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1960 DIGILAW 348 (ALL)

Abdul Rashid Khan v. State of Uttar Pradesh

1960-11-29

JAGDISH SAHAI

body1960
JUDGMENT Jagdish Sahai, J. - The Petitioner was a member of the Municipal Board, Bareilly, having been elected in the year 1957. He was removed by the State Government u/s 4(3) of the UP Municipalities Act (hereinafter called the Act). By means of this petition he has prayed that the order of the State Government dated 21-7-60 removing him be quashed. The grounds on which the petition was founded were firstly that all the material on the basis of which the State Government found against the Petitioner had not been indicated to him with the result that he had not a reasonable opportunity of submitting an explanation and secondly that there was no relevant material on the basis of which the Petitioner could be adjudged guilty of misconduct in the discharge of his duties as a member of the Board. 2. I have heard Messers. Jagdish Swarup and S.G. Khare for the Petitioner and the Advocate General and Mr. Pant Junior Standing Council for the Respondents. Before I investigate into the correctness or otherwise of the grounds on which the petition is found, it appears to me proper to consider another aspect of the case which in my judgment renders the order of the State Government void. It is common ground that in the order passed by the State Government removing the Petitioner from the membership of the Municipal Board of Bareilly the reasons for his removal have not been recorded in writing. The question for consideration is whether the law requires that the order by which a member is removed, should be self contained and should give the reasons for the removal. Section 40 of the Act reads as follows:- * * * * 3. Sub-section (4) requires that a member against whom proceedings for removal have been started should be given an opportunity of furnishing an explanation and that if an action is taken removing him, "the reasons therefor shall be placed on record." The learned Advocate General and the learned Junior Standing Counsel contend that it would be a proper compliance of the provisions of law if the reasons are not given in the order of removal itself but are recorded in a separate document which is kept in the file of the case in the Secretariat. In my opinion that is not a correct interpretation of Sub-section (4) of Section 40 of the Act. In my opinion that is not a correct interpretation of Sub-section (4) of Section 40 of the Act. It is worthy of notice that the words are: "the reasons therefore shall be placed on record" and not "the reasons therefore shall be placed in the record of the case." The word 'record' is also used in the sense of order or judgment. In the Shorter Oxford Dictionary, amongst the meanings given for that word, the following are also given: 4. The fact or attribute of being or of having been committed to writing as authentic evidence of a matter having legal importance, as evidence of the proceedings or verdict of a Court of Justice evidence which is thus preserved and may be appealed to in case of dispute. Even the learned Advocate General did not dispute that the word 'record' is also used in the sense of judgment or order. In the present case it appear to me that it has been used in the sense of an order or judgment and not in the sense of the record of the case or the file of the case. It cannot be denied that an order removing a person from the membership of a Board has got to be in writing. In fact Sub-section (2) of Section 40 while dealing with the orders of the Prescribed Authority clearly provides that a person against whom an order of removal has been passed "may appeal therefrom, within one month of receiving the order, to the State Government and State Government may, thereupon, if it thinks fit, cancel the order and reinstate the member." There are three considerations which lead me to the conclusion that the order passed by the prescribed authority has got to be in writing. The first one is that the words used are "within one month of receiving this order" and not "within one month from the date on which the order is communicated." In Shorter Oxford Dictionary the meaning given to the Word "receive" among others are: To take in one's hand or into one's possession, to take delivery of from another, either for oneself or for a third party, to take into one's keeping, to take from another by hearing, to attend or give held to.... Usually the word is used in connection with a physical object. Usually the word is used in connection with a physical object. The second reason is that an appeal is provided for and the appellate authority must have something in writing so that it may consider whether or not the order is correct. It cannot be the intention of the legislature that an appeal be directed against an oral order, the substance of which alone has been communicated to the member. Lastly the word "cancel" is generally used in connection with a document and not an oral information. In Websters New International Dictionary, Vol. I, the following meaning have been given to the word "cancel.'' ... to strike out or to mark for omission with lines drawn lattice wise, to cross out with a line or lines as a word a passage or the whole of a writing; to strike out, to delete, to erase hence specify, of a legal document to annul to make void or invalid, by such mark or (by extension) in any way. To annul or to disturb, to revoke or recall.... The result of what I have said above is that it cannot be a matter of dispute that so far as the prescribed authority is concerned its order has got to be in writing. If that is so with regard to the prescribed authority, I see no reason to believe that the Legislature intended otherwise in the case of the State Government and expected the State Government to pass an oral order only. In my opinion the words "and when such action is taken the reasons therefore shall be placed on record" contemplate the existence of a written order and that too a self contained one giving reasons in support of the order. The most cardinal rule of interpretation of statutes is that when the text is explicit, the text is conclusive or, in other words, if the language is clear that should be the sole basis of gathering the intention of the Legislature. In the present case, in my opinion the language clearly indicates that the word "record" has been used in the sense of order or judgment and not in the sense of file or the record of the case. Even if there had been any doubt about the language of the provision other rules of interpretation would have demanded the word "record" being read in the same sense. Even if there had been any doubt about the language of the provision other rules of interpretation would have demanded the word "record" being read in the same sense. It is well established that in case of doubt a reasonable interpretation must be given to a provision. The reasonable interpretation in the present case would be that the order should be in writing and a self contained one. The reason why the Legislature thought it proper to provide that the reasons for the order of removal should be placed on the record was in my opinion by way of' public, policy in order to allay any misgivings that may arise in the mind of the public as also in that of the person removed. After all the State Government was exercising quasi-judicial functions. The right of a member of a municipal board to continue in that post for the full term is a civil right and when the Legislature provided an elaborate procedure by which that right could be terminated it could not have intended that a right of such a substantial nature could be terminated only by an oral command from the State Government. It may also be considered that if the reasons were not to be communicated to the member removed or were not to be mentioned in the order so that any one who liked to see it may so do there was no necessity for requiring the reasons to be placed in the record of the case or in the file of the Secretariat. Of what use could the reasons be either to the State Government or to any of its subordinates? In my judgment it would not be reasonable to hold that the insistence of the Legislature for the placing of the reasons on the record was either meaningless or was for such a trifling object as of having a record only for some vague future use. As I have said above the principle of reasonable interpretation demands that it must be held that the idea was that the reasons must be contained in the order of removal so that misgivings if any may be allayed and people may not accuse the State Government of an arbitrary, mala fide or dishonest act. As I have said above the principle of reasonable interpretation demands that it must be held that the idea was that the reasons must be contained in the order of removal so that misgivings if any may be allayed and people may not accuse the State Government of an arbitrary, mala fide or dishonest act. In that view of the matter also I have no doubt in my mind that the intention of the Legislature was to use the word 'record' in the sense of order and in as much as in the present case the reasons for the removal of the Petitioner are admittedly not given in the order there has not been a proper compliance with the provisions of Section 40 of the Act. It would be noticed that Clause (4) of Section 40 is a proviso to Clause (3) of that section and opens with the word 'provided'. In other words it lays down a condition precedent to the exercise of the power by the State Government i.e., that if they intend to pass an order of removal they can only do so after giving an opportunity of explanation to the member concerned and while doing so will have to give the reasons in the order. It is well established, that if the condition precedent to the exercise of a power does not exist the power itself cannot be exercised. In my judgment the absence of the reasons in the order removing the Petitioner goes to the root of the matter and it cannot be said that it is a mere irregularity. It is well established that if the law requires that a thing has got to be done in a particular manner it must be done in that manner or not at all and other methods are prohibited. In Halsbury's Laws of England (Simond Edn.) Vol. 30, page 688 the law relating to the exercise of statutory powers has been put in the following words: Before statutory powers are exercised, it is essential that all conditions precedent shall have been complied with and any prescribed procedure followed, though the fulfillment of conditions may be presumed after a long laps of time. In Sutherland's Statutory Constructions, Vol. 30, page 688 the law relating to the exercise of statutory powers has been put in the following words: Before statutory powers are exercised, it is essential that all conditions precedent shall have been complied with and any prescribed procedure followed, though the fulfillment of conditions may be presumed after a long laps of time. In Sutherland's Statutory Constructions, Vol. 3., Art, 5808 the law on the point has been stated in the following words: There are undoubtedly many statutory requisitions intended for the guide of officers in the conduct of business devolved upon them, which do not limit their power or render its exercise in disregard of the requisitions ineffectual. Such generally are regulations designed to secure order, system, and dispatch in proceedings and by disregard of which the rights of parties interested cannot be injuriously affected ... but when the requisitions prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which the rights might be and generally would be injuriously affected, they are not directory but mandatory. Where authority is granted to public officers to do a thing in a certain way, the manner of doing the thing is mandatory, or jurisdictional, and a limitation on the authority of the officer, though the doing of the thing in the first place may be discretionary. 5. In the case of Nazir Ahmad v. K.E. 1936 AWR (HC) 602 the oral statement of the Magistrate about a confession without the confession having been recorded in writing was held inadmissible. In the case of Hari Vishnu v. Ahmad Ishaque 1955 AWR (HC) 339 it was held by the Supreme Court that if the law requires that a vote must be cast in a particular manner it must be cast in that manner and other methods indicating the voter's choice are barred. In the case of The Parbhani Transport Co-operative Society Ltd. Vs. The Regional Transport Authority, Aurangabad and Others, AIR 1960 SC 801 the case of Nazir Ahmad (l) mentioned above was followed by their Lordships of the Supreme Court. '(See also Taylor v. Taylor (1876) 1 Ch. D. 426 at p. 431, which was followed in Nazir Ahmad v. Emperor 1936 AWR (HC) 602. 6. The Regional Transport Authority, Aurangabad and Others, AIR 1960 SC 801 the case of Nazir Ahmad (l) mentioned above was followed by their Lordships of the Supreme Court. '(See also Taylor v. Taylor (1876) 1 Ch. D. 426 at p. 431, which was followed in Nazir Ahmad v. Emperor 1936 AWR (HC) 602. 6. For the reasons given above I have come to the conclusion that the order of the State Government removing the Petitioner is liable to be quashed. I, therefore, allow the petition and quash the order of the State Government dated 22-7-60 removing the Petitioner from the office of member of the Municipal Board of Bareilly. The Respondent No. 1 shall pay to the Petitioner his costs.