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PETITIONER: JIVENDRA NATH KAUL ETC.

       Vs.

RESPONDENT: THE COLLECTOR/DISTRICT MAGISTRATE AND ANR. ETC.

DATE OF JUDGMENT24/07/1992

BENCH: VENKATACHALLIAH, M.N. (J) BENCH: VENKATACHALLIAH, M.N. (J) SAWANT, P.B. SINGH N.P. (J)

CITATION:  1994 AIR   85

ACT:      U.P.  Kehhetra  Samiti and  Zilla  Parishad  Adhiniyam, 1961:      Section   28(11)-President-No  confidence   motion-When carried out-‘For’ the time being’-Interpretation of-Means at the   moment  or  existing  position-Actual  membership   in existence on date of no confidence motion.

HEADNOTE:      The  appellant  was  elected  president  of  the  Zilla Parishad on January 25, 1989.  Two others were nominated  as members  of  the  Zilla  Parishad.   On  the  date  of   its constitution the Zilla Parishad had a total of 62 members.      On  August 17, 1990, 56 members of the  Zilla  Parishad moved  a  no confidence motion against the  president  under Section  28 of the U.P.  Kehhetra Samiti and Zilla  Parishad Adhiniyam,  1961.  The meeting to consider the  said  motion was  held on September 14, 1990. 34 members were present  at the meeting.  33 members including the two nominated members voted  in  favour  of  the motion  while  one  member  voted against, and as such the motion of no confidence was carried out against the president.      The  appellant  filed two writ petitions  in  the  High Court  and challenged and proceedings of the  meeting  dated September  14, 1990 and also his removal from the office  of the president.  He further challenged the nomination of  the two  nominated  members on the ground that on  the  date  of their nomination both of them were in government service and as  such  were  disqualified  to be  members  of  the  Zilla Parishad, being holders of an office of profit.      The High Court by its judgment partly allowed the  Writ Petitions  and set aside the nominations of the two  members holding  the same to be illegal.  It further held,  that  as they  were not lawful members of the Parishad,  their  names are to be ignored, that the total strength of the members of the  Parishad for the time being comes to 60, and  if  these two                                                        643 names are also excluded from the number of members who voted for the action of no confidence, the number of such  members who voted for the motion of confidence, comes to 31.   Thus, 31 members voted for the action of no confidence out of  the

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total strength of 60 members, and therefore the irresistible conclusion was that the motion of no confidence was  carried out by more than half of the total number of members of  the Zilla Parishad for the time being.      The  appellant filed appeals to this Court  by  Special Leave.  It was contended on behalf of the appellant  relying on  an earlier judgment of the High Court in Bhaiya  Lal  v. P.N.  Tiwari 1970 Allahabad Law Journal 36, that  the  words "for  the  time being" in Section 28(11)  of  the  Adhiniyam means  the total number of members in existence at the  time of  the  constitution of the Zilla Parishad and not  on  the date when the motion of no confidence was considered.      Dismissing the appeals, this Court,      HELD : 1. "For the time being" in section 28(11) of the Adhiniyam  means at the moment or existing position.   These words  indicate  the actual membership in existence  on  the date of the motion of no confidence. [648A]      2.  The High Court in Bhaiya Lal’s case has  not  given natural meaning to the expressions contained in sub-sections 12  and 13 of section 87-A of the U.P.  Municipalities  Act, 1916.  The only meaning which can be given to the expression "half  of the total members of the Board" is the members  as existing on the date of its constitution.  The High  Court’s interpretation is contrary to the plain language of the sub- section.  Similarly, the High Court fell into grave error by not  appreciating  the plain meaning of the words  "for  the time  being" in sub-section 13 of section 87-A of  the  Act. On  the  basis  of  strained  reasoning  it  has  given   an interpretation which does not flow from the simple  language of  sub-sections 12 and 13 of section 87-A of the Act.   The High Court Judgment does not therefore lay down the  correct law. [647F-648B]      Bhaiya  Lal  v. P.N. Tiwari, 1970 All. L.J.  36,  over- ruled.      In  the instant case, where out of total number  of  62 members, nomination of two having been held illegal,  actual membership  on  the date of the motion was 60,  and  out  of total 34 members present in the meeting,                                                        644 33 voted for the motion and only 1 voted against, it has  to be  held  that  the  motion  was  carried  out  against  the President. [646 E-F]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.  2652- 53 of 1992.      From  the  Judgment  and Order dated  6.3.1991  of  the Allahabad  High Court in W.P. No.8460 of 1990  and  C.M.W.P. No. 9514 of 1990.      Satish Chandra P.K. Chakraborty and Ms. Sandhya Goswami for the Appellant.      The Judgment of the Court was delivered by      KULDIP SINGH, J. Special leave granted.      J.N.  Kaul  was elected president  of  Zilla  Parishad, Lucknow  on  January 25, 1989. D.K. Anand and  Nand  Kishore Verma  were nominated as members of the zilla Parishad.   On the date of its constitution the Zilla Parishad had total of 62  members.   On August 17, 1990 56 members  of  the  Zilla Parishad moved a no confidence motion against the  president under section 28 of U.P. Kehhetra Samiti and Zilla  Parishad Adhiniyam,  1961  (hereinafter  called  as  the  Adhiniyam). Section  28(11)  of the Adhiniyam which is  relevant  is  as under:-

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    "If the motion is carried with the support of more than half  of the total number of members of the  Zilla  Parishad for the time being......"      The meeting to consider the motion of no confidence was held  on September 14, 1990. 34 members were present at  the meeting.   33  members including Anand and  Verma  voted  in favour  of the motion while one member voted against and  as such the motion of no confidence was carried out against the president.      J.N. Kaul filed two writ petitions before the Allahabad High Court which were heard together.  In the writ petitions Kaul  challenged  the  proceedings  of  the  meeting   dated September  14, 1990 and also his removal from the office  of the  president.   He further challenged  the  nomination  of Anand  and  Verma on the ground that on the  date  of  their nomination  both of them were in government service  and  as such were disqualified to be members of the Zilla  Parishad, being holders of an officer of profit.  His                                                        645 challenge  in the writ petition was based on  the  following grounds:-          (1)  That  the  nomination of Anand  and  Verma  as          members of the Zilla Parishad was illegal as on the          date  of nomination they were  government  servants          and were holding "office of profit".          (2) That the notice by the members intimating their          intention  to move the motion of no confidence  was          illegal as Anand and Verma who were disqualified to          hold  the office of member of Zilla  Parishad,  had          signed the said notice.          (3)  That the meeting dated September 14, 1990  was          in   violation  of  mandatory  provisions  of   the          Adhiniyam as the reguisite clear notice of 15  days          was not served upon the members nor the notice  was          published  by affixng the same on the notice  board          of the Parishad.          (4)  That the participation of Anand and  Verma  in          the deliberation of the meeting dated September 14,          1990   vitiates  the  entire  proceedings  of   the          meeting.          (5) That the required "more than half of the  total          number  of  members of the Zilla Parishad  for  the          time being" did not vote in favour of the motion.      The  High Court by a reasoned judgment  partly  allowed the  petitions  and set-aside the nominations of  Anand  and Verma holding the same to be illegal.  All other contentions raised  before  it on behalf of Kaul  were  rejected.   This appeal via special leave petition is against the judgment of the High Court.      We  have  heard  Mr.  Satish  Chandra,  learned  Senior Advocate  on  behalf of the appellant.  We have  been  taken through the judgment of the High Court.  We do not find  any infirmity in the same.  We agree with the reasoning and  the conclusions reached by the High Court.  Mr. Satish  Chandra, taking  support  from  Bhaiya  Lal  v.  P.N.  Tiwari,   1970 Allahabad  Law  Journal 36 has assailed the finding  of  the High Court on the point that the motion of no confidence was not  supported  by  more than half of the  total  number  of members  of  the  Zilla Parishad for the  time  being.   The relevant  part of the High Court judgment, under appeal,  is as under:-                                                        646          "We  have the report of the Presiding Officer,  Sri          Sushil  Kumar  Srivastava,  as  Annexure-3  to  the          counter  affidavit of the Collector, Lucknow.   The

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        report  is quite revealing.  The report shows  that          in  all  34 members of the Parishad  were  present.          After  deliberations 32 members voted in favour  of          the  motion of no-confidence and one  member  voted          against the motion of no-confidence.  The remaining          vote  of  the 34th member was debated  because  the          mark  made by the voter was not made in the  column          meant  for "yes".  Initially the Presiding  Officer          was of the view that the vote was invalid but  when          the   Assistant  Election  Officer   informed   the          presiding Officer that it was not explained to  the          members  as  to at what place the mark  was  to  be          placed  by the voter, the Presiding Officer was  of          the  view that since the mark was above the  column          meant for "yes" the vote was valid and was cast  in          favour  of  the motion of no-confidence.   Thus,  a          total  of  33 members voted for the motion  of  no-          confidence when the total strength at that time was          62.  It was not disputed that both opposite parties          nos.2 and 3 voted for the motion of  no-confidence.          We  have  already held that they  were  not  lawful          members  of the Parishad and, as such, their  names          are to be ignored.  If we ignore these two members,          then  the  total  strength of the  members  of  the          Parishad  for  the time being comes to  60  and  if          these  two names are also excluded from the  number          of  members,  who  voted  for  the  action  of  no-          confidence,  the number of such members  who  voted          for  the  motion  of no-confidence,  comes  to  31.          Thus,  31  members  voted for  the  action  of  no-          confidence  out  of total strength of  60  members.          The conclusion was irresistible that the motion  of          no-confidence was carried out by more than half  of          the  total number of members of the Zilla  Parishad          for the time being."      Mr. Satish Chandra contended that "for the time  being" in section 28(11) of the adhiniyam means the total number of members  which  were  in  existence  at  the  time  of   the constitution of the Zilla Parishad and not on the date  when the  motion of no confidence was considered.   According  to him the total number of members which should have been taken into consideration was 62 and since the votes for the motion were  31  which means only 50% and not more  than  50%,  the motion failed.  The argument has been advanced on the  basis of the judgement of a Division Bench of                                                        647 Allahabad  High Court in Bhaiya Lal’s case (supra). In  that case  the  High Court was concerned with the  provisions  of U.P.  Municipalities  Act, 1916 (Act). The  municipal  Board Mugal Sarai consisted of 16 members including the president. A notice of the intention to move a motion of  no-confidence against the president was given by the members.  Sub-section (12)  and  (13) of section 87-A of the Act  which  came  for consideration  before  the High Court in Bhaiya  lal’s  case (Supra) were as under:-          12.  "The  motion  shall be  deemed  to  have  been          carried only when it has been passed by a  majority          of more than half of the total number of members of          the Board".          13.  "If the motion........which shall not be  less          than one-half of the total number of members of the          board  for  the  time  being,  no  notice  of   any          subsequent  motion  of non-confidence in  the  same          president shall be received until after the  expiry          of  a period of twelve months from the date of  the

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        meeting."      The  Allahabad  High Court interpreted  "for  the  time being"  in  sub-section  (13) of section 87-a  to  mean  the members  of  the board as they existed on the  date  of  its constitution  and  not  on the date when the  motion  of  no confidence  was  considered. So far as sub-section  (12)  of section  87-A  of  the  Act was  concerned  the  High  Court interpreted  the expression "total number of members of  the Board"   to  mean  to  total  number  of  member  who   were functioning as such at the relevant time which means on  the date  of the meeting and did not include members or  members who  had been removed from office. We are of the  view  that the  High Court judgment in Bhaiya Lal’s case  (supra)  does not  lay  down  correct law. The High Court  has  not  given natural meaning to the expressions contained in sub-sections (12)  and (13) of section 87-A of the Act. The only  meaning which  can  be given to the expression "half  of  the  total number of members of the Board" is the members as existed on the date of its constitution. The total number of members on the  date of the composition of the municipal  board,  Mugal Sarai  was  16 and as such not withstanding the  removal  of member/members  the  motion of no confidence could  only  be passed if the motion was supported by more than 8 votes. The High Court’s interpretation is no the fact of it contrary to the  plain language of the sub-section. Similarly  the  High Court  fell into grave error by not appreciating  the  plain meaning  of  the words "for the time being"  in  sub-section (13) of section 87-A of the                                                        648 Act.  "For the time being" means at the moment  or  existing position.  These  words indicate the  actual  membership  in existence  on the date of the motion of no  confidence.  The High  Court  on the basis of strained  reasoning  has  given interpretation which does not flow from the simple  language of  sub-sections (12) and (13) of  section 87-a of the  Act. We,  therefore, hold that the High Court judgment in  Bhaiya Lal’s case (Supra) does not lay down the correct law and  we over-rule the same.      Apart  from relying on the judgment of  Allahabad  High Court  in  Bhaiya  Lal’s case Mr.  Satish  Chandra  did  not advance any other argument before us.      We, therefore, dismiss the appeal with no orders as  to cost. N.V.K.                                    Appeals dismissed.                                                         649