Ram Krishna Verma v. State of U. P. — 1966 DIGILAW 378 (ALL)

JUDGMENT G.C. Mathur, J. - The Municipal Board, Mussoorie, consists of eleven elected and four nominated members. The nine petitioners were elected members of the Board in the general elections held in November, 1964. Four persons, including one Kumari Satya Sud, were nominated by the State Government as members of the Board. The election of the President of the Board took place on December 28, 1964, and Kumari Satya Sud was elected President. On May 12, 1966, eight members of the Board gave a notice under Sec. 87-A (2) of the U. P.-Municipalities Act of their intention to move a motion of non-confidence against the President. The District Magistrate convened a meeting of the Board on June 13, 1966, for consideration of the non-confidence motion. The meeting was duly held on that date and the non-confidence motion was passed. A copy of the minutes of the meeting together with a copy of the non-confidence motion and the result of the voting was communicated by the Presiding Officer to the President on the same date. The President did not resign her office within three days of the receipt of the communication of the passing of the non-confidence motion but, on June 16, 1966, she handed over a representation purporting to be one under Cl. (a) of sub-Sec. (1) of Sec. 47-A of the Act. The representation prayed that the State Government may supersede the Board. The District Magistrate made his recommendations on this representation and appears to have forwarded it to the Commissioner, Meerut Division. The Commissioner also appears to have made some recommendations on this representation and to have forwarded it to the State Government. The State Government received the representation on June 23, 1966. Without giving any show cause notice to the Board, the State Government, on June 29, 1966, passed an order under sub-Sec. (3) of Sec. 47-A, superseding the Board for the remainder of its term. By the same order the District Magistrate, Dehra Dun, was appointed to exercise the powers and to perform the duties of the Board. 2. The order of supersession dated June 29, 1966, is challenged by the petitioners on the following four grounds. 1. That the order was passed mala fide. 2. By the same order the District Magistrate, Dehra Dun, was appointed to exercise the powers and to perform the duties of the Board. 2. The order of supersession dated June 29, 1966, is challenged by the petitioners on the following four grounds. 1. That the order was passed mala fide. 2. That Sec. 47-A of the Act does not confer any independent power upon the State Government to supersede a Municipal Board, and the power of supersession has to be exercised in accordance with the provisions of Sec. 30 of the Act but, in the present case, the State Government did not act in accordance with those provisions; 3. That even if Sec. 47-A confers an independent power of supersession on the State Government, the power has to be exercised quasi-judicially and, the State Government having passed the order without giving the Board an opportunity of being heard, the order violated principles of natural justice and was liable to be quashed; and 4. That the representation was not made by the President within three days to the State Government and as such the power of the State Government to supersede the Board under sub-Sec. (3) of Sec. 47-A was not attracted and the order was without jurisdiction. 3. The charge of mala fides is contained in paragraph 14 of the writ petition which reads: "14 - That the petitioners fee that the action of the State Government in superseding the Board is not bona fide and is motivated by a desire to favour Miss Satya Sud and her supporters." 4. In support of this allegation, certain facts are stated in the earlier paragraphs. Therein it is stated that Kumari Satya Sud had been defeated in the bye-election held in 1956 and had even forfeited her security but, in spite of this defeat, the State Government nominated her as a member of the Board. After the general elections of November, 1964 Kumari Satya Sud was again nominated a member of the Board. The third allegation, on which reliance is placed, is that Kumari Satya Sud was a co-opted member of the Zila Parishad, Dehra Dun, and as such was disqualified for being chosen as President of the Board but the State Government issued an ordinance on December, 15, 1964, removing the bar. The third allegation, on which reliance is placed, is that Kumari Satya Sud was a co-opted member of the Zila Parishad, Dehra Dun, and as such was disqualified for being chosen as President of the Board but the State Government issued an ordinance on December, 15, 1964, removing the bar. It is very difficult to accept a general and wide allegation that the State Government was interested in Kumari Satya Sud. Government consists of a large body of persons, including the Governor, the Ministers and the Officers. It is not possible to accept that all these persons were interested in Kumari Satya Sud. In the absence of any allegation that any specific person, either a Minister or an officer, was interested in Kumari Satya Sud and he felt offended at her removal from presidentship, it is not possible to entertain this plea. Further, it appears that Kumari Satya Sud was elected President by the members of the Board themselves. In her election as President, the State Government could not have a hand. Therefore, in her removal from Presidentship by these very members of the Board, there was no cause for the State Government to feel offended. So far as the allegation regarding the removal of the disqualification under the ordinance is concerned, it has been fully explained in the counter-affidavit that the ordinance was passed as there was some confusion prevailing about the correct interpretation of law as a result of which several litigations had been started. The material on the record is not sufficient to come to a finding that the impugned order was passed mala fide. 5. In order to appreciate the second contention of the petitioners, it is necessary to set out Secs. 30 and 47-A of the Act in full. They read thus: - "30 - If, at any time, the State Government is, after taking into consideration the explanation of the board, satisfied that the board has made a wilful default in the performance of any duty imposed upon it by or under this Act or any other enactment or has exceeded or abused its powers, it may, by order together with the reasons therefor published in the official Gazette, dissolve the board or supersede it for such period as may be specified. Explanation - The period of supersession specified in the order may, if the State Government so considers expedient, be extended from time to time by notification." "47-A (1) If a motion of non-confidence in the President has been passed by the Board and communicated to the President in accordance with the provisions of Sec. 87-A, the President shall - (a) within three days of the receipt of such communication either resign his, office or represent to the State Government to supersede the board, stating his reasons therefor, and (b) unless he resigns under Cl. (a) cease to hold office of President on the expiry of three days after the date of receipt of such communication, and thereupon a casual vacancy shall be deemed to have occurred in the office of the President within the meaning of Sec. 44-A: Provided that if a representation has been made in accordance with Cl. (a) the board shall not elect a President until an order has been made by the State Government under sub-Sec. (3). (2) ................................. (3) If a representation has been made in accordance with sub-Sec (1), the State Government may, after considering the same, either supersede the board for such period, not exceeding the remainder of the term of the board, as may be specified, or reject the representation. (4) ................................. (5) ................................ (6) If the State Government supersedes, the board under sub-Sec. (3), the consequences mentioned in Sec. 31 shall follow as if there had been a supersession under Sec. 30." It has to be noticed that Sec. 30 confers upon the State Government a power to dissolve or supersede a board. The power can only be exercised under this section if the State Government is satisfied that the board has made a wilful default in the performance of its duty or has exceeded or abused its powers, and after giving the board an opportunity of giving an explanation. This section does not state who is to move the State Government to take the action. Under Sec. 47-A the State Government is empowered to supersede the board if a representation to that effect is made by the President of the board, against whom a notice of the motion of non-confidence has been passed, within three days of the communication of the passing of the motion to him. Under Sec. 47-A the State Government is empowered to supersede the board if a representation to that effect is made by the President of the board, against whom a notice of the motion of non-confidence has been passed, within three days of the communication of the passing of the motion to him. The contention of Shri S.C. Khare, learned counsel for the petitioner, is that it is Sec. 30 which confers upon the State Government the power to supersede a board and Sec. 47-A merely provides one manner in which that power may be invoked. In other words, Sec 47-A does not confer any power independent of the power conferred by Sec. 30 and, even in a case falling under Sec. 47-A, the State Government, can pass an order of supersession only in accordance, with the provisions, of Sec. 30. The main argument in support of this contention was that, if the pro visions of Sec. 30 are not attracted to a supersession under Sec. 47-A, then the power under Sec. 47-A would be exercisable without any guidance as no grounds for supersession are mentioned in Sec. 47-A and the power would be capable of being exercised arbitrarily. It was further contended that the power would be exercisable not only arbitrarily but without giving any opportunity to the board or to its members of being heard. I am unable to agree with this contention. Simply because Sec. 47-A does not specifically prescribe the grounds upon which an order of supersession may be made, it does not necessarily follow that the power can be exercised arbitrarily. Supersession under Sec. 47-A can only be made by the State Government on relevant grounds. If, in a particular case, the power is exercised arbitrarily, the order can be struck down. Again, from the mere fact that Sec. 47-A does not specifically provide for hearing being given to a board or to its members it does not follow that the State Government is not to act judicially in exercising the power under Sec. 47-A. What has to be seen is whether it was the intention of the Legislature to confer an independent power of supersession under Sec. 47-A upon the State Government. In my opinion, there are sufficient indications in this section which show that the Legislature in tended to confer an independent power upon the State Government under Sec. 47-A. Under this, section the power of supersession can be exercised only if a representation is made by the President within three days of the communication to him of the passing of the motion of non confidence against him. If the power to supersede was to be exercisable only under Sec. 30, then this limitation would become meaningless. In that event, even if a representation were made after the expiry of three days and even after the board has elected a new President, the power under Sec. 30 could be exercised Therefore, the imposition of this limitation of three days indicates that the power to be exercised by the State Government is not the one contained in Sec. 30 but is an independent power conferred by sub-Sec. (3) of Sec. 47-A. Then, again sub-Sec. (6) makes the intention of the Legislature quite clear. Sub Sec. (6) provides that, if the State Government supersedes the board under sub-Sec. (3), the consequences mentioned in Sec. 31 shall follow "as if there has been a supersession under Sec. 30". The use of the words "as if" clearly shows that the supersession under sub-Sec. (3) of Sec. 47-A is different from the super session under Sec. 30. If the power of supersession was only under Sec 30 and no independent power of supersession had been conferred by sub-Sec. (3) of Sec. 47-A then there would have been no necessity to enact sub-Sec. (6). It was suggested by Shri Khare that sub-Sec. (6) had been enacted by way of abundant caution. This would imply that sub-Sec. (6) is redundant but redundancy cannot be attributed to the Legislature. These two provisions clearly indicate the intention of the legislature that the powers under Secs. 30 and 47-A are independent powers and that to the exercise of the power under Sec. 47-A the provisions of Sec. 30 are not attracted. It is apparent that the power under sub-Sec. (3) of the Sec. 47-A can be exercised independently of Sec. 30 and it would not be correct to say that it would become unworkable if it, is not exercised in accordance with Sec. 30. It is apparent that the power under sub-Sec. (3) of the Sec. 47-A can be exercised independently of Sec. 30 and it would not be correct to say that it would become unworkable if it, is not exercised in accordance with Sec. 30. In Shambhu Dayal v. U.P. Government, Lucknow, 1957 ALJ 205 Mehrotra, J., has held that the power under Sec. 47-A is independent of the power under Sec. 30. It may be mentioned that at that time sub-Sec. (3) of Sec. 47-A empowered the State Government only to dissolve the board and not to supersede it. Under Sec. 30 as it then stood and as it now stands, the State Government had the power both to dissolve and to supersede the board. The decision of Mehrotra, J., is applicable to the present Sec. 47-A also. I must accordingly reject the second submission of the petitioner also. 6. The next question that arises for consideration is whether the State Government is required to act quasi-judicially in exercising the power of supersession under sub-Sec. (3) of Sec. 47-A. The tests for determining whether an authority required to act quasi-judicially or not were laid down by the Supreme Court in Province of Bombay v. Khushaldas S. Advani, A.I.R. 1950 S.C. 222. These tests have been summarised by S. R. Das, J. (as he then was) at page 260 in these words: - "The principles, as I apprehend them, are: (i) that if a statute empowers an authority, not being a court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and (ii) that if a statutory authority has power to do any act which will pre-judicially affected the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provide the authority is required by the statute to act judicially. In other words, while the presence of two parties besides the deciding authority will prima facie and in the absence of any other factor impose upon the authority the duty to act judicially, the absence of two such parties is not, decisive in taking the act of the authority out of the category of quasi-judicial act if the authority is nevertheless required by the statute to act judicially." 7. Shri Khare contends that both these tests are satisfied in the present case. He contends that, when the President makes a representation under Cl. (a) of sub-Sec. (1) of Sec. 47-A, he is the complainant and he levels certain charges against the board, that the President and the board are two parties, that the question whether the charges are justified or not is, the dispute or lis between them and that the State Government is required to consider and decide this dispute and then to pass its order. He then contends that, even if there is no lis and the matter is to be considered as one between the State Government and the board, even then the provisions indicate that the State Government is required to act judicially. In my opinion, both these contentions are sound. He then contends that, even if there is no lis and the matter is to be considered as one between the State Government and the board, even then the provisions indicate that the State Government is required to act judicially. In my opinion, both these contentions are sound. It is obvious, that, when the President makes the representation under Sec. 47-A, he must level some charges against the board which render it liable to supersession. There is bound to be a dispute between the President and board regarding the correctness or otherwise of these charges. There are thus two parties and there is a dispute which the State Government has, been empowered to decide. The first test laid down by the Supreme Court is thus satisfied. Even if it be held that there are no two parties and there is no lis, in my opinion, the second test laid down by the Supreme Court is satisfied. A statute is not likely to provide in so many words that the authority passing the order is required to act judicially; that can only be inferred from the express provisions of the statute. The inference whether the authority acting under a statute, where it is silent, has the duty to act judicially will depend on the express provisions of the statute read along with the nature of the rights affected, the manner of the disposal provided, the objective criterion if any to be adopted, the effect of the decision on the person affected and other indicia afforded by the statute. It cannot be denied that an order of supersession seriously affects not only the rights of the board but also of the members of the board and of the persons who live within the jurisdiction of the board. The elected representatives, if an order of supersession is; passed, are removed from their office and the functions of the board are no longer exercisable by the elected representatives but by a person nominated by the State Government. Then sub-Sec (3) of Sec. 47-A provides that the order may be passed after "considering the representation made by the President." The word considering in this sub-section must necessarily involve and import a decision not merely depending upon opinion but depending upon inquiry or investigation. Then sub-Sec (3) of Sec. 47-A provides that the order may be passed after "considering the representation made by the President." The word considering in this sub-section must necessarily involve and import a decision not merely depending upon opinion but depending upon inquiry or investigation. Inquiry and investigation into the conduct of a board for purposes of passing an order of supersession can only be in accordance with the principles of natural justice. It cannot be disputed that the power under Sec. 30 has to be exercised in a quasi-judicial manner. It is only reasonable to infer that the Legislature could not have intended the identical power under Sec. 47-A to be exercised differently. There is, nothing in sub-Sec. (3) of Sec. 47-A which negatives the duty to act quasi-judicially. All these considerations lead to the conclusion that the State Government, in exercising the power of supersession under sub-Sec. (3) of Sec, 47-A, must act quasi-judicially. It was, therefore, incumbent upon the State Government, before coming to a decision. to give a reasonable opportunity to the Board to represent its case. In as much this was not done. The petitioners are entitled to ask this court to issue a writ in the nature of certiorari for quashing the order of the State Government dated June 29, 1966. 8. It now remains to consider the as submission of Shri Khare that he representation was not made by the President in accordance with sub-Sec. (1) of Sec. 47-A. There are two requirements for making a valid representation under this sub-section, namely. (1) that it must be made to the State Government; and (2) that it must be made within three days of the receipt of the communication of the passing of the notion of non-confidence. 9. As stated earlier, the representation, though it was addressed to the State Government, was handed over to the District Magistrate, Dehra Dun at Mussoorie on June 16, 1966, and it reached the hands of the State Government only on June 23, 1966. The section requires the representation o be made to the State Government within three days. 9. As stated earlier, the representation, though it was addressed to the State Government, was handed over to the District Magistrate, Dehra Dun at Mussoorie on June 16, 1966, and it reached the hands of the State Government only on June 23, 1966. The section requires the representation o be made to the State Government within three days. If the delivery of be representation to the District Magistrate is deemed to be equivalent to making a representation to the State Government, then there is no doubt that the representation was made within the prescribed period; but if the representation is required to be presented to the State Government directly within three lays, then the representation in the present case was not made within he prescribed time. Learned counsel for the respondent has contended that presentation to the District Magistrate must be deemed to amount to presentation to the State Government. Shri Khare has countered this contention by pointing out that wherever the Legislature intended a communication to be made to the State Government through the District Magistrate, it has specifically provided for it. He drew my attention to Secs. 39 and 47 of the act. Sec. 39 provides for the resignation of members of Municipal Boards and reads thus: - "39. If a member of a board other than the President resigns by writing under his hand addressed to the State Government, his seat shall thereupon become vacant. The resignation shall be delivered at the office of the District Magistrate of the district, in which the municipality is situate, who shall forthwith inform the President and shall forward the resignation to State Government." 10. Sec. 47 - deals with the resignation of a President and sub-Sec. (1) of that section reads thus: - "47(a) - A president of a board wishing to resign may forward his written resignation through the District Magistrate - (a) where he is the President of the board of a city, to the State Government, and (b) where he is the President of any other board, to the Prescribed Authority." 11. It is therefore, clear that, wherever the Legislature intended a communication to be made to the State Government through the District Magistrate, it has made specific provision in that regard. In sub-Sec. (1) of Sec. 47-A, there is no provision that the representation may be made through the District Magistrate. It is therefore, clear that, wherever the Legislature intended a communication to be made to the State Government through the District Magistrate, it has made specific provision in that regard. In sub-Sec. (1) of Sec. 47-A, there is no provision that the representation may be made through the District Magistrate. The conclusion is inevitable that a representation under sub-Sec. (1) of Sec. 47-A must be made directly to the State Government within the time prescribed. No rule has been brought to my notice under which a representation under sub-Sec. (1) of Sec. 47-A may be forwarded through the District Magistrate. It was contended by Shri Yudhisthira appearing for the respondent that there was a practice of forwarding such representations through the District Magistrate and, though the Legislature was aware of this practice, it has not condemned it and, therefore, it must be deemed to have adopted it. For this he has relied upon paragraph 13 of a supplementary counter-affidavit filed on behalf of die State. It was stated in this paragraph dial a practice of receiving representations as are mentioned in Sec. 47-A through the District Magistrate has developed even since and the same practice has been generally followed as that is the normal channel of correspondents prescribed. In the first place, an allegation like that made in paragraph 13 of the supplementary counter-affidavit cannot establish a practice. In the second place, I am very doubtful whether, on the basis of such practice, it is permissible for this Court to add the words "through the District Magistrate" after the words "represent to the State Government" in Cl. (a) of sub-Sec. (1) of Sec. 47-A. It was then contended by Shri Yudhisthira that, even if the representation was, made to the State Government after the expiry of the prescribed period, it was open to the State Government to pass an order of supersession. (a) of sub-Sec. (1) of Sec. 47-A. It was then contended by Shri Yudhisthira that, even if the representation was, made to the State Government after the expiry of the prescribed period, it was open to the State Government to pass an order of supersession. There might have been some force in this contention if the power of supersession was exercisable only under Sec. 30 and there existed no independent power of supersession under Section 47-A. But the power under sub-Sec. (3) of Sec. 47-A, being an independent power, is exercisable only on a representation made in accordance with sub-Sec. (1) of Sec. 47-A. It follows that where a representation has not been made in accordance with sub-Sec. (1) of Sec. 47-A, the power under sub-Sec. (3) is not attracted and cannot be exercised. The representation made by Kumari Satya Sud was not made to the State Government within the prescribed time and it did not confer any jurisdiction upon the State Government to pass an order of supersession under sub-Sec-(3) of Sec. 47-A. For this reason also the impugned order is liable to be quashed. 12. For the reasons stated above the writ petition is allowed with costs and the order of the State Government date June 29, 1966, superseding the.Municipal Board of Mussoorie is quashed.