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Jehangir Bhikaji Panthaki Vs. Corporation of the City of Nagpur - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application Nos. 342 of 1959 and 5 of 1960
Judge
Reported in(1960)62BOMLR450
AppellantJehangir Bhikaji Panthaki
RespondentCorporation of the City of Nagpur
Excerpt:
.....incurs a disqualification under section 15 or 19 of the act. therefore, where the directors of the cloth mills at nagpur had nominated a person under section 9(1)(d)(vi) of the act as a councillor of the corporation and he was duly notified under section 16 of the act, held that the directors had no power to recall such a councillor on the ground that he had lost their confidence and had, therefore, become incapable of acting as a councillor.; manton v. brighton corporation [1951] 2 all e.r. 101, k.v. rayarappan nayanar v. k.v. madhavi amma [1949] f.c.r. 667 and booth v. arnold [1895] 1 q.b. 571, referred to. - - panthaki, who was appointed by them to represent them in the corporation, has ceased to enjoy their confidence and that, therefore, he has become incapable of acting as a..........corporation of the city of nagpur under section 9(1)(d)(vi) of the act by the directors of the two cloth mills at nagpur. the term of office of such a councillor is for a period of five years under section 17 of the act. at the time when mr. panthaki was appointed as a councillor of the corporation, he was an employee of one of the cloth mills at nagpur, i.e. of the empress mills, nagpur.3. the term 'councillor' is defined in section 5(13) of the act in the following terms:'councillor' means any person who is legally a member of the corporation.it is not in dispute that the petitioner mr. panthaki was duly appointed as a councillor under the act.4. on september 22, 1959, the central india spinning, weaving and ., 'the empress mills, nagpur' wrote to shri panthaki as follows:with.....
Judgment:

Patwardhan, J.

1. These two special civil applications have been heard together. In these two applications we are called upon to decide as to whether the Directors of the Cloth Milk at Nagpur have got the power to recall a councillor appointed under Section 9(1)(d)(vi) of the City of Nagpur Corporation Act, 1948 (II of 1950) (hereinafter referred to as the Act). In order to determine this question it will be necessary to consider the following sections of the Act, namely, Sections 5(13), 9(1)(d)(vi), 15, 16, 17, 18, 19 and 21. It will also he necessary to consider certain rules framed under the Act, especially the rules framed under Section 9(1)(d)(vi) of the Act (printed at p. 31 of the Rules and By-laws of the Nagpur Corporation) and the rule framed under Section 16 of the Act (printed at p. 75 of the Rules and By-laws).

2. The petitioner in Special Civil Application No. 5 of 1960 is one Jehangir Bnikaji Panthaki. He was appointed as a councillor of the Municipal Corporation of the City of Nagpur under Section 9(1)(d)(vi) of the Act by the Directors of the two Cloth Mills at Nagpur. The term of office of such a councillor is for a period of five years under Section 17 of the Act. At the time when Mr. Panthaki was appointed as a councillor of the Corporation, he was an employee of one of the Cloth Mills at Nagpur, i.e. of the Empress Mills, Nagpur.

3. The term 'councillor' is defined in Section 5(13) of the Act in the following terms:

'Councillor' means any person who is legally a member of the Corporation.

It is not in dispute that the petitioner Mr. Panthaki was duly appointed as a councillor under the Act.

4. On September 22, 1959, the Central India Spinning, Weaving and ., 'The Empress Mills, Nagpur' wrote to Shri Panthaki as follows:

With reference to the discussion the Chairman and the undersigned has been having with you for the last two days and as orally communicated to you yesterday, this is to confirm that you are dismissed from services with effect from 22nd September 1959.

As already informed to you, you will not be eligible to any benefits such as Pension, Provident Fund etc.

5. On November 19, 1959, the Authorised Controller and Director, the Model Mills, Nagpur, Ltd., wrote to the Chief Executive Officer, Nagpur Corporation, as follows:

Whereas the Central Government have by the Notified Order No. S.O. 625 dated 18th July 1959 under Section 18A of the Industries (Development and Regulation) Act, 1951, authorised me as Authorised Controller to take over the Management of the Industrial Undertaking namely the Model Mills Nagpur Ltd., Nagpur.

Whereas vide clause (e) of Sub-section (1) of Section 18B of the said Act I am empowered to exercise for all purposes of the said Company, all powers held by the Directors or Board of Directors under the Indian Companies Act, 1956, in replacement of Managing Agents or Board of Directors.

Whereas it is now necessary for the Company to nominate a person for appointment as councillor of the City of Nagpur in place of Mr. J. B. Panthaki, who is no longer in the services of the Central India Spinning, Weaving and ., and who cannot, therefore continue to be a representative of the Industry.

I, as sole Director of the Model Mills Nagpur Ltd., Nagpur (under the Authorised Controller) hereby nominate Mr. B. H. Bilpodiwala, Deputy Agent, the Empress Mills, Nagpur, for appointment as a councillor of the City of Nagpur, in place of Mr. J. B.Panthaki.

Similarly the Directors of the Central India Spinning, Weaving and ., The Empress Mills, Nagpur, by their letter dated November 12, 1959, informed the Chief Executive Officer, Nagpur Corporation, Nagpur, as follows:

We the undersigned Directors of the Central India Spinning, Weaving and . (The Empress Mills, Nagpur), hereby nominate Mr. B. H. Bilpodiwala, Deputy Agent, for appointment as a Councillor of the City of Nagpur in place of Mr. J. B. Panthaki, who is no longer in our service.

6. Acting on those letters, the Municipal Commissioner, Nagpur Municipal Corporation, on December 11, 1959, wrote to the Secretary to the Government of Bombay, Local Self-Government and Public Health Department, Sachivalaya, Bombay, as follows:

I enclose herewith two letters in original addressed to me, one from the authorised Controller and Director of Model Mills, Ltd., and the other from the Directors of the Central India Spinning and Weaving and Manufacturing Co., for further action.

Previously the Directors of the Mills had nominated Shri J. B. Panthaki who was duly notified as the Councillor of the Corporation. Shri Panthaki has now ceased to be in the employment of the Mills and no longer represents them. The Directors have therefore nominated Shri B. H. Bilpodiwala as a Councillor of the Corporation to represent the constituency of the Directors of the Mills. It is requested that further necessary action may kindly be taken early under intimation to me.

7. Acting on the above letter, the Government of Bombay issued the following notification dated December 16, 1959, published in the Bombay Government Gazette, dated December 24, 1959, Part I-A Supplement, Nagpur Division:

No. NMG-1159-C.-In pursuance of the provisions of the rules made under Section 16 of the City of Nagpur Corporation Act, 1948, (Central Provinces and Berar Act II of 1950), the Government of Bombay hereby notifies the appointment by the Directors of Cloth Mills at Nagpur of Shri B.H. Bilpodiwala, as a Councillor of the Nagpur Municipal Corporation under Sub-section (vi) of Clause (d) of Sub-section (1) of Section 9 of the above Act in the vacancy of Shri J. B. Panthaki who has ceased to be a representative of the Cloth Mills by reason of his ceasing to be in the service of the Mills.

8. It is necessary to mention that before this notification was issued the mills approached the High Court in Special Civil Application No. 342 of 1959 for a writ of quo warranto against Mr. Panthaki on the ground that he was no longer capable of representing them. The mills prayed by that petition that a writ of prohibition be issued against Mr. Panthaki prohibiting him from acting as a councillor of the Nagpur Municipal Corporation.

9. It is the case of the mills that the Act gives the Cloth Mills at Nagpur a special representation in the Corporation. It is further their case that Mr. J. B.Panthaki, who was appointed by them to represent them in the Corporation, has ceased to enjoy their confidence and that, therefore, he has become incapable of acting as a councillor. It is the case of the mills that this is a casual vacancy which is required to be filled up under Section 18 of the Act. According to the mills, this vacancy has occurred because their nominee Mr. Panthaki has lost the confidence of the mills, and he is, therefore, no longer in a position to represent them. Section 18 of the Act refers to filling up of casual vacancies, and the case of the mills is that as this casual vacancy has occurred, the mills have got the power to fill up that vacancy by nominating another person of their choice to be a councillor to represent them under Section 9(1)(d)(vi). It is the case of the mills that Mr. Panthaki was guilty of misconduct and he was therefore, removed from the service of the mills.

10. Section 9(1)(d)(vi) of the Act gives the mills a special representation in the Corporation and the Directors of the Cloth Mills at Nagpur have been empowered by that section to appoint a person as a councillor in the prescribed' manner.

11. It is Mr. Panthaki's case that the Cloth Mills at Nagpur have no power to recall him as long as he has not incurred any disability under the Act. He has a right to be a councillor for a period of five years. Mr. Panthaki's case is that the continuance in the service of the mills is not a condition precedent to his right to be in the Corporation as a councillor. Mr. Panthaki's further contention is that he has been dismissed from service without justification and that he has not at all become incapable of acting as a councillor. His case is that he is quite ready and willing to act as a councillor and that no casual vacancy has occurred under Section 18 of the Act which requires filling up.

12. It is common ground that Mr. Panthaki was appointed as a councillor in the prescribed manner under Section 9(1)(d)(vi). The question to be considered is whether a casual vacancy has occurred which requires filling up under Section 18. If Mr. Panthaki has become incapable of acting before the expiry of the term of his office, then a casual vacancy must be deemed to have occurred in that office and that vacancy will have to be filled up as prescribed in Section 18.

13. The notification dated December 16, 1959, referred to above proceeds on an assumption that a casual vacancy has occurred because Mr. Panthaki has ceased to be in the service of the mills. Cessation from service of the mills is not a ground of disqualification under the provisions of the Act. The disqualification of candidates are enumerated in Section 15 of the Act and cessation from service of the appointers is not such a disqualification. Similarly, Mr. Panthaki has not become subject to any subsequent disability after his appointment to the office of councillor. Section 19 enumerates such subsequent disabilities and Mr. Panthaki has not ceased to be a councillor on account of his having incurred any of those disabilities enumerated in Section 19. If a person ceased to be a councillor as a result of a subsequent disability, Section 19 requires that it is necessary to declare such a seat to be vacant by a notification. It is not the case either of the State Government or of the mills that Mr. Panthaki's seat has been declared to be vacant on account of any such disability. The case of the mills is that as Mr. Panthaki has ceased to enjoy the confidence of the mills, he has become incapable of acting as a councillor and, therefore, a casual vacancy must be deemed to have occurred. If a vacancy has occurred in this way, then, under Section 9(1)(d)(vi) the Directors of the Cloth Mills at Nagpur will be entitled to nominate another person to fill up that vacancy and the mills' case is that the Directors of the Cloth Mills have effectively done so by nominating Mr. Bilpodiwala. Mr. Bilpodiwala's nomination has been notified by the Government under Section 16 and that notification confers the status of a councillor on Mr. Bilpodiwala, the appointee of the Cloth Mill at Nagpur. It has been urged on. behalf of the mills that the power has been given to the Directors of the Mills to appoint a person to represent them in the Corporation, and if the mills felt that their appointee did not enjoy their confidence, the person whom they had nominated had become incapable of acting as a councillor, and as their appointee has become incapable of acting as a councillor, his incapacity has resulted in a casual vacancy of that office and they will have the power to re-appoint a person of their choice to the office of councillor under Section 9(1)(d)(vi).

14. Before a person could be appointed to the office of councillor under Section 9(1)(d)(vi) a certain procedure is required to be followed under the rules framed under the Act. These rules are to be found at p. 31 of the Rules and By-laws of the Municipal Corporation, Nagpur, and Rule 1, which is important, is in these terms:

At a general election, as soon as may be convenient, and at any other time whenever the need arises, the Chief Executive Officer shall request the Directors of the Cloth Mills at Nagpur (hereinafter referred to as the Directors) to name an eligible person for appointment as a councillor and to communicate the same to the Chief Executive Officer within such period as may be specified in the request by the Chief Executive Officer.

The appointment of a councillor is to be made under Section 9(1)(d)(vi) either at a general election or at any other time whenever the need arises. It is the Chief Executive Officer who has to initiate the proceedings for the appointment of such a councillor. In the instant case, it is not the Chief Executive Officer who has taken the initiative. It is argued on behalf of the mills that Section 9(1)(d)(vi) gave them the power to appoint a councillor on the Corporation. The argument is that that very section must be construed to mean that the mills were also given the power to suspend or dismiss that councillor. There is no question of suspending a councillor. There is no provision in the Act under which a councillor could be suspended. Similarly, there is no provision under which a councillor could be dismissed.

15. The occasion to appoint a fresh councillor under Section 9(1)(d)(vi) would arise only if there is a casual vacancy. Such a vacancy can arise under Section 18. It may arise because of the death, resignation or disqualification of a councillor or of his being incapable of acting before the expiry of the term of his office. In this case the only category that can be contemplated for the occurrence of the casual vacancy would be the incapacity of the councillor to act as acouncillor. Mr. Panthaki has not become incapable of acting as a councillor. He is ready and willing to act as a councillor. It is only the appointers, that is, the Cloth Mills, who do not want him to act as a councillor. Theircase is that he has lost their confidence and as he has lost their confidence he could not be said to be a proper person to represent them in the Corporation. The question is whether it is open to the mills to decide for themselves as to whether a. certain person appointed by them under Section 9(1)(d)(vi) is not capable of acting before the expiry of the terms of his office. If the mills are able to satisfy the Chief Executive Officer of the Corporation that the need has arisen to take steps under Section 9(1)(vi), he will consider the question, and if he is satisfied that the need has arisen and a casual vacancy has occurred as contemplated under Section 18, he will initiate proceedings as required by the particular rule. Whether a certain person has become incapable of acting as a councillor would be a question of fact and the incapacity to act as a councillor will be either physical or mental. The allegation that the councillor has lost the confidence of the appointers obviously does not make him incapable of acting. It only means that the appointers do not want him to act though he may be very much ready and willing to act.

16. Once a councillor is appointed under Section 9(1)(d)(vi) and his appointment is notified under Section 16, the councillor has a right to hold that office for a period of five years subject to the Act. If he incurs any disqualification either under Section 15 or under Section 19, the person shall cease to be a councillor and the State Government shall declare his seat to be vacant by a notification. Mr. Panthaki's seat has not been declared to be vacant under Section 18. Tinder Section 17, there-fore,Mr. Panthaki will be entitled to hold the office of councillor for a period of five years.

17. If the view canvassed by the Cloth Mills is accepted, it will lead to alarming results. The Cloth Mills have merely to say that they do not want a particular councillor to represent them and the result will be that they will have the right to call him back and nominate another person as a councillor.

18. In the present case we have got only two Cloth Mills, but one can conceive that there may he many more. Some Cloth Mills may not be satisfied with the appointee. Other mills may be satisfied with him. To leave it to the subjective satisfaction of the mills to decide as to whether a certain person has the capacity to work as a councillor or whether he is incapable of acting as a councillor could not be and is not within the intendment of the Act.

19. Once a person has been appointed under Section 9(1)(d)(vi) and his appointment has been notified under Section 16, the Mills will have no control over the appointee. He will continue to remain in office for a period of five years unless he incurs a disqualification under Section 15 or 19.

20. If the mills feel that particular appointee should be removed, it would be open to them to resort to Section 21(5).

21. If it is left to the discretion of the mills to ask for a fresh appointment on the ground that their earlier appointee has become incapable of acting as a councillor as has been done in this case, the appointee will lose his office as councillor without getting even any opportunity to furnish an explanation. If proceedings are taken under Section 21(5) the person who is sought to be removed has to be given an opportunity to show cause under Section 21(5) why action should not be taken against him under Section 21(5).

22. The learned Counsel who appeared for the mills urged that the right to take advantage of Section 18 on the basis of a deemed casual vacancy follows from Section 15 of the Central Provinces and Berar General Clauses Act, 1914. The learned Counsel argued that as the mills had the power to make an appointment they had also the authority to suspend or dismiss the appointee. The mill would certainly have the power to suspend or dismiss their appointee if a different intention did not appear in the Act. The scheme of the Act makes it quite clear that the power to call back an appointee and to appoint a new one in his stead is not contemplated by these sections. On the contrary, these sections clearly show that once a councillor has been appointed to his office he has a right to fill that office for a period of five years. Once the appointment is notified, the appointee is no longer subject to the control of the appointers, and if his office is to be terminated, it can be terminated only under the provisions of the Act and not because the appointers want to remove him. We must, therefore, reject the submission of the learned Counsel who appeared for the mills that the mills have the power to call back their nominee and appoint another in the manner they want it to be done. Section 15 of the C.P. and Berar General Clauses Act, 1914, was pressed into service by Shri Bobde, the learned Counsel for the mills. But as Section 21(5) of the Act specifically provides for the removal of a councillor, the rule of construction afforded by Section 15 of the General Clauses Act will not apply.

23. The learned Counsel for the mills referred to Manton v. Brighton Corporation [1951] 2 All E.R. 101. The authority relied upon goes to show that a person who has got the power to appoint has also got the power to suspend or dismiss. That proposition is unexceptionable. In Manton v. Brighton Corporation it was held that the council under the Local Government Act, 1933, had the power to determine the authority of any of the committees, and as they had the power to revoke the authority of a committee as a whole, they also had the power to revoke the authority of any single member thereof before the end of his prescribed period of office. The authority will not be of any use to determine the point at issue in this case. The learned Counsel also referred to the decision in K. V.Rayarappan Nayanar v. K. V. Madhavi Amma [1949] F.C.R. 667. That case lays down that the power to make an appointment includes the power to remove or dismiss the person appointed. The learned Counsel also referred to Booth v. Arnold [1895] 1 Q.B. 571. In that case Lopes L.J. held that the power of a motion from a corporate office incident to a corporation at common law exists in the case of an alderman of a borough subject to the Municipal Corporations Act,

24. The Act does make a provision for the removal of a councillor under certain circumstances. The relevant section is Sub-section (5) of Section 21, When there is a specific provision in the Act for the removal of a councillor it will not be open to adopt some other procedure to achieve the same object. If a councillor is to be removed, he should be removed by resorting to the specific procedure prescribed by the Act, as for instance, Section 21(5). It will, therefore, not be permissible to fall back upon Section 15 of the local (General Clauses Act to call back a councillor on the ground that he had forfeited the confidence of his appointers.

25. We asked the learned Special Government Pleader as to whether he was taking any particular attitude in this matter and he told us that Government leave the question to be fought out by the competing nominees and that Government had got no particular view to press in the matter.

26. We also asked the learned Counsel who appeared for the Corporation as to what attitude he was taking in the matter and he also intimated to us that the Corporation had no particular view in the matter and that the Corporation would leave the matter to be fought out by Mr. Panthaki and the mills. We appreciate the stand taken by the Corporation in this Court. The correspondence set out in extenso above shows that the Corporation approached the Government for advice as to what the Corporation should do under the circumstances. The Government instead of pointing out to the Corporation the position under the Act issued the notification No. NMG-1159-C dated December 16, 1959, under Section 16, accepting the new nomination made by the two Cloth Mills at Nagpur.

27. The result is that Special Civil Application No. 5 of 1960 will be allowed and a writ will follow as prayed for in the petition in terms of prayers (a) and (b). It is also hereby declared that the notification No. NMG-1159-C, dated December 16, 1959, is ultra vires the Act and is quashed and the appointment of Shri B. H. Bilpodiwala as a councillor of the Nagpur Corporation under Section 9(1)(d)(vi) is hereby set aside. It is further declared that Shri J.B. Panthaki is still a councillor of the Corporation of the City of Nagpur and is an appointee of the Cloth Mills at Nagpur under Section 9(1)(d)(vi) and will be entitled to remain in office as a councillor under the Act for the unexpired period of his tenure, subject to his removal under the provisions of the Act.

28. We specifically asked the learned Counsel who appeared for Mr. Panthaki whether, now that the stand taken by him has been vindicated, his client was prepared to resign his office as a councillor, especially when he has lost the confidence of his appointers, the Cloth Mills at Nagpur. In the course of the arguments it became clear that the Directors of the two Cloth Mills had expressed their unwillingness to continue Mr. Panthaki as a councillor to represent their interests. The learned Counsel told us that Mr. Panthaki was reluctant to resign unless he was given an opportunity to satisfy the mills that their grievance against him was not justified. In the special civil application, we are not concerned to go into disputes between Mr. Panthaki and the mills. Mr. Panthaki may have a good grievance against the mills or the mills may be justified in taking the view that he has lost their confidence. Under the circumstances as these when Mr. Panthaki knows that he no longer enjoys the confidence of the mills whom he represents it would but be fair to himself and to the mills that he should resign. Mr. Panthaki should have 'realized in the course of the hearing of these petitions that the Corporation did not support him. 'We hope the well-established convention in public life that if the appointee has lost the confidence of the appointers, he would do well to render his resignation in order to give the appointers a chance to nominate a person of their own choice and confidence gets root in the city.

29. In the circumstances, though we make the rule absolute, there will be no order as to costs. This judgment also disposes of the other Special Civil Application No. 342 of 1959 which has been filed by the mills against Mr. Panthaki asking for a writ in the nature of quo warranto against him and to prohibit him from acting as a councillor on the Corporation. Special Civil Application No. 342 of 1959 fails and the rule is discharged. There will be no order as to costs in that application.


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