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Mangala Prasad Jaiswal Vs. District Magistrate and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 266 of 1970
Judge
Reported inAIR1971All77
ActsUttar Pradesh Municipalities Act, 1916 - Sections 87A(12)
AppellantMangala Prasad Jaiswal
RespondentDistrict Magistrate and ors.
Appellant AdvocateG.C. Dwivedi and ;V.K.S. Chaudhary, Advs.
Respondent AdvocateS.C. Khare, ;D.S. Sinha and ;Sri Palak Basu, Advs. and ;Standing Counsel
DispositionPetition allowed
Excerpt:
.....- section 87- a (12) of u.p. municipalities act 1916 - members of the committee - words 'total number of members of the board' - means the total number of member who initially constituted the board - any casual vacancy of a particular time is irrelevant - for counting the number of members. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or..........the committee) district gorakhpur is constituted by nine members and one chairman. thus, the total number of the members of the committee is ten out of the said members noor mohammad died in 1965 and a vacancy was declared which still remains unfilled. on 19-12-1969 five members of the committee gave notice of their intention to move a motion of non-confidence against its chairman (petitioner). the district magistrate by his order dated 31-12-1969 fixed 19-1-1970 as the date ' for consideration of the motion of non-confidence. on the date fixed five members of the committee were present in the meeting. the munsiff, bansgaon, district gorakhpur, presided over the meeting. all the five members of the committee who were present voted in favour of the motion of non-confidence and the.....
Judgment:

Shukla, J.

1. This case has come to us on a reference made by the Bench which admitted the writ petition and expressed the opinion that the Division Bench decision in Bhaiya Lal v. P. N. Tewari, 1970 All LJ 36 required reconsideration.

2. The admitted facts of the case are that the Town Area Committee of Gola Bazar (hereinafter called the Committee) district Gorakhpur is constituted by nine members and one Chairman. Thus, the total number of the members of the Committee is ten Out of the said members Noor Mohammad died in 1965 and a vacancy was declared which still remains unfilled. On 19-12-1969 five members of the Committee gave notice of their intention to move a motion of non-confidence against its Chairman (petitioner). The District Magistrate by his order dated 31-12-1969 fixed 19-1-1970 as the date ' for consideration of the motion of non-confidence. On the date fixed five members of the Committee were present in the meeting. The Munsiff, Bansgaon, district Gorakhpur, presided over the meeting. All the five members of the Committee who were present voted in favour of the motion of non-confidence and the Presiding Officer, relying on the ruling reported in 1970 All LJ 36, declared that the motion of non-confidence was passed. The Minutes of the meeting recorded the result of the voting thus:--

'Since all the five members namely Sri Hanuman Pd., Sri Ram Bachha Chand, Sri Raj Narain Chand, Sri Nav Ratan Lal and Sri Parag have voted in favour of the motion and there are only eight members and the Chairman, in total, the motion is passed by a majority and it stands carried.'

3. The petitioner filed this writ petition praying for a writ in the nature of certiorari quashing the proceedings of the motion of non-confidence dated 19-1-1970 (Annexure 5 to the writ petition) and for a writ of mandamus directing the respondents Nos. 1 and 3 namely the District Magistrate, Gorakhpur, and the State of Uttar Pradesh, not to interfere with the petitioner's functioning as Chairman of the Town Area Committee, Gola Bazar. The writ was contested by the opposite parties Nos. 1 and 3 and a counter affidavit by the Town Area Clerk of Collectorate, Gorakhpur, was filed. It was stated in the counter affidavit that the Presiding Officer had rightly declared the motion of non-confidence as carried because it had been passed by five members, which constituted the majority of more than half of the total number of the members of the Board.

4. The contention of the petitioner, in short, is that the expression 'total number of members of the Committee' used in Section 87-A (12) of the U. P. Municipalities Act as applied to the Town Areas means the total strength of the Town Area Committee and not the present strength thereof. In the present case the total number of members of the Town Area Committee was ten, therefore at least six members were required for carrying the motion of non-confidence against the petitioner. Since only five members had voted in favour of the motion, according to the petitioner, it should have been declared to have failed. It is not disputed that as provided by Section 5 of the U. P. Town Areas Act, 1914, a Town Area Committee consists of the Chairman and the elected members who shall not be less than nine and more than fifteen as the State Goverment may by notification in the official Gazette specify. It is also not disputed that the provisions of Section 87-A of the U. P. Municipalities Act were extended to the Town Areas under Section 88 of the U. P. Town Areas Act.

5. Section 87-A of the U. P. Municipalities Act as applied to the U. P. Town Areas reads as under:--

'Motion of non-confidence against Chairman. Section 87-A: (1) Subject to the provision of this Section a motion expressing non-confidence in the Chairman shall be made only in accordance with the procedure laid down below:

(2) Written notice of intention to make a motion of non-confidence in its chairman signed by such number of members of the committee as constitute not less than one-half of the total number of members of the Committee, together with a copy of the motion which it is proposed to make shall be delivered in person together by any two of the members signing the notice to the District Magistrate.

(12) The motion shall be deemed to have been carried only when it has been passed by a majority of more than half of the total number of members of the committee.

(13) If the motion is not carried by a majority as aforesaid, or if the meeting cannot be held for want of quorum, no notice of any subsequent motion of non-confidence in the same chairman shall be received until after the expiry of a period of twelve months from the date of meeting.

(14) No notice of a motion of non-confidence under this section shall be received within twelve months of assumption of office by the chairman.'

6. The language of Section 87-A of the U. P. Municipalities Act is identical except that 'Board' is substituted for 'Committee', Only Sub-section (13) of the same section of the U. P. Municipalities Act may be reproduced:--

'If the motion is not carried by a majority as aforesaid, or if the meeting cannot be held for want of a quorum (which shall be not less than one-half of the total number of members of the board for the time being,) no notice of any subsequent motion of non-confidence in the same (President) shall be received until after the expiry of a period of twelve months from the date of the meeting.' (The underlining is ours)

7. The contention of the petitioner is that the words 'total number of members of the board' occurring in Sub-section (12) of Section 87-A mean the total number of members who initially constitute the Board and consequently the existence of any casual vacancy of a particular time is irrelevant for calculating the total number of members for the purposes of Sub-section (12).

8. In our opinion there is force in this contention. It will be noticed that in Section 87-A itself Sub-sections (2) and (12) use the words 'total number of members of the board' whereas Sub-s. (13) uses the words 'total number of members of the board for the trine being.' The use of the two different expressions at two different places in the same section suggests that they have different connotations. Prima facie such an alteration would be considered intentional. See Guardians of Parish of Brighton v. Guardian of Strand Union, (1891) 2 QB 156 at p. 167; Malikarjunarao v. Official Receiver, AIR 1938 Mad 449 at p. 454; Manicklall v. S. D. Dabiruddin Ahmad : AIR1951Cal236 ; In re, Chundura Venkata Subramanyam : AIR1955AP74 . Applying this principle, the total number of members of the board simpliciter is something different from the 'total number of the members of the board for the time being.' While 'total numbers of members of the board for the time being,' must take into account the casual vacancy, the 'total number of members of the board' can only mean total number of members initially constituting the Board.

9. The legislative history of Sections 87-A an 47-A of the U. P. Municipalities Act also leads to the same conclusion. Sections 87-A and 47-A of the U. P. Municipalities Act did not form part of the U. P. Municipalities Act (Act No. 2 of 1916) as originally enacted. These sections were introduced for the first time in the U. P. Municipalities Act by U. P. Act No. IX of 1933. The relevant part of Section 87-A as introduced by Section 9 of Act No. IX of 1933 was as follows: . ... ... ... ... (3) If the board shall have adopted by a majority consisting of more than one-half of the members of the board for the time being a resolution expressing non-confidence in its chairman, and if the said chairman or the board within a period of two months after such resolution has been adopted shall have received a notice in writing signed by not less than one-third of the members of the board that there is an intention to discuss a motion that the board shall adopt a resolution calling upon the chairman to resign, the chairman shall, at the first meeting held after the expiry of a period of seven days from the date of receipt of such notice, place the said motion before the board at the first item of the agenda for such meeting and shall give the board an opportunity of discussing the motion and voting upon it.... ... ... ... ... '

Similarly Section 47-A as introduced by Sec. 3 of U. P. Act No. IX of 1963 ran as follows:--

'47-A. Substitution of a new section for section 47-A of Act II of 1916 -- If a board has adopted, by a majority consisting of more than one-half of the members of the board for the time being, a resolution expressing non-confidence in its chairman (not being an ex officio chairman) and a subsequent meeting has, by a majority consisting as aforesaid, adopted a resolution calling upon him to resign, such chairman shall, within three days of receipt of notice that the latter resolution has been adopted, submit his resignation in the manner prescribed by Section 47.'

10. From the above it would be evident that when sections 87-A and 47-A were introduced for the first time by U. P. Act No. IX of 1933 the requisite number of the members for adopting a resolution expressing non-confidence in the chairman consisted of more than one half of the members of the Board for the time being.

11. The U. P. Municipalities (Second Amendment) Act (U. P. Act No. XIII) of 1942 omitted Section 47-A of the U. P. Municipalities Act which had been inserted by U. P. Act No. IX of 1933. By Section 5 of U. P. Act No. XIII of 1942, section 87-A as introduced by U. P. Act No. IX of 1933 was amended and Sub-section (12) was substituted in the following terms:--

'(12) The motion shall be deemed to have been carried only when it has been passed by a majority of more than half of the total number of members of the board, and when it has been so carried the provincial Government shall by notification in the official Gazette remove the chairman, and the chairman shall be deemed to have vacated office with effect from the date of publication of the notification.'

12. This clearly indicates that the Legislature was aware of the implications of the words 'the total number of members of the board for the time being.', which occurred in Sections 87-A and 47-A of the U. P. Municipalities Act (No. IX of 1933), and presumably with a view to giving greater protection to the President of the Board it equated the number of the members required for passing a motion of non-confidence with the total number of the members constituting the Board. The U. P. Act No. XIII of 1942 was promulgated by the Governor. It was passed by the Legislature in the same form by U. P. Act No. XIII of 1948.

13. Ordinarily the parliamentary history of a statute is not admissible to construe its meaning, but where a statute has undergone changes by way of amendments, it is not only permissible but of great assistance in the matter of interpretation to examine the legislative history of the provisions. In Duparguet Huot and Moneouse Co. v. Evans, (1935) 80 L Ed 591 at p. 594 Cardozo, J. speaking about 'Equity receivership', remarked:

'They came into the statute through an amendment proposed when the Bill which was adopted as Section 77-B was passing through the Senate. They came there freighted with the meaning imparted to them by the mischief to be remedied and by contemporaneous discussion. In such conditions history is a teacher that is not to be ignored.'

Similar view has been expressed by our Supreme Court, See Bengal Immunity Co. Ltd. v. State of Bihar : [1955]2SCR603 ; Kedar Nath Singh v. State of Bihar : AIR1962SC955 . The rule was thus summed up by Venkatarama Aiyar, J. in Chamarbaugwala v. Union of India : [1957]1SCR930 :--

'To decide the true scope of the present Act, therefore we must have regard to all such factors as can legitimately be taken into account in ascertaining the intention of the legislature, such as the history of the legislation and the purposes thereof, the mischief which it intended to suppress and the other provisions of the statute, and construe the language of Section 2 (d) in the light of the indications furnished by them.'

In Central Bank of India v. Rajagopalan : (1963)IILLJ89SC , before dealing with the question of construction of Sec. 33C of the Industrial Disputes Act, the Supreme Court considered it to be material to refer to the legislative history of the section.

14. Thus, the legislative history of Section 87-A of the U. P. Municipalities Act itself reveals that the Legislature amended the earlier provision so as to correlate it with the total number of members of the Board. The ancestry of the provision strongly suggests that perhaps the intention which inspired the amendment was that the President of the Board should enjoy greater protection and the motion of non-confidence should not be deemed to have been carried against him unless it was passed by a majority of more than half of the total number of the members initially constituting the Board. Where the Amending Act alters the language of the principal, statute, the alteration must be taken to have been made deliberately. See D. R. Fraser and Co. Ltd. v. Minister of National Revenue, 1949 AC 24 (PC). It would be a sound rule of construction to hold that the change cannot be disregarded as a mere freak of the Legislature. The rule is thus stated by Craw-ford in his 'Statutory Construction at page 618:

'A change in the phraseology creates the presumption that the legislature intended a change of meaning. Indeed, the mere fact that the legislature enacts an amendment is of itself an indication of intention, as a general rule, to alter the pre-existing law.'

In our opinion it is clear on the face of the amended section 87-A (12) that a change in the law as it stood before the amendment was intended.

15. The legislative intent of the amending provision in the present case can be ascertained from another fact which is a significant pointer. Statutes in pari materia and later amendments can be sometimes looked into for the purpose of ascertaining the intention of the Legislature. In Adilabad Municipality v. Mahadeo : AIR1967AP363 it was observed at page 368:--

'The rule in regard to construction of the statutes, which are in pari materia need not be confused with other allied rules of construction. In considering what light one statute may throw upon the meaning of another statute, there are three different modes to ascertain what assistance can be derived firstly, from the statutes, which are in pari materia with the statute under consideration, secondly, from the statutes not precisely in pari materia, but which have similar scope on similar subject or which in some way relate to or affect the same subject-matter and thirdly, from subsequent statutes, which are called 'Parliamentary expositions' of prior statutes.'

So far as Sub-sections (12) and (13) of the U.P. Municipalities Act are concerned, the Amending Act of 1964 may be regarded as 'parliamentary exposition' of the earlier statute. The quorum for holding a meeting convened for the consideration of the non-confidence motion was specifically provided by U. P. Municipalities (Amendment) Act (U. P. Act No. XXVI of 1964) which by Section 49 inserted in Sub-section (13) of Section 87-A the words 'which shall be not less than half of the total number of the members of the Board for the time being.' Even prior to that amendment the same quorum was by implication provided in-Sub-section (2) of Section 88 which related to business which was required to be transacted by a special resolution. This was, however, made explicit by a definite provision in this regard in the amended Sub-section (13) of Section 87-A in 1964. Still, the Legislature did not choose to insert the words 'for the time being', in Sub-section (12) of the section 87-A. The fact that the Legislature eschewed the use of a similar expression in Sub-section (12) irresistibly leads to the conclusion that for prescribing the quorum necessary for passing a motion of non-confidence the legislature intended to refer to the total number of members and not to the members of the Board for the time being.'

16. It was contended by learned counsel for the respondents that the construction suggested by the petitioner would lead to anomalous results. It was pointed out that the quorum for holding the meeting for consideration of the motion of non-confidence must be the same as the quorum required for actually passing the motion of non-confidence, because the Legislature could not have intended to provide an ineffective quorum for holding a meeting which would be eventually incompetent to pass a resolution of non-confidence. We are unable to accede to this submission. In our opinion the two things are quite different. The requirements of quorum have to be looked into for the commencement of the meeting. The requirements for passing of a resolution have to be looked into at the time the resolution is put to vote. It is possible that at the commencement of a meeting the number of members present may be barely sufficient to constitute the quorum prescribed in Sub-section (13) for holding the meeting, but later more members may arrive and at the time when the resolution of non-confidence is put to vote, more than half of the full membership of the Board may be present as provided by Sub-section (12) of Section 87-A. The reverse can also happen, that, is, at the commencement of the meeting more than half of the total number of members constituting the Board may be present but some of them may leave the meeting and be not present at the time when the resolution of non-confidence is put to vote so that the quorum prescribed under Sub-section (12) may not be available. Therefore, the adoption of the construction which we are putting on Sub-section (12) will not lead to any anomalous results.

17. The meaning of the words 'total number of members' is quite plain. It can hardly be disputed that the words 'total' and 'whole' are synonymous. The dictionary meaning of the word 'whole' is 'total' and vice versa. In fact, the whole members of a Board or a body is a well-known expression and is used to convey the totality of the members provided for a complete constitution of the body. In English statutes also the word 'whole' has been used in the sense of total membership constituting the Board. Sri S. C. Khare, the learned counsel for the petitioner, referred us to the English Local Government Act of 1933 and submitted that it correlated the quorum of the local authorities (by section 75 read with parts I to V of the third Schedule of the Act providing for the quorum of the meeting of the different local bodies) with the whole number of members of the Board. He also relied upon an English decision in Newhaven Local Board v. Newhaven School Board, (1885) 30 Ch D 350. The facts of that case were that there was a local Board established under the Public Health Act, 1875. The constitution of the Board provided that no action could be taken by the Board unless one-third of the full number of the members of the Board were present at the meeting. The Board consisted of nine members, seven members had resigned. It was held that the two remaining members of the Board were incompetent to transact the business of the local Board. In other words, it was ruled that the quorum for carrying on business was not there, so the members were incompetent to transact the business of the Board. Although the impugned action was upheld in the appeal by virtue of Rule 9 of Schedule I of the Public Health Act, which provided that notwithstanding any defect or vacancy in the constitution of the body, the action would be valid, yet the view expressed by the original court namely that no action could be taken except in a meeting in which one-third of the full number of the members of the Board were present, was not overruled in appeal.

18. The interpretation of Section 87-A (12) that we accept is supported by the following three single judge decisions of this Court:-- Pyare Lal v. State of Uttar Pradesh, AIR 1955 NUC (All) 6047; Jamshed Ali v. State of Uttar Pradesh by Hon'ble Oak, J., Civil Misc, Writ No. 2332 of 1962, D/- 4-10-1962; Mangla Prasad v. District Magistrate by Hon'ble Satish Chandra, J., Civil Misc. Writ No. 2924 of 1968, D/- 19-5-1969 (All).

19. The Division Bench which decided the case of Bhaiya Lal, 1970 All LJ 36 overruled the above three single Judge decisions, but with great respect, we are unable to agree with the view expressed in Bhaiya Lal's case, 1970 All LJ 36, and are of the opinion that the interpretation adopted in the three single Judge decisions was sound. We are also fortified in our view by the decisions of the other High Courts which interpreted the expression 'whole number.' See Shyampadda v. Abani Mahan : AIR1951Cal420 and Sukhdeo v. Arrah Municipality : AIR1956Pat367 .

20. For the above reasons we are of the opinion that the meeting of the Town Area Committee, Golabazar district Gorakhpur, which purported to pass the motion of non-confidence against the petitioner on 19-1-1970 acted in violation of Section 87-A (12) of the U. P. Municipalities Act as applied to the Town Areas. The total number of members of the committee was ten but only five members were present in the meeting and voted in favour of the motion of non-confidence, which was alleged to have been carried. The proceedings of the said meeting were consequently bad in law and liable to be set aside. We, therefore, quash the proceedings of the motion of non-confidence (annexure 5 to the writ petition) and also issue a writ of mandamus directing respondents Nos. 1 and 3 not to interfere on the basis of the aforesaid proceedings with the petitioner's functioning as the Chairman of the Town Area Committee, Golabazar, district Gorakhpur.

21. The writ petition is accordingly allowed. The petitioner shall get costs of this petition from respondents Nos. 1 and 3.


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