less than thirteen, being fixed by the State
Government from time to time by notification in the Official Gazette:
(a) the
following shall be represented on the board, council or corporation, as the
case may be, viz:
(i) a
member of the Rajasthan Legislative Assembly representing a constituency which
comprises wholly or partly the area of a municipality; and
(ii)
three persons or ten percent of the number of elected members of the
municipality, whichever is less, having special knowledge or experience in
municipal administration, to be nominated by the State Government by
notification in the Official Gazette:
Provided
that
(i) the
provisions contained in section 26 and section 59 of this Act shall be
applicable to the persons to be nominated or nominated under sub-clause (ii);
(ii) the
State Government shall have power to withdraw a member nominated under sub-
clause (ii) at any time;
(iii)
the term of co-opted members, if any, who were co- opted and are continuing as
such on the date of commencement of the Rajasthan Municipalities (Second
Amendment) Act, 2000 (Act No.22 of 2000) shall come to an end upon such
commencement:
Provided
further that a member referred to in sub-clause (ii) shall not have the right
to vote in the meetings of a board, council or corporation as the case may be;
(b) A
member of the house of people representing a constituency which comprises
wholly or partly the area of a municipality with a municipal council or as the
case may be, a municipal Corporation shall be represented on the Council or
Corporation of such municipality:
Provided
that a member referred to in sub-clause (i) of clause (a) shall have a right to
vote in the meetings of a Board, Council or Corporation and a member referred
to in clause (b) shall have a right to vote in the meetings of a Council or
Corporation;" "65. Every board to have a chairman and a vice-chairman-
(1)
For every board, there shall be a chairman and a vice-chairman.
(2)
The Chairman shall be elected, in accordance with rules made by the State
Government in that behalf, by the elected members of the board from amongst
themselves.
(3)
The vice-chairman shall be elected by the elected members of the board from
amongst themselves in accordance with rules made in this behalf.
(4)
For every council there shall be a president and a vice-president.
(5)
The president and the vice- president shall be elected in accordance with rules
made by the State Government in that behalf, by the elected councilors of the
council from amongst themselves.
(5A)
to (8) xxx xxx xxx (9) Every chairman and every vice- chairman of a board shall
forthwith be deemed to have vacated his office, if a resolution expressing want
of confidence in him is passed in accordance with the procedure prescribed.
(10) to
xxxxxx xxxxxxx"
"72.
Motion of non-confidence against chairman.
(1)
Motion expressing non-confidence in the Chairman or the vice-chairman shall be
made and considered in the manner prescribed.
(2) No
notice of motion under this section shall be made within one year of the
assumption of office by a Chairman or a Vice-Chairman.
(3) If
a motion under sub-section (1) is not carried, no notice of a subsequent motion
expressing non- confidence in the same Chairman or Vice-Chairman shall be made
until after the expiration of two years from the date of the meeting in which
the motion was considered."
Article
243R(1)&(2) of the Constitution was inserted by Constitution (Seventy
Fourth) Amendment Act, 1994 under Chapter XIV-B. It lays down guidelines with
regard to the Constitution, composition, election and rights of the members of
a municipality. We quote hereinbelow the relevant provisions:
"243R.
Composition of Municipalities.
(1)
Save as provided in Clause (2), all the seats in a Municipality shall be filled
by persons chosen by direct election from the territorial constituencies in the
Municipal area and for this purpose each Municipal area shall be divided into
territorial constituencies to be known as wards.
(2)
The Legislature of a State may, by law, provide
(a) for
the representation in a Municipality of
(i) persons
having special knowledge or experience in Municipal administration;
(ii) the
members of the House of the People and the members of the Legislative Assembly
of the State representing constituencies which comprise wholly or partly the
Municipal area;
(iii) the
members of the Council of States and the members of the Legislative Council of
the State registered as electors within the Municipal area;
(iv)
The Chairpersons of the Committees constituted under clause (5) of Article
243S;
Provided
that the persons referred to in paragraph (i) shall not have the right to vote
in the meetings of the Municipality;
(b) the
manner of election of the Chairperson of a Municipality."
As
stated above despite the constitutional amendment and the amendments to
sections 9, 65 & 72 of the Act, the 1974 Rules were not amended. We quote hereinbelow
section 3(36) of the Act which defines the term "whole number of
members" as well as Rule 3 of the 1974 Rules which as stated above have
remained unamended even after 1994: "Section 3. Definitions in this Act
unless the context otherwise requires - (36) 'whole number' or 'total number'
when used with reference to the members of a board, means the total number of
members holding office at the time." "Rule 3. Procedure etc.
(1) A
written notice of intention to make a motion of non- confidence in the Chairman
or Vice-Chairman signed by one third members of the Board together with a copy
of the motion which is proposed to be made, shall be sent to the Collector of
the District, who shall thereupon convene a meeting for the consideration of
the motion to be held at the office of the Board on the date and at the time
appointed by him, which shall not be earlier than twenty or later than thirty
days from the date of the receipt of the notice.
(2)
The Collector shall send by registered post not less than seven clear days
before the date of the meeting, a notice of such meeting and of the date and
time fixed thereof to every member of the board.
(3)
The Collector or his nominee shall preside at such meeting and if within half
an hour from the time appointed for the meeting collector or his nominee is not
present or is unable for any unavoidable cause to preside at the meeting, the
meeting shall stand adjourned to the date and the time to be fixed and notified
to the members.
(4) A
meeting convened for the purpose of consideration of the motion of
no-confidence under these rules shall not for any reason except stated at
sub-clause (3) be adjourned.
(5) As
soon as the quorum is present, the Collector or his nominee shall read the
motion for the consideration of which the meeting has been convened and declare
it to be open for discussion.
No
meeting for the consideration of motion of non- confidence shall be held unless
the quorum is present. One-third of the whole number of members shall form the
quorum.
(6) Such
discussion shall not be adjourned and shall automatically terminate on the
expiry for four hours from the time fixed for the commencement of the meeting
unless it is concluded earlier.
(7) If
the conclusion of the debate or upon the expiry of the said period of four
hours, as the case may be, the motion shall be put to the vote of the Board and
the Collector or his nominee shall neither speak on the merits thereof nor vote
thereon.
(8) If
the motion is not carried by 2/3rd majority of the whole number of members, or
if any meeting cannot be held for want of quorum, the motion of no-confidence
against Chairman or Vice-Chairman, as the case may be, shall be deemed to have
been lost.
(9) If
the motion is carried by a majority of 2/3rd number of whole number of members,
the motion shall be deemed to have passed against the Chairman or Vice-Chairman
shall forthwith be deemed to have vacated his office." The question
involved in the present civil appeals is whether nominated members in a
municipal board are to be counted for calculating the majority required for
carrying a no confidence motion against a chairman/vice-chairman of the board.
At the
outset, we may notice the legal position prior to 1994. Section 3, which is a
definition section, begins with the words "unless the context otherwise
requires". Section 3(36) defines the expression "whole number"
or "total number" to mean total number of members holding the office
at the time.
Under
section 72 read with section 274 of the said Act, the State Government enacted
the 1974 Rules, which have remained unchanged till date. Rule 3 prescribes
procedure for passing no-confidence motion. Rule 3(5) states that no meeting
for consideration of no-confidence motion shall be held unless the quorum of
1/3rd of the whole number of members is present.
Rule
3(8) states that if the motion is not carried by 2/3rd majority of the whole
number of members or if any meeting cannot be held for want of quorum, the
motion of no- confidence against the chairman/vice-chairman shall be deemed to
have been lost. Rule 3(9) states that if the motion is carried by a majority of
2/3rd of the whole number of members, the motion shall be deemed to have been
passed. Section 9(4) dealt with co-option of two members. Under clause (ii) of
sub- section (5) of section 9, the co-opted members had a right to vote on all
motions and accordingly they were put on par with elected members. Under
section 65(9) of the Act, the office of the chairman/vice-chairman stood
vacated as and when no- confidence motion was passed by a majority of "the
whole number of members" and conversely if the motion was not carried by a
majority, such motion would fail. Reading the above provisions of the
un-amended Act and the 1974 Rules, it is clear that even prior to 1994 the
legislative intent was that the chairman/vice-chairman had to vacate his office
on passing of no-confidence motion by requisite majority of members who had the
right to vote, which included the co-opted members. In Law and Practice of
Meetings by Shackleton [8th Edition Page-66] while explaining the word
"Majority" the learned author states that in legislative assemblies
it is usual to decide the questions by a majority of those who have voting
rights.
The
learned author, further states, that in cases where a motion is to be
determined by a majority consisting of 2/3rd of the votes, the word
"Majority" would mean majority of persons entitled to vote on the
proposal and once the motion is voted upon by the requisite majority, it
becomes resolution of the meeting. Therefore, the word "majority"
would mean majority of persons entitled to vote. In the present case, the word
"majority" finds place in sections 65(9) and 72(9) of the Act prior
to amendment. Therefore, even prior to 1994 amendment of the Act, the
legislature intended that the chairman/vice- chairman of the municipal board
shall be removed only by a requisite majority of members having right to vote
on the motion. We are, therefore of the view that even prior to 1994, the words
"whole number of members" under rule 3 of the 1974 Rules meant total
number of members who have voting rights.
There
is no dispute with the proposition that the right to elect and the right to be
elected is a statutory right and that the mode and manner of election to any post
could be different from the scheme of removal of a person from that post.
However,
in each case, we have to examine the Act in question, which we have done
hereinabove. In the circumstances, we do not wish to discuss the judgments
cited on behalf of the appellant in support of the above proposition. However,
reliance was placed on the judgment of this Court in the case of Raees Ahmad v.
State of U.P. reported in [(2000) 1 SCC 432].
In the
said case this Court was concerned with the provisions of U.P. Municipalities
Act under which the chairman is elected by direct election. Under section 43 of
the U.P. Act the chairman is elected directly by the electorate on the basis of
adult franchise exercised by the voters of the area. It is the case of direct election.
On the other hand, in the present case under section 65 of the Rajasthan
Municipalities Act with which we are concerned the chairman is elected from
amongst the elected members of the board. This distinction, in our view, is
very important. As stated above prior to 1994 the co-opted and the elected
members were put on par. Both the categories had the right to vote. The
chairman was elected from amongst the members of the board. Consequently, the
chairman/vice- chairman had to vacate the office when such members voted in
support of the motion. In the circumstances, the judgment of this Court in the
case of Raees Ahmad (supra) has no application to the facts of the present
case.
In the
present case, on facts, we are concerned with post 1994 position. Article 243R
brought about a drastic change in the matter of composition of municipalities.
It lays down guidelines with regard to the constitution, composition, election
and rights of the members of a municipality. Under the said Act, members of a
municipality are persons chosen by direct election by the residents of a
municipal area (ward). Article 243R(2)(a)(i) allows the legislature of a State
to appoint any person as a member of the board who has special knowledge in the
field of municipal administration, however, the proviso appended to the said
Article precludes persons nominated under sub-clause (i) from having a right to
vote in the meetings of the municipality. The Constitution, therefore, makes a
distinction between elected members and nominated members who play essentially
an advisory role. Pursuant to the 74th Constitutional amendment of 1994,
sections 9, 65 and 72 of the Act were amended. Prior to the amendment the
co-opted members were at par with the elected members, however, after 1994 only
elected members and members of the legislative assembly have a right to vote
under section 9(1) of the Act. Under sub-section (2) of section 65, as amended,
the Chairman has to be elected by "elected members of the board".
This change is very important. Prior to 1994, the Chairman was to be elected by
the "members of the board", which is the phrase used in the unamended
section 65(2), as the co-opted members had a right to vote. However, in 1994,
section 65(2) of the Act was amended and the expression "members of the
board" in the old section is substituted by the expression "elected
members of the board". In fact, the expression "whole number of
members" earlier appearing in sections 65 and 72 of the Act have been
deleted because in section 65(2) it is expressly provided that the Chairman
shall be elected only by elected members of the board from amongst themselves.
Therefore, the scheme of post 1994 Act is that the chairman/vice-chairman shall
be elected by the elected members of the boards and their office shall stand
vacated on passing of no confidence motion by the elected members of the board.
The position which, therefore, emerges is that both before and after 1994, the
no-confidence motion had to be voted upon by members who were entitled to vote.
As stated
above, section 3 of the Act begins with the words "unless the context
otherwise requires". Section 3(36) defines the expression "whole
number"/"total number" to mean total number of members holding
the office at the given time. The said expression "whole number of
members" finds place in rule 3(5), (8) and (9). Hence, we have to read
rule 3(5), (8) and (9) in the context of the provisions of the said Act. As
stated above, the basic scheme of the Act prior to 1994 and post 1994 has
remained unchanged. In both cases, the legislative intent has been that the
office of the chairman/vice-chairman shall stand vacated on passing of
no-confidence motion by the members of the board who are entitled to vote.
Hence, in our view, the expression "whole number" or "total
number" connotes the "total number of elected members".
In the
case of Knowles v. Zoological Society of London reported in [(1959) 1 WLR 823]
it has been held by Court of Appeals that the expression "majority of
fellows entitled to vote" in the bye-laws of a society would mean the
majority of those present at a meeting and entitled to vote and not the
majority of the whole electorate whether present or not. Before us, as stated
above, it was urged that the respondent is claiming casus omissus in support of
his argument that the words "whole number of members" must be
construed as "whole number of elected members". We do not find any
merit in this argument.
In the
case of State of Karnataka v. Union of India & Anr.
reported in [AIR 1978 SC 68 at page 107], it has been observed by this Court
that although a Court cannot supply casus omissus, it is equally clear that it
should not interpret a statute so as to create a casus omissus when there is
really none.
To sum
up, under pre 1994 and post 1994 provisions, the legislature intended that
chairman/vice chairman shall be removed on passing of no-confidence motion by
requisite majority of members having right to vote.
For aforestated
reasons, we do not find merit in the civil appeals herein and accordingly the
same are dismissed with no order as to costs.
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