Krishna Chandra Gupta v. Prayag Narain — 1960 DIGILAW 266 (ALL)

JUDGMENT J.K. Tandon, J. - Sri Krishna Chandra Gupta the petitioner was elected President of the Municipal Board, Sitapur, on the 2nd of June, 1959. In June, 1960 certain members of the Board, who felt dissatisfied from him, moved the District Magistrate's, Sitapur, under Section 87-A of the U. P. Municipalities Act for the consideration and passing of a motion of non-confidence against him. Under sub-Sec. (3) of the said section the District Magistrate's has to convene a meeting for the consideration of the motion for which the date and time are appointed by him; the place where the meeting is held is prescribed in the sub-section itself, being the office of the Board. Accordingly the District Magistrate's appointed the 7th of July, 1960, for the meeting to take place. There is no dispute that the usual procedure prescribed therefor under sub-Sec. (3) of Section 87-A was gone into. 2. Before the meeting could take place on the appointed date one of the members of the Board moved a writ petition in this Court questioning the legality of the notice which the District Magistrate's issued for the said meeting to Sri Gupta. The Board is constituted of the President and twenty-five members. In issuing the notice to Sri Gupta the District Magistrate's assumed that as an ex-offico member he too was entitled to the notice. The member who made the above writ petition disputed this proposition, as according to him the President though an ex-officio member was not entitled to be taken account of in determining the total membership of the Board. The petition was presented on the 6th of July, 1960. The meeting itself was to take place the following day. In the petition, therefore, the petitioner made a prayer for staying the holding of the meeting on the 7th of July, 1960. An interim order of stay was granted by this Court and as a result the meeting did not take place as convened by the District Magistrate's. Later the stay order was contested by some of the parties affected and on their request and after notice to the petitioner of that petition the same was heard and decided on the 16th of July, 1960. While dismissing the writ petition the following further order was passed: "The stay order dated the 6th July, 1960, is discharged. While dismissing the writ petition the following further order was passed: "The stay order dated the 6th July, 1960, is discharged. "The learned Standing Council and also Sri J. S. Trevedi who has put in appearance in the case-on behalf of certain members of the Board requested that since the meeting of the Board scheduled for the 7th July, 1960, had been withheld under the orders of the Court might give directions to the respondents concerned to proceed with the holding of the meeting. Sri Hargovind Dayal does not see eye to eye with these gentlemen and according to him no such direction is called for. Both the District Magistrate's and the Judicial Officer who was appointed to preside at the meeting are before the Court. Ordinarily should not have acceded to the request of fixing a date myself, but considering the fact that the appointed meeting was withheld owing to the orders of this Court which have since been vacated think that, under the circumstances and having regard to the equities also of the matter, a date should be fixed by me accordingly fix 22nd of July, 1960, as the date of the meeting and direct respondents nos. 2 and 4 to take proper action in accordance with law for the holding of the said meeting on this date." 3. The second and the fourth respondents referred to in the above order were the District Magistrate's of Sitapur and Sri Prag Narain, Movable Civil and Sessions Judge, Sitapur, respectively. The latter had been impleaded in the array of respondents as he happened to be the person nominated in accordance with sub-Sec. (4) of Section 87-A to preside at the meeting convened for the 7th of July 1960. In pursuance of the direction given by this Court the meeting of the Board, took place on the 22nd of July, 1960, at 11A.M. in the office of the Board. The motion of non-confidence for which the meeting had been convened was considered in this meeting and was adopted. Of the eighteen members who. were present at the meeting 17 voted in favour and one Sri Amir All remained neutral. Once the motion had been adopted the same was communicated by the Presiding Officer, as he was required also, to the District Magistrate's with a copy of the proceedings. It is not necessary to state intermediate details but one fact is relevant. were present at the meeting 17 voted in favour and one Sri Amir All remained neutral. Once the motion had been adopted the same was communicated by the Presiding Officer, as he was required also, to the District Magistrate's with a copy of the proceedings. It is not necessary to state intermediate details but one fact is relevant. The District Magistrate's having received the proceedings he wanted to proceed further in accordance with law. There upon on the 24th of July, 1960, the petitioner presented the instant petition asking a writ of certiorari to quash the proceedings of the meeting held on the 22nd of July, 1960 and further a writ in the nature mandamus commanding the respondents not to take any action thereon. * The grounds relied upon by the petitioner may now be stated: They are :- (1) Section 87-A (3) of the U. P. Municipalities Act authorised the District Magistrate's alone to fix the date and time etc. for the consideration of the motion of non-confidence and this Court while fixing the date itself by its order dated the 15th July, 1960, exceeded its powers, and any meeting held in pursuance of it is illegal the resolution adopted by it is similarly illegal. (2) Even respondent no. 1 Sri Prayag Narain was unable under the law to fix the 22nd of July, 1960, for the taking place of the meeting as no meeting took place on the 6th of July, 1960, so that the power to adjourn the meeting which alone belonged to the Presiding Officer had never accrued in his favour. (3) Incidentally the objection also is that Sri Prayag Narain did not exercise his individual discretion in fixing the adjourned date but simply carried out the order of this Court. His order fixing the 22nd of July, 1960, could not, therefore, be said to be an order passed under sub-Sec. (5) of Section 87-A of the Act. (4) The District Magistrate's alone was competent to give notice of the meeting but the same was issued by the officer-in-charge. (5) Lastly, the notice fixing the 22nd of July, 1960, as the date for the meeting, had not been published in any newspaper; this defect or deficiency invalidated the notice. 4. (4) The District Magistrate's alone was competent to give notice of the meeting but the same was issued by the officer-in-charge. (5) Lastly, the notice fixing the 22nd of July, 1960, as the date for the meeting, had not been published in any newspaper; this defect or deficiency invalidated the notice. 4. The most vital question on which the success or failure of this petition ultimately depends is whether this Court was competent to pass the order dated the 15th of July, 1960, fixing the date of the meeting or directing the Presiding Officer and the District Magistrate's to take action in accordance with law for the holding of the meeting on the date so appointed. 5. The argument of the learned counsel for the Petitioner in support of the above grounds is essentially this. Section 87-A of the Act lays down the procedure for the consideration etc. of the motion of non-confidence against the President. The resolution has to be passed in accordance with that procedure. Sub-Sec. (3) requires the District Magistrate's to convene the meeting which he has to do not earlier than thirty and not later than thirty-five days from the date on which the notice regarding the intention to move a non-confidence motion is delivered to him. It further requires him to 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 appointed therefor, to every member of the Board at his place of residence. He has at the same time to cause such notice to be published in such manner as he should deem fit. The sub-section then provides that if the procedure for notice as indicated above is carried out every member shall be deemed to have received the notice. Sub-Sec. (4) is not very pertinent at the moment since it deals with the question of appointment of a judicial officer who is to preside at the meeting, the important part is then in sub-Sec. (5) which says that "if the judicial officer is unable to preside at the meeting, he may, after recording his reasons adjourn the meeting to such other date and time as he may appoint, but not later than fifteen days from the date appointed for the meeting under sub-section (3). He shall without delay communicate in writing to the District Magistrate's the adjournment of the meeting. It shall not be necessary to send notice of the date and the time of the adjourned meeting to the members individually, but the District Magistrate's shall give notice of the date and the time of the adjourned meeting by publication in the manner provided in sub-Sec. (3). I may refer to sub-Sec. 2(6) also which will be of use in the course of discussion : "Save as provided in sub-Secs. (4) (5) a meeting convened for the purpose of considering a motion under this section shall not for any reason be adjourned." 6. The petitioner contends that neither sub-Sec. (3), which made provision for the convening of a meeting of the Board for consideration of the non-confidence motion, nor sub-Sec. (5), which laid down the procedure for the adjournment of the meeting and the service of the notice therefor, authorised a court to fix the date which, in one case, has to be done by the district Magistrate's and in the other by the Presiding Officer, consequently the order of this Court directing that the meeting to be held on 22nd July, 1960, was in contravention of the provision found in sub-Secs. (3) and (5) of Section 87-A, it was, therefore, invalid also. 7. It will be worthwhile to re-state certain facts even though they were mentioned earlier. They are that the petition in which the order staying the taking place of the meeting had been passed was commenced under Article 226 of the Constitution. While presenting the petition the petitioner asked by way of interim relief that the meeting may not be held in the meantime. This prayer was granted. The result was that the meeting did not take place on the 7th of July, 1960, and the pertinent fact is that it was so because the Court had thus directed. The next fact is that the impugned order, i.e. the order subsequently made directing the meeting to be held on the 22nd July, 1960, was made at a moment when the main petition itself had been decided while directions as regards the taking place of the meeting had become necessary to be given. The next fact is that the impugned order, i.e. the order subsequently made directing the meeting to be held on the 22nd July, 1960, was made at a moment when the main petition itself had been decided while directions as regards the taking place of the meeting had become necessary to be given. This context as also the language of the impugned order, particularly the quotation just following fully established that the order was meant to meet the situation which had resulted from the stay order granted by the Court. "Ordinarily should not have acceded to the request of fixing a date myself, but considering the fact that the appointed meeting was withheld owing to the orders of this Court which have since been vacated think that, under the circumstances and having regard to the equities also of the matter, a date should be fixed by me. I accordingly fix 22nd of July, 1960 as the date of the meeting....." 8. The stay order having been vacated a duty was cast on the Court to restore the matters essentially to the position they held when the said order had been made, and further to resolve any difficulties which might have intervened as a consequence of the Courts action. 9. The background in which the question deserved to be considered having been thus noticed, I may now proceed to examine the language of Article 226 of the Constitution. It does not, in my opinion, admit of any doubt that the power therein conferred on the High Courts is not confined, as has been so often repeated, to the enforcement of the fundamental rights alone conferred by Part III of the Constitution but is sufficiently wide. It can be exercised for "any other purpose also." The test for its exercise is the existence of some legal right vested in the individual who is complaining that the same is threatened or otherwise endangered. If the Court is convinced that the party aggrieved is entitled to such a right it will not grudge to invoke its controlling jurisdiction under the Article which in its ambit is not limited by name mentioned in it but it may issue such other further writ or direction as shall secure the ends of justice. If the Court is convinced that the party aggrieved is entitled to such a right it will not grudge to invoke its controlling jurisdiction under the Article which in its ambit is not limited by name mentioned in it but it may issue such other further writ or direction as shall secure the ends of justice. In judging the validity of the impugned order the test, therefore, is whether having regard to the surrounding circumstances including those leading to the making of the interim order and the procedural difficulty following as a result the Court has by issuing the particular writ or direction transgressed the limits of Article 226 whose aim and object is the safeguarding of the legal right belonging to persons. 10. In the instant case what has to be seen is whether the Court has in giving the direction about the taking place of the meeting on the 22nd of July, 1960, done anything which the law did not permit to be done. It is not disputed, and indeed the petitioner cannot be heard to do so, that this Court was competent to make the interim order staying the holding of the meeting on the 7th of July, 1960. If the Court was competent to make such an order, as it admittedly was, the necessity as well as the legality of the order by which it required the meeting to take place on the 22nd of July, 1960, is unquestionable since the Courts own action compelled the meeting to remain suspended it was but its duty when doing away with the obstacle created by it to direct its taking place on a date in consonance with the spirit and the purpose of the law. This must be so for the reason further that otherwise the meeting which had been validly convened by the District Magistrate's but which could not take place owing to the intervention of this Court might have been defeated altogether. The District Magistrate's who convenes the meeting under sub-Sec. (3) is not authorised to adjourn it. The Judicial Officer who has authority under sub-Sec. (5) to adjourn the meeting was likewise bound to be faced with the difficulty that his authority to adjourn is exercisable on the date for which the meeting is convened but that occasion never actually arose in the case. The Judicial Officer who has authority under sub-Sec. (5) to adjourn the meeting was likewise bound to be faced with the difficulty that his authority to adjourn is exercisable on the date for which the meeting is convened but that occasion never actually arose in the case. This sub-section, too, therefore, was inapplicable, more so as sub-Sec. (6) clearly laid down that save as provided in sub-Secs. (4) and (5) the meeting shall not be adjourned for any reason. The present case was not one of adjournment. The effect of the stay order merely was to suspend the further operation of the process enacted in Section 87-A. Now if that process had been suspended in its future operation by an order of this Court was not only; within its power but was under a duty also when discharging the order of stay to give such directions as were necessary for the due completion of that process. In directing that the meeting shall be held on the 22nd of July, 1960, the Court simply discharged this duty and not assumed upon itself any function, as is sought to be stressed by the petitioners counsel which the Legislature might have imposed on any authority or authorities mentioned in sub-Sec. (3) or sub-Sec. (5). The above power also belonged to the Court by necessary implication, as it was the authority which made the stay order and whose outcome it alone was competent to remedy. 11. There is to my mind no reason for thinking that in making the order any contravention also of the provisions in Section 87-A had been occasioned. Admittedly, the meeting had been convened by the District Magistrate's in accordance with sub-Sec. (3) and the date too had been fixed by him. It was at that stage that the stay order was passed by this Court. There was no occasion when the stay order was discharged for the District Magistrate's to take any action under sub-Sec. (3). None, indeed, was taken also so far as he was concerned by the order complained of. Sub-Sec. (3) of Section 87-A requires notice of the meeting originally convened to be given by the District Magistrate's. But in the case of an adjourned meeting, i.e., a meeting not held on the date originally appointed, the notice of the adjourned date has again to be given in the manner laid down in the said sub-section. Sub-Sec. (3) of Section 87-A requires notice of the meeting originally convened to be given by the District Magistrate's. But in the case of an adjourned meeting, i.e., a meeting not held on the date originally appointed, the notice of the adjourned date has again to be given in the manner laid down in the said sub-section. It will be noticed that the order complained of gave no direction so far as this part was concerned; on the contrary, it merely required the District Magistrate's and the Presiding Officer, who both came into the picture (See sub-Sec. (5)) to take steps for the holding of the meeting in accordance with law. The true effect and purpose of the impugned order thus was to fill up the gap, as indeed it filled up, that the meeting which had been appointed to take place on the 7th July, 1960, but which could not be held owing to the orders of this Court shall be held on the 22nd of July, 1960. It was in the fitness of things and in fulfilment of equities of the matter that the Court found that a duty was cast upon it to make the necessary provisions, as it was thus alone, that the process for the carrying out of the non-confidence motion provided in Section 87-A was capable of being carried out. The particular direction, therefore, was in no sense in contravention of the law but was in advancement of the purpose for which Section 87-A existed. 12. I am, therefore, unable to accept the petitioners contention that the order complained of was in excess of the powers of this Court. 13. The next point to be considered is about the legality of the notice given for the meeting of the 22nd of July 1960. 14. Three different objections were urged in this connection. Firstly, it was argued that sub-Sec. (3) required seven clear days notice to be given to the members but this had not been done. It appeared that the notice was sent to the members on the 16th of July, therefore the requirement of seven clear days notice remained unsatisfied. 14. Three different objections were urged in this connection. Firstly, it was argued that sub-Sec. (3) required seven clear days notice to be given to the members but this had not been done. It appeared that the notice was sent to the members on the 16th of July, therefore the requirement of seven clear days notice remained unsatisfied. Sub-Sec. (3), no doubt, requires the District Magistrate's to send by registered post not less than seven clear days before the date of the meeting a notice of the meeting and of the date and time appointed therefor to every member of the Board at his place of residence, but sub-Sec. (5) in providing for the giving of the notice of the adjourned date has expressly excluded the duty to send notice to indivir dual, members. This part of sub-Sec. (3) cannot, therefore, be imported into sub-Sec. (5). What the sub-section has intended is that the District Magistrate's shall give notice of the adjourned date and time by publication in the manner provided in sub-Sec. (3) and this refers to that provision of sub-Sec. (3) wherein the District Magistrate's is asked that he "shall at the same time cause such notice to be published in such manner as he may deem fit." The notice for the adjourned meeting has, therefore, not to go individually as prescribed in sub-Sec. (3) to each member but it is sufficient if it is published in the manner provided by the District Magistrate's under sub-Sec. (3). The record of the case was produced by the learned Standing Counsel which showed that the notice was published at the Notice Board of the Municipal Board. 15. It also appeared that no real benefit can be earned in this case by the instant objection because it is not disputed that each member had been personally served with notice for this case. The purpose of providing the different modes of services in sub-Sec. (3) is that the members are conveyed the information about the taking place of the meeting. It is with this end in view that the provision also exists in it that "thereupon every member shall be deemed to have received the notice." Where, therefore, notice has been delivered to each member any irregularity in sending the notice will not vitiate the meeting. 16. It is with this end in view that the provision also exists in it that "thereupon every member shall be deemed to have received the notice." Where, therefore, notice has been delivered to each member any irregularity in sending the notice will not vitiate the meeting. 16. The second argument was that the notice which had been sent to the members was not under the signature of the then District Magistrate's of the district. From a copy of the notice (Annexure 5) on record it appeared that the same had been signed by Sri Ramesh Chandra Dikshit, Officer-in-Charge, Local Bodies. Neither sub-Sec. (3) nor sub-Sec. (5) of Section 87-A has in providing the notice to be given under its provisions required that the same shall be signed by the District Magistrate's personally. The duty laid on the District Magistrate's is to cause such notice to be published in the manner he shall deem fit. This condition will be satisfied if the notice is caused to be sent by him in the manner deemed fit by him. The absence of his signatures on the notice has no effect on its validity if it otherwise satisfies the conditions regarding the date, time etc. Moreover, the duty of sending a notice provided in sub-Sec. (3) is an administrative act to be done by him. In exercising such acts it is usual that subordinates are deputed to carry out the ministerial part which cannot possibly be done by the superior authority himself. The ministerial part which has not been done by the authority itself but has been done by a subordinate in pursuance of the order and direction of the superior authority is to all intents and purposes the act of the superior authority itself which in performing that part acts through its subordinates. At an earlier place it was pointed out that the District Magistrate's on receipt of the communication from the Standing Counsel and also from the Presiding Officer made the order requiring the Local Bodies Section "for immediate action accordingly." This order which had been passed on the report proposing notices to be sent to the members was sufficient in the eye of law to meet the requirements contained in the two sub-sections. The absence of the signatures of the District Magistrate's on the notice failed to render the notice invalid. 17. The absence of the signatures of the District Magistrate's on the notice failed to render the notice invalid. 17. The third point urged in this connection was that the notice had not been published in any local newspaper. Our attention has not been invited to any order by the District Magistrate's which he might have made under sub-Sec. (3), or for the matter of that under sub-Sec. (5) itself, requiring the notice to be published in a local newspaper. In the absence of any such material no necessity existed legally to publish it in a newspaper. Once again, therefore, the notice cannot be attacked on that ground. 18. The only other objection still remaining to be considered is about the competence of Sri Prayag Narain to appoint the date directed to be fixed by this Court. This question should not actually arise in view of what has been said earlier in the matter. But assuming that the date was appointed by him even then I am unable to see how he was dis entitled from doing so. Once he had been directed to take action for holding the meeting on that date it was he alone, having declared that the meeting shall be held on such date, to ask that the notices with respect to it be sent. Under sub-Sec. (5), which can be said to apply by analogy, the Presiding Officer alone is competent to direct such an action to be taken. The argument urged on behalf of the petitioner that it is that authority alone on which the law has conferred the particular discretion to be exercised should independently exercise that discretion and not be dictated by an outside authority is, if I may say so with respect, not attracted at all. Sub-Sec. (5) has conferred no discretion on the Presiding Officer. On the contrary, it has laid a statutory duty upon him to fix a date for the meeting where it is adjourned which shall not be later than fifteen days from the date of adjournment. He has no discretion in the matter of the holding of the meeting which has to be held before the expiry of fifteen days. The considerations which are applicable to the cases of exercise of discretionary powers are altogether foreign to the present facts. I am therefore, unable to accept this objection also. 19. He has no discretion in the matter of the holding of the meeting which has to be held before the expiry of fifteen days. The considerations which are applicable to the cases of exercise of discretionary powers are altogether foreign to the present facts. I am therefore, unable to accept this objection also. 19. In view of the above discussion and as a result of the findings arrived at above I would dismiss the petition with costs. Misra, J. - I concur in the result proposed by my learned brother Hon. J. K. Tandon, J. 2. By the Court - The petition is dismissed with costs which we assess at Rs. 100 and Rs. 50 to be paid respectively to the State and the Municipal Board. 3. The stay order is discharged. 4. Since the main petition has been dismissed and the stay order vacated, no orders are necessary on Civil Misc, Applications Nos. 105 (w) of 1960 and 114(w) of I960 and they are filed.