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PETITIONER: MOOL CHAND SHARMA

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 20/09/1961

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B.

CITATION:  1967 AIR  112            1962 SCR  (3) 718

ACT: Municipal Board-Member-Incurring of disqualification If  and when   becomes  incompetent  to  exercise   his   right-U.P. Municipalities  Act,  1916 (U.P. II of 1916),  ss’.13  D(8), 87A, sub-s.2.

HEADNOTE: The appellant was the President of a Municipal Committee.  A written  notice  of  the intention to move a  motion  of  no confidence  in the President signed by nine members  of  the Board was delivered to the District Magistrate under s. 87-A sub-s.  (2)of  the  U.P.  Municipalities  Act,  1916.    The District  Magistrate duly convened a meeting of  the  Board, but  before  the date of the meeting the appellant  moved  a writ petition in the High Court and questioned the  validity of  the notice.  The writ petition was dismissed  in  limine inter  alia as being premature.  The Meeting of  the  Board. was held on the due date and all the members present,  voted for  the motion of no confidence and the Munsif of the  area who  had presided declared the motion to have been  carried. The  appellant by his second writ petition before" the  High Court desired that the 719 proceeding of the meeting be quashed and the resolution  ex- pressing no confidence in the appellant be not given  effect to, by the State and the District Magistrate, for the reason that  two  of the members of the Board who  had  signed  the notice and subsequently taken part in the proceedings of the meeting  and voted, had ’incurred disqualification under  s. 13-D  (g) of the U.P. Municipalities Act, 1916, inasmuch  as they  were  in arrears in the payment of municipal  tax  and other dues to which s. 166 of the Act applied. Held,  that an order, dismissing a writ petition  in  limine not  on  merits but for the reason that  it  was  premature. could not operate as res judicata in subsequent proceedings. does  not automatically come under suspension, or  lose  his rights  to  take  part in the proceeding of  the  Board,  or perform  the duties of a member or cease to be a  member  of the   Board   merely   on   his   incurring   any   of   the disqualification   mentioned   in  s.  13-D  of   the   U.P. Municipalities Act, 1916.  A member of the Municipal  Board,

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merely,  by incurring the disqualification under cl. (g)  of s.  13-D  of  the U.P. Municipalities  Act,  1916,  was  not incompetent to exercise his rights as a member of the Board. Election Commission, India v. Saka Venkata Subba Rao, [1953] S.C.R. 1144, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 401 of 1961. Appeal  by special leave from the judgment and  order  dated May  24, 1961, of the Allahabad’ High Court in  Civil  Misc. Writ No. 846 of 1961. M.   C.  Setalvad Attorney-General for India and J.P.  Goyal for the appellant. C.   B.  Agarwala and C. P. Lal, for respondents Nos. 1  and 2. C.   K. Daphtary, Solicitor-General of India, R. K. Garg, S. C.  Agarwala,  D.  P.  Singh  and  M.  K.  Ramamurthi,   for respondents Nos. 3 to 13. 1961.   September  20.   The  Judgment  of  the  Court   was delivered by RAGHUBAR  DAYAL,  J.-This  appeal,  by  special  leave,   is directed  against  the  judgment  of  the,  High  Court   of Allahabad dismissing a writ petition filed 720 by  the  appellant praying for the issue of a writ  in  the nature of mandamus directing the State of Uttar Pradesh  and the  District Magistrate, Meerut, not to give effect to  the resolution  passed  in  the meeting of the  members  of  the Municipal  Board, Pilkhuwa, dated February 6. 1961  and  for the quashing of the proceedings of that day. The  appellant  was the President of  the  Municipal  Board, Pilkhuwa, in January-February, 1959.  On January 4, 1959,  a written  notice  of  the intention to make a  motion  of  no confidence  in the President signed by nine members  of  the Board, including Ram Nath and Kesho Ram Gupta, was delivered to  the District Magistrate, Meerut, in Pursuance of  sub-s. (2) of s.87-A of the U.P. Municipalities Act, 1916 (U.P. Act II  of  19 16), hereinafter called the  Act.   The  District Magistrate, Meerut, duly convened a meeting of the Board  on February 6, 1961. The  appellant  moved writ petition No. 367 of 1961  in  the High Court on February 2, 1961, and questioned the  validity of  that notice.  That petition was dismissed in  limine  on the same day.  It was held that unless and until an order of removal  is  passed actually by the State  Government  there could not be any removal of a member or anything which would disentitle  a member to take part in the proceedings of  the meeting and that the application was also premature. The  meeting of the Board took place on February  6,  1961. Mr. Agarwala, Munsif, Meerut, presided over the meeting  all the ten members who were present, voted for the motion of no confidence and the Munsif declared the motion to, have  been carried.   The appellant, by his writ petition, desired  the proceedings of the meeting to be quashed and the  resolution expressing  no  confidence  in the appellant  be  not  given effect   to  by  the  state  of  U.P.  an-.’  the   District Magistrate.  721 It  was  urged before the High Court that the MO  notice  of motion delivered to the District Magistrate was invalid  and so were the proceedings of the meeting.  Ram Nath and  Kesho Ram  Gupta  who had signed the notice and  also  Raghunandan I?,;,  Prasad  who,  along  with  them  took  part  in   the

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proceedings  of the meeting and voted in support of  the  no confidence’  resolution, bad incurred, prior to  January  4, 1961, disqualification under s.13-D (g) of the Act  inasmuch as they were in arrears in the payment of municipal tax  and other dues in excess of one year’s demand to which s. 166 of the Act applied.  The contention was that on account of  the having  incurred the aforesaid disqualification,  they  were disqualified   from   being  members  of  the   Board   and, consequently, were not competent to exercise the rights  of a member of the Municipal Board. The  High Court held that Ram Nath had been proved to be  in arrears  in payment of house tax on February 6, 196  1,  and that  Kesho  Ram Gupta and Raghunandan Prasad  were  not  in arrears in payment of the Tehbzarai tax for the year 1959-60 and  house tax respectively.  It held that a member  of  the Board  did  not  cease to be a member on  his  mourning  the disqualification   under  s.13-D(g)  and  that   he   became disqualified  merely  to  exercise office and to  act  as  a member.  The I-earned Judges observed :               "During   the   continuance   of   the    dis-               qualification  the person’s right to act as  a               member  falls into a state of suspension.   On               removal  of the disqualification the state  of                             suspension  disappears and his right to  exer-               cise  office as a member of the board  revives               unless he has been removed by Government  from               membership  of the board under section  40  of               the   Act  during  the  continuance  of   dis-               qualification." Holding that the motion of no confidence was valid as it had been passed by the vote of nine members 722 who  constituted  the majority of more than half  the  total number  of members of the Board, that being  seventeen,  and that  those  nine members of the Board being  qualified  and duly elected members of the Board, Ram Nath’s taking part in that meeting did not vitiate its proceedings in view of  the provisions  of sub-s. (2) of s. 113 of the Act, the  learned Judges dismissed the writ petition.  The learned Judges  did not  consider the validity of the notice on merits  as  they were  of opinion that the order on writ petition No. 397  of 1961  operated  as  res judicata, though in  view  of  their opinion  the  notice of motion of no confidence  would  have been  invalid if the name of Ram Nath be excluded  from  the signatories as in that case the number would be eight and so one short of the number required by the provisions of sub-s. (2) of s. 87-A of the Act.  The meeting held in pursuance of a bad notice would also have been invalid. The  learned Attorney General, appearing for the  appellant, has raised the following, contentions :               (i)   The  order dismissing writ petition  No.               397 of 1961 could not operate as res  judicata               as it had been dismissed mainly on account  of               its being premature and not on merits.               (ii)  A  member  of the  Municipal  Board,  on               incurring  a disqualification under  s.  13-D,               ceases to be a member of the Board so long  as               the  disqualification exists and therefore  he               cannot  act as a member of the Board  for  any               purpose.               (iii) Kesho Ram Gupta was also a  disqualified               member of the Board and the resolution of  the               Board dated February 6, 1961, holding that  no               Tehbazari tax was due from Kesho Ram Gupta and               that the amount deposited by him under protest

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             on  February 9, 1961, be refunded., was  ultra               vires  the  power of the Board  which  had  no               power  to review or revise the  imposition  of               tax.               723               (iv)  Due to the disqualification incurred  by               Ram Nath and Kesho Ram Gupta, both the  notice               of motion of no confidence and the proceedings               of  the meeting were bad as,  excluding  their               signatures  and votes, the number  of  members               signing the notice and of those voting at  the               meeting  becomes less than half the  total  of               the members of the Board.               (v)   The  proceedings  of  the  meeting  were               vitiated  even  if Ram Nath alone, who  was  a               disqualified  member,  had taken part  in  the               meeting  and were not saved by the  provisions               of  sub-s. (2) of a. 113, as the meeting  held               in  pursuance of the provisions of s. 87-A  of               the Act is not a meeting of the Board to which               the  provisions  of sub-s. (2) of s.  113  can               apply. The  learned counsel for the respondents conceded  that  the order dismissing writ No., 397 of 1961 could not operate  as res judicata in’ these ,proceedings on the question  whether the notice of no confidence was a valid notice or not. We  do  not  agree  with  the  second  contention  .for  the appellant, or with the view expressed by the learned  Judges that  a person who incurs disqualification under cl. (g)  of a.  13-D of the Act becomes disqualified to exercise  office and to act as a member. Section  13-C  of the Act lays down the  qualifications  for membership   of  the  Board  and  s.  13-D  lays  down   the disqualifications  for membership.  Of its ten clauses,  the relevant  clause of s. 13-D for our purpose is cl. (g).   It reads :               "A   person,   notwithstanding  that   he   is               otherwise qualified, shall be disqualified for               being chosen as, and for being, a member of  a               Board  if he is in arrears in the  payment  of               municipal  tax or other dues in excess of  one               year’s demand to which section 166 applies".               724               Second proviso to this section is:               "’Provided  further that in the case  of  (g),               the  disqualification shall cease as  soon  as               the arrears are paid." If a member of the board falls in arrears in the payment  of tax, he incurs this disqualification.  The provisions of  s. 13-D   do   apply  to  members  of   the   board   incurring disqualification  during the period of their membership  and are not confined in their application to the stage  previous to  the election as, in that case, the expression  "and  for being’  in  the section would have been  unnecessary.   This expression  has  been interpreted  in  Election  Commission, India  v. Saka Venkata Subba Rao (1) in connection with  the interpretation of Art. 191, whose relevant provision is  "is person  shall be disqualified for being chosen as,  and  for being,  a member of the Legislative Assembly or  Legislative Council of a State......... It was observed at page 1157 :               "Article 191, which lays down the same set  of               disqualifications for election as well as  for               continuing as a member, and article 193  which               prescribes the penalty for sitting and  voting               when  disqualified, are naturally  phrased  in

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             terms  wide enough to cover  both  preexisting                             and supervening disqualifications." There  is nothing in s. 13-D or in any other section of  the Act  which  provides for the suspension  or  cessation  from membership of a duly elected member on his incurring any  of the disqualifications under s. 13-D.  On the other hand  the provisions of s. 40 of the Act lead to the inference that  a member  incurring such a disqualification, continues  to  be entitled to take part in any proceedings of the Board or  to perform  the duties of a member.  Section 40 deals with  the removal of members and empowers the State Government (1)  [1953] S.C.R. 1144.                             725 in  the  case of a city or the Prescribed Authority  in  any other  case, to remove a member of the board on any  of  the grounds  mentioned  in cls. (a) to (f) of sub-s.  (1).   The ground for removal mentioned in cl. (b) is that a member has incurred any of the disqualifications mentioned in Bs.  12-D and 13-D.  Sub-sections (3), (4) and (5) of s. 40 read :               "(3) The State Government may remove from  the               board  a  member  who in its  opinion  has  so               flagrantly  abused in any manner his  position               as  a  member of the board as  to  render  his               continuance  as a  member detrimental  to  the               public interest:               (4)   Provided  that  when  either  the  State               Government or the Prescribed Authority, as the               case may be, proposes to take action under the               foregoing  provisions  of  this  section,   an               opportunity  of explanation shall be given  to               the member concerned, and when such action  is               taken the reasons therefore shall be placed on               record.               (5)   The  State  Government may  place  under               suspension  a member, against whom  proceeding               under   sub-sections  (3)and  (4)   has   been               commenced, until the conclusion of the enquiry               and any member who has been so suspended shall               not  so  long  as  the  order  of   suspension               continues  to remain in force, be entitled  to               take  part in any proceedings of the board  or               otherwise perform the duties of a member." The  State  Government  is empowered  to  suspend  a  member against  whom  proceedings under sub-s. (4)  had  commenced, i.e., against whom action for removal is being taken on  one of the grounds mentioned ’in cls. (a) to (f) of sub-s.  (1). A  member so suspended is not entitled to take part  in  any proceedings of the board or otherwise perform the duties  of a  member  during  the  period of  suspension.   It  can  be legitimately inferred from the provisions 726 of sub-s. (5) that in the absence of an order of  suspension the   member   who  had  not  only  incurred  any   of   the disqualifications mentioned in s. 13-D, but against whom the Government  might have started proceedings, was entitled  to take part in the proceedings of the board or to perform  the duties of a member so long as the Government does not  place him  under suspension.  We are therefore of opinion  that  a member  of the Municipal Board does not  automatically  come under  suspension  or  lose his right to take  part  in  the proceedings  of the board or perform the duties of a  member or cease to be a member of the board merely on his incurring any  of the disqualifications mentioned in a. 13-D.  It  may be  mentioned  that  any  other  conclusion  can  have  very unstable  effect and can indefinitely make the  validity  of

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the  proceedings  and action of the board uncertain  as  one cannot  predicate at any moment of time as to which  of  the members  of  the board has incurred  a  disqualification,  a matter  which must be dependent mostly on the proof  of  the allegations made.  Such could not have been the intention of the Legislature. Kesho  Ram  Gupta and Ragbunandan Prasad  had  incurred  the disqualification  under cl. (g) of s. 13-D of the Act,  they were not incompetent to exercise their rights as members  of the  board and could therefore validly sign the notice.,  of motion of no confidence and take part in the proceedings  of the  meeting held in pursuance of the provisions of s.  87-A of  the  Act  on  February 6, 1961.   It  follows  that  the proceedings of, and the resolution passed at the meeting  of February  6, 1961, are valid and that the order of the  High Court  dismissing the appellant’s writ petition is  correct, though for different reasons. In  view of this opinion., it is not necessary to deal  with the  other  contentions  for  the  appellant.  We  therefore dismiss the appeal with costs.                      Appeal dismissed. 727