Abdul Kadir v. M adhat. Prabhakar

The appellant was the Pre•ident of a Municipal Commi ttee. A \\.'ritten notice of the intt'ntion to move a motion of no · confidence in the President signed by nine memhcrs of the Board \vas delivered to the District ~fagistrate under s. 87-A .ub-s. (2) of the U.P. Municipalities Act, 1916. The District Magistrate duly convened a meeting of the Board, .but b~~ore the date of the meeting the appellant moved a writ pelltton in the High Court and questioned the validity of the notice. The writ petition \vas 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 de· clared the motion to have been carried. The appellant by hi• .econd writ petition be(orc the High Court desired that the .. , . ...- 1861 M ool Chand Sh4rma v. State of Uttar Pratksh 3 ~.C.R. SUPREME COURT REPORTS 719 proceeding of the meeting be quashed and the resolution ex preSB!ng 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 limin• not on merits but for the reason that it was premature. could not operate as res judicata in subsequent proceedings. Held, further, that a member of the Municipal Board does not automatically come under suspension, or lose his rights to take part in the proceeding of the Bo<Lrd, 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 disqualifica tion under cl. (g) of s. 13-D of the U.P. Municipalities Act, I 916, was not incompetent to exercise his rights ::ts a member of the Board. Elution Oommi88ion, India v. Saka V•nkata Subba Rao, (1953] 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. 0. Sttalvad Attorney-General for India and J. P. Goyril, for the appellant.

#0. B. Agarwala and 0. P. Lal, for respondents Nos. I and 2.

#0. K. Daphtary, Solicitor-General of India, R. K. Garg, S. 0. Agarwala, D. P. Singh and M. K. Rama murthi, for respondents Nos. 3 to 13.

#1961. September 20. The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.-This appeal, by speci'l.l leave, is directed against the judgment of the High Court of Allahabad dismissing a writ petition filed Raghu/)ar Day•I ]. 1961 M ool ClraAd Sharm• v. Slate of f.,'ttar p,.,J,,h 720 SUPREMl!! COURT REPORTS (1962] by the appellant praying for the iRsne of a writ in the nature of mandamus directing the State of Uttar Pradesh and the District Magistrate, Meerut, not to give cff'ect to the resolution passed in the meeting of the members of the Municipal Board, Pilkhuwa, dated February 6, 1961, and for tho quashing of tho proceedings of that day. The appellant was the President of the Muni· cipal Il8ard, Pilkhuwa, in January-February, 1959. On January 4, 1959, a written notice of the inton· tion 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 delivernd to the District Magistrate, Meerut, in pursuance of sub·s. (2) of s.87-A of the U.P. Munioi· palities Act, 1916 (U.P. Act IT of 1916), hereinafter called the Act. The District lllsgistrate, l\loerut, 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 peti· t.ion was di~missed in limine on the same day. It was held that unlesH and until an order of removal iH pa!!l!Cd actually by the St.ate Government there coul<l not ho any removal of a. member or anything which would disentitle a member to take part ii), the proceedings of the meeting and that tho a.ppli· cation wll.ll also premature. Tho mooting of the Board took place on February 6, 1961. Mr. Agarwala, !\Iunsif, !lleerut, presided over tho meeting all tho ten members who were present, voted for the motion of no confidence arnl the l\funsif declared the motion to have been carried. The appellnnt, by his writ petition, desir· ed the proceedings of the meeting to be quashed and the resolution expressing no confidence in the a.poellant be not given effect to by the state of U.P. an:! the District !\fa.gist.rate. .. .r • 1961 Mool Chand Sharma v. State of U ttar Pra<kslo Ilagldibar Dl(Yal J, -- :l S.C.R. SUPREME COURT REPORTS 721 It was urged before the High Court that the notice of motion delivered to the District Magi strate was invalid and so were the proceedings of the meeting. Ram Nath and Kesho Ram Gupta who had signed the notice and also Raghunandan Prasad who, along with them, took part in the proceedings of the meeting and voted in support of the 'no confidence' resolution, had 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 their having incurred the aforesaid disqualifica tion, 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, 1961, and thatKeshoRamGupta and Raghunandan Prasad were not in arrears in payment o! 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 incurring the disqualification under s.13-D(g) and that he became disqualified merely to exercise office and to act as a. member. The learned Judges observed: "During the continuance of the diq qualification 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 exer cise office as a member of the board revives unless he hus been removed by Government from membership of the board under section 40 of the Act during the continuance of dis qualification." Holding that the motion of no confidence was valid as it had been passed by the vote of nine member.s 1961 •• M ool CNmd Shamra SIMI of Ullar Pra4tsh 11,,,hwbar v..,.1 J. 722 SUPREME OOURT REPORTS (1962) 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 tho provisions of sub-s. (2) of s. 113 of tho Act, the learned Judges dismissoo the writ petition. The learned Judges did not consider tho validity of tho notice on merits as they were of opinion that the order on writ petition No. 397 of 1961 operated as res judicata, though iu view of their opinion the notice of motion of no oonfidence would have been invalid if the name of Ram Nath bo excluded from the signatories as in that case the num bcr would be eight and so one short of the number required by the provisions of sub-s. (2) of s. 87 ·A of tho Art. 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 contention.q : (i) The order dismissing writ petition No. 397of1961 could not operate as resjudicata as it had been dismissed mainly on account of its being premature and not on merits. (ii) A member of the l\Iunicipal Board, on. incurring a disqualification under s. 13-D, ceases te> be a member of the Board so long as the disqualification exists and therefore he cannot net as a member of the Board for any purpose. (iii) Kesho Ram Gupta. was also a dis the Board and the qualified member of resolution of the Board dated Fcbmary (), 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 t•ire.~ the power of the Board which had no power to review or revise the imposition of tax. . ......_ - 1961 M ool Ch«nd Sharma v. ltate of Uttar Pradesh Raghuhar D'!Jal ]. 3 S.C.R. SUPREME COURT REPORTS 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, ex cluding their signatures and votes, the num ber of mem hers 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, bad taken part in the meeting and were not saved by the provisions of sub-s. (2) of s. 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 (2) of s. 113 can the provisions of sub-s. apply. The learned counsel for the respondents con ceded that the order dismissing writ No. 397 of 1961 could not operate as res .fudicata 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 dis qualification under cl. (g) of s. 13-D of the Act becomes disqualifird to exercise office and to act as a member. Section 13-C of the Act lays down the quali fications 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, Phall 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''. IHI MHI °""" Sw""' v: Slalt of Uttar Prakh R.,~.;., v._,.1 J. SUPREME COURT REPORTS (1062] Second proviso to this section is: "Provided further that in the case of (gl, 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 tI1is disqualification. The provisions of s. 13-D do apply to members of tho board incurring disqualification during the period of their membership and arc not confined in their application to the stage previous to the election as, in that case, tho expression 'and for being' in tho been unneeeasary. This aection would expression has been interpreted in Election Commi ssion, interpretation of Art. 191, connection with the whose relevant provision is "a person shall ho disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a Staw ...... ". It was obsenred at page 1157 : India v. Saka Venkata Subba Roo (1 ) "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, a.re naturally phrased in terms wide enough to cover both pre-existing and supervening disqualifica tions." There is nothing in s. 13-D or in any other section of tho Act which provides for the suspen sion or oessation from membership of a duly elected member on his incurring any of disqualifications under s. 13-D. On the other hand the provi. Bions of s. 40 of the Act lead to the in ferenoe that a member incurring such a disqualifica tion, continues to be entitled to tako part in any proceedings of the Board or to perform the duties of a. member. Section 40 deals with tho removal of members and empowers the State Government (1) [!953] S.C.R. 114-4. 3 S.C.R. SUPREME COURT :REPORTS 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 els. (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 ss. 12-D and 13-D. Sub-sections (3), (4) and (5) of s. 40 read: 1961 M ool Chand Sh.rma v. State of Utt«r Pradesh Rathubar Dayal J. "(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 intllrest: (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 sus pended shall not so long as the order of sus pension 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) i.e., against whom action for had commenced, removal is being taken on one of the grounds mentioned in els. (a) to (f) of sub-s. (1\. A member so suspended is not entitled to take part in any pro ceedings of the board or otherwise perform thfl duties of a member during the period of suspension. It can be legitimately inferred from the provisions 9'11 NHI CMnd Sharma v. Stall of Ultar Prod.sh R.,h.J>ar Da;·al J. • 726 SUPRE¥E L,'OURT REPORTS (1962) of sub-s. (5) that in the absence of an order of suspension tho member who had not only incurred an'y of the disqualifications mentioned in 8. lil-D, but against whom the Government might have started proceedings, was entitled to takc part in the proceedings of tho board or to perform tho duties of a member so long as the Government docs not place hirn under suspension. \Ve arc there· fore of opinion that a member of tho lliunicipal Board does not automatically come under suspen sion or lose his right to take part in tho proceedings of the boa.rd 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 s. 13-D. It may bo mentioned that any other con· clusion can have very unstable effect and can in· definitely make the validity of tho proceedings and action of the board uncertain as one cannot predi · cate at any moment of time as to which of the members of the boa.rd has incurred a disquaJifi. cation, a matter which must be dependent mostly on the proof of tho allegations made. Such could not have been tho intention of the Legislature. Tho result therefore is th11.t even if Ram Nath, Kesho Ram Gupta and Raghunandan 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 buard and could t.herefore validly sign the notice of motion of no confidence and take part in the proceedings of tho in pursuance of tho provisions of meeting held It follows s. 87-A of the Act on February 6, 1961. that the proceedings of, and tho resolution passed at the meeting of February 6, 1961, arc valid and that tho order of tho High Court dismissing the appellant's writ petition is correct, though for different rca.aons. In view of this opinion, it is not ncce88ary to deal with the other contentions for the appellant. We therefore dismiss the appeal with costs. - - - Appeal di.smusetf. - ... --