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Mahesh Chandra and anr. Vs. Tara Chand Modi - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 2358 of 1957
Judge
Reported inAIR1958All374
ActsUttar Pradesh Municipalities Act, 1916 - Sections 47A(1), 87A, 87A(2), 87A(3), 87A(7) and 87A(11); Code of Civil Procedure (CPC) , 1908; Constitution of India - Article 226
AppellantMahesh Chandra and anr.
RespondentTara Chand Modi
Appellant AdvocateS.C. Khare, Adv.
Respondent AdvocateStanding Counsel
DispositionApplication dismissed
Excerpt:
(i) constitution - municipalities - section 87-a of u.p. municipalities act, 1916 - two portions in section 87-a - one relate to the calling, holding and conduct of the meeting - other deals with termination of meeting. (ii) municipalities - section 87-a of u.p. municipalities act, 1916 - motion means a proposal nothing more - motion of non confidence not mentioned in section 87a and reading of the motion to district magistrate not necessary. (iii) constitution - article 226 of constitution of india - power of high court issuing writs is discretionary - court rarely issue a writ if the issue of writ is futile. - - further the failure to forward a copy of the very motion sent with the written notice of intention had the effect of not making it obligatory on him to either resign or.....r.n. gurtu, j.1. this is an application under article 228 of the constitution of india made by sri mahesh chandra and sri bisheshwar dayal, who at the date of the presentation of the petition were senior and junior vice presidents respectively of the municipal board of hapur for a writ in the nature of quo warranto directing the opposite party to show bv what authority he duroorts to claim to be a full-fledged president of the municipal board of hapur and claims to act as president of the municipal board of hapur without any incapacity.a writ of mandamus has also been prayed for preventing him from acting as president of the municipal board of hapur. the opposite party is sri tara chand modi who was elected the president of the municipal board in october 1953 at the general elections of.....
Judgment:

R.N. Gurtu, J.

1. This is an application under Article 228 of the Constitution of India made by Sri Mahesh Chandra and Sri Bisheshwar Dayal, who at the date of the presentation of the petition were senior and junior Vice Presidents respectively of the Municipal Board of Hapur for a writ in the nature of quo warranto directing the opposite party to show bv what authority he Duroorts to claim to be a full-fledged President of the Municipal Board of Hapur and claims to act as President of the Municipal Board of Hapur without any Incapacity.

A writ of mandamus has also been prayed for preventing him from acting as President of the Municipal Board of Hapur. The opposite party is Sri Tara Chand Modi who was elected the President of the Municipal Board in October 1953 at the general elections of that year by direct election by the electors of the Municipality under Section 43 (2) of the then U. P. Municipalities Act (U P. Act, II of 1916), hereinafter to be referred to as the Act.

Subsequently by an amendment the election of a President has been made indirect and the president is elected on the system of proportional representation by means of the single transferable vote and by secret ballot by the duly elected members of the Board.

2. The petitioners case is that a motion of no-confidence was passed against Sri Tara Chand Modi, according to the provisions of Section 87A of the Act on the 7th November 1956, that the motion of no-confidence was communicated to the president in accordance with the provisions of Sections 87A and 47A of the Act, that the President had not, as required by Section 47A of the Act, either resigned from his office or represented to the State Government to dissolve the Board and that therefore the President must toe deemed to be incapacitated under Section 47A (1) (b) of the Act from functioning as the President within the meaning of Section 55 of the Act.

3. The case of Sri Tara Chand Modi, how-ever, is that the motion of no-confidence against Mm was not passed in accordance with the procedure laid down in Section 87A of the Act as the Judicial Officer presiding at the meeting for the purpose of passing the motion of no-confidence did not read out to the Board the motion for the consideration of which the meeting had been convened.

The case of the President further is that no copy of the motion which had been earlier forwarded along with the written notice of intention to make a motion of no-confidence against him to the District Magistrate, was forwarded to him but that what was forwarded was a copy of the notification by the District Magistrate convening the meeting for the consideration of the motion and that it was this notification which was read cut at the meeting of the Board which had been convened.

The case of the President is that there was a non-compliance with the mandatory provisions of Sections 87A and 47A of the Act which had the effect of nullifying the no-confidence resolution. Further the failure to forward a copy of the very motion sent with the written notice of intention had the effect of not making it obligatory on him to either resign or represent to the State Government under Section 47A of the Act because the obligation to do the one act or the other arose only if a motion of no-confidence in the President had been passed by the Board and communicated to the President in accordance with the provisions of Section 87-A (7) and (11) of the Act.

The President's case is that he could only be deemed to be incapacitated if there had been a failure on his part to resign or to represent to the State Government to dissolve the Board in accordance with the requirements of Section 47A of the Act. His contention is that because of the disregard of the mandatory provisions of Section 87A of the Act the pre-requisites for the application of Section 47A of the Act were lacking and that section was not attracted and that therefore no question of incapacity in the President arose.

4. Having stated the case of the parties it is, I think, necessary to reproduce in extenso the necessary documents which will enable the case of both the parties to be understood.

5. The first document which must be reproduced is the motion of no-confidence against Sri Tara Chand Modi, president, Municipal Board. Hapur, District Meerut, which was forwarded to the District Magistrate along with the written notice of intention to make a motion of no-confidence. It runs as follows :

'Motion of non-confidence in the President Shri Tara Chand Modi, Municipal Board, Hapur, District Meerut, under Section 87-A of the U. P. Municipalities Act, 1916.

'That the President Municipal Board, Hapur is responsible for all out mal-administration in the Board.'

'That the failure on the part of the President of Municipal Board Hapur in performing his duties has caused deterioration in the finances of the Board.'

'That the President Sri Tara Chand Modi, Municipal Board, Hapur, has, in several ways and on several occasions, grossly misconducted himself against the public interest and that of the Board.'

'That he has, therefore, lost the confidence of the majority of the members of the Municipal Board, Hapur.

'Hence it is hereby proposed that the motion of non-confidence against Shri Tara Chand Modi, President, Municipal Board, Hapur, be passed.' The next document which has to be quoted is the notice of the meeting to consider the non-confidence motion against the President. It runs as follows:

'Notice of meeting to consider the non-confidence motion against the President, Municipal Board, Hapur.

'Whereas a motion of non-confidence signed by more than half the members of the Municipal Board, Hapur, against the President, Sri Tara Chand Modi has been received on 4-10-1956 it is notified for public information that a meeting of the members of the Municipal Board, Hapur, to consider the above motion will be held in the office of the Municipal Board, Hapur, under the Chairmanship of Sri R. N. Sinha, II Additional Munsif, Meerut, at 11 A. M., on Wednesday the 7th November, 1956.

Sd. Gian Frakash,

I. A. S. District Magistrate,

Meerut.

11-10-1956.'

The endorsement at the foot of this notice showing to whom the notice was sent is omitted, but it was sent to all the then members of the Municipal Board including Sri Tara Chand Modi, the President, and copies were also forwarded to the District Judge, Meerut, and Sri B. N. Sinha, Second Additional Munsif, Meerut.

A copy with a spare copy was forwarded to the Executive Officer, Municipal Board, Hapur, for affixing the spare copy on the Notice Board of the Municipal Office.

6. The last document which must be reproduced in extenso is the minutes of the meet-Ing held at the office of the Municipal Board, Hapur, on 7-11-1956, for the consideration of the motion of non-confidence against Sri Tara Chand Modi. It runs as follows:

'Meeting convened at the office of the Municipal Board, Hapur, on 7-11-1956 for the purpose of considering a motion of non-confidence against Sri Tara Chand Modi, president Municipal Board, Hapur, under Section 87-A of the Municipalities Act.

The meeting is declared to have commenced at 11 A. M. on this seventh day of November, 1956.

Members present.

(The names of the 19 members who were present at the meeting are omitted).

7 members are absentees while 19 members are present.

An application was presented by Sri Tara Chand Modi at 10. 45 A. M. to day which was ordered to be put up at the time of the meeting. The applicant has prayed for the adjournment of the meeting.

ORDER.

I do not find any provision of law which can prevent the holding of this meeting. The adjournment sought for is, therefore, disallowed.

An application bearing the signatures of Sri Baksh Ellahi, Sri Mohd. Idris, Sri Ami Chand, Sri Nain Singh and Sri Gobind Ram members was presented at the commencement of the meeting. The applicants have prayed that because this meeting is not being validly convened, no discussion of the non-confidence motion should be allowed.

Sri Baksh Ellahi referred the decision of Brij Mohan Gupta v. District Magistrate, Mir-zapur AIR 1955 NUC (All) 6041 (A). Sri Baksh Ellahi also denied the receipt of the notice of this meeting which does not appear to be based on correct facts. I do not find any substance in the allegations made in the application.

This meeting has been convened in pursuance of Section 87-A of the U. P. Municipalities Act. The District Magistrate Meerut has fully complied with the laid down procedure and there appears no reason for the adjournment of this meeting. The case law cited by Sri Baksh Ellahi does not apply to the facts of the present case, The applicant (Sic) is, therefore, disallowed.

Sri Gobind Ram member has appeared in the Chamber at 11. 20 A. M. and has taken his seat.

Sri Baksh Ellahi and Sri Sh. Mohd. Idris walked out of the meeting at 11.20 A. M.

The motion of non-confidence which is proposed to be passed against Sri Tara Chand Modi President, Municipal Board, Hapur, was read out to the members present, who are 19 in number.

The meeting was declared open for discussion. Sri Besheshwar Dayal addressed members and stated the reasons for which the motion of non-confidence has been sought for. Sri Bakhtawar Lal member supported the passing of the motion.

Sri Mahesh Chandra member spoke for the motion of non-confidence.

None of the members present spoke against the passing of the motion of non-confidence against Sri Tara Chand Modi, President, Municipal Board, Hapur. No objection was raised by any member.

The motion of non-confidence was then put to the vote of the members present. Out of the 19 members present, 18 members have voted for the passing of the aforesaid motion of non-confidence against Sri Tara Chand Modi, President, Municipal Board, Hapur. Sri Govind Ram member did not raise his hand in support of the motion.

The following members voted for the aforesaid motion of non-confidence against Sri Tara Chand Modi:

1. Sri Babhtawar Lal; 2. Sri Abdul Rashid; 3. Sri Kailash Chandra Sharma; 4. Sri Hukam Chand, Sharma; 5. Sri Jaiveer Singh Sharma; 6. Sri Roshan Lal; 7. Sri Shanti Prasad; 8. Sri Besheshwar Dayal; 9. Sri Badlu Singh; 10. Sri Prahlad Singh; 11. Sri Khushwaqt Rai; 12. Sri Banarsi Das Tyagi; 13. Sri Murari Lal; 14. Sri Janmaijai Kripal; 15. Sri Sh. Mohd. Munshi; 16. Sri Mahesh Chand; 17. Pt. Moti Lal and 18. Sri Jagdish Prasad.

Result of the voting.

The motion of non-confidence against Sri Tara Chand Modi-President, Municipal Board, Hapur, is hereby declared to have been carried through because it has been passed by 18 members, more than half of the total number of the members of the Municipal Board, Hapur.

7-11-1956. Sd. R. N. Sinha, P. C. S.

11. 50 A. M. II Additional Munsif,

Meerut.

Copy of the minutes of the meeting together with the result of the voting and the 'copy of the motion contained in the notification dated 11-10-1956' under the signature of Sri Gian Prakash, District Magistrate, Meerut, is forwarded herewith to:

1. The President, Municipal Board, Hapur.

2. The District Magistrate, Meerut, for submission to the State Government.

Sd. R. N. Sinha, P. C. S.

7-11-1956

7-11-1956. II Additional Munsif,

Meerut.

The copy of the notification of D M. dated 11-10-1956 has also been enclosed.

Sd. R. N. Sinha,

7-11-1956.'

7. It is now necessary to reproduce Section 87-A and also Section 47-A of the said Act. They run as follows: (After quoting Sections 87A and 47A the judgment continues as under:)

8. I have already indicated that no copy of the motion which it was proposed to make at the meeting and which had been sent under Section 87-A (2) of the Act was read out as soon as the meeting convened under Section 87-A (3) of the Act had commenced as is required to be done under Section 87-A (7) of the Act. What was read out at the meeting was the notice of the meeting to consider the non-confidence motion which-' was issued by the District Magistrate under Section 87-A (3) of the Act.

What was forwarded by the Judicial Officer to the President after the meeting was not a copy of the motion sent under Section 87-A (2) of the-Act, but was a copy of the notice issued by the-District Magistrate convening a meeting under Section 87-A (3) of the Act.

Sections 87-A (7) and (11) of the Act, therefore, which require that a copy of the motion should be read and forwarded, were not complied with. If the failure to comply with Section 87-A (7) and Section 87-A (11) of the Act nullifies the non-confidence motion and communication and the requirements of Section 87-A (7) and (11) of the Act are mandatory, then the contention of the President that the pre-requisite of Section 47-A of the Act were non-existent and therefore there was no obligation on him to either resign or to represent to the State Government to dissolve the Board will be correct and in such a case Section 47-A (1) (b) of the Act would not be attracted and1 the President would not be deemed to be incapacitated from functioning as the President of the Board within the meaning of Section 55 of the Act.

9. The question, therefore, which is to be considered is whether Sections 47-A, 87-A, Sub-sections (7). and (11) lay down prescriptions which are of a. mandatory character or whether they lay down a procedure which is merely directory and if the' latter whether the procedure has been substantially complied with so as to attract Section 47-A of the Act and to impose the incapacity on the President which is imposed by Section 47-A (1) (b) of the Act because he failed to either resign or represent to the State Government to dissolve the Board.

10. In order to determine whether the said provisions are mandatory or directory one must keep in mind certain general principles. It has been recognised that 'No universal rule can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience.

It is the duty of courts to try to get at real intention of the Legislature, by carefully attending to the whole scope of the statute to be construed.' (See Liverpool Borough Bank v. Turner, (1860) 30 LJ Ch 379 (380) : 2 De GF and J 502, X AD,

11. Maxwell on Interpretation of Statutes, tenth edition, at page 374, puts the position as follows:

'When a statute requires that something shall be done, or done in a particular manner or form, without expressly declaring what shall toe the consequence of non-compliance the question often arises: What intention is to be attributed by inference to the legislature? Where, indeed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other, no doubt can be entertained as to the intention.'

12. There is an often-cited passage of Lord Penzance, which runs as follows:

'I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter, consider the importance of the provision that has been disregarded and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.'

(See Howard v. Bodington, (1877) 2 P. D. 203 (B) )

In the course of discussion cases were cited at the Bar to illustrate the application of these principles. Some of these cases are indicated at pages 377 to 379 of the tenth Edition of Maxwell, cited above.

13. It, therefore becomes necessary to find out in this case by the examination of the Act as to what was the intention of the Legislature in regard to the procedure prescribed by Sections 87-A and 47-A of the Act. Did the Legislature intend that the prescriptions in question should be considered to be mandatory or did the Legislature Intend that the prescriptions in question should be directory?

14. There can be no doubt that the object of the procedure prescribed by Sections 87-A and 47-A of the Act is that a vote of no-confidence should not be passed indirectly against the President and that a vote of no-confidence should not be obtained by means of a snap division. The object is that a motion of no-confidence should be effective against a President only after ample notice has been given to everybody, the members as well as the President, and after the motion which was sent with the written notice of intention to make a motion to the District Magistrate has been read out to the Board, and after a discussion has taken place thereon and after the voting has taken place and only when the motion of no-confidence has been passed by a majority of more than half of the total number of the Board.

15. In order to ensure that the meeting convened is impartially conducted a provision has been made for a judicial officer to preside at the meeting.

16. The detailed manner in which the prescriptions have been laid down seems to suggest that the intention of the Legislature was that every care should be taken to see that an impartial verdict was obtained after due consideration, of the motion forwarded and that the verdict was communicated to the President in such a way that the President could abide by the verdict or he would exercise his right to represent to the State Government to dissolve the Board.

17. The primary purpose of the prescriptions laid down in Sections 87-A (7), 87-A (11) and! 47A (1) of the Act clearly is that the President should know on what grounds the vote of no-confidence has been passed against him so that if he desires to make a representation to the State Government to dissolve the Board he may be able to deal with the charges made against him.

18. The language in which the motion of no confidence, which is to be sent to the District Magistrate by the members who give notice of intention to make a motion of no-confidence is to be couched and the detailed contents thereof are not indicated in Section 87-A (2) of the Act, but it is apparent that a copy of the motion which it is proposed to make is required to be forwarded with the notice of intention only because it was desired or anticipated as is the ordinary practise that the motion would set out the reasons on the basis of which the members concerned considered it desirable that the President be compelled to resign by means of a motion of no-confidence.

If that were not so, there would be no point in asking that a copy of the motion which it is proposed to make should be delivered to the District Magistrate. It would have been enough if a written notice of intention to make a motion, of no-confidence was given. Once the meeting for the passing of a motion of no-confidence was convened it would have been possible to frame a bald motion of no-confidence and to move it.

It is because the Legislature anticipated that the motion a copy of which was required to be forwarded under Section 87-A (2) of the Act would normally contain the reasons for dissatisfaction with the President as is the case here, that it is insisted that a copy of the motion should be sent under Section 87-A (2) of the Act and it appears that it is for this reason that it is prescribed by Section 87-A (7) of the Act that the Judicial Officer shall read to the Board the very motion for the consideration of which it has been convened.

It is to be noted that it is not left to the Judicial Officer to read any motion which may be handed over to him or to frame a motion of no-confidence in his own words and to read the same. The motion of no-confidence was clearly intended to be a vital document, the reading of which was, therefore, prescribed by Section 87-A (70 of the Act. As it would contain the reasons of dissatisfaction it could serve as the starting point of the discussion.

Members gathered would know concisely as to what was the charge and that charge could either be supported by the President's opponents or be refuted by the president's supporters. In this way there would be a full discussion of the reasons why the President should be compelled to resign or not to resign.

An ample time limit is provided by Section 87-A (9) of the Act to enable a discussion to take place and the discussion is to be terminated at the end of three hours from the commencement of the meeting because the Legislature obviously intended that the discussion should not be prolonged by the adoption of obstructive tactics.

19. The independent judicial officer who presides at the meeting naturally would control the discussion.

20. The Legislature has prescribed that after the vote of no-confidence has been passed a copy of the minutes of the meeting together with a copy of the motion and the result of the voting thereon has to be forwarded to the President and to the District Magistrate.

This requirement seems to take into consideration the fact that even though the President has received a notice of the meeting he might because of embarrassment or otherwise not be able to attend it either wholly or partly at the vital moments & that it would not be desirable to force him to attend such a meeting or to gather Information in regard to its proceedings from others.

In other words Section 87-A (11) of the Act has aimed at giving the President direct notice of what has taken place so that he might not be fastened with constructive notice of what has passed at the meeting. It is important to bear this in mind that the statute does not make it obligatory on him to attend the meeting; it gives liim a right; but it also gives him the right to receive all the necessary information.

21. From the grounds for dissatisfaction already stated in the motion the President would find out on what grounds the members were asked to vote against him. If all the grounds are not fully stated in the resolution then clearly the intention of Section 87-A (11) of the Act is thatthe minutes of the meeting which are sent should also briefly indicate the additional grievances which were ventilated at the meeting against the President i. e., should briefly indicate these further grounds of dissatisfaction with him.

The minutes contemplated by Section 87-A (11) of the Act are not merely minutes containing bald resolutions, but, I think it is required directly or by implication by Section 87-A (7) and (11) read with Section 47-A (1) of the Act that the motion and minutes of the meeting should reveal to the President the entire grounds of dissatisfaction against him.

22. Section 47-A (1) (a) of the Act clearly Indicates that the President when he represents to the State Government to dissolve the Board must state his reasons for doing so. That is the stage when the President puts up his defence.

23. Obviously, he cannot state his reasons fully unless he is informed of the charges against him on the basis of which the Board passed the resolution of no-confidence against him. If the charges are indicated then he can either resign or meet those charges and can convince the State Government that the vote of no-confidence was not founded on any short-comings on his part but was based on extraneous reasons, otherwise he would be left to surmise what the charges might be.

In my view there can be little doubt that Sections 87-A (7), 87-A (11) and 47-A (1) (a) and (b> are mandatory and have to be strictly complied with if the object is to be attained.

24. It must not be overlooked that the consequence of the passing of a vote of no-confidence may sometimes be that the Board as a whole would be dissolved by the State Government. Section 47-A of the Act is of a punitive character in several parts thereof as it involves a resignation of the President, if a motion of no confidence has been passed by the Board and communicated to the President, but Section 47-A of the Act also provides that in certain circumstances the Board itself shall be penalised and dissolved and in this way the members who voted for the no-confidence motion would have to suffer the consequences of their act and would be put to the inconvenience of a fresh election, as would those members who had voted against or abstained.

25. The right of the chief executive against whom a vote of no-confidence can be passed, which involves his resignation from the office, to ask for a dissolution of the body which passes the resolution of no-confidence and to compel the members of that body to seek fresh election is in the nature of a right which can have a salutary effect and prevent a resolution being passed on an arbitrary and capricious basis.

26. In my view, Sections 87-A and 47-A, of the Act, read together, clearly indicate that the sections are aimed at ensuring that the vote of no confidence is passed for really valid reasons and not capriciously and are aimed at giving the President the material grounds on which the vote of no-confience has been passed so as to enable him to make a proper representation, not directly against the vote of no-confidence but certainly indirectly against it, and to ask for a dissolution of the Board by showing the Board's mala fides, if he so desires.

27. I think the Act clearly recognises that right, which there is, in the President of every corporation to be heard in his defence even independently of statutory prescriptions (here against the motion of no-confidence). This is a well recognised right (See Halsbury Laws of England, 3rd Edition, Vol. 9, page 36, paragraph 65) and the prescriptions of the present Act seem clearly to be designed towards that end and are regulatory of that right and are not designed to destroy such right.

28. Such being the object and policy gathered from the Act, in my view, Section 87 (7) of the Act is mandatory because by insisting upon strict compliance with that Sub-section the reasons behind the no-confidence motion should come to the surface and attention would be focussed on those reasons in the debate and also in my view Section 87-A Sub-section (11) of the Act is mandatory for the reason that by strict compliance with that section all the necessary material for submitting to the motion or for the making of a representation by the President is made available to him.

29. In my view a power to a move should be strictly interpreted. (See Halsbury : Laws of England, 3rd Edition, page 36, paragraphs 64 and 65).

30. I should like to point out that the opening words of Section 87-A of the Act are as follows:

'Subject to the provisions of this section, a motion expressing non-confidence in the President shall be made only in accordance with the procedure laid down below.'

The use of the word 'only' is significant and must be kept in mind when reading Sections 87-A (7) and 87-A (11) of the Act, in which sections the word 'shall' is used. In my view it governs every part of Section 87-A of the Act.

31. In my view Section 87-A (7) of the Act involves not merely a direction to the Judicial Officer to do a thing in a particular way but it creates a right in the President and possibly also in the sponsoring and uncommitted members that the very motion which has been forwarded shall be read.

When that motion is not read it is not merely a failure on the part of the officer concerned to carry out a direction, but it is, in my view, an infringement of the right of the President and of the members who are present to vote and also of those not present.

Likewise a failure to forward a copy of the motion and a failure to send such minutes as will give true and concise information as to what was actually said against the President and what was said in his favour would also affect the President's rights and the rights of the members and the electors who had voted the President directly into power because the Board is liable to be dissolved as a direct consequence of its action.

It is not merely that case that Section 87-A (7) and (11) of the Act prescribe the statutory duties of a public officer, the disregard of which in the non-essentials may be condoned. I am, therefore, of the view that Sections 87-A (7) and 87-A (11) of the Act are mandatory and must be strictly complied with, otherwise the acts done in disregard thereof are nullified.

If they are treated as directory the result which has been achieved here may often ensue that the President could be subjected to the consequences of a vote of no-confidence without any recorded reasons being brought to his notice for the motion; and if no discussion took place at the meeting even without an oral expression of the same. Such a result must be avoided.

32. I think it may be pointed out here that this is the last of a series of writ petitions arising out of this motion of no-confidence. The convening of a meeting for the passing of the vote of no-confidence (W. P. .No. 3472 of 1956), the validity of the no-confidence motion (W. P. Nos. 3810 and 3813 Of 1956) and the validity of the order of the Government (W. P. No. 1079 of 1957) removing the President have all been challenged before this Court.

There was a further writ (W. P. No. 319 of 1957), to obtain an order preventing the District Magistrate from acting under Section 87-A (11) of the Act and forwarding the copy of the minutes etc., to the State Government. This last mentioned writ petition was for a mandamus and was finally rejected on the ground that the documents had already been forwarded.

The writ petition which attempted to prevent the holding of the meeting failed. It was made upon the ground that copy of the motion had not been sent to the District Magistrate, which ground was found to be not correct. The two writ petitions challenging the validity of the no-confidence motion were both founded, inter alia, upon the ground that the motion which was sent with the written notice of intention was not read out and what was only read out was merely the notification.

These two writs failed both before the learned single Judge and in Special Appeals Nos. 313 Of 1956 and 17 of 1957. An application for leave to appeal to the Supreme Court (S. C. A. No. 26 of 1957) from one of these writs was dismissed by a Bench of this Court consisting of brothers Desai and Beg and an application for special leave filed in the Supreme Court (Appeal (Civil) No. 84 of 1957), was also dismissed by that Honourable Court.

33. The writ petition No. 1079 of 1951 challenging the order of the Government removing the President under Section 47-A (2) of the Act was allowed by a Division Bench consisting of brothers Desai and Beg., Special Appeal No. 195 of 1957, D/- 18-9-1957 (All) (C). It has been in effect held by that Bench that Section 87-A (11) of the Act is mandatory and non-compliance with that section has the effect of not placing any obligation upon the President to submit his resignation or to make a representation to the State Government and that the State Government could not, therefore, remove the President.

34. In that case the question of the incapacity of the President to function as President within the meaning of Section 55 of the Act as laid down in Section 47A (1) (b) of the Act was not directly in issue; the direct issue was whether the President had been rightly removed by Government nor were the present parties, all parties to that writ petition and it was conceded that the question of incapacity was entirely open for consideration in this instant writ petition.

35. There was an obiter in the Division Bench judgment in Special Appeal No. 313 of 1956 dealing with the writ petition challenging the validity of the no-confidence motion that the failure to forward a copy of the motion under Section 87-A (11') of the Act was not material and that it was enough that a copy of the notification convening the meeting for the passing of no confidence motion be forwarded. It is clear that that observation is mere obiter because the stage of Section 87-A (11) of the Act had not been reached: when the writ was filed.

36. Both the Division Benches dealing with the writ petitions relating to the validity of the no-confidence motion have directly or by implication held that Section 87-A (7) of the Act is not mandatory and merely directory and that the substitute reading of the notification instead of, the motion was sufficient compliance with the requirements of Section 87-A (7) of the Act for the purpose of the passing of the vote of no-confidence.

37. With all respects I am unable to agree with the view of my brother Mehrotra (who delivered judgment sitting as a Single Judge in those writ petitions) and I do not agree with my brothers Chaturvedi and Srivastava (who delivered the Division Bench judgment in Special Appeal No. 313 of 1956 sitting as a court of appeal), nor with the judgment of my brothers, Desai and Beg (who delivered the Division Bench Judgment in Special Appeal No. 17 of 1957 dealing with the appeal from the connected writ petition also disposed of by my brother, Mehrotra).

38. The mandatory character or otherwise of Section 87A (7) from the particular angle of the requirement of Section 87-A (11) has to be considered inter partes in this writ directly for the first time for the question only now calls for, determination from that angle.

39. The view taken by brothers, Desai and Beg, in the subsequent judgment in Special Appeal No. 132 of 1957 concerned with the removal of the President clearly indicates that Section 87-A (7) read along with Section 87-A (11) of the Act are both mandatory. They have thus departed some what from their earlier view expressed when the writ concerning the validity of the no-confidence motion was before them in appeal.

40. It has been argued that the decision in Special Appeals Nos. 313 of 1956 and 17 of 1957 operate as res judicata.

41. Those Special Appeals arise out of writs Nos. 3810 and 3813 of 1956 in which the question of the validity of the no-confidence motion was raised inter partes and Section 87-A (7) of the Act was considered from the point Of view of the validity of the no-confidence motion and it was held to be of a directory character.

42. In the present writ petition, the question is whether the provisions of Section 87A (11) are of a mandatory or directory character and whether the sending of the documents, which were sent, was in accordance with Section 87A (11). The question also is whether Section 47A (1) is mandatory and whether the President received the communication in accordance with Section 47A (1). The question further is whether Section 47-A (1) (a) was attracted, if Section 87A (11) and Section 47A were not complied with, and whether any disability was imposed under Section 47A (1) (b) of the Act.

43. None of these questions were directly or substantially in issue in either writs Nos. 3810 and 3813 of 1956. The stage for the consideration of these questions could not arise because the communication was sent and received afterwards.

44. The ground covered _by the present writ is different. The cause of action for the filing of this writ came into existence later and is founded on fresh and subsequent facts.

45. A mere passing of a vote of no-confidence does not bring Section 47A (1), (a) or (b) into effect. The subsequent steps have first to be taken.

46. No doubt Section 87A (7) was considered from the angle of the validity of a no-confidence motion, as to whether it was mandatory or directory, and it was held that it was directory, but in this writ it is being considered whether Section 87A (11) is mandatory or directory and what is the 'motion' which had to be forwarded under Section 87-A (11).

There is no doubt that in considering this question indirectly, the question, whether Section 87A (7) was mandatory, also arises but the fresh consideration is from the angle of Section 87-A (11).

47. The relief sought by this writ is different from the relief sought by the former writs; this is a petition for a writ of quo warranto and the same considerations do not always arise in connection with a writ of mandamus as arise in a writ quo warranto.

48. I do not think that the considerations of any matters that arise in the instant writ petition are barred by the principles of res judicata.

49. To writ petition No. 1079 of 1957 (Special Appeal No. 195 of 1957 (C)), the present applicants were not parties and so that decision does not operate as res judicata.

50. It is difficult to see how the instant writ is hit by Chapter 22, Rule 8 of the Rules of the Court (1952) which provides that

'Where an application has been rejected it shall not be competent for the applicant to make a second application on the same facts'.

Fresh facts, which were non-existent when writs Nos. 3810 and 3813 of 1956 were filed, have been mentioned in this instant writ and it is substantially on the basis of such new facts that this writ is founded.

51. As I have stated already, it was agreed by everybody that the question whether the President was incapacitated because of Section 47A (1) (b) from functioning was entirely open in this case.

52. For the reasons stated by me I have come to the conclusion that the failure to comply with the provisions of Sections 87A (7) and 87A (11). and 47 (1) of the Act which I consider to be mandatory has the result of not making obligatory for the President either to resign or to represent to the State Government to dissolve the Board under Section 47A (1) (a) of the Act and that being so he could not and cannot be deemed to be incapacitated from functioning as the President within the meaning of Section 55 of the Act because of Section 47-A CD (b) of the Act.

53. I might add that even if I had considered Sections 47A (1) and 87-A (7) and (11) of the Act as not mandatory but directory, inasmuch as neither the notification (it was not even framed as a no-confidence motion) which was treated as a substitute for the sponsored no-confidence motion nor the minutes gave to the President the grounds of charges against him, these sections could not be said to have been complied with even in the spirit. The object of sending the documents, which were sent because of the form in which they were sent, was in my view completely frustrated and it was not possible for the President to make a proper decision or representation upon the basis of those documents.

54. In my view, therefore, even if the said provisions of the Act are directory there has been quite insufficient compliance therewith with the same result that the President cannot be deemed to be incapacitated. I would like to add that on the date the petition was being heard the old Board had demitted and a fresh election was taking place. No doubt, Sri Tara Chand Modi would continue to act as the President for a further short period until the election of a fresh President, but that election is only a few days off. In the circumstances, I think, it would have been futile to issue a writ of quo warranto or a writ of mandamus in any case, and that further it would not have been desirable in the public interest to do so in view of the circumstances existing at the date when we are passing this order.

55. Accordingly, I would dismiss this petition.

B. Mukerji, J.

56. This is a petition by Sri Mahesh Chan-dra and Sri Bisheshwar Dayal against Sri Tara Chand Modi. The two petitioners were elected members of the Municipal Board, Hapur, and they further occupied the positions of Senior Vice-president and Junior Vice-President of the Board respectively. The respondent Sri Tara Chand Modi was the elected President of the same Board.

57. By this petition the two petitioners prayed for the issue of a writ in the nature of quo warranto directing the respondent to show authority by which he purported to act as the full-fledged President of the Municipal Board of Hapur, There was also a prayer for the writ of mandamus or an appropriate direction in the nature of mandamus directing the respondent not to interfere in any manner with the functioning of the petitioners as the Senior and Junior Vice-Presidents of the Municipal Board, In as much as, in the petitioners' view the respondent had become incapacitated to act as President of the Municipal Board of Hapur.

There was further' prayer for the issue of an Interim order directing the respondent not to interfere with the functioning of the Board or with the functioning of the two petitioners in any manner during the pendency of the writ. It is necessary, even though it be in brief, to give the history of the various controversies which arose between the respondent, on the one hand, and some of the other functionaries of this Municipal Board, on the other.

58. The members of the Municipal Board of Hapur were elected in general election which was held in October 1953. Petitioner No. 1 was elected Senior Vice-President while petitioner No. 2 was elected Junior Vice-President of the Board. The respondent was elected President at the same general election.

After a time the respondent appears to have lost the confidence of the majority of the Board with the result that a notice of an intention to move a non-confidence motion against the respondent was given. This motion of non-confidence was signed by 18 members of the Board and was delivered to the District Magistrate of Meerut on 4-10-1956, in accordance with the provisions of Section 87-A of the U. P. Municipalities Act.

59. On receipt of the notice mentioned above the District Magistrate issued a notice on 11-10-1956, convening a meeting of the members of the Municipal Board of Hapur at 11 a. m. on 7-11-1956, to consider the motion of non-con-fidence. Sri R. N. Sinha, Second Additional Munsif of Meerut was appointed to preside over this meeting.

60. The notice that was issued by the District Magistrate was as under:

'Notice of Meeting to consider the non-confidence Motion against the President, Municipal Board, Hapur.

Whereas a motion of non-confidence signed by more than half the members of the Municipal Board, Hapur, against the President Sri Tara Chand Modi has been received on 4-10-1956, it is notified for public information that a meeting of the members of the Municipal Board, Hapur, to consider the above motion will be held in the office of the Municipal Board, Hapur, under the chairmanship of Sri R. N. Sinna, Second Additional Munsif, at II a. m. on Wednesday, the 7th November, 1956.

Sd. Gyan Prakash,

I. A. S., District Magistrate,

Meerut.'

A copy of this notice was sent to the respondent Sri Tara Chand Modi as President of the Municipal Board. Copies of the notice were also served on all the members of the Board. A copy of this notice was sent to Sri P. N. Sinha, Second Additional Munsif, who was to preside at the meeting.

61. It is common ground that the Second Additional Munsif had no copy of the motion of non-confidence sent to him by the District Magistrate. The meeting was held on the appointed date and time and a motion of non-confidence was passed at that meeting.

62. The Second Additional Munsif after the meeting sent to the President the Minutes of the meeting which indicated what had taken place at the meeting, the results of the voting as also a copy of the notice which notice clearly indicated the motion for consideration of which the meeting had been called. The District Magistra was also forwarded the aforementioned materials by the Second Additional Munsif.

The District Magistrate, in his turn, informed Government of the meeting and the results thereof. As a result of the communication received by Government from the District Magistrate of Meerut and also because Government did not receive either, the resignation of the President or, a representation from him within three days of the communication of the fact that a motion of non-confidence had been passed by the Board, Government made a notification in exercise of the powers conferred on it by Sub-section (2) of Section 47A of the U. P. Municipalities Act for the removal of Sri Tara Chand Modi from the office of President, Municipal Board, Hapur, with effect from 29-1-1957.

63. The passing of the non-confidence motion, led to a series of writ applications in this Court. Sri Tara Chand Modi with dogged pertinacity challenged every step that was involved in making the motion as also the culmination of it by the notification made by Government removing Sri Tara Chand Modi from the presidentship of the Municipal Board of Hapur.

64. The first of the series of petitions moved by Sri Tara Chand Modi was moved on 31-10-1956, whereby he impugned the validity of the notice convening the meeting on 7-11-1956. This writ petition was numbered 3472 of 1956. Petitioner No. 2, namely, Sri Bisheshwar Dayal, made an application in this writ petition praying that he be made an opposite party to this writ.

The prayer was granted with the result that petitioner No. 2 had an opportunity of contesting the petition of Sri Tara Chand Modi filed on 31-10-1956. Sri Tara Chand Modi moved another writ petition which was numbered 3810 of 1950, while one Sri Chokhey Lal, a member of the Municipal Board, Hapur, filed another writ petition which was numbered 3813 of 1956 against the District Magistrate and the State of Uttar Pradesh as respondents, and both these writ petitions challenged the validity of the meeting that was held on 7-11-1956.

Sri Tara Chand Modi attacked the validity of the meeting mainly on the ground that the Munsif had no copy of the non-confidence motion which had been handed over to the District Magistrate by the requisitioners of the meeting and that as such the learned Munsif did not read the non-confidence motion to the meeting, but only read out the notice which had been issued by the District Magistrate convening the meeting.

Sri Tara Chand Modi further attacked the validity of the proceedings on the ground that no copy of the motion of non-confidence has been sent to him along with the proceedings and the result of the voting as required by Section 87A (11) of the U. P. Municipalities Act. It waa stated that the sending of the copy of the 'notice' was not sufficient.

65. All the three aforementioned writ petitions two by Sri Tara Chand Modi and the third by Sri Chokhey Lal -- were heard together by Mehrotra J., and were decided by him on 19-12-1956. Mehrotra J. held that there being no specific form prescribed for a non-confidence motion the fact that the presiding officer read out only the notice which contained a reference to the non-confidence motion was sufficient compliance with the provisions contained in Section 87A.

An appeal was preferred against the decision of Mehrotra J. This was Special Appeal No. 313 of 1956, which was heard by a Bench consisting of Mr, Justice Chaturvedi and Mr. Justice Sri-vastava and they by their judgment dated 22-1-1957, upheld the view taken by Mehrotra J., and they dismissed the appeal. An application for leave to appeal to the Supreme Court was filed. This was numbered S. C. A. 26 of 1957.

This matter came up for decision before Mr. Justice Desai and Mr. Justice Beg, who by their order dated 31-1-1957, rejected the applications. Against the aforementioned order an application for special leave to appeal was moved before the Supreme Court. This was numbered as Petition for Special Leave to Appeal (Civil) No. 84 of 1957 and a Bench of the Supreme Court rejected the application by their order dated 8-2-1957.

66. Sri Chokhey Lal also filed a special appeal against the order of Mr. Justice Mehrotra rejecting his writ petition, and this special appeal (Special Appeal No. 17 of 1957), came up for decision before Mr. Justice Desai and Mr. Justice Beg who by their order of 25-1-1957, dismissed the special appeal.

It may also be mentioned here that there were certain interim orders made during the pendency of the special appeals, but all those Interim orders, whether made in one or the other op-peal, were vacated and the position that obtained on the January, 1957, was that there were no interim' orders subsisting.

67. On 28-1-1957, Sri Tara Chand Modi moved another writ petition. This was numbered as Writ Petition No. 319 of 1957. By this petition Sri Tara Chand Modi prayed for a writ in the nature of mandamus commanding Sri B. N. Sinha, Second Additional Munsif -- who was arrayed as opposite party No. 2 to that writ

'to perform his statutory duty of sending a copy of the motion of non-confidence said to have been passed against the president on 7-11-1956, at a meeting held under his presidentship, in accordance with Sub-section (1) of Section 87A of the Municipalities Act.'

Further it was prayed that a writ in the nature of mandamus be issued commending the District Magistrate of Meerut not to submit a report to the State Government to the effect that the petitioner had failed to resign his office of President till the expiry of three days from after the requisite copies contemplated by Section 87A (11) had been supplied to the petitioner.

A further prayer was that the State Government be directed not to act in accordance with the provisions of Section 47A (2) of the U. P. Municipalities Act and not to take steps for the removal of the petitioner till the expiry of three days from the communication of the resolution of non-confidence to the petitioner by the presiding officer to enable the petitioner to make an effective representation to the State Government for the dissolution of the Board or to exercise his option of resigning.

There was a prayer for an interim order for the maintenance of status quo by not giving effect to the resolution of non-confidence passed on 7-11-1956. This petition, namely, petition No. 319 of 1957. came up before Mr. Justice Mehrotra and it was rejected by him on 21-2-1957.

An appeal was preferred against the aforementioned decision of Mehrotra J., and this special appeal was numbered 132 of 1957. This came up for admission before Mr, Justice Desai and Mr. Justice Beg who by their order dated 9-5-1957, rejected the special appeal.

68. All the aforementioned failures of Sri Tara Chand Modi were not enough to damp his ardour or to defeat his ingenuity in discovering other and further means of setting at 'naught the decisions of this Court in respect of the validity of the meeting held on 7-11-1956, and the validity of the non-confidence motion passed at that meeting.

Sri Tara Chand Modi neither sent in his resignation, nor made a representation within the time prescribed by Section 47A (i) of the U. P. Municipalities Act. As a result the State Government made a notification removing Sri Tara Chand Modi from the office of President, Municipal Board, Hapur, on 27-4-1957.

69. Instead of resigning or making representation to the State Government Sri Tara Chand Modi filed another writ petition which was numbered 1079 of 1957, whereby, he challenged the validity of the order of removal made by the State Government against him on 27-4-1957, Petitioner No. 2, Sri Bisheshwar Dayal, made an, application in this petition for being added as an opposite party.

No orders appear to have been passed on this application. The petition of Sri Tara Chand Modi (Petition No. 1079 of 1957) came up for hearing before Mr. Justice Mehrotra, who On 27-8-1957, rejected it. Sri Tara Chand Modi filed a special appeal against the aforementioned order of Mehrotra J., and this appeal was numbered 195 of 1957 All (C). It came up for final hearing before Mr. Justice Desai and Mr. Justice Beg.

Neither of the petitioners appear to have been parties to the special appeal. The second petitioner made an attempt to be brought on the record of the appeal as a respondent in order-to have an opportunity to contest the appeal but this attempt of his failed. It appears that on 18-9-1957, Desai and Beg JJ., allowed the appeal of Sri Tara Chand Modi and quashed the order of the State Government removing Sri Tara Chand Modi from the presidentship of the Municipal Board of Hapur.

70. The main ground on which the order of the State Government was held to be without jurisdiction or invalid was that, in the view off the learned Judges, the President of the Board! was not bound to act under Section 47A (1) of the U. P. Municipalities Act unless and until there was a communication to the President of the passing of a motion of non-confidence in accordance with the provisions of Section 87A (11) of the Act. The words of Section 87A (11) are these:

'A copy of the minutes of the meeting together with a copy of the motion and the result of the voting thereon shall on the termination of the meeting, be forwarded forthwith by the judicial officer to the President and the District Magistrate.'

It appears to have been held by the Bench that since no copy of the motion was sent to Sri Tara Chand Modi, there was no compliance with the. provisions of Sub-section (11) of Section 87A. The Bench-appears to have taken the view that unless and until there was a strict compliance with the provisions it could not be held that there was such a communication of the passing of the non-confidence motion to the President as made it obligatory for the President to act under the provisions of Section 47A (1) of the Act.

As a result of this decision by Desai and Beg JJ., Government appear to have cancelled their notification dated 27-4-1957, removing Sri Tara Chand Modi from the office of the President of the Board.

71. This petition, as I have already mentioned earlier, does not specifically challenge the validity of the decision made by Desai and Beg JJ., in Special Appeal No. 195 of 1957, nor does it challenge specifically the action of the State Government in cancelling their notification of 27-4-1957.

What is contended for by the petitioners is that after the passing of the non-confidence motion and after its communication to the President, Sri Tara Chand Modi, by virtue of Section 47-A (1) (b), has become incapacitated from functioning as President within the meaning of Section 55 of the U. P. Municipalities Act.

72. In order to be able to decide whether or not the aforementioned contention of the petitioners is sound, it would be useful to know what has already been decided by this Court in regard to the making, passing and the communication of 'the motion of non-confidence',

It was held by a learned single Judge, whose decision was affirmed in appeal and further affirmed, by implication at any rate, by the Supreme Court, that the meeting at which the non-confidence motion was passed was validly convened; and further that the motion of non-confidence had been properly passed. In the Special Appeal against the decision of Mehrotra J., it was urged on behalf of Sri Tara Chand Modi that a copy of the motion not having been sent to him along with the minutes as required by Sub-section (11) of Section 87A, the communication was invalid.

The learned Judges observed, first, that it was not competent to the appellant to raise that question for the first time in appeal, and secondly that the contention was not well-founded, because they held the view that the only purpose of providing for the sending of a copy of the non-confidence motion was to let the President know what the motion was.

It was held by the Bench that the President was present at the meeting at which the motion of non-confidence was duly proposed, seconded and passed: therefore he had all the knowledge that was necessary for him to have and so the non-despatch of a copy of the motion to him did not prejudice him in any manner. The view which had been taken in the case of Shri Ganesh Prasad Chaturvedi v, District Magistrate, Jalaun, 1956 All LJ 58 (D), was apparently approved by the Bench.

73. The question that is to be considered, therefore, is whether a President, against whom a non-confidence motion has been duly passed and of which the President has knowledge, and further when the President has received a communication from a judicial officer who presided at the meeting of the fact that a motion of non-confidence had been passed at a properly convened meeting, and a copy of the motion which was actually read by the judicial officer at that meeting was also forwarded to him because the judicial officer forwarded to him a copy of the 'notification' which contained a copy of the non-confidence motion, could refrain from acting under Section 47A (1) (a) of the U. P, Municipalities Act, on the plea that a copy of the motion had not been sent to him as a separate enclosure to the minutes.

74. Section 47A (1) is in these terms:

'If a motion of non-confidence in the President has been passed by the Board and communicated to the President in accordance with the provisions of Section 87A, the President shall--

(a) within three days of the sending of such Communication, either resign his office or represent to the State Government to dissolve the Board, stating his reasons therefor; and

(b) on the expiry of three days after the date of sending of such communication, stop acting as President and shall be deemed to be incapacitated from functioning as President within the meaning of Section 55.'

The question further arises whether compliance in respect of communication to the President has to be in strict accordance with the provisions of Section 87A (ID or whether substantial compliance with the provisions of that Sub-section was enough to attract the provisions of Section 47A (1) (b).

75. Under Sub-section (11) of Section 87A the Judicial Officer has to send to the President a copy of the minutes of the meeting together with a copy of the motion and the result of the voting thereon on the termination of the meeting. It was contended that the provisions of Section 87A are mandatory and any non-compliance with any of the provisions of this section absolved the president from the disability created under Section 47A (1) (b).

It was further contended that Mr. Justice Desai and Mr. Justice Beg having held the notification of the Government directing the removal of the President to be invalid the President could not be held to have become incapacitated from functioning as President.

76. The provisions of Section 87A can be broadly divided into two portions, one, dealing with the provisions which relate to the calling of the meeting and the actual holding of the meeting as also the conduct of the meeting itself; and the other, dealing with what is to follow the termination of the meeting.

In my view, the first portion of this section is mandatory in its scope, but not the second portion. The words 'a motion expressing non-confidence in the President shall be made only in accordance with the procedure laid down below' in Section 87A (1) can and do refer only to the calling of the meeting and the holding of the meeting and not to acts which have to be performed subsequent to the meeting.

The act of sending a copy of the minutes of the meeting along with a copy of the motion and the result of the voting thereon after the termination of the meeting is not part of the making of 'a motion expressing non-confidence in the President.''

The legislature could not be deemed to have ever intended that ministerial acts necessary upon the passing of the motion at a properly constituted meeting should be viewed with the same strictness as steps leading up to the meeting & the transaction of the business at the meat-ing, because the latter affected the rights of a party while the former did not.

A motion of non-confidence is a potent weapon in the hands of an elected body, whereby that body keeps under check its officers, it also is a matter of great significance and vital importance to the officers that such motions are not lightly made or carried through without due regard being had to the prescribed form for their passing, but after a motion has been properly made and passed by a body competent to pass it, it becomes of vital importance thereafter that effect should be given to the motion and mere I procedural errors, such as errors in its communication, etc., should not have the effect of setting at naught the duly recorded view of the statutory majority.

77. Desai and Beg JJ., in Special Appeal No. 195 of 1957 (All) (C) appear to be of the opinion that it is necessary for a proper compliance with the provisions of Section 87A (11') to send to the President at least three documents and that unless the judicial officer sent to the President the three documents the communication to the President could not be held to be in accordance with the provisions of Sub-section (11) of Section 87 (A).

Before entering into the question whether the view expressed by Desai and Beg JJ., was right, it is necessary to know first what exactly were the facts. The learned Munsif who presided at the meeting had with him a copy of what has been called the notification -- which really was a notice issued by the District Magistrate convening the meeting for 7-11-1956, and which contained the following recital:

'..... a motion of non-confidence signed by more than half the members of the Municipal Board, Hapur, against the President, Sri Tara Chand Modi, has been received on. 4-10-1950, it is notified for public information that a meeting of the members of the Municipal Board, Hapur, to consider the above motion will be held .....'

The learned Munsif read put the notice which contained the motion which has been quoted above at the meeting: this the learned Munsif did in accordance with the provisions of Sub-section (7) of Section 87A. This Sub-section is in these words: 'As soon as the meeting convened under this section has commenced, the judicial officer shall read to the Board the motion for the consideration of which it has been convened and declare it to be open for discussion.' There can be no manner of doubt that the meeting which had been convened was to consider the motion of non-confldence and that that motion was unambiguously set down in the notice issued by the District Magistrate. Under Sub-section (3) the District Magistrate is required to convene a meeting for consideration 'of the motion' and he is required to give notice of such meeting to every member of the Board.

Under Sub-section (2) notice of intention to make a motion of non-confldence in the president can be made only under the Signature of such members of the Board as constitute not less than one half of the total number of the members of the Board together with a copy of the motion which it is proposed to make.

It is, therefore, clear that when the District Magistrate convenes a meeting under Sub-section (3) for consideration 'of the motion' then the notice that he issues under Sub-section (3) must contain a copy of the motion for which the meeting was being convened. Sri Tara Chand Modi in an earlier writ petition (No. 3810 of 1956) raised the question that since the judicial officer did not have a copy of the non-confidence motion which had actually been handed over to the District Magistrate in accordance with the provisions of Sub-section (2) Of Section 87A by the requisitionists of the meeting and since further the judicial officer did not read that motion to the meeting under the provisions of Sub-section (7) the meeting was invalid and the passing of a motion of non-confldence at such a meeting could not affect his position.

This contention of Sri Tara Chand Modi was repelled. It was held that there was no such violation of the provisions of Sub-section (7) as could lead the Court to give a declaration that the motion passed at the meeting was invalid and unenforceable. The effect of the aforementioned decision must lead to the conclusion that the motion which the learned Munsif read to the meeting was the motion for the consideration of which the meeting had been convened.

Factually too, it was this motion which was read by the learned Munsif; it was this motion, on which the members voted; and it was this motion, therefore, that was passed.

78. It was contended on behalf of Sri Tara Chand Modi that it was incumbent on the presiding officer to read out that motion which had been' handed over to the District Magistrate by the Members of the Board under the provisions of Sub-section (2) of Section 87A. This contention appears to be without force.

The provisions of Section 87A nowhere indicate that it was obligatory on the presiding officer to read out the actual words of the motion of non-confidence, a copy of which was handed over to the District Magistrate by the members of the Board under Sub-section (2). The District Magistrate is enjoined under Sub-section (30 to convene a meeting for the consideration of the motion and the motion under Sub-section (3) must mean the motion of non-confidence.

79. A motion means a proposal and nothing more. The statute does not provide for any specific words in which the motion of non-confidence has to be made, nor does it prescribe that the motion which is to be put for consideration of the meeting by the Presiding officer under Subsection (7) has to be in the words -- the very words -- in which the motion or proposal was made in the requisition under Sub-section (2).

It is enough compliance with the provisions of Sub-section (3) for the District Magistrate while convening the meeting to say that a meeting is being convened for consideration of a motion of non-confidence signed by more than half the members of the Board against the President and it is also sufficient compliance with the provisions of Sub-section (7) to read the motion as contained in the notice issued by the District Magistrate under the provisions of Sub-section (3).

The notice which was issued by the District Magistrate in this case actually said that the meeting was being called to consider the above motion: the above motion could only refer to the non-confidence motion referred to earlier in that notice.

80. It has been contended on behalf of 'the petitioners that after the passing of the motion of non-confidence and the communication of it by the judicial officer to the President along with a copy of the minutes and the result off the voting was sufficient compliance with the provisions of Sub-section (11), while on behalf of Sri Tara Chand Modi it was contended that there could be no sufficient compliance with the provisions of Sub-section (II) unless the judicial officer sent to the President a copy of the minutes of the meeting together with a copy of the motion and the result of the voting.

The contention was that three documents had to be sent to the President. Support for this contention was found in the observations of Desat and Beg JJ., in Special Appeal No. 195 of 1957 (A11) (C). In that case the learned Judges held at follows:

'The President became liable to be removed only if he did not resign or make a representation within three days of the receipt of the three documents mentioned in Section 87A (11); if he did not receive even one of them he was not bound to resign or make a representation and he could not be removed on the ground of his not resigning or making the representation.

Section 47A requires that a motion of non-confidence after it has been passed must be communicated to the president in accordance with the provisions of Section 87A; merely communicating to him the motion of non-confidence will not be enough; he must be told that it has been passed, that is, he must be told of the result of voting.

It is only when the three documents mentioned in Section 87A (11) are sent by the Judicial officer to him that he could be said to have communicated to him the motion of non-confidence in accordance with the provisions of Section 87A. If he does not send to him any of the douments he cannot be deemed to have communicated to him the motion of the non-confidence in accordance with the provisions of Section 87A,' With the greatest respect to my learned brothers I have been unable to agree that on the words of Sub-section (11) there have to be three separate documents. The Sub-section does not in terms refer to any such documents; the sub-section, in my opinion, refers only to the matter in respect of which a communication has to be forwarded by the judicial officer to the President.

A single document may contain a copy of the minutes of the meeting, a copy of the motion and the result of the voting thereon. I must, however, concede that the use of the word 'together' after the words 'a copy of the minutes of the meeting' in Sub-section (11) does create the impression that two separate documents have to be Gent.

The word 'together' however, not only means in company' but it also means in conjunction.' or 'united'. The word 'together is made out of the word 'gather' which means 'to bring together'; to sum up'. If the intention of the legislature was that the presiding officer was to send three separate documents containing the three things mentioned in Sub-section (11), then, in my view, the legislature would have used the words 'accompanied by' or some like phrase and not the word 'together', for the legislature must be deemed to know that the word 'together' also means 'incorporated' because the word 'gather' means 'to bring together' and 'to sum up' as I have already pointed out above.

On the plain meaning of the sub-section, therefore, it cannot, in my view, be said that three separate documents have to be sent to the President by the Presiding officer at the termination of the meeting. On the facts it has to be held that the presiding officer did send to the President the Minutes of the meeting, the result of the voting and a copy of the notice, or notification as it has been called, which contained the motion which was in fact put to the Board and passed by the Board.

There was, in my view, therefore, full compliance with the provisions of Sub-section (11) of Section 87A and there was nothing wrong in the communication which was made to the President.

81. Under Section 47A (1), as has already been noticed.

'If a motion of non-confidence in the President has been passed by the Board and communicated to the President in accordance with the provisions of Section 87A, the President shall--

(a) within three days of the sending of such communication, either resign his office or represent to the State Government to dissolve the Board stating his reasons thereof; and

(b) On the expiry of three days after the date of sending such communication, stop acting as President and shall be deemed to be incapacitated from functioning as President within the meaning of Section 55.'

It would be clear from the provisions of Sub-section (l) of Section 47A that the communication has to be in accordance with the provisions of Section 87A and not that the contents of that communication have to be in accordance with that sub-section. I see a distinction and I am of the opinion that there is a substantial distinction -- between communication and contents of a communication.

The procedure for communication is not quite the same thing as the form of the communication or the contents thereof. The words 'in accordance' in Section 47A (1) mean 'in conformity' or 'as provided for'. One has, therefore, to see to the procedure relating to the communication of the matter provided for in Sub-section (11) and not to the form in which the matter communicated is expressed.

The intention of the legislature appears to me to be clear and that intention appears to me to be 'to provide for a procedure in regard to the communication which must, of course contain the subject-matter Of the communication: the subject-matter is communicated under the first portion of Sub-section (11), while the procedure for its communication is indicated in the latter portion of that sub-section, namely, where provision is made that the judicial officer shall on the termination of the meeting forward, forth with, to the President and the District Magistrate a copy of the minutes, a copy of the motion and the result of the voting thereon. All these three things namely, a copy of the minutes, a copy of the motion and the result of the voting, could be in one communication.

82. It was argued that unless the President had the copy of the motion which was intended to be moved by the members who had given written notice of their intention, the president could not be deemed to know that really a motion of non-confidence had been properly moved and passed against him, and further, that he could not have proper material in his hands on which he could make a representation to the State Government to dissolve the Board -- a power or privilege which has been vested in the President by law.

This argument, to my mind, is without force, for a copy of the motion would not include the reasons for the motion or the arguments in support of the motion. A motion is merely a bald proposition. That bald proposition was communicated to the President in this particular case; he also had a communication of the minutes of the meeting and the result of the voting. So that, he had all that material which, according to the view of the legislature, was deemed sufficient to enable him to make a representation if he chose to do so. it is not open to add to the words of the statute or to read more in the words than is meant, for that would be legislating and not Interpreting a legislation.

I am clearly of the opinion that there was no prejudice caused to the President by the fact that a copy of the motion in the words in which it was handed over, by the members to the District Magistrate under the provisions of Sub-section (2) was not sent to the President.

83. There is yet another aspect of the matter which has, in my view, to be taken into account & that is that the question that has now been raised had substantially been raised by the respondent Sri Tara Chand Modi in his earlier petitions. Desai and Beg JJ., had held that in their opinion the question which arose for determination in Special Appeal No. 195 of 1957 (All) (C) did not arise in any of the previous writ petitions and, therefore, the writ petition which was the subject-matter of the appeal before them was not barred by the principle of res judicata.

I again regret, I am unable to agree with the View of my learned brothers, for, in my opinion, the petition out of which Special Appeal No. 195 of 1957 (All) (C) arose was substantially on the same facts as the earlier petitions. The relief which was claimed in the petition may have been slightly different but that relief could flow only if it was held that the communication to the President was not in accordance with the provisions of Sub-section (11) of Section 87A.

This question had been specifically raised in Special Appeal No. 313 of 1956 on behalf of the respondent -- who was an appellant in that appeal. The question that was raised was that after the meeting was over and the non-confidence motion had been passed the presiding officer did not send to the appellant and the District Magistrate a copy of the minutes together with a copy of the motion and the result of the voting as required by Sub-section (11) of Section 87A.

The Bench that heard that appeal, namely, Chaturvedi and Srivastava JJ., held that that contention was not well-founded. It was held by that Bench that Sri Tara Chand Modi was present at the meeting at which the non-confldence motion was duly proposed, seconded and passed, and therefore, he had all the knowledge that was necessary in regard to the motion. The Bench further held that

'the forwarding of a copy of the motion was only a ministerial act and even if the presiding officer omitted to perform it, the appellant could not say that he had been prejudiced in any manner on that account.'

84. Under Chapter 22, Rule 8 of the Rules of Court, 1952, it has been provided that

'Where an application has been rejected it shall not be competent for the applicant to make a second application on the same facts.' In my view, under the provisions of the afore-quoted rule of Chapter 22 the petition which culminated in Special Appeal No. 195 of 1957 (All) (C) was barred but this Bench is not sitting in appeal over that decision and, therefore, this Bench has no power to vary that decision and I must not be taken to say anything to the contrary.

The observation which I have respectfully made above is made only for the purpose of showing that the decision in Special Appeal No. 195 of 1957 (All) (C) cannot be utilised by the respondent to defeat the petition which is up for decision before this Full Bench.

85. For the reasons given above, I am inclined to the view that Sri Tara Chand Modi had incurred the disability prescribed under Section 47A (1) (b) of the U. P. Municipalities Act and that the notification which Government Issued on 27-4-1957, was a valid notification, but that notification must be deemed now to be dead for it has been set aside by the decision of Desai and Beg JJ., dated 18-9-1957.

The State Government has also superseded that notification, we were informed, but that does not, in my view, affect the legal consequences which were incurred by Sri Tara Chand Modi under the provisions of Section 47A (1) (b). In my view there was a proper communication to him in accordance with the provisions of Section 87A and that three days had expired after the date of the Bending of such communication: therefore, Sri Tara Chand Modi must be deemed to be incapacitated from functioning as President of the Municipal Board of Hapur.

This, however, does not necessarily entitle the petitioners to the issue of the writ prayed for by them, for there are other circumstances, in my view, which entitle us to exercise our discretion in favour of the respondent. The life of the Board has practically come to its end: fresh elections have already been held of the members of the Board.

The election of the President and the Vice-presidents will take place shortly. Therefore, it would be futile to issue any of the writs prayed for by the petitioners. It is well-established principle on which Courts have acted that the issue of a writ being within the discretion of a Court, the Court would rarely issue a writ if the issue of such a writ was to be futile. As I have said, in this case it would be futile.

86. I would accordingly agree witk my learned brother in dismissing this petition.

S.N. Sahai, J.

87. I agree with my brother Mukherji.

By the Court:

88. For the reasons recorded in our respective judgments, we dismiss this application. Inthe circumstances of this case, we direct theparties to bear their own costs of this Court.


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