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Y. Krishna Rao and ors. Vs. Sreeramulu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 67 of 1983
Judge
Reported inAIR1983AP191
ActsAndhra Pradesh Municipalities Act, 1965 - Sections 32 and 55 - Schedule - Rule 2; Constitution of India - Article 226
AppellantY. Krishna Rao and ors.
RespondentSreeramulu and ors.
Appellant AdvocateM. Chandrasekhara Rao, Adv.
Respondent AdvocateB.V. Subbaiah, Government Pleader for Panchayat Raj and ;D. Venkata Reddy, Adv.
Excerpt:
civil - resignation - sections 32, 55 and rule 2 of schedule to andhra pradesh municipalities act, 1965 and article 226 of constitution of india - councilors issued written notice to collector expressing their intention to move no confidence motion against chairman - chairman and vice-chairman gave their resignation letters to commissioner - resolution passed for accepting resignations - petitioner contended that resolution accepting resignation was illegal as no prior notice regarding meeting was given - court observed that meeting in which resignation were accepted was next meeting satisfying requirement of section 55 - notice regarding meeting was not valid - resolution recording acceptance of resignations in meeting was illegal - consequently there was no vacancy in offices of.....jagannadha rao, j. 1. this writ appeal is preferred against the judgment rendered in writ petition no. 8073 of 1982 by which the writ petition was allowed. the appellants before us are 17 municipal councillors of tenali 17 municipal councillors of tenali municipality they are the respondent 3 to 19 in the writ petition. the writ petitioners are respondents 1 to 3 before us. the district collector, guntur who is the first respondent in the writ petition is the 4th respondent before us. the commissioner tenali municipality. tenali who is the 2nd respondent in the writ petition is impleaded as the 5th respondent in this appeal.2. the writ petition was filed for the issue of a writ of certiorari quashing the notice given by the district collector in his proceedings rc. no. 13384/ 82 d-7 dated.....
Judgment:

Jagannadha Rao, J.

1. This writ appeal is preferred against the judgment rendered in writ petition No. 8073 of 1982 by which the writ petition was allowed. The appellants before us are 17 Municipal councillors of Tenali 17 Municipal councillors of Tenali municipality they are the respondent 3 to 19 in the writ petition. The writ petitioners are respondents 1 to 3 before us. The district collector, Guntur who is the first respondent in the writ petition is the 4th respondent before us. The commissioner Tenali Municipality. Tenali who is the 2nd respondent in the writ petition is impleaded as the 5th respondent in this appeal.

2. The writ petition was filed for the issue of a writ of certiorari quashing the notice given by the District Collector in his proceedings Rc. No. 13384/ 82 D-7 dated 2-11-1982.

3. The writ petition has been filed by three of the Municipal councillors of Tenali Municipality. The total number of councillors in the municipal council is 36. One sri A. Satyanarayana was unanimously elected as the chairman of the municipality while Sri N. Ramakrishan was elected as the vicechairman. While so the chairman convended a meeting of the municipal council to be held on 30-10-1982 at 3.00 P.M. on the morning on 30-10-1982 24 councillors issued a written notice to the collector expressing their intention to move no confidence motion against the chairman sri. A. Satyanarayana as per section 46 of the Andhra pradesh Municipalities Act (hereinafter called the Act). On 30-10-1982 the meeting of the council was hled. At that meeting the chairman sri A. Satyanarayana and the vice chairman sri N. Ramakrishan gave their resignation letters to the commissioner incharge. According to the appellants 29 councillors attended that meeting. It is also the case of the appellants that apart from giving the resignation letters the chairman and the vice-chairman announced in the meeting that they have resigned their respective offices of chairman and vice-chairman and left the meeting. Then the commissioner placed both the resignation letters before the Municipal council. The councillors elected sri Jetti Ankineedu the 8th appellant as temporary chairman under section 51 of the Act and under his presidentship the resignations of the chairman and the vice-chairman and a resolution to that effect was also recorded in the minutes of the municipal council. As the said resolution was subscribed by 2/3rd majority of the municipal councillors the proceedings relating to the resignations were communicated to the collector for the purpose of electing a new chairman, it is also the appellants' case that the chairman and vice-chairman also sent tlelgrams to the collector intimating about their resignation on 30-10-1982 . then the collector issued notices dated 2-11-1982 stating that on account of the resignation of the chairman of the Municipal council on 30-10-1982 there was a vacancy in the office of the chairman and therefore for the purpose of filling up the said vacancy he was convening a meeting in accordance with section 25 of the Act 12-11-1982 at 3.00 p.m at the council hall for the meeting of the municipal councillors. On 9-11-1982 the present writ petition was filed by respondents 1 to 3 in this appeal who are three of the municipal councillors alleging that the resolution accepting the resignations was wholly void and illegal inasmuch as under section 55 of the Act any resignation of either chairman and vice-chairman should be placed in the'next meeting of the council and that was not done. They also alleged that as per the rules for convening of meetings three days prior notice should be given mentioning the time of the proposed meeting and mentioning the business to be transacted and that in the present case no such meeting was convened to consider the resignation of th chairman and vice-chairman and as such) the resolution dated 30-10-1982 accepting the resignations was illegal. They also stated that the meeting presided over by the temporary chairman was contrary to the provisions of section 51 of the Act. In that view according to them the notice dated 2-11-1982 issued by the collector convening a meeting to be held on 12-11-1982 for the purpose of electing a new chairman was illegal and without jurisdiction.

4. The learned single Judge who admitted the writ petition did not grant stay of the election meeting to be held on 12-11-1982 and directed that the election should go on but the result should not be announced. There was an appeal against that order to a Bench of this Court which on 11-11-1982 directed that the result of the election could also be announced subject to the result of the writ petition. Accordingly on 12-11-1982 the meeting of the council was said to have taken place and one R. Ravindranath the 17th appellant was said to have been elected as the chairman. It was also stated that another meeting was held on 26-11-1982 in which a new vice-chairman was also elected.

5. The writ petition was disposed of by the learned single Judge on 29-1-1982 holding that on 30-10-1982 the meeting was convened to transact certain business and that subsequently after the resignations submitted by the chairman and Vice-Chairman there was another meeting on the same day at which the resignations were accepted. Therefore he held that that meeting in which the resignations were accepted was a'next meeting satisfying the requirements of section 55 of the Act. However, he came to the conclusion that the notice with regard to the said 'next meeting' was not valid and therefore the proceedings in which the resignations were accepted and the resolution recording the acceptance of the resignations were illegal and therefore there was no vacancy in the offices of chairman and vice-chairman. Accordingly he held that the notice of the collector dated 2-11-1982 convening a meeting to be held on 12-11-1982 for the purpose of election of a chairman was based on a wrong premise that there was a valid acceptance of the resignations tendered by the chairman and vice-chairman and held that there was in fact no vacancy in the said offices. Accordingly it was declared that the acceptance of the resignations by the municipal council on 30-10-1982 was illegal and the notice dated 2-11-1982 was quashed and the writ petition allowed.

6. Aggrieved by the judgment of the learned single Judge allowing the writ petition the respondents 3 to 19 in the writ petition have filed the present writ appeal.

7. In this writ appeal the learned counsel for the appellants Sri M. Chandrasekhara Rao, has contended that the learned Judge erred in coming to the conclusion that there was no valid notice for convening the meeting dated 30-10-1982 in which the resignations were accepted. A notice which is short of three days would, according to him, be an irregular notice but not an invalid notice and unless it was shown that the writ petitioners were prejudiced on account of the said irregularity. It could not vitiate the notice. For the proposition vitiate the notice. For the proposition he relied upon the rulings of their Lordiships of the Supreme Court in narasimhiah v. Singri Gowda : [1964]7SCR618 : he also contended that though the rule required that the notice for convening a meeting should bein writing still an oral notice could be given and for this purpose he relied upon the decision of their lordships of the Supreme Court in shyabuddinsab v. Municipality of Gadag Betgeri, : [1955]1SCR1268 . He also contended that even if a subject was not formally included in the agenda it could be brought in at the time of the meeting and unless some prejudice was shown the proceedings could not be held to be vitiated and for that proposition he relied upon the ruling of their lordships of the Supreme Court in vice-chancellor v. S. K. Ghosh, : [1954]1SCR883 . He also pointed out that the chairman A. Satyanarayana and the vice-chairman N. Ramakrishna who tendered their resignations have not filed the writ petition and that they have not even cared to come an record as respondents.

8. The questions that therefore arise for consideration in this appeal are -

(1) Whether the acceptance of the resignations of the chairman and the vice-chairman at the meeting held on 30-10-1982 is valid and illegal?

(2) whether the notice dated 2-11-1982 issued by the collector convening a meeting to be held on 12-11-1982 for the purpose of electing a new chairman is valid or not?

Section 55 of the Act reads as follows:-

'Resignation of councillor, member of the executive committee vice-chairman or chairman: Any councillor, the vice-chairman or the chairman may, by writing under his hand addressed to the commissioner resign his office. The commissioner resign his office. The commissioner shall on receipt of such resignation place it before the next meeting of the council. The council shall, if it is satisfied as to its genuineness from the concerned person accept the resignation; and the resignation so accepted shall take effect from the date of such acceptance. If the council is not satisfied as to the genuineness of the resignation. The notice of resignation shall lapse. Before the resignation is so accepted. It shall be open to the person concerned to withdraw such resignation by writing under his hand addressed to the commissioner'.

9. Section 32 of the Act states that the council shall observe the rules in schedule I and may make regulations not inconsistent therewith or with other provisions of this Act or any rules made by the Government in regard to the following matters, namely:-

(a) the time and place of its meetings:

(b) the manner in which notice there of shall be given:

(c) to (f) xx xx xx

Rule 2 of the rules in schedule I reads as follows:

'(1) No meeting shall be held unless notice of the day and time when the meeting is to be transacted thereat has been given at least three clear days before the day of the meeting.

(2) In cases of urgency the chairman may convene a meeting on giving shorter notice than that specified in subrule (1).

(3) the agenda for the meeting shall be prepared by the commissioner in consultation may include in the agenda any subject which in his opinion should be considered by the council and shall include therein any subject specified by the chairman. On any subject included in the agenda the chairman as well as the commissioner shall have the right of recording his views in a note and such note shall be circulated to the councillors or placed before the council before or at the time of the consideration of such subject by the council'.

9A. Rule 5 of the Rules reads as follows:-

'All questions which may come before the council at any meeting shall be decided by a majority of the councillors present and voting at the meeting and in every case of equality of votes, the presiding councillor shall have and exercise a second or casting vote'.

10. The incharge commissioner in his affidavit stated that the meeting notice and the agenda for the meeting dated 30-10-1982 was circulated to all the councillors as per rules that the transaction of business and writing of the minutes was closed by 4.45 p.m. Thereafter the chairman Sri A. Satyanarayana announced that he and the vice-chairman sri N. Ramakrishna had tendered their resignations in respect of their respective posts of chairman and vice-chairman, that after announcing the same sri. A. Satyanarayana handed over the resignation letters to the Muncipal Engineer and incharge commissioner who was present at the meeting in the presence of 28 councillors who attended the said council meeting on that day that Sri A. Satyanarayana and Sri N. Ramakrishna then left the council hall along with some other councillors. He also stated that the councillors remained in the council hall and chose one sri Jetti Ankineedu. One of the councillors as their president and continued the minutes accepting the resignation of sri. A. Satyanarayana and Sri N. Ramakrishna and then recorded the same in the minutes of the council resolution No. 567 dated 30-10-1982 Thereafter the fact was immediately reported to the district collecotr, Guntur in the letter of the commissioner Roc. No. 12755/82 C-2 dated 31-10-1982 with a request to convene a special meeting of the council under sub-clause (1) of section 2 of the Act for the election of the chairman and the vice-chairman.

11. On the basis of the above affidavit filed by the incharge commissioner the learned Judge came to the conclusion that initially at the meeting dated 30-10-1982 the council discussed the agenda as originally circulated and completed its business and that subsequently the remaining members in the council discussed the question of the resignations of the chairman and the vice-Chairman and therefore this could establish that the resignations were accepted in the 'next meeting' of the councillors within the meaning of these words in section 55 of the Act.

12. According to the affidavit of Sri Y. Krishna Rao, the first appellant, 29 members attended the meeting on 30-10-1982 at 3.330 p.m. It was at that meeting that the original agenda was discussed and at the end of the meeting the chairman and the vice-chairman submitted their letters of resignation and walked out. Thereafter 27 councillors were present and they accepted the resignations of the chairman and the vice-chairman. According to the finding of the learned Judge only 24 members were present at the meeting when the resolution was passed accepting the resignations on 30-10-1982.

13. It is therefore clear that there are 36 councillors in the municipal council and the chairman sri A. Satyanarayana convened a meeting to be held on 30-10-1982 and the agenda in respect thereof was circulated to all the 36 members of the council. The meeting was duly convened on 30-10-1982 at 3-30 p.m. and was attended even according to the appellants only by 29 councillars. The agenda was discussed and the meeting was closed by 4.45 p. M. Immediately thereafter the chairman and the vice-chairman tendered their resignations and walked out of the council hall. Thereafter the subject of acceptance of the resignations of the chairman and the vice-chairman which was not in the original agenda was taken up for consideration by the remaining members in the council. According to the appellants 27 councillors were present at that stage while according to the finding of the learned Judge 24 councillors were present and a resolution was passed accepting the resignations of the chairman and the vice-chairman.

14. We shall now consider the question of validity of the resolution passed accepting the resignations of the chairman and the vice-chairman on 30-10-1982 on the basis that the said meeting was the 'next meeting' held under section 55 of the Act.

15. The facts stated above would make it clear that after the completion of the council meeting in which, even according to the appellants only 29 councillots out of 36 participated. A new subject relating to the question of acceptance of the resignations of the chairman and vice-chairman was taken up and the remaining councillors (27 according tot he appellants and 24 according to the finding of the learned Judge) were present at the time when the resolution accepting the resignations was passed.

16. According to the counter-affidavit of the incharge commissioner after discussion on the original agenda was exhausted by 4.45 p.m. the chairman and the vice-chariman announced their resignations and then handed over the resignation letters to the commissioner and then left the council hall along with some other councillors. It was only thereafter that Sri jetti Ankineedu was elected as ad hoc chairman and the subject of acceptance of the resignations was taken up.

17. It is clear therefore that before the chairman and the vice-chairman and some other councilors left the council hall they were not put on notice that the subject of the acceptance of their resignations would be discussed by the remaining members. It may therefore be seen that so far as the councillors who were not present at the first meeting on 30-10-1982 there could be no dispute that they had absolutely no notice of the resignations having been tendered at the first meeting on 30-10-1982 nor did they have notice of any fresh agenda relating to the question of acceptance of the resignations of the chairman and the vice-chairman. So far as those who were present at the first meeting but not present at the first meeting but not present at the 'next meeting' on 30-10-1982 they had also no notice of any agenda regarding the subject of acceptance of the resignations of the chairman and the vice-chairman to be considered on 30-10-1982.

18. Therefore so far as the fresh subject of acceptance of the resignations of the chairman and the vice-chairman was converned no agenda was circulated and no notice was given in accordance with rule 2 of the rules to at least nine out of the 36 councillors eve according to the appellants. It is therefore a clear case of total want of notice to the councillors who were present at the 'next meeting' that took place on 30-10-1982.

19. In the light of the above facts it is clear that this is a case where atleast 9 councillors out of 36 councillors had no notice of the fresh agenda relating to the acceptance of the resignations of the chairman and the vice-chairman. This is according to the affidavit filed on behalf of the appellants Taking the finding of the learned judge that only 24 councillors were present to the next meeting it is clear that atleast 12 persons had no notice of the fresh agenda in regard to the acceptance of the resignations of the chairman and the vice-chairman.

20. The case in Narasimhian v. Singri Gowda : [1964]7SCR618 supra relied upon by the learned counsel for the appellants cannot therefore help the appellants. The Municipality there in question had 20 councillors. 13 out of them sent a request to the president to convene a special general body meeting to discuss the resolution expressing no confidence in him as president this request was handed over to the president on 25-9-1963. As the president did not take any steps the vice-president called for a meeting to express no-confidence in the president. A notice under the vice-president's signature stating that it was proposed to hold a special general body meeting of the municipality on 14-10-1963 at 10.00 a. M. Was given to the members. One copy of the notice was sent by post and it was dated 10-10-1963. Out of the 20 councillors 15 were personally served on 10-10-1963 and another on 11-10-1963. Thus all the 20 councillors were served with notice. The meeting was held on 14-10-1963 and only 19 councillors were present including the president. But the president left the meeting later. Then the vice-president presided over the meeting and a noconfidence motion was moved and was passed 15 members voting in its favour. Then the president of the council filed a writ petition. One of the points urged by him was that the requisite three days' notice was not served on all the members of the council in accordance with the Mysore Town Municipality Act, 22 of 1951 and that the resolution was therefore bad. The said contention was rejected by the High Court and the same was again raised in the Supreme Court . Dismissing the appeal Their Lordships of Supreme Court held that the period of notice was not a mandatory requirement.

21. We do not see how the said decision could be applied to the facts of the present case. As pointed out above the present one is a case of total want of notice to some of the councillors regarding the fresh agenda while the case before their Lordships of the Supreme Court was one in which all the 20 councillors were as a fact served with a notice but in respect of some of the councillors. Notice was short of three clear days as required by the Mysore Act. In the said judgment relied upon by the learned counsel for the appellants there is a passage which in fact. Goes against his contention. In para 18 of the said judgment Das Gupta J. Speaking for the Court observed:-

'It is interesting to notice in this connection that the english law as regards meetings of borough councils and country councils contain a specific provision that want of service of a summons to attend the meeting (which is required to be served on every member of the council) will not affect the validity of the meeting . it may be presumed that the legislature which enacted the Mysore Town Municipalities Act, 1951 was aware of these provisions in English Law. It has not gone to the length of saying that the failure to serve the notice will not make the meeting invalid. It has instead said that any irregularity in the service of notice would not make a resolution of the council invalid provided that the proceedings were not prejudicially affected by such irregularity. The logic of making such a provision in respect of irregularity in the service of notice becomes strong if the fact that the notice given was short of the required period is considered an irregularity.

22. The above observations show if there is total want of notice in respect of a meeting to all or some of the councillors of the Municipality the resolution, passed at such a meeting would be invalid. Issuing notice short of the prescribed period mentioned in the rules would make the notice would make the resolutions of hte council invalid.

23. Nor does the judgment of the Supreme Court in Shyabuddinsab v. Municipality of Gadag-betgeri : [1955]1SCR1268 , (supra) come to the aid of the appellants. It is true Their Lordships observed that notice for convening a meeting could be an oral notice though the rules contemplate issue of a notice in writing. But in that case the collector called for a special meeting of the municipality to be held on 30-7-1954 to elect a president and vice-president On 30-7-1954 the prant officer under instructions from the collector adjourned the meeting to 3-8-1954 without transacting any business the only item on the agenda being the election of the president and the vicepresident. The special General Meeting was therefore held on 3-8-1954. Certain objections which were raised in respect of the meeting were overruled by the presiding officer and therefore 13 out of 32 councillors who were present walked out on the ground that they did not propose to participate in the meeting. The appellant before their Lordships was one of those 13 councillors who walked out. The remaining 19 councillors proceeded to transact business and elected the 2nd respondent in that appeal as the president. Thereafter another meeting was held when the vice-president was elected, the appellant in that case filed the writ petition questioning the election and contended that sec. 35 (3) of the bombay Municipal Boroughs Act contemplates a written notice and not an oral notice. The said contention was rejected by stating that the provision was not mandatory and that the notice could be an oral notice and it was not alleged or proved that on account of the oral notice the party was in any way prejudiced. That decision is clearly distinguishable in view of the fact that there were councillors in the municipality who were given written notice of the agenda in respect of the meeting dated 30-7-1954 and the said meeting dated 30-7-1954 and the said meeting was adjourned to 3-8-1954. All the councillors were present on ht e meeting dated 30-7-1954 and all of them were intimated orally that the same agenda would be considered on 3-8-1954. Therefore that was not a case of total absence of notice of the agenda to all or some of the councillors as is a case in this appeal. That decision therefore cannot help the appellants. In fact in that judgment there is a passage which clearly goes against the contention of the appellants. It is as follows:

'If all the councillors have not been present on 30-7-1954 or had not been informed of the proposed meeting of 3-8-1954, other consideration may have arisen.............'

24. The learned counsel for the appellants is not all right in relying on the ruling of the Supreme Court in Vice-Chancellor v. S. K. Ghosh : [1954]1SCR883 (supra). In that case an ordinary meeting of the University syndicate has b een called for to be held on the 21st day of April 1951 to consider various matters. The question of leakage of question papers was not one of the specified items but the last item on the agenda was 'other matters if any'. The vice chancellor presided and he told the members present as to what had happened and he requested the syndicate to discuss the matter as it was urgent. The syndicate heard the principal and examined certain persons and the members present passed a resolution that the result in the concerned examination should be cancelled. The syndicate consisted of 12 members and of these all except one Mr. Pradhan were present at the meeting and those present passed a resolution unanimously. It was admitted that Mr. Pradhan was not told that this was one of the matters which would be considered at the meeting. The Syndicate was asked by the successful students to reconsider the matter. This was done on 28-4-1951. Once again on 28-4-1951 this item was not placed on the agenda but the vice-chancellor brought it in suo motu as before again 11 of the 12 members were present but this time the absentee was Dr. M. Mansinha who had approved of the previous resolution. The former absentee Mr. Pradhan was present at this meeting. For a second time the decision was unanimous and the previous resolution was confirmed. It was also admitted that Dr. M. Mansinha who was not present at the second meeting did not knwo whether this question would be considered again it was held by their Lordships that whatever might be thought about each resolution taken separately the defects if any were cured when the two were read together and regarded as a whole because Dr. M. Mansinha who was absent at the second meeting had accepted the resolution at the first meeting while Mr. Pradhan who was absent at the first meeting accepted the resolution at the second meeting. Their lordships held that the case before them had to be decided on its own facts, that in fact proper notices of both meetings were issued to all the members including the two absentees and that the only defect was that the matter was not included in the agenda of either meetings but the matter was brought before the syndicate on both the occasions orally and due notice must be deemed to have been waived in the circumstances and both the meetings have to be taken together and there was acceptance of the resolution by all the members taking both the meetings as a whole. That decision therefore is clearly distinguishable as that case depended on the peculiar facts of that case as mentioned by their Lordships in paras 15 and 17. On the other hand there are several observations in the said judgment which would go against the contentions of the appellants;

'It may well be when there is a statutory requirement about notice the provisions of the statute cannot be evaded or ignored. It may also be though we do not stop to enquire whether it is that when the Constitution of a nonstatutory body requires notice to be given then also there cannot be any relaxation of the rules'.

25. That brings us to the last contention of the learned counsel for the appellants that the three councillors who filed a writ petition have no locus standi to file the writ petition when the chairman Sri A. Satyanarayana and the vice-chairman Sri. N. Ramakrishna who tendered their resignations had not joined in the writ petition. There is no force in this contention because the three writ petitioners are councillors of thesame municipal council and they have, in our opinion. Sufficient locus standi and interest in respect of the condict of the meetings of the councillors in accordance with law and in contending that there was no vacancy in the office of the chairman and the vice chairman and that they should not be compelled to re-elect a new chiarman and the vice-chairman.

26. No other contention has been raised before us. For all the reasons given above this writ appeal fails and is dismissed at the admission stage.

27. Mr. Chandrasekhara Rao has made an oral request for grant of leave to appeal to the Supreme Court of India under Article 133 of the Constitution of India. But we are unable to certify that any substantial question of alw of general or public importance arises in the case. Hence leave is refused.

28. Appeal dismissed.


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