SRI AMIR AHMAD AND ORS. A  v.  

RAM NIWAS AGRAWAL AND ORS.  

NOVEMBER 19, 1993  

(MADAN MOHAN PUNCHHI AND B.P. JEEVAN REDDY, JJ.] B  

U.P. Municipalities Act, 1916-Seclion 87A(ll) (12)-Municipal Board  -President-Motion of non-confidence duly passed in a properly convened  meeting presided over by a judicial officer-Held, cannot be declared void on  vague and half-hearted findings. C  

S.9(d}-<:omposition of Municipal Board-Members of Council of  States and State Legislative Council to be ex-officio members-Held, place of ·  residence as mentioned in notification of election or nomination is relevant  and determines membership in a Municipal Board and change of residence  after election or nomination is not relevant. D  

WoriU and Phrases--Expression. 'residence' occuning in Explanation to  s.9(d) of U.P. Municipalities Ac4 1916-lnterpretation of.  

Respondent no.1 was the President or a Municipal Board. A no-con•  ftdence motion was moved against blm. An Additional District Jndge was E  nominated to preside over the meeting to consider the motion. As per the  minutes of the meeting sixteen members Including the President were  present, besides an M.L.C. who claimed to be an ex-officio member or the  Board and whose claim was rejected by the Presiding omcer; these ·  nominated members whose right to participate In the meeting was dlspnfed  on the ground that they had not taken the oath or allegiance, were allowed F  by the Presiding omcer to participate In the meeting and vote on lhe  motion; seventeen members, Including the three nominated members voted  In favour of the motion and one, the President himself, voted against It; the  Presiding omcer declared the motion to have been passed by the majority  Inasmuch as the total membership or the Board was tWenty seven. 1be G  respondent filed a writ petition before the High Court. Challenging tht  validity of the proceedings or the meettni.  

The High Court allowed the writ petition holding that (I) the M.L.C.  must be deemed to be member of the Board (II) though In determining the  total membership of the Board the three nominated member must be taken H  

815

816 SUPREME COURT REPORTS (1993] SUPP. 3 S.C.R ..  

A into account, but since they had not taken the oath of allegiance, they were  not entitled to take their seats in the Municipal Board and vote and,  therefore, their votes were liable to be excluded and (iii) the presence of two  Executive Officers vitiated the proceeding~ as no acceptable reason for  their P.!""sence in the meeting hall was given.  

B The appeal filed by the appellants challenging the correctness of the  

c  

reasons given by the High Court was allowed by this Court's order dated  12.8.1993, indicating that reasons therefor would follow.  

Giving the reason for allowing the appeals, this Court  

HELD : 1.1 By virtue of s.9(d) of the U.P. Municipalities Act, 1916,  members of the Counsel of States (Rajya Sabha) and the State Legislative  Council "who have their residence within the limits of the Municipality"  become the members of the Municipal Board. For the purpose or the U.P.  Municipalities Act, 1916, the place of residence of a member of the State  

D Legislative Council' shall be deemed to be the place of his residence men- tioned in the notification of bis election or nomination, as the case may be',  and it is the said residence which is relevant and determines his member·  ship In the particular Municipal Board, as envisaged by the Explanation to.  clause (d) ofs.9. This elucidation was thought necessary not only to obviate  

E any room for confusion but also to prevent such persons from claiming  membership of different Municipal Boards at different times to suit their  convenience of political objectives by changing their residence. (820-E-H)  

1.2 Even if member mentioned _In s.9(d) of the Act changes his  residence after his electl"n/nomlnatlon, it is irrelevant for the purpose of  

F his membership In a Municipal Board. If he becomes an ex-officio member  or a particular Municipal Board by virtue of the place or residence men·  tloned In the notification of his election/nomination he does not lose it by  changing his residence to a place outside the limits of that Municipal  Board. Similarly if he did not become in ex-officio member of any  

G Municipal Board because his place of residence mentioned in the Notlfica·  tlon of his election/nomination did not ran within the local limits of a  Municipal Board, he does not and cannot gain such membership by  shifting his residence to a place within the local limits of a Municipal  Board (821-H, 822-A·B)  

H 1.3 In the Instant case, the place of residence of the M.L.C. concerned  

I

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'A.AHMADv. R.N.AGRAWAL 817  

In the Notification of his election is shown to be his village, which is not A  within the Municipal Limits of the Municipal Board in question. He claims  to be a member of the Board on the basis of a notification issued by the  Secretary to the State Legislative Council about ten days prior to the  meeting of the Board, notifying the change of address from bis village to  a place within the Municipal limits of the Board. The said notification not B  being relevant for the purpose of the Section 9 of U.P. Municipalities Act,  the Presiding Officer was right in not allowing him to participate In the  said meeting and In rejecting bis claim of membership of the Board.  

[822-A·D)  

2. Once the M.L.C. concerned is not treated as a member of the C  Municipal Board, the total membership of the Board bas to be treated as  twenty-seven, even counting the three nominated members as the members  or the Board as on the elate of the meeting and even If the votes or the said  three nominated members are excluded, still the number of voters cast In  favour or the motion would be fourteen which would be more than half the  total number of members of the Board, as required by Sub-Section (12) of D  s.87·A or the Act. In this view or the matter, the question or membership  of the three nominated members for the purpose of strength of the Board  and their entitlement to vote, need not be gone Into. [822-E-F]  

3.1 The 'minutes of the meeting' recorded by the Presiding Oftlcer as E  required by sub-section (11) of Section 87·A does not refer to or order the  presence of the two Executive Oftlcers at the meeting much less does it ,  speak of any Interference by them In the deliberations of the members or  with the voting. It Is highly unlikely that the Presiding Oftlcer • a judicial  officer, against whom, fortunately, no allegation Is made ·would not have  recorded the Interference by these omclals, If, indeed, there was any. The F  Wgb Court bas not adverted to this Important feature In its judgmenL  

[823-E-F)  

3.2 The motion of non..:onftdence duly passed at a properly convened  meeting • that too presided over by a judicial officer • cannot be declared  void on vague and half hearted findings. A Municipal body is an Instance of G  local self-govemmenL It is a statutory body. Its actions are governed and  regulated by a statute. In the absence of a clear ftndlng that the proceedings  of the said meeting convened under Section 87·A have been vitiated by  unauthorised interference, duress or undue lnftuence, as the case may be,  dill ~ngs could not have been declared 'vitiated' ·I.e. void. (1124-A·B] H

818 SUPREME COURT REPORTS (1993] SUPP. 3 S.C.R.  

A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6006 of  1993.  

From the Judgment and Order dated. 12.8.93 of the Allahabad High  Court in W.P.No. 12911 of 1990.  

B Arun Jaitley and Devendra Singh for the Appellants.  

c  

Gopal Subramanium and Ms. Sandhya Goswami for the Respon- ·  dents.  

The Judgment of the Court was delivered by  

B.P. JEEV AN REDDY, J. On February 1, 1993 we granted leave to  appeal in the Special Leave Petition and allowed the Civil Appeal setting  aside the Judgment and Order of the Allahabad High Court dated 12th  August, 1993 in writ petition 12911{M/B) of 1990. We indicated that the  reasons for our order will be given later. The following are the relevant  

D facts and reasons for our order :  

First respondent, Ram Niwas Agarwal, was the President of the  Nagar Palika, Sultanpur in the State of Uttar Pradesh. A motion expressing  want of confidence in him was moved by the requisite number Of members.  

E A meeting of the Nagar Palika was convened on December 14, 1990 to  consider the motion. As required by Section 87-A{4) of the U.P.  Municipalities Act, 1916, the District Judge, Sultanpur nominated Sri  Vishram Singh, First Additional Civil Judge, Sultanpur to preside over the  meeting. The minutes of the meeting recite the following facts : . .  

F When the meeting commenced, sixteen members including the Presi- dent were present besides, Sri Ram Dular Yadav;M.L.C., who claimed to  be an ex-officio member of the Nagar Palika. His claim was considered and  rejected by the President Officer. Three woman, nominated as members  by the government on the previous day, presented themselves and sought  

G participation in the meeting. A dispute was raised with respect in their right  to participate in the meeting on the ground that by the date they had not  taken the oath of allegiance. The Presiding Officer allowed the said  nominated members to participate in the meeting and to vote on the  motion. The voting figures were seventeen {including three votes of three  nominated members) in favour of the motion and only one, viz., that of the  

H President himself against the motion. The Presiding Officer declared the

AAHMADv. R.N.AGRAWAL[JEEVANREDDY,J.] 819  

motion to have been passed by the majority inasmuch as the total member- A  ship of the Board (Nagar Palika) was twenty-seven. He opined that even  if the total membership is taken as twenty-eight (including the membership  of aforesaid M.L.C.) still the motion must be deemed to have been passed.  

The President of the Nagar Palika (first respondent in this Appeal)  challenged the validity of the said proceedings by way of a writ petition in B  the Allahabad High Court, Lucknow Bench. A Division Bench allowed the  writ petition on the following three grounds:  

(1) The votes of three nominated members are liable to be excluded  because they had not taken the oath of allegiance till then. Unless they took C  the oath of allegiance, they were not entitled to take their seat in the Nagar  Palika or to vote. However, for the purpose of total membership, the said  three members must be counted, which means that in determining the total  strength of the Nagar Palika on that day, these three members must also  be taken into account.  

(2) The Presiding Officer was in error in rejecting the claim of Sri  Ram Dular Yadav, M.L.C. to be a member of the Nagar Palika. He must  be deemed to be a member. With him; the total membership goes upto  twenty-eight.  

(3) At the meeting convened to consider the motion of no-con- fidence, two Executive Officers, viz,. Additional district Magistrate (F&R)  and Additional District Magistrate (E) were present. No acceptable reason  has been assigned for their presence within the hall where the meeting was  going on. "It was done with mala fide intention which would vitiate the  

D  

E  

proceeding." F  

The correctness of the above grounds is questioned in this appeal  

This first question is whether Sri Ram Dular Y adav was and could  be treated as a member of the Nagar Palika on the relevant date? This  issue is of crucial importance, inasmuch as if he is not treated as a member, G  the total membership would be twenty-seven in which event the motion  would succeed even if the three votes of nominated members are excluded.  For a proper appreciation of the question, it is necessary to notice Section  9 of the Act which deals with the composition of the Board. In so far as it  is relevant, Section 9 reads: H

820  

A  

B  

c  

D  

SUPREME COURT REPORTS (1993] SUPP. 3 S.C.rl.  

"9. Normal composition of the Board :- Expect as otherwise  provided by Section 10, a Board shall consist of :-

(a) the President;  

(b) the elected members who shall not be less than 10 and  not more than 40, as the State Government may by notifica- tion in the Official Gazette specify;  

( c) the ex-officio members comprising all members of the  House of People and the State Legislative Assembly whose  constituencies include the whole or part of the limits of the  Municiplaity;  

( d) the ex-officio members comprising all members of the  council of State and State Legislative Council who have their  residence within the limits of the Municipality.  

Explanation :-For the purpose of this clause, the place of residence  of a member of council of State or the State Legislative Council  shall be deemed to be the place of his residence mentioned in the  notification of his election or nomination, as the case may be.'  

E By virtue of Section 9( d), members of the Council of States (Rajya  Sabha) and the State Legislative Council, 'who have their residence within  

. the limits of the Municipality" become the members of the Board (Nagar  Palika). The Explanation to clause ( d) elucidates the meaning of the  expression 'residence'. It says that for the purpose of the said clause, the  

p place of residence of a member 'shall be deemed to be the place of his  residence mentioned in the notification of his election or nomination, as  the case may be'. Evidently, the object and purpose of the Explanation is  to fix the residence of a member of the Rajya Sabha or State Legislative  Council as the one mentioned in the notification of his election (if he is an  elected member) or in the notification of his nomination (if he is a  

G nominated member). For the purpose of the U.P. Municipalities Act, it is  the said residence which is relevant and determines their membership in a  particular Municipal Board (Nagar Palika). This was thought necessary, it  is obvious, not only to obviate any room for confusion but also to prevent  these persons from claiming membership of different Municipal Boards at  

H different times, to suit their convenience or political objectives, by changing

, AAHMADv. R.N.AGRAWAL(JEEVANREDDY,J.] 821  

their residence. A member of Council of States elected from a State has A  no territorial constituency as such, since he is elected by the members of  the Legislative Assembly (Article 80(4)). So does a nominated member  have no territorial constituency. Similar is the situation ·in the case of most  of the members of the Legislative Council (See Articlel 71 regarding the  composition of the Legislative Council). A comparison of the language B  employed in clause ( c) of Section 9 with that employed in clause ( d} thereof  also illustrates the reason for engrafting the said Explanation to clause ( d)  alone. So far as Sri Yadav is concerned, he is ·a member of the State  Legislative Council. It is an admitted fact that in the notification of his  election, his place of residence is shown to be his village Sakaura, which is  not within the Municipal limits of Sultanpur. It, however, appears that C  about ten days prior too the said meeting, a notification was issued by the  Secretary to the Legislative Council, Uttar Pradesh (on December 4, 1990)  notifying the change of address of Sri Yadav from village Sakaura to House  No. 914, Civil Lines No. 1, Sultanpur. It is by virtue of the said change of  address that Sri Yadav claimed to be a member of the Municipal Board, .D  Sultanpur. The High Court opined, disagreeing with the Presiding officer,  that the said change of address makes Sri Yadav a member of the Sultan- pur Board. The High Court opined that the· notification changing his  residential address of the said Sri Y adav was a valid one and was not under  challenge by anyone and, therefore, the said Sri Yadav had validly become E  a member of the Sultanpur Board. We find it difficult to agree with the  High Court in view of the aforesaid Explanation. It is true that the  Secretary to the Legislative Council had issued a notification changing the  place of residence of the said Sri Yadav from village Sakaura to a residen- tial house at Sultanpur and that the said notification was not challenged by '  anyone, but the question is whether th~ said notification.was relevant at all F  for the purpose of the U.P. Municipalities Act and whether Sri Yadav  could claim to be a member of Sultanpur Municipal Council by virtue of  ~e said change of residence. As explained hereinabove, the very idea  behind the Explanation to Section 9( d) was to fix the place of residence of  a member of Rajya Sal:>ha or a member of State Legislative' Council, as the G  case may be, for the purpose of his membership in a particular Municipal ·  Board. It is the place of his residence mentioned in the notification of his  election of nomination, as the case may be. Even if he changes his residence  after his election/nomination, it is irrelevant for the purpose of his mem- bership in a Municipal Board. If he becomes an ex-officio member of a H

822 SUPREME COURT REPORTS (1993] SUPP. 3 S.C.R.  

A particular Municipal Board by virtue of the place of residence mentioned  in the notification of his election/ nomination he does not lose it by  changing his residence to a place outside the limits of that Municipal  Board. Similarly, if he did not become an ex-officio member of any  Municipal Board because his place of residence mentioned in the Notifica-

B tion of his election/nomination did not fall within the local limits of a  Municipal Board (as in the case of Sri Yadav) h~ does not and cannot gain  such membership by shifting his residence to a place within the local limits  of a MUDU:ipal Board. Any other construction would enable three persons  to shift their membership from one Municipal Board to another to suit  their political objective and strategies by shifting their residence from time  

C to time. Such a course would render the Explanation aforesaid redundant.  We cannot adopt any such interpretation. We are, therefore, of the  opinion that the notification issued by the Secretary to the Legislative  Council changing the place of residence of the said Sri Yadav was not  relcVl\Dt for the purpose of the Section 9 of the U.P. Municipalities Act,  

D which meant that by virtue of the said change of place of residence, Sri  Yadav did not and could not become a member of the Sultanpur Municipal  Board. The Presiding Officer was , therefore, right in not allowing him to  participate in the said meeting and in rejecting his claim of membership of  Sultanpur Municipal Board  

E Once Sri Yadav is not treated as a member of the Municipal Board,  the total membership of !he Board has to be treated as twenty- seven, even  if we count the three nominated members as th8 members of the Board as  on the date of the meeting held on December 14, 1990. Even if we exclude  the votes of the said three nominated members, still the number of votes  

F cast in favour of the motion would be fourteen which would be more than  half the total number of members of the Board, as required by sub-section  (12) of Section 87-A of the Act. Sub-section (U) reads as follows: 'The  motion shall be deemed to have been carried only when it has been passed  by a majority of more than one half of the total number of members of the  Board.' Fourteen is certainly a majority of more than one half of twenty-

G seven members.  

We may now take up the question whether the presence of two  officials as vitiated the proceedings of the said meeting. The High Court is  of the view that by virtue of sub-section (4) of section 87-A, only the officer  

H nominated by the District Judge shall preside over the meeting 'and no

AAHMADv. R.N.AGRAWAL(JEEVANREDDY,J.] 823  

other person shall preside there at". The said sub-section means, according A  to the High Court, that no other person except the Presiding Officer (and  the members of the Board) shall be present at the meeting. The High Court  has observed that the respondents in the writ petition have not properly  explained the presence of the said two officers in the meeting hall. The  Explanation that they were posed to meet the and order situation was B  rejected as unacceptable. The conclusion of the High Court on this aspect  reads: "We think, in such circumstances, it will not be necessary to go into  fact as to whether they actually participated in the discussion and what was  canvassed by them. The whole attitude itself by positing Executive officers  in a meeting, which is supposed to be presided over only by a Judicial  Officer, on the pretext of handling of law and order situation in the absence C  of any thing to indicate as to what kind of apprehension existed there, is  enough to show that it was done with mala fide intention which would  vitiate the proceedings.' At an earlier stage, the High Court had observed:  'we have no reason to disbelieve the case that the two officers sitting on  the either side of the Presiding Officer had been interfering in the D  proceedings", but it has not recorded or found what precise interference  did they cause. Indeed, the concluding portion of their judgment quoted  above shows that in the opinion of the ·High Court the very presence of  these officials was the vitiating factor - without anything more. We find  extremely difficult to agree with the High Court. Firstly, it may be noted, E  the 'minutes of the meeting' recorded by Sri Vishram Singh (First Addi- tional CM! Judge, Sultanpur, nominated by the District Judge, Sultanpur)  as required by sub-section (11) of Section 87-A does not refer to or record  the presence of the said officers at the meeting much less does it speak of  any interference by them in the deliberations of the members or with the  voting, as the case may be. It is highly unlikely that the Presiding Officer - a Judicial Officer, against whom fortunately, no allegation is made - would  not have recorded the interference by these officials, if, indeed, there was  

F  

any. The High Court has not adverted to this important feature in its  judgment. It also does not appear that anyone had objected to their  presence there. It is not even suggested that the said officers were inter- G  cstcd in the group seeking to remove the President or that they had any  reason to be so interested. The officials are fairly of a high rank (Additional  District Magistrates) and in the absence of a specific allegation against  them, we cannot presume either that they had interfered with the proceed- ings of the meeting or that they had influenced the voting on the motion. H

824 SUPREME COURT REPORTS [1993] SUPP. 3 S.C.R.  

A It is also not clear as to who posted them there and what interest the person  posting those officials at the meeting had. The motion of no-confidence  duly passed at a properly convened meeting - that too presided over by a  judicial officer - cannot be declared void on such vogue and half-hearted  findings. A Municipal body is an instance of local self- government. It is a  

B statutory body. Its actions are governed and regulated by a statute. In the  absence of a clear finding that the proceedings of the said meeting con- vened under Section 87-A have been vitiated by unauthorised interference,  duress or undue influence, as the case my be, the proceedings could not  have been declared 'vitiated' - i.e., void.  

C In view of our opinion on the.above two questionr, it is not necessary  for us to go into the correctness of the other ground given by the High  Court, viz., that the three nominated members were not entitled to par- ticipate in the said meeting or to vote on the motion inasmuch as they had  not taken the oath of allegiance before such participation. In is equally  unneces8ary to go into the question whether they should be deemed to the  

D members of the Municipal Board as on December 14, 1990 for the purpose  of ascertaining the total strength of the Board on that date even though  

. they ·were not entitled to participate in or vote at the said meeting.  Assuming that both the above premises are correct, the motion still got the  majority votes.  

E It is for the above reasons that the Judgment of the High Court was  . set aside by our Order dated November 1, 1993.  

R.P. Appeal allowed.