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Abdul Sammad Vs. Government of Mysore and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 27 of 1955
Judge
Reported inAIR1955Kant105; AIR1955Mys105
ActsMysore Town Municipalities Act, 1951 - Sections 14(2) and 23(6); Constitution of India - Articles 166, 166(1), 166(3) and 226; Government of India Act, 1935 - Sections 40(1)
AppellantAbdul Sammad
RespondentGovernment of Mysore and anr.
Advocates:S.K. Venkata Ranga Iyengar, Adv.
Excerpt:
.....be deemed to be tender accepting authority. appointment of technical sub-committee in tender security committee employs a vigilant circumspection and care. it cannot be said that it was a whimsical or mala fide action to discredit or disqualify any tenderer. - counsel for the parties concerned as well as the town municipal council, mulabagal, observed in their order that there was no material to show that leave was granted by the council and that the petitioner himself made no such claim. it is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative......before the council a letter of his dated 6-2-1954 which he had sent through post applying for leave of absence from the meeting of the council and that,, in those circumstances his absence from the meetings of the municipal council continuously for three months -- january, february and march 1954 -- would not entail his disqualification as contemplated by section 14(2)(c) of the town municipalities act. the deputy commissioner, kolar, before whom an appeal was filed by the petitioner held that the petitioner had not incurred the disqualification. the government, after hearing; counsel for the parties concerned as well as the town municipal council, mulabagal, observed in their order that there was no material to show that leave was granted by the council and that the petitioner.....
Judgment:

1. The petitioner has applied for a writ to quash an order of Government dated 4-2-1955 by which it declared that a vacancy had arisen consequent on the disqualification incurred by the petitioner to continue as Municipal Councillor of Mulabagal Town Municipal Council. In his affidavit accompanying the petition the petitioner has sworn that on account of some illwill and rivalry between himself and respondent 2, then President of the Town Municipal Council, Mulabagal, the latter had suppressed and had not placed before the Council a letter of his dated 6-2-1954 which he had sent through post applying for leave of absence from the meeting of the Council and that,, in those circumstances his absence from the meetings of the Municipal Council continuously for three months -- January, February and March 1954 -- would not entail his disqualification as contemplated by Section 14(2)(c) of the Town Municipalities Act. The Deputy Commissioner, Kolar, before whom an appeal was filed by the petitioner held that the petitioner had not incurred the disqualification. The Government, after hearing; Counsel for the parties concerned as well as the Town Municipal Council, Mulabagal, observed in their order that there was no material to show that leave was granted by the Council and that the petitioner himself made no such claim. Even if his version was to be believed, he merely applied to the President for leave and inasmuch as there was no evidence to show that he had taken permission or leave to absent from the Council the petitioner had become disqualified to continue as a Municipal Councillor by reason of continued absence for three months. It is this order of Government, that the petitioner seeks to challenge.

2.Section 14(2)(c) provided that if any Councillor during the term for which he has- been elected or 'appointed absents himself from the meetings of the Municipal Council during three successive months except with the leave of the Municipal Council, he shall be disabled from continuing to be a councillor and his office shall become vacant. Clause (3) provides that if any question or dispute arises whether a vacancy has occurred under this section, the orders of the Government shall be final for the purpose of deciding such question or dispute. It is not disputed in this case that the petitioner was as a matter of fact absent from the meetings of the Municipal Council during three successive months and that the leave of the Municipal Council had not been obtained for such non-attendance.

3. It is urged by Mr. Venkataranga Iyengar, learned Counsel for the petitioner, that such leave need not be obtained in advance but could be secured oven later, after the absence. He has not been able to refer to any precedent in support of this contention. A prima facie interpretation of that section would suggest that he must apply and secure leave in advance if he wishes to absent himself during three successive months. It is, however, unnecessary to consider this matter further as the petitioner has not in fact obtained leave either before or subsequent to his absence.

4. That section also provides that a councillor whose office has become vacant under Sub-section (2) shall if his disability has ceased be eligible for re-election or re-appointment; and it does not provide for co-option of the member who has incurred a disability. He is disabled 'from continuing to be a councillor and his office shall become vacant.' In this connection Mr. Venkataranga lyengar has referred to Section 23(6) which prescribes the consequence of absence of president or vice-president without leave. Under that section those officers of tho Municipal Council shall cease to be president or vice-president unless leave to absent himself has been granted by the Municipal Council. And it is argued that if it was contemplated that the Municipal Councillor had also to obtain leave in advance a similar provision would have been made in Section 14(2)(c). The office of the president and the vice-president involves more onerous and responsible duties connected with the day to day administration of the Municipal Council and there is nothing strange in providing for leave of absence being obtained in advance in the case of those officers more expressly.

These considerations would not exist in the case of an ordinary Municipal Councillor who absents himself continuously for three successive meetings of the Municipal Council. It may be sufficient if by reason of his absence at three successive meetings he is disabled from continuing as a councillor. The intention of that section is apparently to discourage indifference or the part of the councillors who are, representing their wards in the Municipal Council. The decision of the Government based therefore on a simple question of fact which was admitted by the petitioner viz. that he was absent from three successive meetings of the council, and their order declaring the vacancy would be final under Section 14(3) of the Act. This Court would not lightly interfere with such an order by the issue of a writ except on proper and weighty grounds.

5. Mr. Venkataranga lyengar has raised another objection against the validity of the order in question. He represents that the order has been made, not by the entire body of Ministers but by only one of them, viz. the Minister-in-charge of the port-folio of Local Self-Government and that the same is not expressed to be taken in the name of the Governor. He contends that the order is therefore of no effect. It is not denied that the order was passed by the L. S. G. Minister after hearing Counsel for parties concerned in the matter. Under Article 166(3) of the Constitution the Governor has power to make rules for the more convenient transaction of the business of the State and for the allocation among Ministers of the said business in so far as it is not business in respect of which the Governor is by or under the Constitution required to act in his discretion. If therefore an order has been passed on a matter which falls within the business allotted to one of 'the Ministers no objection can be raised on the first ground. Article 166(1) no-doubt provides that all executive action of tbe Government of a State shall be expressed to be taken in the name of the Governor. Rule (2) provides that orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor; and if it was authenticated the validity of such order or instrument cannot be called in question on the ground that it is not an order or instrument made or executed by the Governor.

6. This matter came up for consideration before the Supreme Court in -- Dattatraya Moreshwar v. The State of Bombay', : 1952CriLJ955 (A), where their Lordships were concerned with the order of detention under the Preventive Detention Act. In that case S. R. Das J. has observed at p. 185:

'I agree that every executive decision need not be formally expressed......... .but when the executive decision affects an outsider or is required to be officially notified or to be communicated it. should normally be expressed in the form mentioned in Article 166(1), i.e. in the name of the Governor.'

He accepted the contention of the learned Attorney-General who relied in this connection on a case reported in -- 'J. K. Gas Plant . v. Emperor', AIR 1947 FC 38 at pp. 41-43 (B) where their Lordships dealt with the interpretation of Section 40(1) of the 9th Schedule to the Government of India Act, 1935, which was in terms similar to Article 166. He points out:

'It is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the Courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done.'

He has gone on to point out that strict compliance with the requirements of Article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor; if, therefore, the requirements of that Article, are not complied with, the resulting immunity cannot he claimed by the State; this, however, does not vitiate the order itself or render an executive action a nullity. That decision had in fact been taken by the appropriate Government is amply proved on the record. In that case action appears to have been taken by the Home Minister and it was pointed out by Das J. that the Act itself did not prescribe any particular form of expression of that executive decision. In the present case, therefore, it must be held that the decision has in fact been taken by the appropriate Government and there has been in the circumstances no breach of the procedure established by law. The mere circumstance that the copy of the order produced by the Petitioner purports to be issued under the name of an Assistant Secretary to Government cannot affect the validity of the order.

7. There is therefore no substance in any/ofthe contentions raised on behalf of the Petitionerand this petition is dismissed.

8. Petition dismissed.


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