Ram Nath v. Municipal Board, Hapur — 1975 DIGILAW 642 (ALL)

JUDGMENT P. N. Bakshi, J. 1. The President of the Municipal Board, Hapur had been suspended. The term of the Vice President had expired on 16-10-1974. Sri R. C. Nagar, Sub-divisional Magistrate, Hapur had been appointed by the District Magistrate, Hapur under Section 54-A of the Municipalities Act to exercise the powers and functions of the President. On 28-7-1975, a notice was issued by the District Magistrate for holding the election of the office of the Vice President under Section 54-A (2) of the Municipalities Act on U-8-1975 at 11 a. m. Sri S. S. Kulshrestha, Munsif Haveli was to preside over this meeting. The total strength of the members of the Municipal Board, Hapur was 21. On the date of the meeting ten members were present. From a perusal of the minutes of the meeting held on 11-8-1975 (Annexure 2) it appears that the name of Sri Ved Prakash respondent No. 2 alone was proposed and seconded at this meeting. All the ten members voted for him. Sri Ved Prakash was thus declared elected Vice President of the Municipal Board, Hapur by Sri Kulshrestha. Aggrieved thereby the present writ petition has been filed. 2. Learned counsel for the petitioner has urged that the election of the vice president held on 11-8-1975 was illegal in the absence of the requisite quorum as required under Section 88 (2) of the Municipalities Act. Since the total number of members of the Board was 21 and since only ten members were present which was less than one half of the members of the Board; hence the election was invalid. On behalf of the respondent it was urged that Section 88(2) of the Municipalities Act is not applicable to an election of the Vice President which is held under the provisions of Section 54(A) of the said Act. Section 54 of the U.P. Municipalities Act provides that every Board shall have a Vice President-senior or junior-elected by the Board from amongst its members by a special resolution. The term of the Vice President shall be one year from the date of the election. Section 54-A deals with the election of Vice President in certain contingencies. Section 54 of the U.P. Municipalities Act provides that every Board shall have a Vice President-senior or junior-elected by the Board from amongst its members by a special resolution. The term of the Vice President shall be one year from the date of the election. Section 54-A deals with the election of Vice President in certain contingencies. Under Section 54-A(1) when the President fails or refuses to function or is otherwise unable to function or a casual vacancy occurs in the office of the President, and no Vice President had been elected in accordance with this Act or there is no Vice President otherwise able to function, the powers of the President or Vice President can be exercised and performed by the District Magistrate, or his nominee not below the rank of a Deputy Collector until the President or Vice President is able to function. 3. Under Section 54-A(2) the District Magistrate or his nominee has been authorised to appoint a date and time and to issue a seven days clear notice of the meeting to every member of the Board for holding the meeting for the election of the Vice President. Under Section 54-A(3) the District Magistrate has to arrange for a stipendiary civil judicial officer to preside over the meeting convened for this purpose. Under sub-Section (6), the Board shall proceed to elect the Vice President at such meeting. Under sub-Section (8), the Judicial Officer has been authorised in case of equality to decide by lot as to which of the candidate should be declared elected. 4. Counsel for the respondent has submitted that the procedure for holding the election of the Vice President which has been prescribed under Section 54-A does not require the passing of the resolution by the Board which is a requisite for the election of the Vice President under Section 54 of the Act. In support of this submission, he has placed reliance upon a Division Bench decision of this Court in Lakshmi Narain Misra v. Municipal Board, 1962 AWR 100. In support of this submission, he has placed reliance upon a Division Bench decision of this Court in Lakshmi Narain Misra v. Municipal Board, 1962 AWR 100. in that case the Division Bench while dealing with Section 54-A of the Municipalities Act observed as follows :- "We do not think that the Vice President is elected by a resolution of the Municipal Board under Section 54-A. The section provides a special procedure for electing the Vice President otherwise than by a resolution." Counsel for the petitioner has attempted to distinguish this Division Bench case. He urged that Section 54-A of the Municipalities Act has been amended by U. P. Act XXVII of 1964 and as such the aforesaid decision is inapplicable. Section 54-A (1) as it stood prior to the amendment read as follows:- "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 in accordance with this Act, the powers and functions of the President except presiding at a meeting of the Board shall, until a Vice President has been elected, be exercised and performed, if the District Magistrate so directs and subject to such conditions as he may specify, by the Executive Officer and in the case of a Board where there is no Executive Officer, by the Secretary, and the following procedure shall be followed for the election of a Vice President." 5. By the amending Act of 1964, the expression "following procedure shall be followed for the election of the Vice President" has been deleted. The marginal note of the amended Section 54(A) however, runs as follows :- "Provisions for the exercise of powers etc. of President in certain contingencies and procedure for election of Vice President." 6. The State counsel has submitted that this marginal note "can be relied upon as indicating the drift of the section". In support of this contention he has relied upon a decision of the Supreme Court reported in Indian Aluminium Company v. Kerala State Electricity Board, AIR 1975 SC 1967 . The State counsel has submitted that this marginal note "can be relied upon as indicating the drift of the section". In support of this contention he has relied upon a decision of the Supreme Court reported in Indian Aluminium Company v. Kerala State Electricity Board, AIR 1975 SC 1967 . It has been observed as follows :- "It is true that the marginal note cannot afford any legitimate aid to a construction of section but it can certainly be relied upon as indicating the drift of the section or to use the words of Collins M.R. in Bushell v. Hammond, (1904) KB 563 to show what the section was dealing with". There is nothing in the marginal note to indicate that the provisions with regard to the necessity of a quorum as envisaged in Section 88 of the Municipalities Act would not be applicable when a meeting is convened under Section 54-A(2) of the Act for the election of the Vice President. The deletion of the mandatory expression to the effect that "the following procedure shall be followed for the election of the Vice President" from Section 54-A(l) of the Act by the U. P. Amendment Act XXVII of 1964 is a clear pointer in the direction that any other provision in the said Act with regard to holding of a meeting for conducting the election of the Vice President which does not conflict with the procedure laid down in Section 54-A of the Act can also be applied. I am therefore, in agreement with the submission made by the petitioner's counsel that even while following the procedure laid down in the amended Section 54-A of the Municipalities Act for the election of the Vice President, there must exist the requisite quorum. The Division Bench case referred to above has been rightly distinguished by him. 7. Section 54-A(2) merely authorises the District Magistrate in the event of a contingency arising therein to fix a date and time for the meeting of the Board and to notify to every member of the Board seven days in advance of his intention to hold the election of the Vice President. Under sub-Section (3) of Section 54-A a Civil Judicial Officer presides over such a meeting. He has no power of voting. Under sub-Section (3) of Section 54-A a Civil Judicial Officer presides over such a meeting. He has no power of voting. In the event of equality of votes he is only authorised to decide as to who is the winning candidate by drawing of lots, but in order that such election can be validly held, a condition precedent would be the existence of the requisite quorum. 8. Section 54 lays down that the election of the Vice President shall be held by the Board from amongst its members by passing special resolution. Section 88(2) enacts that for transacting a business which is required to be transacted by special resolution not less than half of the total number of the members of the Board shall be present. In my opinion these sections should be construed in such a manner as not to infringe the rule of harmonious construction, if a different interpretation is given one can also envisage the situation where out of 21 members of the Board, the presence of even a single member would be enough for the election of a Vice President of the Board. This could never be the intention of the Statute in enacting Section 54(A) of the U. P. Municipalities Act. The State Counsel has brought to my notice a decision of a single Judge of this Court in Civil Misc. Writ Petition No. 7963 of 1974 Ballabh Dass Agrawal v. The District Magistrate dated 17-1-1975 (Alld.) in support of his submission that there is no provision for quorum under Section 54-A of the said Act. I have carefully perused this decision. The facts of that case disclosed that the District Magistrate had appointed a Deputy Collector to exercise and perform the powers of the President of the Municipal Board under Section 54-A (1) of the Municipalities Act. This action was challenged by the petitioner on the ground that the contingency as provided in Section 54-A did not exist and therefore the District Magistrate had no power to appoint the said officer to exercise the powers and function as a President. This Court agreed with the petitioner's submission and quashed the impugned order of the District Magistrate. The learned Single Judge has observed in the body of the judgment that there is no provision for quorum or adjournment in Section 54-A (2) to sub-Section (9) of the Municipalities Act. This was merely a casual observation. This Court agreed with the petitioner's submission and quashed the impugned order of the District Magistrate. The learned Single Judge has observed in the body of the judgment that there is no provision for quorum or adjournment in Section 54-A (2) to sub-Section (9) of the Municipalities Act. This was merely a casual observation. The Court was not called upon to decide whether the election of the Vice President held under the provisions of Section 54-A would be valid in the absence of the requisite quorum as provided in Section 88 (2) of the said Act. As such, I am of opinion that no assistance could be drawn by the State Counsel from the above quoted. Single Judge decision. The election of the respondent No. 2 having been held on 11-8-1975 without the quorum requisite for passing a special resolution cannot be upheld in law and must be set aside. 9. This writ petition is accordingly allowed and the declaration of Sri Ved Prakash as Vice-President of the Municipal Board, Hapur contained in the minutes dated 11-8-1975 (annexure 2) is hereby quashed. The petitioner is entitled to his costs. Petition allowed.