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Shamrao Krishnarao Kadu Vs. Nandkishore Ghanshyamda Jaiswal and ors. - Court Judgment

LegalCrystal Citation
SubjectElection;Constitution
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No.989 of 1972
Judge
Reported inAIR1974Bom6; ILR1974Bom485; 1973MhLJ667
ActsMaharashtra Municipalities Act, 1965 - Sections 9(2), 9(4), 44(3), 45(4) and 55(3)
AppellantShamrao Krishnarao Kadu
RespondentNandkishore Ghanshyamda Jaiswal and ors.
Appellant AdvocateS.G. Kukday, Adv.
Respondent AdvocateV.R. Manohar, ;J.P. Pendse and ;M.B. Mor, Advs.
Excerpt:
.....attend. 3 had ,incurred a disqualification by virtue of his failure to attend the meeting of the municipal council for a continuous period of six months ending june 1972, he cannot be deemed to have ceased to hold office till at least the order was passed by the collector on 21-10-1972. consequently, when the meeting at which the resolution of on-confidence was to be put to vote was held on 13-9-1972, the respondent no. 3 was holding office as a councillor and he was therefore, clearly entitled too be present at the meeting and vote a the meeting. 1 and 2 also could not have noted in favour of the resolution which was put too vote at the meeting held on 13-9-1972 section 45 of the act contains special provision regarding disqualification for failure to pay taxes due to the municipal..........petition is the president of the municipal council, katol, and the respondents nos. 1 to 3 are the municipal councillors. admittedly, on 5-9-1972 some councillors gave a requisition to the sub-divisional officer, katol. who was performing the duties and exercising the powers of the collector under section 55 of the maharashtra municipalities act, 1965 (hereinafter referred to as the act), for a meeting to be called in which a resolution of no-confidence in the petitioner was to be moved. on 6-9-1972 the sub-divisional officer issued the necessary notice convening the meeting for 13-9-1972 . the petitioner then immediately filed this petition praying that the notice of the meeting used by the sub-divisional officer should be quashed because, according to him, the three respondents who.....
Judgment:

Chandurkar, J.

1. The petitioner in this petition is the president of the Municipal Council, Katol, and the respondents Nos. 1 to 3 are the Municipal Councillors. Admittedly, on 5-9-1972 some Councillors gave a requisition to the Sub-Divisional Officer, Katol. Who was performing the duties and exercising the powers of the Collector under section 55 of the Maharashtra Municipalities Act, 1965 (hereinafter referred to as the Act), for a meeting to be called in which a resolution of no-confidence in the petitioner was to be moved. On 6-9-1972 the Sub-Divisional Officer issued the necessary notice convening the meeting for 13-9-1972 . The petitioner then immediately filed this petition praying that the notice of the meeting used by the Sub-Divisional officer should be quashed because, according to him, the three respondents who were signatories to the requisition had incurred a disqualification and, therefore ceased to be councillors. According to the petitioner, the respondents Nos. 1 and 2 were defaulters in the matter of payment of municipal taxes. It was alleged that the respondent No 1 had not paid taxes for the years 1971-72 and 1972-73 in spite of service of demand bill No.588 dated 19-5-1972 and a report about the non-payment of taxes by him was made to the collector by the Chief Officer of the Municipal Council under section 45 (1) of the Act. Further, according to him, the respondent No.2 had also not paid taxes for the first quarter of the year 1972 amounting to Rs.447.50 P. and against him also a report had been made by the Chief Officer to the to the Collector. The petitioner alleged that the Collector, Nagpur, had issued show-causes notices to both these respondents why action should not be taken against them under section 45 of the Act. The Petitioner's allegation against the respondent No.3 was that he had been absent at the meetings of the Council as from 18-12-1971 continuously until the meeting of 7-8-1972 without obtaining the leave of absence and he had also, therefore, incurred a disqualification under section 44 (1) (D) of the Act and had disabled himself from continuing as Councilor. This matter was also pending before the Collector.

2. When this matter was heard on 12-9-1972, this court directed that the meeting scheduled to be held on 13-9-1972 should be held and the respondents Nos. 1 to 3 were permitted to participate in the said meeting. This court had also directed that the votes be taken by ballot but the result of the ballot should not be declared, and the presiding Officer of the meeting, namely, the Sub-Divisional Officer was directed to forward the proceedings and the ballot papers to this Court immediately after the meeting was held on 13-9-1972.

3. On 6-10-1972 an interim order was passed in this case after the sealed ballot box containing the ballot papers was opened. It was found that the ballot papers was opened. It was found that the ballot box contained 9 ballot papers in support of the resolution of no-confidence. This Court also observed that the case will have to be further heard in order too find out whether the three councillors who were alleged to oboe disqualified were entitled to cast vote in the said meeting.

4. The petitioner had, by an amendment of his petition, alleged that an intimation which was required to be given to him in his capacity as president under the provision to sub-section (3) of S. 55 of the Act was not given. This was one of the ground according to him , on which the meeting was vitiated. The respondents Nos. 1,2 and 3 have by their return denied that they were disqualified or that they were not entitled to vote. The Sub-Divisional Officer and the Collector have also filed a return in which also a stand is taken that the meeting was held on 13-9-1972 the petitioner had filed a written objection before the Sub-Divisional Officer who was the presiding Officer at the meeting, stating that the intimation contemplated by the proviso to sub-section (3) S. 55 of the Act was not issued to him and what he had received was only a notice in Form A which was given to him in his capacity as a Councillor. He had also raised an objection that under Rule 3 (2) of the Maharashtra Municipalities (Conduct of Business) Rules, 1966, a notice of the proposed meeting was required to be posted at the municipal office, which was not done, and therefore. the meeting was not valid in law. By an order passed by the Sub-Divisional Officer observed could be treated as an intimation under Section 55 (3) of the Act.

5. During the pendency of this petition, the Collector, Nagpur, by order passed in 21-10-1972, has held that the respondent No. 3 Mahadeo Krishnaji Gajbe was disqualified to hold the office as Councillor during his term of office as he had absented himself without leave of absence granted by the Municipal Council from the meetings of the Council held during six successive months. A copy of this order was produced by Mr. Kukday appearing for the petitioner.

6. The learned counsel appearing on behalf of the petitioner contends that the disqualification of the respondent No. 3 must relate back too the date of the lasts meeting within the period of six months which he had failed to attend. This date, according to him , was 26-6-1972 because counted from 18-11-1971 the last meeting during the period of six months was held on 26-6-1972. It is not possible to accept this contention which must stand negatived by the express words of section 44 (3) of the Act. Section 44 (1) (d) of the Act provides that a Councillor shall be disqualified to hold office as such, if at any time during his term of office, he absents himself during his term of office, he absents himself during six successive months from the meetings of the Council, except with the leave of absence written application for such leave, and it further provides that such a Councillor shall be disabled subject to the provisions of subsection (3) from continuing to be a Councillor and his office shall become vacant. Clause (ii) of the proviso to sub-section (1) of section 44 provides that for the purpose of clause (d) when the Councillor applies for leave, such leave shall be deemed to have been granted unless it is refused within a period of sixty days from the date of his application. Under sub-section (2) of S. 44 when a Councillor, whether elected , co-opted or nominated, incurs any of the disqualifications in sub-section (1), it shall be the duty of the Chief Officer to submit a report to the collector within one month of his becoming aware of the disqualification through any source whatsoever. Then comes sub-section (3) which is material. It reads:

'In every case the authority to decide whether a vacancy has arisen shall be the Collector. The Collector may give his decision on receipt of the report of the Chief Officer under sub-section (2) , or on his own motion or on an application made to him by a voter and such decision shall be communicated to the Councillor concerned, the Chief Officer and the applicant, if any. Until the Collector decides that a vacancy has arisen and such decision is communicated as provided above, the Councillor shall not be deemed too have ceased to hold office.'

Under sub-section (3) of section 44, therefore , the authority too decide whether a Councillor has incurred any of the disqualifications mentioned in section 44 is the Collector. Sub-section (3) of S.44 also provides the point of time with effect from which the Councillor cannot be deemed to have ceased to hold office until the collector decides that a vacancy has arisen and such decision is communicated as provided in that sub-section. There is, therefore, a clear indication in sub-section (3) that for the purpose of the act a Councillor ceases to hold office as a Councillor only after the Collector has decided that a vacancy has arisen and after such decision is communicated to the Councillor concerned. Thus irrespective of the fact that the respondent No.3 had , incurred a disqualification by virtue of his failure to attend the meeting of the Municipal Council for a continuous period of six months ending June 1972, he cannot be deemed to have ceased to hold office till at least the order was passed by the Collector on 21-10-1972. Consequently, when the meeting at which the resolution of on-confidence was to be put to vote was held on 13-9-1972, the respondent No.3 was holding office as a councillor and he was therefore, clearly entitled too be present at the meeting and vote a the meeting. The proceedings of the meeting held on 13-9.1972 cannot, therefore, be said to have been vitiated because the respondent No. 3 had attended and voted at the meeting .

7. The learned counsel for the petitioner then contended that proceedings were pending before the Collector, Nagpur, against the respondent Nos. 1 and 2 because they had also incurred a disqualification on account of non-payment of taxes due to the Municipal Council. These proceedings admittedly were under section 44 of the act Here also it is contended by the learned counsel for the petitioner that the disqualification on account of non-payment of taxes was incurred at the time when the non-payment took place or at the time the taxes were due and were not paid, and that is , according to the learned counsel, before 13-9-1972 . Therefore, it is urged that the respondent Nos. 1 and 2 also could not have noted in favour of the resolution which was put too vote at the meeting held on 13-9-1972 section 45 of the Act contains special provision regarding disqualification for failure to pay taxes due to the Municipal Council The scheme of section 45 is that first the Chief Officer has too prepare and forward to the collector by the fifteenth day of April, July, October and January every year a list of all the councillors including the president and the vice-president who on the 1st day of April, July, October and January, respectively, immediately preceding, have failed to pay any tax or taxes due by them tp the Council within two months from the date on which such tax became payable and yhe amount due from each by way of such tax is to be shown in this list. A copy of this list is required to be placed before the Council at its next meeting. Under sub-section (2) of S. 45 it is obligatory on the Chief Officer to issue to every Councillor included in such list, simultaneously a special notice in the amount of tax due from him within one month from the date of the issue of such notice. Sub-section (3) then requires the Chief Officer to forward too the Collector by the last day to May, August, November and February, immediately following a statement showing-

(i) the name of each Councillor included in the list prepared under sub-section (1);

(ii) the amount of tax due from each such Councillor by way of each such tax and the date on which it became payable;

(iii) the date of the special notice issued too such Councillor under sub -section (2); and

(iv) the amount of tax paid by the councillor and the reasons for the non-payment of the balance, if any,

8. Sub-section (4) of S. 45 provides:

'On receipt of the statement under sub-section (3) the Collector shall issue a special notice to each Councillor who has failed to pay any tax by the date specified in the noticed under sub-section (2), calling upon him to state within one month from the date of the special notice why he should not be disqualified and his office declared vacant. If the Councillor fails to give an explanation to the satisfaction of the Collector shall issue an order disqualifying such Councillor and his office shall thereupon be vacant: Provided that neither the pecuniary circumstances of the councillor not the fact that he has paid he arrears after the notice under sub-section (4) was received by him shall be a satisfactory explanation for the purposes of this sub-section.'

Sub-section (4) thus clearly provides that before a Councillor can be said to be disqualified for non-payment of taxes due to the Municipal Council, the Collector has to issue a special notice to each Councillor who has failed to pay any tax by the date specified in the notice under sub-section(2), and only if the Councillor fails to give an explanation to the satisfaction of the Collector for non-payment of the taxes, the Collector is empowered to make an order being made, the office of such an order being made, the office of such Councillor becomes vacant . Even under this provision, therefore, mere non-payment of taxes does not result in disqualifying the Councillor from holding his office, but it is only when the Collector issues an order disqualifying such Councillor that he ceases to hold office then becomes vacant. Till such a vacancy occurs as contemplated by sub-section (4) of S. 45, the Councillor must be treated as holding his office legally in spite of the fact that he has failed to pay the taxes in respect of which a notice was issued to him by the Chief Officer under sub-section (2) of S. 45, In the instant case, admittedly, the proceedings before the Collector are pending. He has still the Councillors had any satisfactory explanation for non-payment of the taxes and it is impossible in such circumstances to hold that merely on an allegation that the respondents Nos. 1 and 2 have failed to pay the taxes due to the Municipal Council they had incurred a disqualification and had ceased to hold office as Councillors and were consequently not entitled to be present or vote at the meeting held on 13-9-1972.

9. It is then contended that an intimation which was required to be given by the collector-in this cases by the Sub-Divisional Officer-under the proviso to sub-section (3) of S. 55 of the Act was never given too the petitioner who was the President and, therefore, the meeting itself was illegal. Under Sub-section (2) of S.55 the requisition for a special meeting which is required to be convened for considering a resolution for the removal of the president is required to be sent to the collector. Under sub-section (3) of S. 55 the Collector has to convene a special meeting of the Council within ten days of the receipt of the Council within ten days of the receipt of a requisition under sub-section (2). The proviso to sub-section (3) provides:

' Provided that, when the Collector convenes a special meeting of the Council, he shall give intimation thereof too the president.'

In the instant case, the petitioner had admittedly received a notice in Form A prescribed by Rule 3 of the Maharashtra Municipalities (Conduct of Business) Rules, 1966. The petitioner himself was present at the meeting . He had submitted an objection too the meeting itself, and assuming that no intimation as contemplated by the proviso to sub-section (3) of S. 55 was issued him, we fail to see how the failure too give such an intimation could vital the meeting itself. Such an intimation contemplated by the proviso to sub-section (3) cannot stand on a higher footing than the notice of the meeting was already served on the President, in our view, the failure of the Collector to send and intimation to the petitioner cannot vitiate the proceedings of the meeting.

10. Lastly it was contended that by an order made by the Director of Municipal Administration, Maharashtra State, on 31-8-1972, the maximum number of Councillors of the Municipal Council in question was fixed at 19 and, therefore, at least 10 Councillors should have voted in favour of the resolution before it could be said to have been passed . It is not disputed that originally the strength of the Municipal Council was 17 Councillors, and for any resolution too be passed by a majority, 9 votes were sufficient. What is, however, contended by the learned counsel for the petitioner is that this order passed by the Director of Municipal administration takes effect immediately, and though in fact no fresh election were held and the total number of councillors was still 17 for the purposes of the resolution in question the purposes of the resolution in question the total number must one treated as 19 as provided by the order of the Director of Municipal Administration. It is not possible to accept this contention because it is apparent that the order increasing the number of councillors to 19 takes effect only for the purpose of the next general election immediately following the date of the order. Paragraph 2 of this order on which reliance is placed is as follows:

'The order of the Director of Municipal administration No. RCN-4865(8)-45902 dated the 27th day of September, 1965, is hereby superseded, and this order shall take effect for the purposes of the next general election immediately following the date of this order.'

The order dated 27-9-1965 referred to in paragraph 2 quoted above was the one by which the number of Councillors was fixed at 17 for the Municipal Council, Katol. The Director of Municipal Administration has obviously passed this order under section 9 to the Act which deals with the composition of Councils. Under sub-section (2) of S. 9, authority is given to the Director to fix from time to time by an order published in the official Gazette the number of elected Councillors according to the class of the municipal area and the population. It also empowers him to fix the number of sears to be reserved for the Scheduled Castes or the Scheduled tribes, so that such number shall bear, as nearly as may be the same proportion to the number of elected Councillors as the population of the Scheduled Castes or of the Scheduled Tribes, in the municipal area bears to the total population of that area. Subsection (4) of S.9 provides:

' Every order under sub-section (2) shall take effect for the purpose of the next general election of the Council immediately following after the date of the order.'

It is obvious that the increase in the number of the Councillors was, in terms of sub-section (4) of S. 9 and in terms of the order passed by the director of Municipal Administration, to take effect only from the next general election of the Council following after the date of the order, namely, 31-8-1972. The increased number of 19 Councillors was, therefore, immaterial for the purposes of the meeting which was held on 13-9-1972.

11. There is thus no substance in this petition. The petition fails and is dismissed. The petitioner shall pay the costs of he respondents in two sets. The ballot papers shall now be returned to the Sub-Divisional Officer, Katol, and he shall deal with them according to law and declare the result of the voting.

12. Petition dismissed.


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