Ramjilal v. State Government of U. P. — 1956 DIGILAW 455 (ALL)

JUDGMENT Mehrotra, J. - The Petitioners who are members of the Town Area Committee, Khair, district Aligarh, have filed this petition under Article 226 of the Constitution praying that a writ of certiorari be issued quashing the finding that the motion of non-confidence was lost against the Chairman. 2. The facts which are set out in the affidavit filed in support of the petition are that the Petitioners Nos. 1 to 6 were elected as members of the Town Area Committee in the year 1953 for four years. The number of the elected members fixed by the State Government is 11 and all the 11 were duly elected as such. The opposite party No. 3 Sri Ramesh Chandra Gaur was elected Chairman of the said committee at the election held along with the general election of the members of the committee in the year 1953. By notification u/s 38 of the Town Areas Act the provisions of Sections 47A and 87A of the Uttar Pradesh Municipalities Act were made applicable to the Town Areas. On 22-6-1956 the Petitioner sent a notice in writing of their intention to make a motion of non-confidence against the Chairman and that the notice along with the copy of the motion was handed over to the District Magistrate, Aligarh. The District Magistrate fixed 23-7-1956 for the meeting to consider the said motion at 11 a.m. All the members of the Committee were duly served with the notice of this meeting. The meeting was to be presided over by Sri R.C. Saxena, Civil Judge. The meeting was duly held on 23-7-1956 at 11 a.m. under the presidentship of the opposite party Sri R.C. Saxena. After discussion the motion was put to vote and the Petitioners Nos. 1 to 6 voted for the motion and the remaining five members voted against it. The Chairman also gave his vote against the non-confidence motion. A protest was raised by the Petitioners that the Chairman had no power to vote but that was turned down by the Presiding Officer in view of certain letter dated 21-7-1956 received from the under Secretary to the Uttar Pradesh Government. The opposite party No. 2 Sri Ramesh Chandra Saxena declared the motion defeated. A copy of the minutes of the meeting together with a copy of the motion was sent to the opposite party No. 1 the State Government by the District Magistrate, Aligarh. The opposite party No. 2 Sri Ramesh Chandra Saxena declared the motion defeated. A copy of the minutes of the meeting together with a copy of the motion was sent to the opposite party No. 1 the State Government by the District Magistrate, Aligarh. The opposite party No. 3 is continuing as Chairman of the Town Area Committee and he has neither tendered his resignation nor the State Government has removed him. On these facts it is stated that the findings given by the Civil Judge that the Chairman was entitled to vote and taking his vote against the motion declaring the motion having been lost be quashed. 3. Notices have been issued to the opposite parties and counter-affidavits have been filed in which it is suited that the Chairman was a constituent part of the Committee and as such was entitled to vote and the Civil Judge rightly allowed him to vote. It is contended the complaints made against the Chairman were not true. 4. It appears that some reference had been made by the Chairman and by a letter dated 21-7-1956 the under Secretary to the U.P. Government informed the District Magistrate that the Chairman can participate in the discussion on the motion of non-confidence and can vote as the motion had to be discussed and to be voted by the Committee and the Chairman is an integral constituent of the Committee. Relying upon this letter the Presiding Officer ruled out the objection raised by the Petitioners and permitted the Chairman to vote. 5. It has been contended strongly by the Petitioners' counsel that the Chairman even if he is a constituent part of the Committee had no right to vote at the meeting. Section 87A of the Municipalities Act which has been made applicable to the Town Areas provides that a non-confidence motion is to be moved and passed in accordance with the procedure laid down in that section. It further provides that written notice of intention to make a motion of non-confidence in its Chairman signed by such number of members of the Committee as constitute not less than one half of the total number of members of the Committee together with a copy of the motion which it is proposed to make shall be delivered in person together by any two of the members signing the notice to the District Magistrate. The District Magistrate shall than convene a meeting for the consideration of the motion to be held at the office of the Committee. Sub-section (7) provides that: As soon as the meeting convened under this section has commenced the Judicial Officer shall read to the Committee the motion for the consideration of which it has been convened and declare it to be open for discussion. Sub-Section (9) provides that: Such discussion shall automatically terminate on the expiry of three hours from the time appointed for the commencement of the meeting, unless it is concluded earlier. Upon the conclusion of the debate or upon the expiry of the said period of three hours as the case may be, the motion shall be put to the vote of the Committee. 6. Sub-section (12) provides that: The motion shall be deemed to have been carried only when it has been passed by a majority of more than half of the total number of members of the Committee. 7. Sub-section (13) provides that: If the motion is not carried by a majority as aforesaid, or if the meeting cannot be held for want of a quorum, no notice of any subsequent motion of non-confidence in the same Chairman shall be received until after the expiry of a period of twelve months from the date of meeting. 8. Sub-section (14) provides that: No notice of a motion of non-confidence under this section shall be received within 12 months of the assumption of office of the Chairman. 9. Section 47A which has been made applicable to the Town Areas provides that: 47-A(1). If a motion of non-confidence in the Chairman has been passed by the Committee and communicated to the Chairman in accordance with the provisions of Section 87A the Chairman shall: (a) within three days of the sending of such communication, resign his office, and (b) on the expiry of three days after the date of sending of such communication, stop acting as Chairman and shall be deemed to be incapacitated from functioning as Chairman within the meaning of Section 8. B (4) of the UP Town Areas Act, 1914. 10. B (4) of the UP Town Areas Act, 1914. 10. Sub-section (12) which I have quoted therefore clearly lays down that a motion will be deemed to have been carried when it has been passed by a majority of more than half of the total number of members of the Committee and the question therefore to be determined is whether the Chairman can be regarded as a member of the Committee or not. Section 5 of the Town Areas Act provides that a Committee shall be established for each Town Area. Sub-section (2) Section of 5 provides that the Committee shall consist of (a) the Chairman and (b) such number of elected members not less than nine and not more than 15 as the Local Government may prescribe. It is admitted in this case that the number of the members prescribed was 11. They were all elected. The contention of the opposite parties is that as the Committee itself consists of the Chairman and the elected members, the Chairman is an integral part of the Committee and the meeting which has to consider the non-confidence motion is the meeting of the Committee. Every constituent part therefore is entitled to participate in the discussions of the meeting and vote for or against the motion. The Legislature in providing for the constitution of the Committee has clearly used the word Chairman in Clause (a) of Sub-section (2) of Section 5, who is directly elected by the electors and Clause (b) talks of the elected members. On the interpretation of Section 5 even though the Chairman may be an integral part of the Committee he cannot be called a member. The rights and liabilities of a Chairman and the members have been separately enumerated in the Town Areas Act. Whether the Legislature has intended to confer a power or to lay down the liabilities of the Chairman and the members of a Committee together both these words have been used in those sections. The attention may be drawn to Section 6 of the Act which provides that the term of the office of a member of the Committee shall be four years. The attention may be drawn to Section 6 of the Act which provides that the term of the office of a member of the Committee shall be four years. Section 7 provides that a person notwithstanding that he is qualified under the rules, shall not be enrolled as an elector or be nominated or be elected as Chairman or as a member of the Committee, or continue to be an elector or a member or Chairman if he is, or becomes, subject to certain disqualifications. Section 7-A prescribes the procedure for the removal of a Chairman or any member of a Committee. If the Chairman was also included as a member of the Committee the Legislature would not have used both the words, the Chairman and the member of the Committee, in each of the sections which have already been referred to by me earlier. 11. In Section 49 of the Municipalities Act it has been specifically laid down that the Chairman will be an ex-officio member of the board. In Section 9 of the Municipalities Act where the constitution of the board has been provided it is laid down there also that the board will consist of the President and the members. Still the Legislature thought it necessary to enact Section 49 so as to make the Chairman a member of the Board. By notification only Sections 47A and 87A have been made applicable to the Town Areas; but the notification has expressly not provided for the application of Section 49 to the Town Areas. It was strongly contended by the Standing Counsel that Section 49 has been enacted as an abundant caution although the President would be a member of the board by virtue of the fact that he forms an integral part of the board. I do not think that there is any substance in this argument. Reliance was placed by the Standing Counsel on the rules for the convening and conduct of meetings of the Town Area Committees made u/s 39 of the United Provinces Town Areas Act, 1914 as amended by the United Provinces Town Areas (Amendment) Act 1929 and published by the notification dated the 16th of October 1930. Reliance was placed by the Standing Counsel on the rules for the convening and conduct of meetings of the Town Area Committees made u/s 39 of the United Provinces Town Areas Act, 1914 as amended by the United Provinces Town Areas (Amendment) Act 1929 and published by the notification dated the 16th of October 1930. Rule 3 of the Rules provides that at a meeting one-third of the total number of members of the Committee including the Chairman shall constitute a quorum Rule 5 provides that if the opinion of the members present is not unanimous the question shall be decided by a majority of the members present and actually voting. In case of an equality of votes the Chairman of the meeting shall have a second or casting vote. The contention of the Standing Counsel is that the Chairman has been given power to vote under this rule and has been treated as a member of the Committee. This to my mind does not support the contention of the Standing Counsel. In Rule 3, as I have already pointed out, there is an express provision that the total number of members of the Committee will include the Chairman and as such the member in Clause 5 may be given a wider meaning having regard to the context of the rules so as to include the Chairman; and secondly, these rules only lay down the procedure for ordinary meetings of the Committee. The procedure regarding the meeting convened for consideration of a non-confidence motion is to be governed by the provisions of Section 87A only. In my judgment therefore the Sub-section (12) of Section 87A has not been correctly interpreted by the Civil Judge and the word 'members' in this Sub-section only means the elected members and does not include the Chairman. The question which now arises is to what relief are the Petitioners entitled in this case. 12. After the resolution has been put to vote in the meeting under Sub-section (11) of Section 87A the copy of the minutes of the meeting together with a copy of the motion and the result of the voting is to be forwarded forthwith by the Judicial Officer to the Chairman and the District Magistrate. 12. After the resolution has been put to vote in the meeting under Sub-section (11) of Section 87A the copy of the minutes of the meeting together with a copy of the motion and the result of the voting is to be forwarded forthwith by the Judicial Officer to the Chairman and the District Magistrate. The District Magistrate then has to forward the same to the State Government together in the event of the motion of non-confidence having been carried with the report whether or not the Chairman has forwarded his resignation in accordance with the provisions of Section 47A. In the present case the minutes were sent by the Presiding Officer to the District Magistrate and the District Magistrate had forwarded it to the State Government; but as according to the Presiding Officer the resolution had not been passed the question of the Chairman resigning did not arise. It was contended by the Petitioners that if no relief is granted no them at this stage it will not be permissible for them in view of the provisions of Section 87A, Sub-section (13), to give notice of another motion of non-confidence until after the expiry of a period of 12 months from the date of the meeting. The result will be that though it was illegally held by the Presiding Officer that the resolution was not passed by the majority still the right of the Petitioners as members to give a fresh notice for non-confidence motion in the Chairman would be affected. Under Sub-section (11) as I have pointed out there is a duty cast upon the Presiding Officer to send the minutes of the meeting to the District Magistrate to be forwarded to the State Government. The duty necessarily implies an obligation to send correct report of the meeting and if the minutes are not legally correct and are based on a wrong and incorrect interpretation of Section 87A the Presiding Officer had not discharged the duties enjoined upon him under the said Sub-section. By a writ of mandamus he can be directed to carry out the duties imposed upon him under this Sub-section. 13. By a writ of mandamus he can be directed to carry out the duties imposed upon him under this Sub-section. 13. I therefore allow this petition and direct the opposite party No. 2 Sri Ramesh Chandra Saxena, Civil Judge, Aligarh, who presided over the meeting held on 23-7-1956, to consider the non-confidence motion against the Chairman, to send the correct minutes of the meeting, and the results of the voting after excluding the vote cast by the Chairman. As all the reliefs have not been granted to the Petitioners as claimed by them the parties will bear their own costs.