Mukhtar Ahmad v. District Magistrate, Nainital — 1991 DIGILAW 1171 (ALL)

JUDGMENT S. C. Verma, J. - By this petition the petitioner who is holding the office of President, Nagarpalika, Jaipur, district Nainital had initially challenged the notice issued by the District Magistrate under the provisions of Section 87A (3) of the U.P. Municipalities Act, 1916 (hereinafter referred to as, the Act), by which the meeting for confidence motion against the petitioner, was convened on 15th May, 1991. 2. A Beach of this hon'ble Court consisting of hon'ble V. N. Khare and M. P. Kania, JJ, passed an interim order dated 14th May, 1991, by which the meeting for consideration of motion for no confidence, scheduled for 15th May, 1991, was directed to be held and further in case the motion of no confidence was carried out' against the petitioner and if lie resigns, his resignation was directed not be given effect to. The motion of no confidence was carried out in the meeting held on 15th May, 1991 end, as such, the petitioner got the petition amended and also challenged the proceedings of the meeting dated 15th May, 1991 and prayed for quashing of the proceedings of the meeting dated 15th May, 1991. 3. The contesting respondents filed their counter affidavits to the mainpetition and to the supplementary affidavit, by which the amendments were incorporated in the main petition. The petitioner has also filed rejoinder affidavit and the supplementary rejoinder affidavit. Since the affidavits between the parties have been exchanged and the learned counsel for the parties have agreed that the ease be finally disposed of, the present ease is being finally disposed of. 4. We have heard Sri R. H. Zaidi, learned counsel for the petitioner and S/Sri R. R. Yadav and S. N. Singh for the respondent No. 2. 5. Learned counsel for the petitioner has challenged the notice of intention to make motion of no confidence on the ground that it has been signed by nine persons, who had presented the same to the District Magistrate and as the total number of members of the Board is nineteen, the notice is not in accordance with the previsions of section 87A (2) of the Act as it was less than one half of the total number of the members of the Board. This allegation has been strongly refuted by the learned counsel for the respondents and according to him ten persons had signed the notice and ten persons have presented the notice to the District Magistrate. In order to resolve the factual controversy the original record was summoned from the District Magistrate, Nainital. 6. Learned counsel for the petitioner has assailed the proceedings of the meeting of no confidence motion mainly on the ground that as there were nineteen members of the Board, who initially constituted the Board, only nine members had signed the notice of intention to make motion of no confidence and, as such, there was breach in compliance of the mandatory provisions of section 87A (2) of the Act. It has further been submitted that the District Magistrate had directed the Judicial Magistrate, Kashipur, in the notice issued to the members to conduct the meeting on 15th May, 1991 for consideration of no confidence motion in accordance with the provisions of section 87A(4) of the Act. It has been alleged that since provisions of sub clause (4) of Section 87A of the Act require that the District Magistrate, shall arrange for the appointment of Stipendiary Civil Judicial Officer to preside at the meeting, the Judicial Magistrate, Kashipur is not Stipendiary Civil Judicial Officer and, as such, the meeting was presided by an officer who was not competent to preside the meeting, the entire proceedings stand vitiated. 7. For considering the aforesaid arguments first, it has to be seen as to what is the number of members who constituted the Board. In the elections held in the year 1988, sixteen members including the petitioneras President were elected. Besides, sixteen Members one member was nominated by the State Government and two members who were ex officio members, being Member of Parliament and Slate Legislative Assembly, constituted the Municipal Board, Jaspur. At the relevant time the nomination of the nominated member after promulgation of U.P. Ordinance No. 2 of 1990 was cancelled and on account of dissolution of the Parliament and the Legislative Assembly the Members of Parliament and the Legislative Assembly, being ex officio member, also ceased to function as members of the Municipal Board. Thus only sixteen members including the petitioner as President were available. The provisions of Section 87A(2) of the Act are quoted below. Thus only sixteen members including the petitioner as President were available. The provisions of Section 87A(2) of the Act are quoted below. 87(1) (2) Written notice ofintention to make a motion of no confidence in its President signed by such number of members of the Board as constitute no less than one half of the total number of members of the Board, together with a copy of the motion Which it is proposed to make., shall be delivered in person together by any two of the members signing the notice to the District Magistrate .. S. For the purposes of provisions of Section 87A (2) of the Act, the number of members, who initially constituted the Board, would be treated as the number which would constitute the Board and thus nineteen members would be treated to constitute the Municipal Board, Jaspur. The controversy as to whether the number of members who initially constituted the board Would be the number of members of the board or the number of members Who for the time being constituted the board, was considered by a Full bench decision of this Court in Mengla Prasad Jaiswal v. District Magistrate AIR 1971 All 17 (FB) and it has been laid down. In our opinion there is force in this contention. It wirt be noticed that in Section 87A itself sub sections (2) and (12) use the Words total numbers of members of the board whereas sub section (13) uses the words total number of members of the board for the time being. The use of the two different expressions at two different places in the same section suggests that they have different connotations. Prima facie such art alteration would be considered intentional. See Guardians of Parish of Brighton v. Guardians of Strand Union (1891) 2 QB 156 at page 167, Malikarjunarao v. Official Receiver, AIR 1938 Mad. 449 at page 454: Manicklall v. S. D. Dabiruddin Ahmad, AIR 1951 Calcutta 236 at page 237: In reChundura Venkata Subramonyam, AIR 1955, Andhra Pradesh 74 at ' page 77. See Guardians of Parish of Brighton v. Guardians of Strand Union (1891) 2 QB 156 at page 167, Malikarjunarao v. Official Receiver, AIR 1938 Mad. 449 at page 454: Manicklall v. S. D. Dabiruddin Ahmad, AIR 1951 Calcutta 236 at page 237: In reChundura Venkata Subramonyam, AIR 1955, Andhra Pradesh 74 at ' page 77. Applying this principle the total number of members of the board simplicitor is something different from the total number of the members of the board for the time being While total number of members of the board for the time being, must take into account the casual vacancy, the total number of members of the board can only mean total number of members initially constituting the Board. Thus it has been held that the number of the board would mean the total number of members, which initially constituted the board. 9. The aforesaid position has not been disputed by the learned counsel for the respondents and he is agreeable that the total number of members to constitute the board would be nineteen. 10. The other aspect of the matter, to be considered is as to whether the provisions of section 87A (2) of the Act are mandatory or directory. 11. Maxwell on interpretation of Statutes Eleventh edition at page 362 puts the position as follows: When a statute requires that something shall be done, or done in a particular manner or form, without expressly declaring that shall be the consequence of noncompliance, the question often arises. What intention is to be attributed by inference to the legislature? Where, indeed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other, no doubt can be entertained as to the intention. 12. The object of the procedure prescribed by section 87A of the Act is that vote of no confidence should not be passed indirectly against the President and that vote of no confidence should not be obtained by means of snap division. The detailed manner in which the prescriptions have been laid down, seems to suggest that the intention pf the Legislature was that every care should be token that strict procedure is followed and impartial verdict is obtained after due consideration of the motion. The detailed manner in which the prescriptions have been laid down, seems to suggest that the intention pf the Legislature was that every care should be token that strict procedure is followed and impartial verdict is obtained after due consideration of the motion. The legislature for these reasons required the notice of intention to make a motion of no confidence against the President should be signed by not less than half of the total number of members of the board and the notice together with a copy of motion which it proposes to make be delivered in person by any two members signing the notice to the District Magistrate. The methodology of serving the notice of intention to make a motion of no confidence indicates that there should be strict compliance of the requirements contained therein and the mandatory procedure is required to be followed. 13. Section 87A of the Act deals with the motion of no confidence against the President of the Municipal Board. It begins by stating that subject to the previsions of this section motion expressing no confidence in the President can be made only in accordance with the procedure laid down in this section. The useof the word 'only' is significant and with the use of word 'shall' in section 87A (2) of the Act, it appears that the compliance is mandatory. 14. The President who is at the apex of the local civic administration, holds an elected office The meeting which is to be specially convened for the ouster of the President on account of the defaults committed in performance of his duties and maladministration, the members are required to initiate proceedings only in genuine cases and, therefore, strict compliance of the procedure to convene this meeting, has to be very strictly followed, to avoid any harassment and malafide proceedings. A motion of no confidence is a potent weapon in the hands of an elected body, where by that body keeps under check its officers. It also is a matter of great significance and vital importance to the officers, that such motions are not lightly made or carried through without due regard being had to the prescribed form for their passing. 15. It also is a matter of great significance and vital importance to the officers, that such motions are not lightly made or carried through without due regard being had to the prescribed form for their passing. 15. In our opinion, written notice of intention to make a motion of no confidence signed by not less than one half members of the total number of the board together with a copy of the proposed motion to be delivered in person by any two members who had signed the notice to the District Magistrate are prerequisite conditions which have to be Very strictly complied with and the provisions in this regard are mandatory. 16. In the present case, therefore, the notice of intention to make motion of no confidence in accordance with the provisions of section 87A (2) of the Act will have to be signed by minimum of ten members and to be presented by any two members who had signed the notice to the District Magistrate. 17. According to the petitioner only nine persons namely S/Sri shahid Hussain, Kewal Singh, Jagdish Prajapati, Ram Kumar Singh, Anil Kumar, Chaudhary Yashpal Singh, Ram Niwas, Deokinandan Singh and Satish Kumar, had signed the notice and these very nine persons have presented the notice on 12th April, 1991 to the District Magistrate. Further, according to the petitioner this notice was not accompanied by a copy of proposed motion and a separate application which was signed by ten presons along with copy of the proposed motion, was filed. This second notice dated 12th April, 1991 was also accompanied by ten affidavits of the persons who had signed the notice. Learned counsel for the petitioner contended that the first notice dated 12th April, 1991 containing nine signatures was actually presented by nine members but the second notice dated 12th April, 1991 containing ten signatures was net presented by required number of persons who had signed the notice, as there is no endorsement on this notice by the District Magistrate for presentation in person as required under the provisions of section 87A (2) of the Act. 18. 18. On the other hand the learned counsel for the respondents strongly denied the factual position and according to him the notice of intention to make motion of no confidence was signed by ten persons namely S/Sri Shahid Hussain, Kewal Singh, Jagdish Prajapati, Ram Kumar Singh, Anil Kumar, Chaudhary Yashpal Singh, Ram Niwas, Deokinandan Singh, Satish Kumar and A. Majid. 19. On perusal of the original record by us it is clear that on the notice of intention to make motion of no confidence the name of nine persons were typed serially on one column on the right hand side, who had also signed the notice. The name of tenth member Sri A. Majid who is alleged to have signed, has been mentioned in hand writing on the left hand side of the column and his signatures are present. This notice has been presented by nine persons whose signatures have been identified by one Sri G.S. Siddiqui, Advocate, & there is an endorsement of presentation, by the District Magistrate dated 12th April, 1991. It is correct that this single sheet of notice did not contain any copy of proposed motion of no confidence. There is another notice of intention to make motion of on confidence dated 12th April, 1991 which contains the name of ten persons, which have been typed serially on the right side. These ten persons have also appended their signatures on the lefthand side of the column. These signatures on the notices have been identified and attested by Sri G.S. Siddiqui, Advocate. This notice is accompanied with the proposed motion of no confidence which has also been signed by the same ten persons, whose signatures have been identified by Sri G.S. Siddiqui and is dated 12th April, 1991. This notice is further accompanied with ten affidavits of those persons who have signed this notice. It may be noted here that on the second notice, which is accompanied with the proposed motion of no confidence and affidavits of those persons who have signed the notice, there is no endorsement of presentation, by the District Magistrate. 20. The aforesaid nature of documents on record, which have been described in detail, indicated that initially the notice of intention to make motion of no confidence was presented by nine persons, who had signed and was actually delivered by them to the District Magistrate. 20. The aforesaid nature of documents on record, which have been described in detail, indicated that initially the notice of intention to make motion of no confidence was presented by nine persons, who had signed and was actually delivered by them to the District Magistrate. Later on, it appears, that they realised the mistake of notice being incomplete and invalid, and as such, second notice containing the signatures often persons alongwith proposed motion of no confidence and the affidavits of those persons, was filed. Further to rectify the mistake, it appears that in the first notice the name of Sri A, Majid, as tenth member was added by manipulation and by tampering the original record 21. In our opinion both the notices, if considered, do not fulfil the requirements of the provision of section 87A (2) of the Act. The first notice dated 12th April, 1991 even if contains forged signature of Sri A, Majid, as tenth member and is taken into account, would not fulfil the requirements of the provisions of section 87A (2) of the Act, as it did not contain the proposed motion of no confidence. The second notice dated 12th April, 1991, which is on record, although contained ten signatures on the notice of intention to make motion of no confidence and is accompanied with the proposed motion and the affidavit of ten persons, who have signed the notice, has not been presented to the Distt. Magistrate as there is no endorsement of presentation, by the District Magistrate on this notice. 22. In our opinion the respondents have tried to commit fraud by adding one more name to the first Notice dated 12th April, 1991. But as it was deficient without copy of proposed motion of no confidence, both the notices which are on the record, in our opinion, do not meet the mandatory requirements of section 87A (2) of the Act, and are invalid. 23. These fasts are further established as the District Magistrate while issuing notice under the provisions of section 87A (3) of the Act had mentioned that nine Members, who had signed the notice had actually presented the notice on 12th April, 1991. 24. 23. These fasts are further established as the District Magistrate while issuing notice under the provisions of section 87A (3) of the Act had mentioned that nine Members, who had signed the notice had actually presented the notice on 12th April, 1991. 24. This establishes that by the time this notice under section 87A (3) was issued the records were not tampered and on the basis of record which contained nine signatures on the notice, the aforesaid notice dated 151991 was issued. Since the original record was before us we also had an opportunity to see the official notings on the file dated 15th April, 1991 on the basis of which notice dated 151991 was issued. In these official notings it is clearly mentioned that nine members who had signed the notice and they themselves have presented the notice to the District Magistrate. The relevant portion of the official notings are quoted below. 25. On the basis of the aforesaid material we are satisfied that in the first notice the intention to move motion of no confidence dated 12th April, 1991, initially only nine members had signed and the signature of tenth member was obtained by manipulation and by tampering of the records. Since fraud vitiates even the most solemn proceedings, in our opinion the notice alleged to be containing the signatures of ten members cannot be treated to be a valid notice. The other notice dated 12th April, 1991 of intention to move motion of no confidence accompanied with the proposed motion also cannot be treated to be a valid notice as there is no endorsement of presentation by the District Magistrate. The District Magistrate has also rightly not considered this notice to be a valid notice and has not issued notice dated 1st May, 1991 on the basis of this notice convening the meeting on 15th May, 1991, as he has mentioned that nine members, who had signed the notice, all the members had presented the same to him. To us it is fully established that the notice issued under section 87A (3) of the Act was issued by the District Magistrate, on the basis of first notice dated 12th April, 1991 containing signatures of nine members only. 26. To us it is fully established that the notice issued under section 87A (3) of the Act was issued by the District Magistrate, on the basis of first notice dated 12th April, 1991 containing signatures of nine members only. 26. Learned counsel for the respondents have again tried to conceal their fraud in very crude manner and have brought on record a letter from the District Magistrate dated 4th June, 1991, addressed to Up Sachiv, U.P. Shasan, Nagar Vikas Anubhag, Lucknow. In this letter it has been stated that the notice of intention of no confidence motion against Sri Mukhtar Ahmad, President, Nagarpalika, Jaspur was presented by nine members on 1241991 and out of sixteen members ten members have voted in favour of the motion. On the basis of this letter learned counsel for the petitioner argued that actually ten members had signed the notice, presented by nine members and the notice complied with the requirements of section 87A (2) of the Act. la our opinion after perusal of the original record and the material, which has been stated above, there is no room left to doubt that the notice of intention to move motion of no confidence was intitially signed by only nine members and was presented also by nine members. 27. For the reasons stated above, as the notice of intention to move motion of no confidence was not in compliance with the mandatory provisions of section 87A(2) of the Act, the entire proceedings regarding the meeting, considering the motion of no confidence, are liable to vitiate. 28. However, the other argument of the learned counsel for the petitioner with regard to the appointment of Judicial Magistrate, Kashipur, to conduct the meeting, is not tenable in law. Sri O. P. Agarwal, joined the Judicial service as Munsif in the year 1985. Sri O. P. Agarwal, was transferred as Judicial Magistrate, Kashipur in 1989. Sri Agarwal continued to be Munsif and he was given additional powers of Judicial Magistrate, Kashipur. Thus Sri O. P. Agarwal, is a Munsif Magistrate and was competent to function as 'Stipendiary Civil Judicial Officer' to preside and conduct the meeting in accordance with the provisions of sub clause (4) of section 87A of the Act. 29. For the aforesaid reasons the petition succeeds and is allowed. Thus Sri O. P. Agarwal, is a Munsif Magistrate and was competent to function as 'Stipendiary Civil Judicial Officer' to preside and conduct the meeting in accordance with the provisions of sub clause (4) of section 87A of the Act. 29. For the aforesaid reasons the petition succeeds and is allowed. The entire proceedings of the meeting held on 15th May, 1991, in which motion of no confidence has been passed against the petitioner Sri Mukhtar Ahmad, President, Nagarpalika, Jaspur, are quashed. It is directed that Sri Mukhtar Ahmad, would continue to function as the President of Nagar paiika, Jaspur, district Nainital, till the completion of his tenure or till he is removed in accordance with law. (Petition allowed).