Abdul Alim Khan v. Government of U. P — 1966 DIGILAW 219 (ALL)

JUDGMENT G. C. Mathur, J. - These two writ petitions are directed against a motion of non-confidence which has been passed against the Chairman of the Town Area Committee, Fatehabad and the relief claimed in both is that the respondents be restrained from giving effect to the non-confidence motion. Petition No. 660 has been filed by the President himself and petition No. 659 has been filed by 11 electors. 2. In the General Elections held in 1964 Sri Balbir Prasad Deoneria was elected as the Chairman of the Town Area Committee, Fatehabad. On January 3, 1966, 6 members of the Town Area Committee presented a notice of a motion of non-confidence against the Chairman to the District Magistrate. The District Magistrate convened a meeting of the Town Area Committee on February 4, 1966 under the chairmanship of the Civil Judge of Agra for considering the notice of non-confidence. After voting the motion was declared carried by the requisite majority. On February 6, 1966 the petitioner tendered his resignation from the office of Chairman and the same was accepted on February 9, 1966. Thereafter on February 21, 1966 these two petitions were filed. 3. Before considering the points that have been raised in these cases it is necessary to refer to some of the provisions of law which are applicable to the case. Under Sec. 8-A of the U.P. Town Areas Act the Chairman is elected by the general body of electors. By a notification dated May 2, 1956, a copy of which is annexed as Annexure-A to the petitions, the provisions of Sec. 87-A and of Sec. 47-A of the U.P. Municipalities Act, 1916, were extended to the Town Areas with certain modifications. Sec. 87-A provides the procedure for moving a non-confidence motion in the Chairman and it is not disputed in the present case that the motion was presented and passed in accordance with the provisions of this section. Clause (a) of Sec. 47-A(l) as extended to the Town Areas provides that the Chairman shall, within three days of the sending of the result of the non-confidence motion to the Chairman, resign his office and clause (b) provides that on the expiry of three days the Chairman shall stop acting as Chairman and shall be deemed to be incapacitated from functioning as Chairman. Sub-Sec. (2) of this section provides that in the event of the failure of the Chairman to resign within the time allowed the State Government shall remove him. 4. The main question that has been raised in these cases is that the Chairman of the Town Area Committee is elected by the general electorate and as such the Town Area Committee has no power to pass a motion of non-confidence against him. The contention is based on the following three grounds : (1) That the power to pass a motion of non-confidence vests inherently only in the body which elects or appoints the officer and that Secs. 87-A and 47-A as extended to the Town Area are merely procedural and do not confer the power on the Town Area Committee to pass a motion of non-confidence against the Chairman; (2) That the provisions of Secs. 87-A and 47-A of the Municipalities Act could not legally be extended under Sec. 38 of the Town Area Act and that the extention of these provisions to the Town Area is illegal; and (3) That by extending the provisions of Secs, 87-A and 47-A to the Town Areas without, at the same time, extending the provisions of Sec. 43 of the Municipalities Act thereto the basic policy of the Municipalities Act was changed and the extension was, for that reason, illegal. 5. The first submission of Mr. Khare was that the various amendments of the U.P. Municipalities Act indicated that the power to move a non-confidence motion by the Municipal Board against its President was a power inherent in the Municipal Board and that power was not conferred either by Sec. 87-A or 47-A. Under Sec. 43 of the Municipalities Act the President of the Municipal Board is elected by the members of the Municipal Board and not by the general electorate. In the Act, as originally enacted, Sec. 47-A or 87-A did not find place. Sec. 47-A was introduced in 1926 and the objects and reasons of the Amending Act which introduced Sec. 47-A states that this section was introduced in order to provide for the contingency where the President refused to resign even when a vote of non-confidence was passed against him by the Municipal Board. Sec. 47-A was introduced in 1926 and the objects and reasons of the Amending Act which introduced Sec. 47-A states that this section was introduced in order to provide for the contingency where the President refused to resign even when a vote of non-confidence was passed against him by the Municipal Board. Again, Sec. 87-A was introduced in 1933 and the statement of objects and reasons of the Amending Act which introduced this section states that this section was being introduced to meet the situation created by Presidents of Municipal Boards placing impediments in the moving of motions of non-confidence against them. From this it is sought to be argued that the power to pass a motion of non-confidence against the President existed in the Municipal Boards even before these two sections were introduced in the Municipalities Act and that these sections were merely procedural sections enacted to meet certain contingencies. Mr. Khare also referred to the law relating to corporate bodies that the body which elector appoints has the power to remove also. The matter is not resintegra and it is unnecessary for me to examine Mr. Khare's argument any further. A Division Bench of this Court has laid down in 1962 A. L. J. 113 that the power to pass a non-confidence motion in the President of the Municipal Board is not an inherent power of the Municipal Board but is a power derived from the provisions of Sec. 47-A of the Municipalities Act. I must, therefore, reject Mr. Khare's first contention. If Sec. 47-A has been legally and properly extended to the Town Areas then the Town Area Committee will also have the power to pass a motion of non-confidence in is Chairman. 6. The second ground raised by Mr. Khare is also covered by the decision of a Division Bench of this Court in Abdul Aziz v. State of U.P., A.I.R. 1958 Alld. 109. It was held in this case that Sec. 87-A and 47-A of the U .P. Municipalities Act could lawfully be extended to the Town Areas by the Governor by virtue of powers vested in him by Sec. 38(1) of the U.P. Town Areas Act, I am bound by this decision and I must accordingly reject the second submission of Mr. Khare. 7. I have now to examine the last submission of Mr. Khare. 7. I have now to examine the last submission of Mr. Khare that the extension of Sec. 87-A and Sec. 47-A without the extension of the provisions of Sec. 43 of the Municipalities Act to Town Areas is illegal as it changes the basic policy of the Municipalities Act. His contention is that Sec. 43 of the Municipalities Act provides for the election of the President by the members of the Municipal Board and the provisions of Secs. 87-A and 47-A are based on the policy contained in Sec. 43. According to him, these three sections of the Municipalities Act form one basic policy. He has relied upon the observations of the Supreme Court in Raj Narain Singh v. Chairman, Patna Administration Committee, A.I.R. 1954 S.C. 569 to the following effect: "An executive authority can be authorised to modify either existing or future laws but not in any essential feature. Exactly what constitutes an essential feature cannot be enunciated in general terms. But this much is clear that it cannot include a change of policy................. As a part of an Act can be extended by an executive authority it follows that a section or sections also can be picked out and applied. Also for the same reason that the whole or a part of an Act can be modified, it follows that a sect ion can also be modified. But when a section of an Act is selected for application, whether it is modified or not, it must be done so as not to effect any change of policy, or any essential change in the Act regarded as a whole." 8. What has to be examined is whether Sec. 43 and Secs. 87-A and 47-A are part of one whole basic policy or whether they stand independently of each other. Mr. Khare's contention is that were it not for the provisions of Sec. 43 that the President has to be elected by the members of the Municipal Board the Legislature would not have enacted Secs. 87-A and 47-A providing for the procedure for passing a motion of non-confidence in the President by the Municipal Board and for the resignation and removal of the President on the passing of such a motion. In a way the argument depends on the first contention raised by Mr. 87-A and 47-A providing for the procedure for passing a motion of non-confidence in the President by the Municipal Board and for the resignation and removal of the President on the passing of such a motion. In a way the argument depends on the first contention raised by Mr. Khare that the power to pass a motion of non-confidence in the President by the Municipal Board was a power inherent in it by virtue of the provisions of Sec. 43. That contention has already been rejected by me. If the power to pass the non-confidence motion is not inherent in the Municipal Board on account of the fact that it elects the President but the power vests in the Municipal Board by virtue of the provisions of Sec. 47-A then the argument of Mr. Khare is not sound that Sec. 43 and Secs. 87-A and 47-A form one basic whole policy. The power to pass the motion is derivable from Sec. 47-A, the procedure for moving and passing the motion is provided by Sec. 87-A and the object is achieved by the provisions of Sec. 47-A. In this view of the matter Sec. 43 does not come into the picture at all and it cannot be accepted that Secs. 87-A and 47-A together with Sec. 43 form one basic whole policy. There is another fact which leads to the same conclusion. By Act VII of 1949 Sec. 43 of the U.P. Municipalities Act was amended and the President instead of being elected by the members of the Municipal Board was, thereafter, to be elected by the general electorate. This position continued until Sec. 43 was again amended by Act I of 1955. During this period when the President was to be elected by the general electorate Secs. 87-A and 47-A were also in the Municipalities Act. The Municipal Board could pass a motion of non-confidence against the President even though he was elected by the general electorate and, in the event of such a motion being passed, he had to resign under Sec. 47-A. From this it appears that the Legislature did not think that the provisions of Secs. 47-A and 87-A were inextricably linked with the provisions of Sec. 43 as it stood before the Amending Act VII of 1949. 47-A and 87-A were inextricably linked with the provisions of Sec. 43 as it stood before the Amending Act VII of 1949. In order words, the Legislature contemplated the passing of a non-confidence motion by the Municipal Board even when the President was elected by the general electorate. It, therefore, follows that the existence of the power to elect the President was not necessary for the Municipal Board; having the power to pass a motion of non-confidence against him. In my opinion, the contention is not sound that the basic policy of the Legislature was not to confer powers of passing a motion of non-confidence against the President unless there was also conferred a power to elect the President. In extending the provisions of Secs. 87-A and 47-A to the Town Areas without extending the provisions of Sec. 43 of the Municipalities Act thereto no basic change in the policy of the Municipalities Act was effected and as such the extension was not illegal. 9. The provisions of Secs. 87-A and 47-A were properly and legally extended to the Town Areas and the motion of non-confidence was passed against the Chairman of the Town Area Committee in accordance with these provisions. In accordance with these very provisions the Chairman tendered his resignation which has been accepted. In these circumstances no case has been made out for not giving effect to the motion of non-confidence. 10. For the reasons stated above, there is no force in these writ petitions. They are accordingly dismissed with costs. 11. The interim stay orders are hereby discharged.