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PETITIONER: MOHAN LAL TRIPATHI

       Vs.

RESPONDENT: DISTRICT MAGISTRATE, RAE BAREILLY AND ORS.

DATE OF JUDGMENT15/05/1992

BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) KASLIWAL, N.M. (J)

CITATION:  1993 AIR 2042            1992 SCR  (3) 338  1992 SCC  (4)  80        JT 1992 (4)   363  1992 SCALE  (1)1191

ACT:     Uttar  Pradesh Municipalities Act,  1916-Sections  87-A, 47-A  and  43(2)-Power  of recall of  elected  President  of Municipal Board-No- confidence vote by Board, whether valid- Held, removal by an elected Board of a President elected  by entire  electorate  is recall by  electorate  itself,  hence valid-Court  will not interfere in matters of policy  unless it is vitiated by mala fides or extraneous considerations.      Interpretation of statutes-External aid-Evolution of  a provision-Not to be resorted to when the words of a  statute are  plain-U.P. Municipalities Act, 1916-Sections  47-A  and 87-A.

HEADNOTE:      The appellant was directly elected as President of  the Rae  Bareilly City Municipal Board, having a  population  of less than 1 lakh, in November 1988.  On March 28, 1990,  the Board  passed  a  no- confidence motion  against  him  under Section  87-A of the U.P. Municipalities Act, 1916.  He  was thereafter  required to demit office under Section  47-A  of the Act.      The appellant assailed the no-confidence motion in  the Allahabad High Court as violative of the democratic  concept of  removal or recall.  He contended that since he had  been directly elected by the electorate, he could not be  removed by the Board which was a smaller and different body from the one that elected him.  In 1949, the legislature had  enacted that a Chairman (now President) if re-elected after  removal by a vote of confidence could not be removed again by a vote of  no-confidence.   He contended that the absence  of  this safeguard  in Section 47-A as it stands now,  the  provision was arbitrary and in the absence of clear language it should be  held to be inapplicable to the president elected by  the electorate.   He  sought  to draw a  distinction  between  a directly  elected President and a President elected  by  the Board.  Finally, he challenged the reduction of period  from 2 years to 1 year during which a no-confidence motion  could be tabled against the President.                                                    339      Dismissing the appeal, this Court,      HELD: 1. Electing representatives is a right created by

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statute; right to remove an elected  representative too must stem from a statute. [342 D]      N.C.Ponnuswami    v.   returning   Officer,    Namakkal Constituency    &   Ors.,   [1952]    S.C.R.218;    American Jurisprudence 2nd edn. Vol.63 pp. 238, 770 & 771; Jyoti Basu v. Debi Ghosal & Ors., A.I.R. 1982 S.C. 983; Arun Kumar Bose v. Mohd. Furkan Ansari & Ors., A.I.R. 1983 S.C. 1311; Jack C Plano/Milton  Green   berg, American  Political  Dictionary; C.S. Strong, Modern Political Constitution (8th ed.);  Roger Scrutton, Dictionary of Political Through (1982); Rudolph Heimanson, Dictionary of Political Science, referred to.      2.  How the right of recall should be  initiated,  what should  be  the  procedure, who should  exercise  it  within constitutionally  permissible limits falls in the domain  of legislative power. [343 D]      3.  The provisions in the U.P. Municipality  Act,  1916 providing for the election of President, his  qualification, resignation  etc. are consitutionally valid.  The recall  of an  elected  representative therefore so long as  it  is  in accordance  with  the  law cannot be  assailed  on  abstract notions of democracy. [343 G]      4.   Vote   of   no-confidence   against   an   elected representative    is   a   direct   check    flowing    from accountability.   Recall of elected  representative  ensures true,   fair,   honest  and  just  representation   of   the electorate. Therefore a provision in a statute for recall of an  elected representative has to be tested not  on  general and vague notions but on practical possibility and electoral feasibility  of  entrusting the power of recall  to  a  body which  is  representative  in character and  is  capable  of projecting the views of the electorate. [345 B]      5.An  elected  representative  is  accountable  to  the electorate.   That is the inherent philosophy in the  policy of  recall.  When a President who is elected by  the  entire electorate is removed by such members of the Board who have also  been elected by the people, it is in fact  removal  by the electorate itself.  Such provision neither violates  the spirit   nor   the   purpose  of  recall   of   an   elected representative.  Rather it ensures removal by a  responsible body. [346 B]                                                       340      Any arbitrary functioning by the President or disregard of  the  statute or acting contrary to the interest  of  the electorate  could be known only to the Board.  Therefore  it was  not only proper but necessary to empower the  Board  to take action, if necessary. [347 C]      6.The  legislature’s  power to enact  Section  47-A  is derived  from  entry 5 of List II of VII Schedule  which  is couched in very wide terms.  In the absence of any challenge of  legislative competence, the omission  of the proviso  to Section 47(5) is neither irrational nor arbitrary. [347 G]      Whether  a President should be elected directly by  the people  or by the Board was for the legislature  to  decide. These are matters of policy which cannot be examined by  the court,  so long as the policy is not vitiated by mala  fides or extraneous considerations. [348 B]      7.‘Historical evolution’of a provision or reference  to what  preceded  an enactment as an external  aid  should  be resorted  to only when any doubt arises about the  scope  of the section, and it must not override the plain words of  a statute. [348 C]      R.S.  Nayak v. A.R. Antulay, [1984] 2 SCC 183;  Reserve Bank  of  India v. Peerless Gen. Finance  &  Investment  Co. Ltd., [1987] 1 SCC 424 at 450; Tumahole Bereng & Ors. v. The King.,  A.I.R. 1949 PC 172 at 176; Rupert  Cross,  Statutory

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Interpretation, P.129; Maxwell’s Interpretation of  Statutes pp.47, 64 & 65, referred to.      Neither Section 47-A nor Section 87-A on plain  reading suffer  from  such defect as  may  necessitate  ascertaining their  intent and purpose from the sections as they  earlier stood. [348 F]      8.  Section 87-A applies to the President which,  under Section 43, means a President elected by the Board or by the electorate.   The Act does not make any distinction  between the  two Presidents, one elected by the Board and  the other by the electorate. [351 D]      9.  Section 87-A does not stand controlled  by  Section 47-A.   Section 87-A is a substantive provision  authorising the Board to initiate action against a President for loss of confidence,  whereas  Section 47-A is a  procedural  section coming  into operation after communication to the  President of  the decision of the Board.  Section 47-A has to be  read and  construed so as to advance the purpose of Section  87-A and not to frustrate                                                      341 it. [352 G]      10. The Proviso to Section 47-A cannot be so  construed as  to nullify the operation of Section 47-A to a  President elected  by  the electorate.  A Proviso or an  Exception  is incapable  of  controlling the operation  of  the  principal clause. [354 F]      Jennings  v. Kelly, [1939] 4 A.E.L.R. 464;  West  Derby Union  v. Metropolitan Life Assurance society, 1897 AC  647, referred to.      11.  Reduction of period during which  a  no-confidence motion  could  be  tabled from two years to one  year  is  a matter of legislative policy which cannot be scanned by  the court.   A   legislature   does  not   act   on   extraneous consideration.   But for lack of legislative  competence  or for  being arbitrary, a legislative action cannot be  struck down  on  ground of mala fide.  Moreover this  was  not  the first time that this amendment was introduced. [355 C]

JUDGMENT:      Shrilekha Vidyarthi v. State of U.P., [1991] 1 SCC 212, distinguished.      State  of  Himachal Pradesh v. Kailash  Chand  Mahajan, [1992] 2 S.C.C. 165, relied on. &      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2425 of 1992.      From  the  Judgment and Order dated  19.2.1991  of  the Allahabad High Court in W.P.No. 2832 of 1990.      Sunil Gupta and H.K. Puri for the Appellant.      Anil Kumar Gupta and A.K. Goel for the Respondents.      The Judgment of the Court was delivered by      R.M.  SAHAI,  J. Validity of the  no-confidence  motion passed, on 28th March 1990, under Section 87-A of  the  U.P. Municipalities Act (in brief ‘the Act’) by the Board against the  appellant,  who  was elected in November  1988  by  the electorate,  directly  under Section 43(2) of  the  Act,  as President  of  Rae Bareilly City Municipal  Board  ,  having population of less than one lakh, was assailed as  violative of the democratic concept of removal or recall of an elected representative by a smaller and different                                                      342 body than the one that elected him, in this appeal  directed against  the judgment and order of the Allahabad High  Court

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rendered  in a Writ Petition field under Article 226 of  the Constitution of India.  Statutory arbitrariness, arising out of  application of Sections 47-A and 87-A of the Act to  the Presidents of the Municipalities either elected by the Board or electorate as irrational and invalid of Article 14 of the Constitution was, yet, another ground of attack.   Reduction of  period from two to one year during which a vote  of  no- confidence could be tabled against a President by  ordinance issued  in  1990 which later became Act was  challenged  for absence  of  any discernible and  reasonable  principle  and resorted to as ‘spoil system’ thus constitutionally invalid.      Democracy is a concept, a political philosophy an ideal practised   by   many  nations   culturally   advanced   and politically   mature   by   resorting   to   governance   by representatives   of   the  people   elected   directly   or indirectly.   But  electing  representatives  to  govern  is neither a ‘fundamental right’ nor a ’common law right’ but a special  right  created by the statutes,*  or  a  ‘political right’  or  privilege’ and not a  ‘natural’,  ‘absolute’  or ‘vested right’.(American Jurisprudence 2nd Edn. Vol.63 p771) ‘concepts  familiar  to common law and  equity  must  remain stranger     to    Election    Law    unless     statutorily recognised’.(Jyoti  Basu  & Ors. v. Debi Ghosal &  Ors,  AIR 1982 SC 983; Arun Kumar Bose v. Mohd.  Furkan Ansari & Ors., AIR   1983   SC   1311.)  Right   to   remove   an   elected representative, too, must stem out of the statute as ‘in the absence  of  a constitutional restriction it is  within  the power  of  a legislature to enact a law for  the  recall  of officers’.  (American Jurisprudence Vol. 63 2nd Edn. p.238.) Its existence or validity can be decided on the provision of the  Act  and not, as a matter of policy.  In  the  American Political  Dictionary  (Jack C Plano/Milton  Greenberg)  the right of recall is defined as, ‘a provision enabling  voters to remove an elected official from office before his or  her term  expired’.   American jurisprudence explains  it  thus, ‘Recall  is a procedure by which an elected officer  may  be removed  at  any time during his term or after  a  specified time  by vote of the people at an election called  for  such purpose  by  a  specified number  of  citizens’.   (American Jurisprudence  Vol.63  2nd Edn. p.770.) It  was  urged  that ‘recall  gives  dissatisfied electors the right  to  propose between elections that their representatives be removed  and replaced by another more in _____________________________________________________________      Ponnuswami v. Returning Officer, Namakkal  Constituency      & others, [1952] SCR 218; Jagan Nath v. Jaswant Singh &      Ors., [1964] SC 210                                                      343 accordance with popular* will’ therefore the appellant could have been recalled be the same body, namely, the people  who elected him.  Urged Shri Sunil Gupta, learned counsel,  that since,  ‘A referendum involves a decision by the  electorate without the intermediary of representatives and,  therefore, exhibits  form  of direct democracy’** the  removal  of  the appellant by a vote of no-confidence by the Board which  did not elect him was subversive of basic concept of  democracy. Academically the submission appeared attractive but  applied as   a matter of law it appears to have little merit.   None of  the political theorists, on whom  reliance  was  placed, have  gone to suggest that an elected representative can  be recalled,  only,  by the persons or body that  elected  him. Recall expresses the idea that a ‘public officer is indeed a "servant  of the people" and can therefore be  dismissed  by them’.* * * In modern political set up direct popular  check by  recall  of elected representative has  been  universally

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acknowledged  in any civilised system.  Efficacy of  such  a device can hardly admit of any doubt.  But how it should  be initiated, what should be the procedure, who should exercise it within ambit of constitutionally permissible limits falls in the domain of legislative power.  ‘Under a constitutional provision authorizing municipalties of a certain  population to frame a charter for their own government consistent  with and subject to the Constitution and laws of the state, and a statutory provision that in certain municipalities the mayor and members of the municipal council shall be elected at the time,  in  the manner, and for the term  prescribed  in  the charter,  a municipal corporation has authority to  enact  a recall  provision’. (American Jurisprudence 2nd Edn.  Vol.63 p.771)  Therefore,  the  validity  or  otherwise  of  a  no- confidence motion for removal of a President, would have  to be examined on applicability of statutory provision and  not on  political philosophy.  The Municipality Act provides  in detail  the  provisions  for  election  of  President,   his qualification,  resignation,  removal  etc.   Constitutional validity  of  these  provisions  was  not  challenged,   and rightly,  as  they  do not  militate,  either,  against  the concept  of democracy or the method of electing or  removing the    representatives.    The   recall   of   an    elected representative  therefore, so long it is in accordance  with law cannot be assailed on abstract notions of democracy. _________________________________ *    Modern Political Constitution, 8th Edn. by C.S.Strong. **   Dictionary of Political Thought by Roger Scrutton 1982 ***   Dictionary  of Political Science and  Law  by  Rudolph       Heimansor                                                        344      Legality  of the motion of no-confidence  was  attacked for absence of any specific provision applying Section  47-A and 87-A of the Act to President elected by the  electorate, as also for being irrational if the provisions were held  to apply  by interpretation as it would result in  substituting confidence  of people with confidence of board which had  no concern  with  expression  of  confidence  in  electing  the President consequently it would be unreasonable and  against public  interest. Even the concept of democracy being  basic feature  of  the  Constitution  was  invoked  to  urge  that provisions relating  to elections should be construed so  as to  be  inconsonance with it rather than  violative  of  it. Legislative  history of Section 43 dealing with election  of President, Section 87-A providing for passing a vote of  no- confidence against him, Section 47-A directing him to resign within  three  days form the date of  communication  of  the result that no confidence motion had been passed and Section 48  empowering  the Government to remove a President  if  he failed   to  resign  were  placed  with  dual   purpose   of demonstrating  that  these  sections could not  apply  to  a President elected by the electorate and to urge that even if they applied they were rendered arbitrary as no safeguard or protection  has been provided to such President  as  existed prior to introduction of the proviso to Section 47-A. It was submitted that operation of the proviso to Section 47-A  was confined  to a President elected by the Board therefore  the protection  to a President against arbitrary action  of  the Board of passing a resolution against him could be available to  such  President  only. And a President  elected  by  the electorate despite recommending supersession of Board  would be exposed to fresh election due to non-availability of  the proviso therefore it was submitted that Section 47-A  itself should be held to be inapplicable to a President elected  by the  electorate  otherwise it would lead to  illogicity  and

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irrationality.  It was submitted that if there was a  choice between  democratic  purpose  and others  the  court  should accept  a  construction  which  may  advance  constitutional tenets  of  political  philosophy and  justice  rather  than subverse it.      Force of these submissions or their merit may not be as doubtful  as its applicability to the circumstances  of  the present case.  Misapprehension appeared to be the foundation for vehement submission that removal of a President, elected by  the  electorate,  by the  Board  would  be  substituting confidence  of  people by a much smaller body  which  would, apart, from violating the basic norm of recall of an elected representative  by the same body which elected him would  be unreasonable, irrational and against public interest.   Vote of no-confidence against elected representative is                                                        345 direct  check flowing from accountability.  Today  democracy is not a rule of ’poor’ as said by Aristotle or of  ’Masses’ as opposed to ’Classes’ but by the majority elected from out of  the  people  on basis of  broad  franchise.   Recall  of elected representative is advancement of political democracy ensuring  true, fair, honest and just representation of  the electorate.   Therefore a provision in a Statute for  recall of an elected representative has to be tested not on general or vague notions but on practical possibility and  electoral feasibility  of  entrusting the power of recall  to  a  body which  is  representive  in  character  and  is  capable  of projecting  views of the electorate.  Even though there  was no provision in the Act initially for recall of a  President it  came  to  be introduced in 1926 and since  then  it  has continued   and  the  power  always  vested  in  the   Board irrespective  of  whether the President was elected  by  the electorate or board.  Rationale for it is apparent from  the provisions of the Act.  Under sub-section (2) of Section 87- A the right to move the motion of no-confidence vests in the members  of  the  Board which under  Section  9*,  normally, comprises of elected representatives.  A person removed from office of President for loss of confidence, from the very ____________________________________________________________           "Normally  composition  of the board -  Except  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  notification  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  of          part of the limits of the Municipality;           (d)  Ex-officio members comprising all members  of          the  Council  of States and the  State  Legislative          Council who have their residence within the  limits          of the Municipality.           Explanation - For the purposes of this clause, the          place  of residence of a member of the  Council  of          States  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:           Provided that if none of the members elected under          clause(b), is a woman, the State Government may  by          a like notification nominate one woman as a  member          of the Board and thereupon, the normal  composition

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        of the Board shall stand varied to that extent.           Provided  further that if any member of the  State          Legislative   Council   representing   the    Local          Authorities   Constituency   does  not   have   his          residence within the limits of any Municipality, he          will be deemed to be ex-officio member of the board          of  such one of the municipalities situated  within          his constituency as he may choose.                                           Contd on next page                                                        346 nature  of  the  Constitution of Board,  is  recall  by  the electorate   themselves.   An  elected   representative   is accountable  to  its  electorate.   That  is  the   inherent philosophy  in the policy of recall.  For the President  his electorate,  to  exercise  this right, is the  Board  as  it comprises  of representatives of the same constituency  from which the President is elected.  Purpose of Section 87-A  of the  Act is, to remove elected representative who  has  lost confidence  of  the body which elected him.  It  may  be  by people  themselves or they may entrust their  power  through legislation  to  their representatives.  In Act  it  is  the latter.   Members  of  the Board are  elected  from  smaller constituencies.   They  represent the entire  electorate  as they  are representatives of the people although smaller  in body.   A President who is elected by the entire  electorate when removed by such members of the Board who have also been elected  by the people is in fact removal by the  electorate itself.   Such  provision neither violates  the  spirit  nor purpose  of  recall of an  elected  representative.   Rather ensures  removal  by  a  responsible  body.   It  cannot  be criticised either as irrational or arbitrary or violative of any  democratic norm.  In fact construing the  provision  as suggested  would render it unreasonable.  A President  of  a Municipal  Board of more than one lakh population  would  be removable by the board comprising of elected representatives whereas  a  President of smaller Board would  virtually  get immunity  from removal.  It would be contrary to  scheme  of the Act and against public interest.      Further  Section 50 of the Act empowers the  President, without making any distinction between the two, to discharge certain powers, duties, and functions of the Board.  Section 52(1)  of  the  Act  authorises the  Board  to  require  the president   to  furnish  it  with  any  return,   statement, estimate,  statistics,  or other information  regarding  any matter   appertaining   to   the   administration   of   the municipality; a report or explanation on any __________________________________ Contd..........         Provided  also that if none of the  members  elected     under  clause  (b) belongs to safai mazdoor  class,  the     State Government may, by notification, nominate a person     belonging  to the said class a member of the Board,  and     thereupon  the  normal composition of  the  Board  shall     stand varied to that extent.         Explanation - A person shall be deemed to belong  to     the Safai Mazdoor class if he belongs to such a class of     scavengers  by  occupation or to such of  the  Scheduled     Castes traditionally following such occupation as may be     notified by the State Government.         Commencement  of  Boards’  term  -  The  term  of  a     Municipal  Board (including the President)  begins  from     the date of notification issued under Section 56 and the     term of the old Board ends on that date."                                                        347 such  matter;  and a copy of any record,  correspondence  or

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plan or other document which is in his possession or control as  [President] or which is recorded or filed in his  office or in the office of any municipal servant.  Sub-section  (2) of Section 52 makes it obligatory on the President to comply with  every requisition made under sub-section  (1)  without unreasonable delay.  The Board is thus visualised as a  body entrusted  with  responsibility,  to keep  a  watch  on  the President  whether  elected by it or  the  electorate.   Any arbitrary  functioning  by  the President  or  disregard  of provision of the Statute or acting contrary to the  interest of  electorate could be known to the Board only.   Therefore it was not only proper but necessary to empower the Board to take action, if necesary.  In fact the power of the board to remove  a President by vote of no-confidence  under  Section 87-A   and   right  of  the  President  to   recommend   its supersection  under Section 47-A(1)(a) are a check  on  each other’s   functioning.    Comparison  with   provisions   in Panchayat  Raj Act where a Pradhan is removable by the  Gaon Sabha  was  odious as a Gaon Sabha is a very small  body  as compared  to  a Municipality.   The  provision  consequently cannot  be  held  to be bad either because the  Board  is  a smaller  or different body.  Nor it can be characterised  as irrational or arbitrary.  It would be unrealistic to say so. Any  challenge founded on violation of democratic norm  thus cannot be accepted.      Another off shoot of the same submission was that  when removal  was  by  a smaller body  the  Legislature  in  1949 provided  a  safeguard  that a Chairman  elected  by  people removed by vote of no-confidence if re-elected could not  be removed again by a vote of no-confidence.  According to  the learned  counsel in absence of such safeguard the  provision in  Section 47A, as it stands now, becomes arbitrary and  in absence of clear language it should be held inapplicable  to President elected by the electorate.  The approach does  not appear  to  be  sound.  Legislature’s power  to  enact  such provision is derived from Entry 5 of List II of VII Schedule which  is  couched in very wide terms.  In  absence  of  any challenge  of  legislative competence, the omission  of  the proviso to sub-section 5 of Act 7 of 1949 by amendemtn since 1955   can  neither  be  characterised  as  irrational   nor arbitrary.   Moreover whether a President should be  elected by  the  people  directly  or  by  the  Board  was  for  the Legislature  to decide.  These are matters of  policy  which cannot be examined by court.  Legislature being the                                                        348 best  judge  of  the  needs of the  people  it  is  for  the legislature    to   decide   which   system   of    electing representatives  to the elective bodies and in  what  manner they should be removed would be best suitable for governance of  the  State.  So long the policy is not vitiated  by  any mala  fide  or  extraneous  consideration  the  courts  have neither jurisdiction nor adequately furnished with  material to adjudicate upon its validity or correctness.      Value  of  ’historical evolution’* of  a  provision  or ’reference to that preceded the enactment’** as an  external aid to understand and appreciate meaning of a provision, its ambit  or  expanse  has been  judicially  recognised***  and textually recommended.  (Statutory Interpretation by  Rupert Cross, p.129 Maxwell Interpretation of Statutes pp.47 & 64.) But  this aid to construe any provision which is  ’extremely hazardous’ should be resorted to, only, if any doubt  arises about  the  scope  of  the Section or  it  is  found  to  be ’sufficiently   difficult  and  ambiguous  to  justify   the construction  of  its evaluation in the Statute  book  as  a proper  and  logical course and secondly the object  of  the

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instant enquiry’ should be ’to ascertain the true meaning of that  part of the section which remains as it was and  which there  is no ground for thinking the substitution of  a  new proviso  was  intended to  alter’.****  But  ’considerations stemming   from  legislative  history  must  not,   however, override  the  plain  words  of  a  statute’.   (Maxwell  on Interpretation  of Statutes, p.65) Neither Section 47-A  nor 87-A  on  plain  reading  suffer from  such  defect  as  may necessitate  ascertaining their intent and purpose from  the earlier  sections as they stood.  That shall be  clear  when relevant  part  of  the sections are  extracted.   But  even otherwise  there appears no merit in the submission and  for that  purpose it appears appropriate to narrate,  in  brief, the  history  of  these sections. When Act  2  of  1916  was enacted it provided for election of Chairman of the Board by a  special  resolution passed by the members  under  Section 43(1)  of the Act.  Sub-section (2) provided for  ex-officio nomination  by  the  Government  of  the  Chairman  in  some municipality.  Section 48 empowered the Government to remove a  Chairman  after hearing and giving reasons.  It  did  not contain any ____________________________________________________________ *    R.S. Nayak v. A.R. Antulay, [1984] 2 SCC 183 **    Reserve  Bank  of India v.  Peerless  Gen.  Finance  &      Investment Co. Ltd., [1987] 1 SCC 424 (450) ***   Tumahole Bereng & Ors. v. The King., AIR 1949  PC  172      (176) ****  Tumahole Bereng & Ors. v. The King., AIR 1949  PC  172      (176)                                                        349 provision  for  removal  of  a chairman by  a  vote  of  no- confidence.   Ten years later Act 2 of 1926 brought about  a very  significant change in the Act by  introducing  Section 47A and conferring power of removal of Chairman, other  than the ex-officio, by the members of the Board by expressing  a vote  of  no-confidence against him.  Section 48,  too,  was amended and a Chairman who failed to resign after a vote  of no-Confidence  was  liable  to  be  removed,  by  the  State Government.  Thus it was as far back as 1926 that removal of the Chairman by elected representative found its way in  the Act.  In 1933 by Act No.9 another important section 87A  was added providing for tabling of no-confidence motion  against the  Chairman.   In  1942 Section 47-A was  omitted  as  the provision for resigning by the Chairman was provided for  in Section  87-A itself. And hearing of the Chairman  by  State Government under Section 48 before removal in consequence of vote   of  no-confidence  was  deleted.    Act  7  of   1949 introduced major changes in Section 43 and 47A, of the  Act. Section 43 was substituted altogether and, it for the  first time,  provided for election of the Chairman  simultaneously with  members  of  the board  by  the  electorate  directly. Section  47-A which had been omitted by Act 13 of  1942  was reintroduced  and  a  Chairman against whom a  vote  of  no- confidence  was  passed  was required  to  resign.   In  the alternative   he  was  permitted  to  recommend   to   State Government  that the Board itself may be dissolved.  And  if the  State Government agreed with the President then it  was the Board which was to go.  The intention apparently was  to keep a check on the power of Board, too, while taking action against  the  Chairman as if it was found that  exercise  of power  by  the Board was arbitrary and President  was  being removed  for  extraneous reasons then the  Government  could interfere and direct dissolution of the Board itself.   Both the  sections were amended once again in 1955 and by  Act  1 the  election  of Chairman, known now as President,  by  the

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members  of the Board was reintroduced, as, ’The  experience of the working of the Boards since their constitution at the last  general election has generally been one of  continuing conflict  between Presidents elected by the popular vote  on the one hand and the members on the other.  This has greatly prejudiced  the  normal working of the Boards.’  (Objects  & Reasons  of U.P. Act 1 of 1955) Section 47-A of the Act  was substituted  completely  and it is in this  shape  that  the section  stands  today.   Section 43(1)  was  amended,  once again,  by  Act  47 of 1976 and  election  of  President  by electorate was revived.  In 1982 another change was made  in this Section by Act 17 and                                                        350 election  of President by the members of Board was  confined to Municipalities other than a city declared as such   under Section  3  having  a  population  of  less  than  one  lakh inhabitants.   Sub-section  (2)  provided  for  election  of President  of  Board  of such a  city  Municipality  by  the electorate  directly.  From  1982  onwards,  therefore,  the direct  election of President by the electorate is  confined to smaller municipalities.      The  pattern that is, clearly, discernible  from  these provisions  is  that  even though  the  manner  of  electing President has been changing from time to time the method  of his  removal  by a vote of no-confidence by  the  board  has remained unchanged.  The Legislature never opted for removal of  a President elected directly by the  electorate  itself. That  would have been practical impossibility.   Sub-section (1) and (2) of Section 87-A which are relevant are extracted below :           "87-A. Motion of non-confidence against  President          (1)  Subject to the provisions of this  section,  a          motion  expressing non-confidence in the  President          shall be made only in accordance with the procedure          laid down below.           (2)  Written notice of intention 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."      No  doubt  is  cast  about  its  applicability  to  the President which under Section 43, means a President  elected by  the  Board  or electorate.   Neither  the  language  nor context  excludes  its operation to  the  President  elected under  Section 43(2) nor is there any indication to  confine it  to  a President elected under Section 43(1).   Right  to move a motion of no-confidence under sub-section (2) against a President vests in the Board.  There is no indication that the word President or the Board used in the sub-Section  has to  be  understood in any sense which may exclude  from  its operation one or the other type of President or the Board of city municipality.  In fact it could not be as the Act  does not make any distinction between the two                                                        351 Presidents,  one elected by the Board and the other  by  the electorate.   Both of them become ex-officio members of  the board under Section 49 of the Act if they are already not  a member.  Duties and functions discharged under Section 7  or 8  of the Act do not make any distinction.  Except  for  the manner of election the Act does not envisage any  difference between  the two.  Willful default or abuse of power by  the Board  may  lead to its supersession  or  dissolution  under

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Section  30 of the Act.  And under Sections 31 and 31-A  one of  the consequences of dissolution or supersession is  that the President too has to vacate the office.  In other  words the functioning envisages joint working of the Board and its President with checks and balances.  Any other  construction would  be  artificial and against explicit language  of  the Section.  In absence of any indication to the contrary there appears no warrant for the submission that Section 87-A does not empower a Board to pass a vote of no-confidence  against a President elected directly.      Same reasoning applies to Section 47-A of the Act which is extracted below :          "47-A.   Resignation of President on vote  of  non-          confidence -          (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          Section 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 clause (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 Section 44-A :           Provided that if a representation has been made in          accordance  with  clause (a) the  board  shall  not          elect  a President until an order has been made  by          the State Government under sub-section (3).                                                        352          (2) * * *          (3) If a representation has been made in accordance          with  sub-section  (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-section (3) the consequences mentioned in          Section  31  shall follow as if there  had  been  a          supersession under Section 30." No part of the section lends support to the submission  that its applicability should be confined to President elected by the  board, only.  Much was attempted to be made out of  the proviso.   It was urged that since it could not apply  to  a President  elected by the people, the Legislature should  be deemed  to have intended that it did not desire a  president elected  by  the  people  to  be  removed  by  vote  of  no- confidence.  This section comes into operation after a  vote of  no-confidence  has been passed.  Law of  expressing  no- confidence  against  a President has been  provided  for  in Section  87-A  relevant  part of which  has  been  extracted earlier.  It applies uniformally to every President  whether elected by the Board or electorate.  A President elected  by the  electors has been treated at  par  with  the  President elected  by the Board.  There appears no rationale to  treat them  differently  for  any  purpose.   In  absence  of  any indication  Section 87-A applies to either of the  President and a motion of no-confidence passed against any one of them in  accordance with procedure provided therein could not  be

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said   to   suffer  from  any  infirmity.   It   cannot   be legitimately  urged that the applicability of  Section  87-A stands  controlled  by  Section  47-A.   The  former  is   a substantive  provision  authorizing the  board  to  initiate action against a President for loss of confidence.   Whereas latter  is a procedural section coming into operation  after communication to the President of the decision of the Board. The two operate in different field.  One is the right of the Board, representative body of the electors of the  Municipal Board, to remove a person for loss of confidence, the  other is a duty of the President to act                                                        353 with  grace  and  lay  down  his  office  in  keeping   with democratic tradition on mandate of recall.  Section 47-A has to  be  read and construed so as to advance the  purpose  of Section  87-A and not to frustrate it.  On plain reading  of the  Section  or provision there does not appear to  be  any ambiguity.  True  from 1926 to 1942  no-  confidence  motion could  be  brought against elected President  under  Section 43(1)  only  and  not the  ex-officio  one  nominated  under Section  43(2).  But from that it cannot be held, as  urged, that  Section  47-A  should be held to  apply  to  President elected  under Section 43(1) only.  The ex-officio  chairman was   excluded  from  operation  of  Section  47-A  not   by implication but express  provision. That cannot furnish  any historical   basis to construe Section 47-A as  applying  to only  those  Presidents who were elected by  the  board.   A clear  and  unambiguous  proviso cannot  be  interpreted  by taking an analogy from earlier provision as it stood in  the past.    A  legislature  while  amending,  substituting   or deleting any provision acts in presenting drawing from  past experience  and  providing  for  future.   That  cannot   be defeated  by projecting into in the past by  interpretation. Nor  can the provisions be held to be vague because they  do not  provide any safeguard against moving a  no-  confidence motion  against  the President who is re-elected as  was  in 1949.  In fact the history goes against appellant.  In  1949 Section 43 was amended and President of either  Municipality was  to be elected by the electors directly  as  sub-section (2) of Section 43 was substituted and it provided as under :          "(2)  Simultaneously with the general  election  of          the members of a Board, or whenever the  Provincial          Government so considers necessary, separately,  the          electors  of  a municipality shall  in  the  manner          prescribed, elect a person as the President of  the          Board."      The sub-section now reads as under :          "(2)  The President of a Board other than  a  Board          referred to in sub-section (1) shall be elected  by          the electors in the municipality." But the procedure for removal of the chairman under  Section 87-A  by vote of no-confidence by the Board  remained  same. Therefore,  even in 1949 a President elected  from  electors was  liable  to be removed by the Board.   As  seen  earlier Section 43 underwent change in 1955 and 1982 and at present                                                        354 both the system are in vogue depending on the population  of the  municipality.   The legislative intention  as  gathered from  history  of the provision indicates  that  removal  of President  by vote of no-confidence passed by the Board  was always  considered to be proper irrespective of whether  the President was elected by the Board or the electors.  Removal by  Board, of President is not only feasible but  in  public interest.      Even the strained construction of the proviso does  not

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result   in  coming  to  the  conclusion  that   there   was legislative  omission of not providing for removal, by  vote of  no-confidence  of a President elected by  the  electors. Merely because the proviso to Section 47-A prevents a  Board from holding election of the President in those cases  where he  had made representation to the Government  to  supersede the  Board, it cannot be stretched to mean that  sub-section (a)  of  Section 47-A cannot apply to  a  President  elected under  Section 43(2).  The proviso is intended as  check  to prevent the Board from taking any step which may render  the representation  made by the President infructuous as if  the government  accepts the representation then it is the  Board under  sub-section  (3) which stands dissolved and  not  the President.  That  situation may not arise in election  of  a President  under Section 43(2) as election of  President  by electors cannot take place immediately, therefore, there  is no  danger involved, putting at  naught  the  representation made by the President to State Government, as is in the case of Section 43(1).  The proviso cannot be so construed as  to nullify the operation of Section 47-A to a President elected by  electorate.  A proviso or an exception is  incapable  of controlling  the operation of principal clause.   Result  of such construction would lead to absurdity as if Section 47-A is  held  not to apply to President  elected  under  Section 43(2) he will not be liable to resign even though a vote  of no-confident has been passed against him under Section  87-A and  it  has been communicated to him.  Merely  because  the proviso cannot apply to one of the situations that may arise cannot  be  reason to hold that Section 47-A(1)(a)  did  not apply  to  President  elected by the  electorate.   ’If  the language of the enacted part of the Statute does not contain provision  which are said to occur on it, you cannot  derive those  provisions  by implication from  a  proviso’.   (West Derby  Union  v. Metropolitan Life Assurance  Society,  1897 A.C. 647) proviso could be used for adopting a  construction as  suggested  either when there was some  doubt  about  the scope of the section or there would have been at                                                        355 least some reasonable doubt about accepting one or the other construction  as  became  necessary in  Jenning  v.  Kewlly, (1939)  4 All England Law Reports 464 on which reliance  was placed by the learned counsel for appellant.      Reduction  of  period,  during  which  a  no-confidence motion  could be tabled against the President, from  two  to one year was challenged and it was urged that in absence  of disclosure of any discernible and reasonable principle which is  necessary  for every State action the  ordinance,  which later  on became Act, was liable to be struck down.   Motive was  also imputed to the legislature and it was  urged  that recourse  was  taken by the new political party  as  ’spoils system’ of the election which was arbitrary and violative of Article  14. (Kumari Shrilekha Vidyarthi v. State  of  U.P., [1991]  1  SCC  212.)  No assistance  can  be  derived  from Srilekha  Vidyarthi  case.  A Legislature does  not  act  on extraneous  consideration.   Ordinance issued  in  1990  was replaced by Act 19 of 1990.  The Act came into force on 24th July  1990  but it was made retrospective with  effect  from 15th February 1990, the date when the ordinance was  issued. But  for  lack  of  legislative  competence  or  for   being arbitrary  a  legislative action cannot be  struck  down  on ground  of mollified. (State of Himachal Pradesh v.  Kailash Chand  Mahajan,  [1992]  (2) 5 p.165.)  Further  it  may  be noticed that this amendment was not introduced for the first time.   Period of moving a motion within 12 months from  the date of assumption of office was introduced in 1942.  It was

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increased  to  two years by Act 41 of 1976. It  was  brought down to one year again by Act 19 of 1990.  What was urged by learned  counsel was that since no election had taken  place of local bodies, from 1976 to 1988, the period of two  years was  never given a trial, therefore, there was  no  occasion for  the  legislature  to have  reduced  this  period.   The argument  does not appear to have been advanced  before  the High  Court.   Necessary  averments were not  made  even  in Special  Leave  Petition.  There was thus  no  occasion  for other  side  to explain.  That its action  in  reducing  the period  did  not  suffer  from any  infirmity.   It  may  be mentioned  that  elections in the Municipal  Board  both  of members  and Presidents were held in December  1988  whereas general elections of the State Assembly leading to change of political  power  were  held in 1989.   In  absence  of  any factual foundation the argument appears to be devoid of  any merit.   Moreover what persuaded the legislature  to  reduce the period                                                        356 is again a matter of legislative policy the wisdom of  which cannot be scanned by this Court.      In the result, this appeal fails and is dismissed.  But there shall be no order as to costs. U.R.                                        Appeal dismissed.                                                        357