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Rishi Kumar Gupta and ors. Vs. Nanoomal Yadav and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 350 of 1975
Judge
Reported inAIR1976All365
ActsUttar Pradesh Municipalities Act, 1916 - Sections 34 and 54A
AppellantRishi Kumar Gupta and ors.
RespondentNanoomal Yadav and ors.
Appellant AdvocateN.K. Chaturvedi and ;B.N. Singh, Advs.
Respondent AdvocateN.C. Upadhyaya and ;G.N. Verma, Advs. and ;Standing Counsel
DispositionAppeal dismissed
Excerpt:
civil - powers of district magistrate - sections 34 and 54-a of u. p. municipalities act, 1916 - notice of meeting not served on all members - vice-president elected at meeting by special resolution - appointment of vice-president cancelled by commissioner and executive officer of municipal board appointed to function as president - powers under section 34 can be exercised if giving effect to resolution is likely 'to cause or tend to cause obstruction, annoyance and or injury to the public' - section 54-a applies when no president or vice-president is functioning - held, order passed is illegal. - - but if by any action an attempt is made to obstruct the user or the obstacle placed renders the exercise of that right unsafe or inconvenient the same would amount to obstruction......one of the matters mentioned in the agenda was about the election of a senior and a junior vice-president for the said board. the meeting took place on the aforesaid date but as the requisite number of members to constitute the quorum were not present in the said meeting, the same was adjourned for 29th of april 1975. on april 29, 1975, thereafter members of the municipal board assembled in the premises of the board and passed a special resolution electing nannoo mal yadav, respondent no. 1 as its vice-president. it appears that some members of the municipal board, thereafter, submitted written complaints to the district magistrate, agra and to the commissioner, agra division, agra stating that the meetings held on 28th of april 1975 and on the 29th of april, 1975 were illegal.....
Judgment:

K.C. Agarwal, J.

1. This special appeal is directed against the judgment of a learned single Judge dated 17-9-1975, allowing the writ petition filed by Nannoomal Yadav, respondent No. 1. By the said petition the respondent No. 1 challenged the legality and validity of the order of the Commissioner dated July 21, 1975, purporting to be under Section 34 of the U. P. Municipalities Act, 1916 (hereinafter referred to as the Act). The facts are as under:--

Firozabad town has a Municipal Board consisting of twenty eight members including the President. A meeting was convened by the President of the Municipal Board for April 28, 1975 to consider a number of matters. One of the matters mentioned in the agenda was about the election of a Senior and a Junior Vice-President for the said Board. The meeting took place on the aforesaid date but as the requisite number of members to constitute the quorum were not present in the said meeting, the same was adjourned for 29th of April 1975. On April 29, 1975, thereafter members of the Municipal Board assembled in the premises of the board and passed a special resolution electing Nannoo Mal Yadav, respondent No. 1 as its Vice-President. It appears that some members of the Municipal Board, thereafter, submitted written complaints to the District Magistrate, Agra and to the Commissioner, Agra Division, Agra stating that the meetings held on 28th of April 1975 and on the 29th of April, 1975 were illegal and invalid as they had not received any notice for the same. On receiving the complaints, the District Magistrate directed the Additional District Magistrate, Firozabad to enquire into the matter and to submit a report about the same. The Additional District Magistrate, thereafter, submitted his report on the 3rd of July, 1975 stating that the notices were not received by all the members of the Municipal Board for the meeting held on 28th of April, 1975. In view of this he was of the opinion that the meeting in which Nanoo Mal Yadav, respondent No. 1, was elected as a Vice-President was also illegal. The report was submitted by the Additional District Magistrate on 3rd of July, 1975. The Commissioner, thereafter, held that the meetings held on 28th and 29th of April, 1975 were illegal, therefore, the respondent No. 1, could not be considered to be validly elected Vice-President of the Municipal Board, Firozabad. Being of the above opinionthat the election of respondent No. 1 was invalid the Commissioner acting under Section 34 of the Act cancelled the special resolution passed on 29th of April, 1975.

2. After the resolution was cancelled by the Commissioner, the District Magistrate exercising power conferred by Section 54-A of the Act passed an order on the same date i.e., July 21, 1975, appointing the Executive Officer of the Municipal Board to perform the duties of the President of the said Board. He, thereafter, changed this order and passed another order dated 23-7-1975 authorising the Additional District Magistrate to function as the President of the Municipal Board.

3. Feeling aggrieved by the cancellation of the resolution on 21-7-1975 Nanoo Mal, respondent No. 1, filed the writ petition giving rise to the present appeal. The writ petition was allowed by the learned Single Judge on the ground that the order of the Commissioner rescinding the resolution of the Board electing Nanoo Mal respondent No. 1 as Vice-President was vitiated in law as Section 34 of the Act did not authorise the District Magistrate to pass the impugned order. He also held that the order dated 23-7-1975 passed by the District Magistrate under Section 54-A of the Act being consequential was also liable to be quashed. Against the aforesaid judgment of the learned Single Judge the present appeal has been filed.

4. The first question which is required to be considered in the present case is whether the Commissioner could legally cancel the resolution dated 29-4-1975. The said resolution has been cancelled by the Commissioner in exercise of his power under Section 34 of the Act. Under Section 34 the Prescribed Authority may, by order in writing prohibit the execution or further execution of a resolution or order passed or made under the Municipalities Act or any other enactment by a Board or a Committee of a board, or a joint committee, 'if in its opinion such resolution or order is of a nature to cause or tend to cause obstruction, annoyance or injury to the public or to any class or body of persons lawfully employed and may prohibit the doing or continuance by any person of any act in pursuance of or under cover of such resolution or order.'

5. This Section confers extraordinary power on the Prescribed Authorityto be used in urgent cases to prohibit the execution of & resolution passed by a Municipal Board. The pre-requisite for the exercise of this power is that the Prescribed Authority must be of the opinion that the resolution passed by a Board is of such a nature that if it is given effect to the same is likely 'to cause or tend to cause obstruction, annoyance or injury to the public.' None of these three words have any technical meaning. The word 'obstruction' means obstacle placed on the use of a highway. Every member of public has a right to pass or repass. But if by any action an attempt is made to obstruct the user or the obstacle placed renders the exercise of that right unsafe or inconvenient the same would amount to obstruction.

6. Similarly the word 'annoyance' has no definite legal meaning. It means an action which may cause trouble or troubled feeling. As observed by Bowen, L. J., in Tod. Healthy v. Benham, (1888) 40 Ch D 80 at page 98.

'Annoyance is a wider term than nuisance and if you find a thing which reasonably troubles the mind and pleasure, not of a fanciful person or of a skilled person who knows the truth, but of the ordinary sensible English inhabitant of a house--if you find there is anything which disturbs his reasonable peace of mind, that seems to us to be an annoyance, although it may not amount to physical detriment to comfort.'

The last expression is 'injury'. The dictionary meanings of this words are 'Violation or infringement of another's right'; 'suffering or mischief wilfully or unjustly inflicted.'

7. Considering the scope of this Section in the light of the above it appears to us that the power given by it can be exercised only when a resolution passed by a Board affects public in the sense in which these words are understood in their ordinary use. No member of the public could be said to have been obstructed, annoyed or injured by the fact that the resolution electing respondent No. 1 as Vice-President had been passed by the Board on 29-4-1975 despite the fact that notices of this meeting had not been served on all members. It is settled that the words of a statute are first understood in their natural, ordinary and popular sense unless there is something in the context requiring a conclusion to the contrary. Interpreting the Section in its ordinary grammatical sense, we find that neither the language employ-ed nor the context warrant the conclusion which the learned counsel for the appellants want us to arrive at. He also could not cite any authority in support of his argument. The authorities brought to our notice interpreting Section 34 of the Act are not directly on the point but they do assist us in finding the scope of this provision. One of these cases is reported in Mahadeo Prasad v. U. P. Government AIR 1949 All 56. That was a case in which the dispute was about the plaintiff's right to make certain additions and constructions in a house. The house was situated near the Aurangzeb or Gyan Vapi Mosque of Benares. In the opinion of the District Magistrate if the plaintiffs were permitted to make the constructions, there could be occasions for friction between the Hindus and the Muhammadans leading disturbance to peace. In November, 1939, the plaintiff sought the sanction of the Municipal Board for the permission to make the disputed constructions. Being of the opinion that the proposed construction could give rise to some dispute the District Magistrate refused the sanction. In view of this attitude of the District Magistrate, the Municipal Board also did not grant the permission. This led to the filing of the suit by the plaintiffs inter alia on the ground that the District Magistrate had no power to interfere with the user and enjoyment or prohibit the making of the constructions. In the background of these facts an attempt was made to justify the action of the District Magistrate under Section 34 of the Act. This court held that as the Municipal Board had not passed any resolution sanctioning the construction, the District Magistrate had no jurisdiction to pass any prohibitory order, but if Board sanctioned the work in future the District Magistrate could pass an order under Section 34 prohibiting the plaintiffs from proceeding with the construction. In Bulaki Das v. Secy. of State for India in Council, (1909) ILR 31 All 371 this court had an occasion to deal with the scope of the corresponding provisions contained in Section 183 of U. P. Act 1 of 1900. That was a case in which the plaintiff sued for a declaration that he was entitled to build a temple on a site. Some Mohammadans objected and in consequence the District Magistrate cancelled the order of the Board permitting the plaintiff to construct the temple. The District Magistrate purported to act under Section 183 of Act 1 of 1900. It was heldby this Court that the District Magistrate was competent to make that order under Section 183 of the said Act. As stated above these cases are not directly on the point but are certainly illustrative of the situation in which this provision could be pressed into service.

8. Another important feature of the question is that power conferred by Section 34 can be utilised in a case where 'the execution or further execution of a resolution or order passed by a Board is required to be prohibited. 'But where, as here, the resolution does not require any act to be done for enforcing it, there is really nothing to prohibit. In the present case respondent No. 1 was elected as Vice-President on April 29, 1975, by a special resolution. Section 54 or any other provision of this Act does not provide for any other formality to be undergone or performed before a person elected as Vice-President assumes the office. Sub-section (2) of Section 54 of the Act gives to the Vice President a fixed term of one year. This term starts running immediately with effect from the date on which the special resolution electing him as such is passed. Accordingly, the resolution is self-operative and gets exhausted the moment it is passed. Hence there remains nothing the execution or further execution of which could be prohibited under Section 34 of the Act. Interpreting the same phrase used in Section34 (1-B) of the U. P. Municipalities Act in Kannauj Municipality v. State of U. P. : [1972]1SCR193 , the Supreme Court held that the order passed by the Kannauj Municipal Board dismissing the services of some of the sweepers employed in it, became operative by its own force and as no further steps were necessary to implement such an order hence Section 34 (1-B) of the Act was inapplicable to an order of dismissal. Applying the law enunciated by the Supreme Court we also find that as the resolution electing respondent No. 1, as Vice President became operative with effect from April 29, 1975 there remained nothing to be done under the resolution which could be prohibited by the Commissioner by exercising his powers Under Section 34 (1). Section 34 (1) did not empower the Commissioner to cancel the resolution. The order of the Commissioner is therefore, not supportable under Section 34. The learned single Judge, therefore, was right in quashing the said order.

9. It is settled that an authority created by a statute for a limited purposehas to act within four corners of that Act otherwise no act of such an authority can be of any operation, if he purporting to exercise such power, transcends the limits of the authority conferred by it. Similarly it is also a settled rule of interpretation of statute that when power is given under statute to do a certain thing in a certain way, the thing must be done in that way: See Taylor v. Taylor, (1875) 1 Ch D 426. Applying these principles to the present case it appears to us that the Prescribed Authority did not have power to set aside the special resolution of the Municipal Board passed on 29-4-1975, as in doing so it exercised power which did not belong to it.

10. The learned counsel for the appellant, thereafter, submitted that as the Dist. Magistrate had passed an order appointing Additional District Magistrate on 23-7-1975 to function and discharge the powers of the President of the Municipal Board and as this order had not been challenged by the respondent No. 1 in the writ petition, the learned single Judge committed an error in quashing the same. In this regard he also asserted that the order of the District Magistrate under Section 54-A was made after an enquiry that no Vice-president had been elected in accordance with this Act, therefore, the finding arrived at by the District Magistrate in connection with Section 54-A proceedings were final. Accordingly the respondent No. 1 could not be held to have been duly elected by the special resolution dated 29-4-1975. Section 54A of the Act no doubt empowers the District Magistrate to exercise and perform the powers and functions of the President himself or to appoint another Gazetted Officer for the said purpose when there is no Vice-President otherwise able to function. But Section 54-A does not authorise the District Magistrate to make enquiry with regard to the fact whether the election of a Vice-President was valid or not. This Section will apply only to a case where as a fact there is no President or Vice-President functioning as such. The question of validity of his election is outside the domain of the enquiry of the District Magistrate. If the submission of the appellants is correct the same would result in converting Section 54-A into a machinery for challenging the election to the office of the Vice-President. This is, however, not the purpose of the section. It empowers the District Magistrate to appoint as GazettedOfficer authorising him to discharge function of a President when there is no Vice-president till elections are held, The submission, therefore, made on behalf of the appellant that as the District Magistrate had found that the election of respondent No. 1 was illegal, therefore, he could lawfully appoint the Additional District Magistrate to discharge the function of the Vice-President is devoid of substance.

11. Apart from the above the appointment of the Additional District Magistrate as Vice-President was only consequential to the cancellation of the special resolution by the Commissioner. As we have found that the Commissioner was wrong on rescinding the Resolution respondent No. 1 was entitled to function as Vice-president. In these circumstances Section 54-A could not be pressed into service in the instant case.

12. The submission made on behalf of the appellant that as the respondent No. 1 did not make any specific prayer for quashing the order of the District Magistrate dated 23-7-1975, therefore, the learned single Judge committed an error in holding it to be invalid does not impress us. In our opinion the learned single Judge rightly held that since the order passed by the Commissioner on 21-7-1975 under Section 34 of the Municipalities Act had been held to be an illegal order, it necessarily follows that the impugned order passed by the learned District Magistrate being based upon this order is also illegal.

13. For the reasons given above the special appeal fails and is dismissed with costs payable by the appellant to the respondent No. 1.


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