(1) The petitioner Bhagwandas has filed this petition under Arts. 226 and 227 of the Constitution for quashing the order of the respondent No. 2 dated 18th August 1964 rejecting the application of the petitioner against a notice issued by the respondent No. 1.
(2) The facts are somewhat unusual and require to be stated in detail. The petitioner is a resident within the municipal limits of the City of Achalpur and was elected as a member of the Achalpur City Municipal Committee in 1962 from Ward No. 19, Jiwanpura ward of the City of Achalpur. The respondent No. 1 is the President of that Municipal Committee. The petitioner alleged that there were 35 members comprising the Municipal Committee of Achalpur and were divided into two groups, 17 belonging to the party of the President and 18 members in opposition to him. The petitioner has further alleged that he left the party of the President along with some other members and joined the opposition group because of the mal-administration in the Municipal Committee and thus the party in opposition to the President was in a majority. A resolution of no-confidence was moved against the respondent No. 1 at a meeting of the Committee held on 25-7-1964. Thereafter, on 30th July 1964, that is, five days after the moving of the resolution of no-confidence, the respondent No. 1 issued a notice to the petitioner. This notice is filed by the petitioner and annexed to the petition as Annexure A. By this notice the respondent No. 1 intimated to the petitioner that he had incurred a disqualification as a member under Section 15 (1) of the C. P. and Berar Municipalities Act and under Section 22 (2) of the said Act the petitioner had forthwith ceased to be a member of the Municipal Committee and his office had become vacant. In this notice it is alleged by the respondent No. 1 that it had come to the notice of the respondent No. 1 that the petitioner had given his house in Jiwanpura to the Municipal Committee, Achalpur, on rent of Rs. 20 per month for holding Jiwanpura Marathi Primary School with effect from 11th December 1961. It was further alleged that the petitioner had been actually receiving from the Municipal Committee rent at the above rate since 1-12-1961 upto June 1964, that the above transaction and contract amounts to direct interest of the petitioner in a contract with the Municipal Committee and as a result of this, he had incurred the disqualification under Section 15 (1) of the said Act.
(3) On receipt of this notice, the petitioner promptly sent a reply to the President. which is Annexure B. In this reply, the petitioner denied that he had given any of his house in Jiwanpura to the Municipal Committee on rent as alleged in the President's notice. He specifically stated that the house in question did not belong to him, nor has he been receiving the rent therefor as alleged in the President's notice. The reply further disclosed that the house in question belonged to one shankar Chandrabhuj Hadge to whom it was sold under a registered sale-deed on 19th of September 1959 and that hadge had already brought this fact to the notice of the Secretary of the Municipal Committee, orally and in writing. The reply disclosed one more fact that the petitioner was not a member of the Municipal Committee when the house was taken on rent by the Municipal Committee in 1961 and the petitioner had never entered into a contract with the Municipal Committee since then. He also alleged that the Municipal Committee had wrongly continued his name in the records, though in the nazul records the name of the owner is correctly shown as that of the Shankar Hadge. The reply also complained that no enquiries were made by the President from the petitioner about the petitioner having entered into any contract with the Municipal Committee and it was falsely alleged that he had incurred a disqualification under Section 15 (1) of the Act. The reply also challenged the authority of the President to declare the office held by the petitioner as municipal member to have become vacant. The order is characterised as high-handed illegal and arbitrary. The petitioner also informed the President that by such action, he cannot be debarred from participating in the Municipal Committee's meetings and that he would be attending the meetings of the Municipal Committee and participate in them. There was a further allegation that the memorandum, that is, the notice was sent by the President out of malice because he had left his party and joined the opposition group, and because the resolution of no-confidence was passed against the President on 25-7-1964 that being annoyed and in order to wreak vengeance, the President has taken this step.
(4) The petitioner not only sent a protest to the President, but immediately approached the respondent No. 2, the Commissioner, Nagpur Division, by an application dated 3rd August 1964, Annexure D.. All the contention raised by the petitioner in the reply sent by him to the President were reproduced in the application made to the respondent No. 2 and the respondent No, 2 was requested to quash the order of the President and further requested that effect should not be given to the order of the President till the final decision of the matter.
(5) The petitioner has stated that along with this application which he filed before the Commissioner, he filed the sale-deed infavour of Shankar to whom the property was sold and also an affidavit of the vendee, namely, Shankar. A copy of that affidavit is filed as Annexure-C to the petition. In this affidavit the property on 26-6-1959 under the registered sale-deed from the petitioner, that the house was rented to the City Municipal Committee Achalpur, by him in 1961 at the rental of Rs. 20 per month for the Primary School purposes, that the rent of the building was realised by Bhagwandas on his behalf and he has received the whole amount of the rent up-to-date through Bhagwandas. He also alleged in his affidavit that the house stood recorded in his name in the nazul records.
(6) The petitioner has alleged that the obtained a stay of the operation of the order of the President from the Commissioner, that is, respondent No. 2 on the same date. Thereafter, the respondent No. 1 had moved the Commissioner by an application dated 10-8-1964 for vacating the stay. Instead of vacating the stay, the respondent No. 2 fixed the case for hearing parties and postponed the hearing on 17-8-1964. A grievance is made in the petition, that this hearing was only for hearing the parties on question of vacating the stay, but on the date the application was also heard on merits and was disposed of by the Commissioner by his order passed next day. Unfortunately, there is no return filed on behalf of the respondent No. 2 in this case and the facts stated in paragraphs 5 & 6 are not controverted by any statement made on behalf of the respondent No. 2. The petitioner received copy of the order by the Commissioner on 20th of August 1964 and he immediately filed this petition in this Court on 24th of August 1964 and secured an interim stay from this Court and thus was continued in office.
(7) Apart from the grievance made by the petitioner about inadequate opportunity given to him by the respondent No. 2 in disposing of the application, the main contention of the petitioner is that the respondent No. 2 has not properly apprehended the scope of his power and has come to an erroneous conclusion that the petitioner had incurred any disqualification within the meeting of Section 15 of the C. P. and Berar Municipalities Act, which would entail his ceasing to be a member of the Municipal Committee under Section 22 of the same Act. In our opinion, this contention is well founded and will have to be accepted.
(8) Section 22 (2) of the C. P. and Berar Municipalities Act is as follows:
'Any president, vice-president or member of a committee who after his entry into office becomes subject to any of the disqualifications specified in Section 15 shall forthwith cease to be president, vice-president or member and his office shall become vacant. If any question, dispute or doubt arises whether a vacancy has occurred under this sub-section, it shall be decided by the Provincial Government, and its decision shall be final.
(9) Now, it is not in dispute that the respondent No, 2 is the authority empowered to exercise the functions of the Provincial Government under this sub-section to decide whether a vacancy has occurred in the office of the members. It was, therefore, incumbent on the respondent No. 2 when an application was made by the petitioner against the notice issued by the respondent No. 1 to decide the matter judicially, whether a vacancy has occurred in the office of member of the Municipal Committee from Jiwanpura ward in the City Municipal Committee of Achalpur. We fail to see under what authority the respondent No, 1 as a President of the Municipal Committee could arrogate to himself a power to send a notice of the type sent by him under Annexure A. Even assuming that the President formed an opinion that one of the members of the Municipal Committee of which he was a President, had incurred a disqualification and had ceased to be a member, the proper course for him was to bring this fact to the notice of the Commissioner and seek his decision. It is no part of the duty, nor within the ambit of the powers of the Municipal President under this Act to take a decision, whether a person has or has not ceased to be a member under Section 22 (2) of the Municipalities Act. We are clear, therefore, that the notice sent by the Municipal President in this case was in excessive zeal and does lend some support to the allegation made by the petitioner that he was not actuated by bona fide motive in interest of the Municipal administration.
(10) The petitioner immediately lodged the protest by his reply on the next day, Annexure B. Yet, the Municipal President took no action in reporting the matter to the only authority which could have decided under the law, namely, the respondent No. 2, whether the office of the member had become vacant as thought by him. It was left to the petitioner to go to the respondent No. 2 with an application and seek his protection from the notice sent by the respondent No. 1. From the nature of the order passed by the respondent No. 2 on this application also, it does not appear that the powers and duties enjoined on the authority under Section 22 (2) of the Municipalities Act, have been properly apprehended by the respondent No. 2. There was no question of rejecting the application of the petitioner, as if it was an appeal against the order of the President. The respondent No, 2 was required under the law to give a clear finding after considering the contentions of either side, whether petitioner had ceased to hold office. It is undoubtedly true that the respondent No, 2 has observed in his order dated 18-8-1964 that the Municipal Committee has shown that the petitioner did have some interest in the property, part of which was let on hire to the Municipal Committee. In our judgment, it is not the interest in the property that would entail a disqualification. What is required to be established is an interest, direct or indirect, is the contract with the municipal committee. There is no such finding recorded by the respondent No.2 in this case.
(11) Apart from this, we are clear that there was no material before the respondent No. 2 from which a reasonable conclusion could be arrived at that the petitioner had incurred a disqualification. At this stage, we are not considering, whether an application under Section 22 (2) could be made on the facts alleged or attempted to be proved on behalf of the President. Municipal Committee before the Commissioner. But even so, the Commissioner having accepted that the petitioner had parted with the title to the property as far back as 26th June 1959 when the property was sold under a registered sale deed, the fact that the transaction was not reflected in the municipal records could not be attributed to any default on the part of the petitioner.
(12) Another aspect of the matter was the payment of rent. The respondent No. 2 has observed that the petitioner admits to have received the rental amount right from beginning upto June 1964, though it was explained that the collection was made for the new purchaser. This observation seems to be founded on an averment in the affidavit of Shankar, the vendee, which was filed before the Commissioner that the rent was being realised by the petitioner on his behalf. But it was also stated in the same paragraph of the affidavit that the vendee had received the Bhagwandas. Now, the respondent No.2 had observed that the petitioner was not able to explain as to why he did not inform the Municipal Committee that he had been collecting it on behalf of the new purchaser. We have not been shown any such duty being cast on the vendor, even assuming he was collecting rent paid by the Municipal Committee, to inform the Municipal Committee as to the person on whose behalf the rent was being collected. It is not the collection of rent that creates interest in the contract. The rent may be collected by anyone on behalf of the lessor or the true owner of the property. If Bhagwandas collected the rent or received rend paid by the Municipal Committee, we fail to see how that would imply or import any interest of the petitioner in the contract of tenancy with the Municipal Committee. It is also adversely commented in the order that at no stage the petitioner informed the Municipal Committee that he was not the owner and as such not entitled to receive rent or that new purchaser of the property was Shankar. We have not been shown any such legal obligation on the petitioner to intimate these facts. On the other had, if an averment is required to be made that averment was made by the petitioner in the reply sent by him to the President on 31st July 1964. The third ground on which the decision seems to have gone adversely to the petitioner's contention was that the petitioner was alleged to have made an application on 27-1-1962 to reduce taxes, from which it was inferred that the petitioner had an interest in the building. Now, it is quite obvious that a person (who) is occupying part of a building as a tenant or has interest in the property, will be entitled to make an application for reduction of taxes if permissible within the rules. We fail to see how from this conduct it could be inferred that the petitioner had an interest in the contract of tenancy with respect to the portion rented to the Municipal Committee. Unless the respondent were able to establish interest of the petitioner in the contract of tenancy, it was not permissible to hold that the petitioner could be said to have ceased to be a member of the Municipal Committee because he had an interest in the contract with the Municipal Committee. There is some clear misapprehension, when the following observation is made in the order passed by the respondent No. 2, namely:
'The documents produced by the Municipal Committee clearly show that the applicant did have some interest in the property.'
Having interest in the property, does not tantamount to having interest in the contract in respect of the property with the Municipal Committee. A person may have interest as a tenant in respect of part of the property and vet the other part of the property may be leased out by the true owner to the Municipal Committee. We fail to see how having interest in a portion of the property can at all imply an interest of such a tenant in the contract in respect of the rest of the portion of property with the municipal authorities. Thus, the inference drawn by the learned Commissioner that the petitioner has an indirect interest in the contract with the Municipal Committee in respect of the hire of the portion of the house of Shankar for locating the Primary School is clearly unwarranted and untenable on the face of the record.
(13) There is yet another aspect of the matter which does not seem to have been appreciated. The petitioner was not a member of the Municipal Committee when the alleged contract of lease was entered into by the Municipal Committee in 1961. when the petitioner became a member in 1962, there was no fresh contract with the Municipal Committee. what is urged however, is that the contract was a contract of lease from month to month and therefore, an agreement as if for a monthly tenancy for each month separately came into force and, therefore, in that sense the petitioner, if proved to be one of the contracting parties, would be hit by the provisions of Section 22 (2) of the C. P. and Berar Municipalities Act. There is no material on record in support of such a contention. The respondent No. 1 has not filed even the resolution of the Municipal committee under which the premises were agreed to be taken on rent. As far as we are able to see, there does not appear to be any contract in writing in respect of this lease. Section 44 of the Municipalities Act requires contracts to be in writing in respect of affairs of the Municipal Committee, except for those of sales or purchases of moveable and contracts of service with servants. Under the second proviso to sub-section (1) of Section 44, an exception is made that the contract the value whereof or the amount does not exceed fifty rupees may be made orally. It is difficult to hold that a tenancy of premises where the monthly rent is Rs. 20 and is not shown to be for any particular period, would amount to a contract, the value or the amount of which does not exceed fifty rupees. It is not even stated that it was an oral contract. We do not see, therefore, how any action under Section 22 (2) of the Municipalities Act could have been taken against the petitioner even assuming that he were shown to be the owner of the property or to have entered into a contract in 1961. However, as we have come to the conclusion that there was no material before the authority to hold that the petitioner had ceased to be a member, there is no doubt that the order of the respondent No. 2 cannot be sustained. It is hereby quashed. We also hold that the respondent No. 1 had no business as per Annexure A and he seems to have been actuated by some ulterior purpose in sending such a notice.
(14) The respondent No. 1 has filed an application for permission to summon the respondent No. 2, that is, the Commissioner as a witness and to cross-examine the petitioner because of certain averments made in the petition. Those averments are in paragraph 17 of the petition, where it is alleged that the order passed by the respondent No. 2, was under the colour of the exercise of his powers and is camouflaged order. We do not feel called upon to pronounce on this averment in absence of the respondent No. 2, who has not filed any return and it is not necessary to adjourn the hearing of this petition to Stamp No. 6436/63 is, therefore, rejected.
(15) The result is that the petition is allowed and it is declared that the petitioner has not ceased to be a member of the Municipal Committee, Achalpur. As this whole action seems to have been commenced at the instance of the respondent No. 1, we direct that the costs of this petition shall be paid by the respondent No. 1.
(16) Petition allowed.