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1961 DIGILAW 83 (ALL)

Lakshmi Narain Misra v. Municipal Board

1961-04-12

M.C.DESAI, S.N.DWIVEDI

body1961
JUDGMENT S.N. Dwivedi, J. - On March 28, while allowing this appeal, we said that we would give later the reasons for our order. We now proceed to state the reasons. 2. On May 7, 1960 Lakshmi Narain Misra, the appellant, was elected Senior Vice-President of the Municipal Board, Moghalsarai. On June 29 following the Municipal Board, by a vote of nine members, passed the following resolution: - "In the place of Sri Lakshmi Narain Misra Sri Mohammad Rasul be elected Vice-President of the Municipal Board of Moghalsarai and the election of Sri Lakshmi Narain Misra dated 7-5-1960 be cancelled." These facts are not disputed, and the single question is whether the said resolution has any force and efficacy. It may be observed that the first part of the resolution is consequential upon the second part of it. Accordingly if the second part is ineffective and inoperative, the first part would ipso facto fall down. 3. Before the learned Single Judge the learned counsel for the respondents unsuccessfully tried to shield the second part of the resolution behind Sec. 94(6) of the Municipalities Act (hereinbelow called the Act). The learned Judge however took the view that the Municipal Board could validly pass it under Section 87 of the Act. The writ petition of the appellant was therefore dismissed. 4. Before us the learned counsel for the respondents has rehearsed his argument, founded on Sec. 94(6), but we agree with the learned Judge that it is devoid of substance. Sec. 94(6) provides for the procedure for cancelling a resolution before the expiry of six months from the date of the passing of it, it does not confer on the Municipal Board any power to cancel a resolution. Sec. 16 of the U.P. General Clauses Act does not in terms apply. A general power to cancel any resolution may of course be implied in view of Sec. 94(6) on the basis of the general principle that the power to create includes also the power to destroy. But the general power of cancelling any resolution would in our opinion be subject to the provisions of the Act. The Municipal Board is a statutory corporation, its powers are derived from the Act, and it may exercise them only in accordance with the provisions of the Act. But the general power of cancelling any resolution would in our opinion be subject to the provisions of the Act. The Municipal Board is a statutory corporation, its powers are derived from the Act, and it may exercise them only in accordance with the provisions of the Act. Accordingly, if the general power of cancelling any resolution is not consistent with a specific and express provision of the Act, the latter would prevail and the general power would be unavailable to the Municipal Board. 5. A Vice-president is elected by a special resolution under Sec. 54(1), and under sub-sec. (2) thereof his term office is one year from the date of his election or the residue of the term of his office as a member of the Board, whichever is less. In the present case it is admitted that the appellant's term of office would be one year. The words of the sub-section are absolute and they provide for an irreducible tenure, except in case of death or resignation. There appears to be nothing in the object and context of Section 54 to show that the tenure is liable to be cut down in any other manner. The general power of cancelling a resolution is thus obviously inconsistent with the statutory grant of a fixed and irreducible term of office to the Vice-President. We are, therefore, of the view that the Municipal Board could not cancel the May resolution electing the appellant as Vice-President. Some support for our view may be drawn from Sec. 54-A. Sub-Sec. (1) of this section provides that where a person, on being elected President, fails or refuses to function or is otherwise not able to function, and a Vice-President has not been elected, the District Magistrate shall exercise the powers of the president until a Vice-President is elected in accordance with the procedure laid down in the succeeding sub-sections. The procedure is that the District Magistrate shall call a meeting of the Municipal Board for the election of a Vice-President under the presidentship of a stipendiary Judicial Officer. Members shall elect the Vice-President, in case of equality of votes, the Judicial Officer shall decide by lot which of the candidates having equal votes is to be declared elected. The Judicial Officer shall declare the result of the election at the meeting. Members shall elect the Vice-President, in case of equality of votes, the Judicial Officer shall decide by lot which of the candidates having equal votes is to be declared elected. The Judicial Officer shall declare the result of the election at the meeting. We do not think that the Vice-President is elected by a resolution of the Municipal Board under Sec. 54-A. The section provides a special procedure for electing a Vice-President otherwise than by a resolution. The general power of the Municipal Board to cancel any resolution cannot therefore be invoked to cut down the term of office of a Vice-President elected under Sec. 54-A. If that is correct, as we think it to be, then it is rather difficult to believe that the Legislature intended to empower the Municipal Board to cancel a resolution electing a person as Vice-President under Sec. 54(1). We are reluctant to believe that the Legislature intended to lay down a double standard one for the Vice President elected under Section 54 and the other for the Vice-President elected under Sec. 54-A. Sec. 87 of the Act may now be set out:- "87 - Subject to any provision to the contrary made by regulation in this behalf, any business may be transacted at any meeting: Provided that no business which is required to be transacted by a special resolution shall be transacted unless previous notice of the intention to transact such business has been given: Provided also that nothing in this section shall apply to a motion that the board shall adopt a resolution expressing non-confidence in the President or to a motion that the board shall adopt a resolution calling upon the President to resign." 6. As already stated the learned Judge has sustained the second part of the impugned resolution under this section. As already stated the learned Judge has sustained the second part of the impugned resolution under this section. In substance the chain of his reasoning is: (1) Under the enacting clause of the section the Municipal Board may transact any business and pass any re-solution except the business excluded by the second proviso, (2) the business includes a resolution of no confidence in the Vice-President, which, if passed will abruptly terminate his term of office even before the expiry of the statutory period and (3) the power to pass a resolution of non confidence in the Vice-President is implied on the basis of the general law that an elected office is always held at the pleasure of the corporation which elects a person. For this proposition reliance is placed on the statement of law at p. 37 in Vol. IX of Halsbury's Laws of England, Simond's Edition: "Where a person is appointed to and holds an office at the will of the corporation he may be removed from it at the will of the corporation which may be signified by mere declaration thereof by the competent authority though in some case it must be under the corporate seal." 7. With respect to the learned Judge we are unable to agree to the line of reasoning. We cannot see how the enacting clause of Section 87 gives the green light to the Municipal Board to transact any business that it may like. It is a statutory corporation, and it can transact only such business as it is authorised under the Act to do. It cannot transact a business which is ultra vires its statutory powers. Thus it cannot pass a resolution for setting up a factory for manufacturing hydrogen bombs or war armaments. Similarly it cannot pass a resolution of no confidence in or of removal of, the Vice-President, if the Act does not envisage such a resolution at all. 8. The question then is: Does the Act contemplate the passing of a resolution of no confidence in or of removal of the Vice-President ? 9. Sec. 40 of the Act expressly provides for the removal of a member of the Municipal Board. Sec. 48 also expressly provides for the removal of the President from his office. Sec. 104 (1) (b) provides for the election of members to the various committees of the Municipal Board, and Cl. 9. Sec. 40 of the Act expressly provides for the removal of a member of the Municipal Board. Sec. 48 also expressly provides for the removal of the President from his office. Sec. 104 (1) (b) provides for the election of members to the various committees of the Municipal Board, and Cl. (c) thereof provides for the removal of a member elected to a Committee. These provisions demonstrate that the Legislature deliberately refrained from providing for the removal of a Vice-President. No resoultion removing a Vice-President can therefore be passed. 10. It may appear at first sight that the Municipal Board is not prohibited from passing a resolution of no-confidence in the Vice-President, but that is not the fact. A no confidence resolution against the President by itself has no force, it is only because of Sec. 47A that a President is compelled either to resign or ask for dissolution of the Board. But for Sec. 47-A the no confidence resolution would have had no teeth. The power to pass a no-confidence resolution in the President may be necessarily implied in Sec. 47-A. The absence of a similar provision with respect to the Vice-President show that the Legislature did not envisage a non-confidence motion against the Vice-President. Sec. 54(2) gives to the Vice-President a fixed term of office. That term cannot be cut down by any device or method. Consequently the Municipal Board could not cancel the resolution electing the appellant as Vice-President. 11. We are, hesitant to fall back upon the general law of Corporations as stated in Halsbury's Laws of England. We think we ought to go ordinarily by the provisions of the Act. The Municipal Board is a creature of statute, and it can have only such powers as are conferred upon it by the Statute either expressly or by necessary implication. (See Hira Devi v. District Board, Shahjahanpur, 1952 S.C.R. 1122, (1130) : 1952 A.L.J. 717 : 1952 A.I.R. SC 362. 12. Further, it appears to us that the statement of law in Halsbury's Laws of England, which has been relied upon by the learned Judge, has little relevance in the context of Sec. 54(2). The Vice-President does not hold office at the will of the Municipal Board. Once elected, he gets into office for a specified period, and is irremovable during that period. The Vice-President does not hold office at the will of the Municipal Board. Once elected, he gets into office for a specified period, and is irremovable during that period. The office not being held at will, he is not removable at will. 13. For the reasons discussed above we have come to the conclusion that the impugned resolution is ineffective and inoperative.