(Rupjyoti Patangia & Anr. v. State of Assam a nd others) to this effect. 3

#4. Learned counsel for the appellant submitted that a local body sh ould be more vibrant in functioning and it should not be influenced by a Member of Parliament or Member of Legislative Assembly even though such members are Ex- Officio Members of the Board and had right to vote. They could not be allowed to issue notice requisitioning a meeting to consider No-Confidence Motion. Such a course will be against spirit of Article 243W.

#5. Learned counsel for the respondents supported the view taken in the impugned judgment and submitted that having regard to the plain language of Section 3(5) defining the term (cid:28)Commissioner (cid:29), read with Section 25 which requir ed them to take oath as Commissioner, and the language in Section 11(3) as disti nguished from Section 11(2) and also the provisions of Sections 33(2), 45(a), 46 (2) and 48(2), there was no reason to exclude the Ex-Officio Members from the pu rview of ’Commissioner’ at par with elected Commissioners.

#6. e on behalf of the appellant. On due consideration, we are unable to uphold the submission mad Part-IX-A was added to the Constitution by 74th Amendment to con 7. stitutionally provide for constitution of local bodies. To giving an effect to t he said provisions, the State Legislature has made amendments in State law deali ng with local bodies. Article 243-R(2) contemplates representation of a Member o f the House of People and of Legislative Assembly in a Municipality, apart from persons having special knowledge and other persons specified therein. The provis o to the said Article is to the effect that persons having special knowledge and experience appointed in Municipality shall have no right to vote in the meeting of the Municipality. Identical provision has been incorporated in Section 11(2) of the State Act. The said bar against voting has not been incorporated in resp ect of a Member of House of People or of the Legislative Assembly or of Council of States. Section 28 provides for removal of Chairman and Vice-Chairman and sta tes that at least half of the whole number of Commissioners have to vote in favo ur of the resolution. Section 43(2) provides for requisition to be signed by not less than three of the commissioners. Section 46(2) provides that quorum for tr ansaction of business of the nature specified therein is one-half of the total n umber of Commissioners of the Board. Section 48(2) provides for constitution of Committees which are to consists of Commissioners. Wherever any disqualification is to be provided has been specifically laid down. The definition in Section 3( 5) is a person elected or appointed. The Ex-Officio Member is covered by the exp ression ’appointed’. Under Section 25, an Ex-Officio Member of the Board has to take oath as (cid:28)Commissioner (cid:29) before taking his seat at a meeting of the Board. Th e said provisions are as follows:- (cid:28)Article 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 e lection from the territorial constituencies in the Municipal area and for this p urpose each Municipal area shall be divided into territorial constituencies to b e 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 A ssembly of the State representing constituencies which comprise wholly or partly the Municipal area; (iii) the members of the Council of State and the members of the Legislative Cou ncil of the State registered as electors within the Municipal area; (iv) the Chairpersons of the Committees constituted under clause(5) of article 2 43-S: Provided that the persons referred to in paragraph (i) shall not have th e right to vote in the meetings of the Municipality; (b) the manner of election of the Chairperson of a Municipality. (cid:29) (cid:28)Section 3 : Definitions - In this Act, unless there is anything repugnant in th e subject or context, - (1) & & &.. & & & & &.. (5) (cid:28)the Commissioner (cid:29) mean the persons for the time being appointed or elected to conduct the affairs of any municipality under this Act; (cid:29) (cid:28)Section 11 : Number of Commissioners.- (1) The number of Commissioners of each Municipal Board shall be such as the State Government by notification determine in this behalf: Provided that the number of Commissioners shall in no case be more than thirty or less than ten. (2) The State Government may appoint persons having special knowledge or experience in Municipal Administration as members who shall have the right to a ttend and speak at all meetings of the Board but shall have no right to vote. Su ch persons shall not be deemed to be Commissioners for the purpose of this Act. (3)(a) The Members of the House of the People and the Legislative Assembly of th e State of Assam representing the Constituencies which comprise fully or partly the Municipal Area, shall be the Ex-Officio Members of the Board. (b) The members of the Council of States registered as elector within the Munici pal area shall be the Ex-Officio Members of the Board. & & & & & &.. (cid:29) (cid:28)Section 25 : Taking of oath.- (1) Every person who is elected to be Commissione r of the Board, or who becomes Commissioner of the Board by virtue of office, sh all, before taking his seat at a meeting of the Board first attended make an oat h or affirmation of his allegiance to the Union of India in the following form, namely :- (cid:28)I.A.B., having been elected/Ex-officio Commissioner of this Board do swear in t he name of God or solemnly affirm that I will bear the true faith and allegiance to the Constitution of India as by Law established, and will faithfully dischar ge the duty upon which I am about to enter. (2) Any person having been elected a Commissioner fails to make, within thre e months from the date of the first meeting of the Board the oath or affirmation laid down in sub-section (1), shall cease to hold his office and his seat shall be deemed to have become vacant. (cid:29) (cid:28)Section 28 : Removal of Chairman and Vice-Chairman.- (1) (xxxx) (Deleted vide A ssam Act No.XIX of 1994). (2) An elected Chairman or Vice-Chairman may be removed from his office by a res olution of the Board in favour of which not less than half of the whole number o f Commissioners shall have given their votes at a meeting specially convened for the purpose. (3) The State Government after giving an opportunity to explain, may remove the Chairman or Vice-Chairman from his office if he is persistently omitting or refu sing to carry out or disobeying the provisions of this Act and the rules thereun der or any lawful orders issued thereunder or he becomes incapable of so acting or is declared insolvent or is convicted by a Criminal Court for any offence inv olving moral turpitude. (cid:29) (cid:28)Section 33(2) : Appointment or election of Chairman and Vice-Chairman (1) & &.. (2) At the first meeting of the Municipal Board after a General Election called at the instance of the Deputy commissioner or the Sub-Divisional Officer as the case may be, the Commissioner shall elect one from amongst the elected Commissio ners to be the Chairman. The election shall be subject to the approval of the St ate Government but pending such approval the person elected shall be competent t o discharge the duties of the Chairman : Provided that when the first meeting is dissolved by the President without trans acting any business on ground of irregularity in the convening of the meeting th e next meeting will be deemed to be the first meeting for the purposes of this s ection as well as for the purpose of Second Schedule. (cid:29) (cid:28)Section 43 : Ordinary and special meetings.- (1) & &. (2) The Chairman, or in his absence, the Vice-Chairman may call a special meetin g whenever he thinks fit and shall call one on a requisition signed by not less than three of the commissioners. (cid:29) all questions in a meeting of the Board shall be determined by a majorit (cid:28)Section 45 : Manner of deciding questions.- Save as otherwise provided in or un der this Act,- (a) y of votes of the Commissioners present; in the case of equality of votes, on any question other than the electio (b) n of the Chairman, or the Vice-Chairman, the President, if there is one, shall h ave a second or casting vote; (c) man or President, the determination shall be by the drawly of lots. in the case of equality of votes in the election of Chairman, Vice-Chair Provided that an official appointed as Chairman under Section 33 shall n ot have the right to vote save for the purpose of giving a casting vote under th is section. (cid:29) (cid:28)Section 46: Quorum (1) No business shall be transacted at any meeting of the Bo ard unless such meeting has been called by the Chairman or Vice-Chairman, or und er sub-section (3) of Section 43, by persons signing a requisition, nor unless q uorum shall be present. (2) The quorum necessary for the transaction of business at a meeting shall be o ne-half of the total number of Commissioners of the Board when any of the follow ing subjects are to be disposed of at such meeting,- scale of establishment and salaries, (i) the framing of by-law under Section 302 and of subsidiary rules under Se (ii) ction 306 of the Act, the annual budget estimate, (iii) (iv) the appointment or the fixing of the pay or allowances of a paid Secreta ry, Engineer, Water Works Superintendent, Health Officer, Assessor or Executive Officer, (v) (vi) (vii) (viii) (ix) oard under the provision of Section 306(1) imposition of taxes, fees and tolls under Section 68, the election of Chairman and Vice-Chairman, the raising of a loan, the subject of a meeting specially convened as Provided in Section 8, any subject prescribed by a subsidiary rule made in this behalf by the B (3) For all other business the quorum shall be one-third of the total number of Commissioners : Provided that in case where the whole number of Commissioners is not eve ntual divisible by three, the one-third shall be ascertained by taking the numbe r next above the whole number which is evenly divisible by three, as the number to be divided. (4) If at any meeting the prescribed quorum is not present, the meeting, shall s tand adjourned to some future day to be appointed by the President and three day s’ notice of such adjourned meeting shall be given. (5) The Commissioners present at such adjourned meeting for transaction of busin ess other than those mentioned in sub-section (2) shall form a quorum whatever t heir number may be. (cid:29) (cid:28) Section 48 : Appointment of Committees.- (1) The Board at a meeting may appoin t, from time to time, committees to assist it in the discharge of any specific d uties or class of duties developing upon it under this Act, within the whole or any portion of the municipality, and may delegate to any such committee all or a ny of its powers which may be necessary for the purpose of rendering such assist ance, or withdraw all or any of such powers. (2) Each committee shall consist of Commissioners and, when necessary, of such r esidents with special qualification whom the Board at a meeting desires to appoi nt, in such a case the number of Commissioners shall not be less than two thirds of the whole number of the members of the committee. (3) The Commissioners of such committees shall be liable to all the obligations imposed by this Act on the Commissioners of the Board in respect of such powers as may be delegated to them. (4) All the proceedings of any such committee shall be subject to confirmation b y the Board at a meeting. (5) All questions connected with the removal or resignation of Commissioners of committees shall be settled by the Board at a meeting. (cid:29) As already noted, Ex-Officio Member of the Board has to take oat 8. h as (cid:28)Commissioner (cid:29) under Section 25. Such member is thus, covered by Section 3( 5) of the Act. In absence of statutory exclusion or disqualification, he can cer tainly act as Commissioner for purposes of Section 28 and can sign requisition a nd vote for or against a resolution in a meeting.

#9. Accordingly, we do not find any ground to interfere with the vie w taken by learned Single Judge. The appeal is dismissed.