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Hanmantro Yeshwantrao Patil and ors. Vs. Chinatamani K. Gulvani and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberWrit Petn. No. 2339 of 1980
Judge
Reported inAIR1982Bom377
ActsMaharashtra Municipalities Act, 1965 - Sections 2(7), 10, 13, 16, 18, 44, 55, 81, 302 and 313
AppellantHanmantro Yeshwantrao Patil and ors.
RespondentChinatamani K. Gulvani and ors.
Appellant AdvocateA.V. Savant, Adv.
Respondent AdvocateE.M. Pradhan,;C.J. Sawant, Advs. and;M.B. Mehere, Asst. Govt. Pleader
Excerpt:
it was adjudged under sections 16, 44, 2(7) and 302 of the maharashtra municipalities act, 1965, that the conditions of disqualification that were applicable to the elected councillor would also be applicable to the president - - the disqualifications in section 16 of the act apply therefore with equal force to the president as well. it was thus necessary to refer to the president as constituent of the council under section 9 as otherwise be cannot fail under any of the other categories of councillors enumerated in the section......the 'president' who is elected as such directly by the voters of the council & who becomes a 'deemed councillor' ex-officio on account thereof, though not elected as a councillor.2. the petitioners nos. 2 to 4 and respondents nos. 1 to 7 were elected as councillors to the vita municipal council in the election held on 7-11-1974. petitioner no. 1 was elected as president at the said election directly by all the voters of the council under the amended act.3. a contract was entered into on behalf of the municipal council by the chief officer on oct., 1, 1975, with the vita co-operative electric supply society ltd., (shortly stated ad 'the said society) for the supply of electricity for street lights. a resolution was unanimously passed in the meeting of the council held on july 29,.....
Judgment:

Kotwal, J.

1. This petition raises a short question as to whether acts or omissions disqualifying a person from becoming or acting as a Councillor of a Municipal Council under S. 16 read with S. 44 of the Maharashtra Municipalities Act, 1965 (shortly stated as 'the said Act') also so disqualify the 'President' who is elected as such directly by the voters of the Council & who becomes a 'deemed Councillor' ex-officio on account thereof, though not elected as a Councillor.

2. The petitioners Nos. 2 to 4 and respondents Nos. 1 to 7 were elected as Councillors to the Vita Municipal council in the election held on 7-11-1974. Petitioner No. 1 was elected as President at the said election directly by all the voters of the Council under the amended Act.

3. A contract was entered into on behalf of the Municipal Council by the Chief Officer on Oct., 1, 1975, with the Vita Co-operative Electric Supply Society Ltd., (shortly stated ad 'the said Society) for the supply of electricity for street lights. A resolution was unanimously passed in the meeting of the Council held on July 29, 1976, rectifying the said contract. The five petitioners admittedly voted in favour of the said resolution though each one of them admittedly held share in the said Society and as such held some interest therein.

4. On or about Aug., 20, 1977, respondents Nos. 1 to 5 moved the Collector of Sangli, respondent No. 9, herein, making a grievance that the five petitiones incurred a disqualification under Section 44 (1) (b) read with Section 16 (1) (ii) of the said act by voting in favour of a matter in which they had an interest and a share. They, therefore, requested that the five petitioners be declared to have become disqualified to continue as Councillors. The petitioners No. 1, the president, is alleged to have incurred the disqualification by, reason of being a deemed Councillor;

5. In response to the notice, by the collector in this behalf, the petitioners explanted on June 13, 1978 how they were not so disqualified. The petitioners inter alia, explained that they were merely shareholders in the Society and did not take part in the management. They also came out with the defence that the Society was supplying electricity since long and passing of such a resolution was just a formality and entering into a contract in favour of the said Society was an indispensable requirement of the residents of town Vita, the undertaking of the Society being the only source of supplying electricity for street light. The Government was moved by the Council to require the Maharashtra State Electricity Board to take over the undertaking to avoid such contingencies in future. Petitioner No. 1 raised an additional contention that the disqualifications prescribed for an elected Councillor do not apply to the president who is directly elected as such President under Section 51 of the said Act and not as a Councillor and becomes only an ex-office Councillor under Section 2 (7) of the said Act.

6. All these contentions were overruled by the Collector by his order dated 29-10-1978. He declared all the petitioners to have become disqualified under Section 44 (1) (b) by virtue of having voted for the matter in which they had interest and further declared the seals to have fallen vacant under Section 44 (3) of the said Act. The petitioners appeal to the State Government, respondent No. 12 was dismissed by an order dated August 14, 1980. Hence this petition under Article 226 of the Constitution to this Court. At the admission stage, claim of the petitioners numbers 2 to 5 was summarily rejected. Rule is granted only with regard to claim of petitioner No. 1 whose case obviously stands on different footing.

7. Shri A. V. Savant, the learned counsel appearing on behalf of petitioners No. 1 does not dispute either that petitioner No. 1 held shares in the Society or voted at the meeting for ratification of the contract with it, He, however, contends that under the amended Act, a person directly elected as the president is not elected as Councillor but is to be deemed to be such Councillor by virtue of his being the president. The Act does not prescribe any qualification or disqualification for holding the office of the President or discharging and performing its consequential functions including that of the Councillor. The acts or omission disqualifying a Councillor under Section 16 of the said Act cannot, therefore, disqualify the President and consequently cannot prevent him from being deemed as such Councillor. Stroud reliance was placed by Shri Savant on the circumstances that, (1) unlike under the pre-amended Act, a person is not required to be elected as Councillor to become the President as also, (2) on the omission of the 'deemed Councillor' in s. 44 or Sectends that the so-called interest of the petitioners, in the shares of the Society is too nominal, and ratification of of the contract is too formal to incur the disqualification.

8. A short survey of the relevant provisions of the said Act may not be out of place at this stage. The words 'Council' and 'Councillor' are defined under Section 2 (6) of the Act and Section 2 (7) of the Act while Sec 2 (49) defines that words 'total number of Councillors'. The President is deemed to be an ex-officio Councillor under Section 2 (7) of the said Act, in addition to the total number of Councillors elected of co-opted. Various Municipal authorities are enumerated under Section 7 indicating that the President and the Council are distinct authorities. Under Section 9 (I) of the Act the Council is to consist of (1) a President and (2) elected or co-opted Councillors. A deemed and ex-officio Councillor is not separately or expressly included therein. The total number of Councillors of any Council is to be determined by the Director in accordance with sub-section (2) of s. 9 by reference to the class to which it belongs, Section 11 prescribes 91) the manner of preparing the voters list and 92) the eligibility to vote, Section 15 prescribes the fundamental qualifications for a Councillor, Section 51 (2) makes Sec. 15 applicable to the candidate seeking election as President.

9. Section 16 of the said Act enumerates the acts, omissions and circumstances which disable any candidate from becoming a Councillor, Clause (1) of Section 16 (1) disqualifies a person from becoming a Councillor, if he had directly or indirectly, by himself of his partner, any share or interest in any contract with or under or by on behalf of the Council. Exceptions to his clause (I) are, however, carried our in sub-section (3) of the said S. 16 The relevant Cl. (B) thereof provides that a person shall not be deemed to have incurred such disqualification under Sub-sec (1) (I0 merely by having such a share or interest in a company or co-operative society, so contracting with the Council. Reading Sections 16 (1) (I) and 16 (3) (b) of the said Act together, it would be clear that the disqualification contemplated under cl, (1) is made inapplicable if the interest of the person happens to he of a share or interest in a company of co-operative socity. Which enters into any contract with the Council.

10. However, Section 44 (1) (b) operates as an exception to such an exception. This Sec 44 (1) reads as follows.

'44(1). A Councillors shall be disqualified to hold office as such if at any time during his term of office, he :-

xx xx xx xx (b) as a Councillor or as a member of any Committee of the Council votes in favour of any matter in which he has directly or indirectly by himself or his partners any such share or interest as is described in Cls. (A), (b), (c), (d) and (g) of sub-section (3) or Sec. 16, whatever may be the value of such share or interest or in which he is professionally interested on behalf of a client, principal or other person or'.

11. This clause (b) stipulates that a Councillor shall be disqualified if, as a Councillor or as a member of any Commitee of the Council, he votes in favour of any matter in which he is directly or indirectly by himself or his partner any share or interest as described in Section 16 (3) (b) of the said Act A distinction is thus made between the passive part of merely having share or interest in a company or co-operative society, having contract with the Councillor, and the active additional part of voting in favour of such a contract at the meeting of the council. The former does not, but the latter does their the disqualification.

12. Section 51 provides for election of the President and Vice-President. This S. 51 is amended by the Maharashtra Act No. XLVII of 1973. The President of the Council is now directly elected by persons whose names are included in the Municipal Voters. List. Before this amendment, the President and Vice-President of the Council were elected from amongst the Councillors who were elected or were deemed to have been elected. A person could be elected as President only if he was a Councillor. This amendment of Section 51 made it necessary to amend other relevant provisions vis-a-vis office of the President to make them accord with the new set up.

13. Then, reference to sub-sec (6), (9), (12) and (13) of Sec 81 also is relevant. Section 81 deals with various aspects of the meetings of the Council. Sub-Section (6) enables any other Councillor to preside over a meeting in case of need while sub-section (9) provides for the quorum. Sub-sec (12) deal with the minutes while sub-sec (12) deals with the minutes while sub-sec (13) stipulates that in a meeting convened and presided over by the presiding officer, the business will be carried on and decided by a majority of votes of the Councillors present and voting, and in the event of equality of votes the presiding authority shall have a right to a second or a casting vote.

14. Shri Savant's contention shall have to be examined in the light of these provisions, It is true that Section 16 and S. 44 provide for the disqualifications of a Councillor and not of the President, In fact, there is not section in the Act prescribing any qualification or disqualification of the President as such separately or expressly. The word 'Councillor'. However, shall have to be construed by reference to its definition under S. 2 97) of the Act. The President is also a 'Councillor' under this definition. The meaning given to this work under the legislative mandate of Section 2 (7) must prevail in terms of the opening sentence of S. 2 'unless the context otherwise requires' Shri Savant could not show any such context of these two sections requiring departure from the plain definition. The definition requires the President to be deemed to be an ex-officio Councillor. It also requires him to be treated as an additional Councillor, I, e, in addition to other total number of Councillors, as defined under Section 2 (19), The fact that he is elected as President and not as Councillor, or that the nature of his constituency is different from the one from which other Councillors are elected or co-opted, cannot affect the potency of the fiction of his being such Councillor. The statutory fiction requires the President to be assumed to be a Councillor for all purposes as any other Councillor. The disqualifications in Section 16 of the Act apply therefore with equal force to the President as well.

15. This explains why no other provision prescribes any qualification of disqualification for the persons seeking or holding the office of the President. Under the fiction raised under Sec. 2 (7), the word 'Councillor' in Sections 16 and 44 must be deemed to be inclusive of even the 'deemed Councillor' It was not necessary to include expressly the office of the 'President' or 'deemed Councillor'. As the word 'Councillor' itself was found adequate enough to embrace the said office. It is difficult to believe that the Legislature could have intended to permit any person to be elected or to hold the office of the President even when he was disqualified to become or to act a Councillor under Section 16 or Section 44 of the Act, The Legislature did not presumably feel it necessary to expressly refer to the office of the President in Sections 16 and 44 when it had achieved the said object by raising a fiction of his also being such Councillor under S. 2 (7) of the Act. The contention of Shri Savant that the work 'Councillor' in Sections 16 and 44 does not include a 'deemed Councillor' such as the President is thus devoid of substance. The act of the President of voting for the resolution amounts to the act of so voting by a Councillor even if he happens to be a deemed such Councillor and, therefore, is hit by S. 16 (1) (I) and is not saved by Sec 16 (3) because of its being covered by S. 44 (1) (b) of the act.

16. The fiction of the {resident being a deemed Councillor is not hollow and without some basis. He is empowered to discharge the function of the Councillor apart from his functions as President enumerated in Section 58 of the Act. Section 81 (9) and (13) are illustrative of how he has to vote as the meeting as a Councillor in addition to vote as President when necessary, He attends the meeting in the dual capacity of the President and the Councillor, He presides over the meeting in discharge of his presidential function under clause (a0 of S. 56 (1) of the Act. He also exercises the right of 'second' or 'casting' vote, in the event or equality of votes, as such President as contemplated under Section 81 (13) of the Act. His presence is taken into account for the purposes of the quorum under sub-section (9) of Section 81 which can only be in his capacity fo a Councillor. He exercises his right to vote only as a Councillor at the first round of voting which may or amy not result in the equality of votes to require his casting second vote. The occasion to exercise second or casting vote on the equality of votes can be exercised by him in discharge of the functions of the President. Any other presiding authority also can exercise such a casting vote even which any other Councillor happens to preside over the meeting under sub-section (6) of Section 81, due to the absence of the President and Vice-President. This is illustrative firstly of now the office of President and the deemed Councillor gets blended integrally when he has to act as Councillor, exercising right to vote at the meeting of the Councill being one such contingency. This is also illustrative of how fiction of the President being a deemed Councillor is not without some basis.

17. Shri Savant drew our attention to Section 9, 21 and some other provisions of the Act in which the word 'President' is added to the word 'Councillor' in contrast to the glaring omissions to that effect in the wording of Secs. 16 and 44 of the Act. This omission according to Shri Savant is reflective of legislative intent to exclude the President from the disqualifications contemplated thereunder. The context of Sections 9 and 21 and other sections, however, would made it clear how addition of the work 'President' was necessary to make the same applicable to him as, but for such additions, the provisions would not have ipso facto been applicable to him. It was thus necessary to refer to the President as constituent of the Council under Section 9 as otherwise be cannot fail under any of the other categories of Councillors enumerated in the section. Similarly, it plain, reading of Section 21 would indicate that but for the words 'including the president' on disputes as to his election could have been raised in any election petition under S. 21 or the Act. In spite of his being a deemed Councillor, be cannot be said to have been co-opted or elected Councillor to attract the section.

18. There are various other sections in the Act omitting any reference to the President, Yet. Reference to the Councillor in the context implies reference to the deemed Councillor and indirectly to the President in the same manner as it is implicit in Secs. 16 and 44 of the Act. Thus, for instance, Section 262 of the said Act prescribes that every Councillor and officer of a Council and other persons shall be deemed to be public servants within the meaning of S. 24 of the I,P,C However, the omission of the word 'President' is obviously innocuous, inasmuch as it is implicit that the same is covered by the term 'Councillor' it cannot be gainsaid that the President cannot be said to be a public servant. Reference can also be made on the same pattern to the other provisions such a sections 95 and 96 of the said Act.

19. Shri A. V. Savant then submitted that Section 55 of the said Act is the only provision under which President such as the petitioner No, 1 Can be removed. Section 65 on the face of it relates to the removal of the President consequent to a resolution to the effect passed by the prescribed majority at a special meeting convened on requisition. It has nothing to do with the effect of disqualification. Section 56 contemplates his ceasing to be in office consequent to his absence for a particular period. He ceases to hold this office on his resignation also under Sec. 53 and can also be removed by the State Government under certain contingencies. Dissolution of the Councill including the office of President in case of supersession is also contemplated by Section 313 of the said Act. There different contingencies in which the President ceases to hold this office have no bearing on the interpretation of Section 16 and 44 of the said Act.

20. Having thus taken the survey of the entire situation, we are of the opinion that Section 44 (1) of the Act squarely embraces the case of the petitioner No. 1 notwithstanding the fact that he is elected directly as the President and not as a Councillor. The resultant consequence is that he having voted in favour of the impugned resolution as a Councillor. In the marred of which he had an interest, he did include the disqualification contemplated under Section 44 (1) of the Act. The protection afforded by Section 16 (3) *b) of the act to the situation covered by Section 16 (1) (I) is lost due to the act of voting, We are, therefore, of the opinion that the impugned order passed by respondent No. 9 i.e, the Collector, is not open to any exception. This conclusion is inevitable on the rational and harmonious interpretation and construction of the various provisions of the Act having regard to the scheme and object thereof as also the legislative intent. Any other course would be contrary to the plain reading and would also defeat and frustrate the object and would equally distrub the harmonious coherence of the fabric.

21. Shri A. V. Savant made a faint endeavour to under-estimate the implications of the impugned voting. The value of the share is claimed to be insignificant and the resultant interest being negligible. Holding of mere such shares along with a number of villagers without any active part in the management of the Society could not be, according to Shri A. V. Savant, any evidence of any interest of substance. It is argued that he had no option but to vote in favour of the resolution inasmuch as the said Society is the only available source of electricity supply to the town of Vita and contracts were renewed ever time without any objection from anyone almost as rituals. We are unable to uphold the contention. The clear mandate contained in Section 16 (1) (I0, (18) (3) (b) and 44 (1) (b) of the Act leaves no choice once the same are attracted by the facts admitted or proved. The wording is clear enough not to admit of any other construction. The result may, be unfortunate, but is equally inevitable.

22. In the result, the rule is discharged with no order as to cots, At the request of Shri A. V. Savant the operation of this order is suspended till 19th Jan., 1991.

23. Rule discharged.


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