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Nasir HusaIn Vs. State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Nos. 1875, 2044, 2164 and 2165 of 1956
Judge
Reported inAIR1957All366
ActsUttar Pradesh Town Areas Act, 1914 - Sections 38; Constitution of India - Articles 226 and 245; Uttar Pradesh Municipalities Act, 1916 - Sections 47A, 49 and 87A
AppellantNasir Husain
RespondentState of U.P. and ors.
Appellant AdvocateS.C. Khare and ;N.C. Upadhya, Advs.
Respondent AdvocateStanding Counsel
DispositionPetitions dismissed
Excerpt:
.....out have prejudiced the case of petitioner in any manner. (ii) notification - section 38 of u.p. town areas act,1914 and sections 47-a and 87-a of u.p. municipalities act, 1916 - notification issued - apply to existing act - effects the essential policy of act -held, notification ultra vires. - - if there are certain acts which are already in force in the town area or are in force in the municipality and any other areas as well section 38 does not empower the state government to extend such acts to the town areas. in 1951 scr 747: (air 1951 sc 332) (b), the following provision was held to be good by a majority of four to three: district magistrate, jalaun, 1956 all lj 58 (c): that there had been such a failure is clear, but the jurisdiction we exercise under article 226 of the..........who are the state of uttar pradesh, the district magistrate of faizabad and the members of the town area committee bhadarsa, district faizabad, not to interfere in any manner with the applicant's function as chairman of the town area committee bhadarsa, district faizabad, on the basis of the resolution said to have been passed in the meeting of 27th of august 1956.2. the facts briefly which are set out in the affidavit filed in support of the petition are that the petitioner was elected chairman of the town area committee bhadarsa in the district of faizabad in january 1954 in a bye-election by the general electorate of the town. the town area committee bhadarsa consists of nine members and the chairman. by a notification dated 2nd of may 1956 the state of uttar pradesh had applied.....
Judgment:
ORDER

Mehrotra, J.

1. This is a petition under Article 226 of the Constitution praying that a writ of mandamus be issued to the opposite parties who are the State of Uttar Pradesh, the District Magistrate of Faizabad and the members of the Town Area Committee Bhadarsa, District Faizabad, not to interfere in any manner with the applicant's function as Chairman of the Town Area Committee Bhadarsa, District Faizabad, on the basis of the resolution said to have been passed in the meeting of 27th of August 1956.

2. The facts briefly which are set out in the affidavit filed in support of the petition are that the petitioner was elected Chairman of the Town Area Committee Bhadarsa in the District of Faizabad in January 1954 in a bye-election by the general electorate of the town. The Town Area Committee Bhadarsa consists of nine members and the Chairman. By a notification dated 2nd of May 1956 the State of Uttar Pradesh had applied the provisions of Sections 47-A and 87-A of the U. P. Municipalities Act to the town areas under the purported exercise of its power under Section 38 (1) of the U. P. Town Areas Act. A notice dated 27th of June 1956 under the signature of Sri R. K. Trivedi, District Magistrate of Faizabad, was served upon the petitioner. The date 27th of June 1956 is admitted to be a mistake for 27th of July 1956, In pursuance of the said notice a meeting was held on 27th of August 1956 at 10.30 a.m. at Primary School, Bhadarsa, and was presided over by the Civil Judge of Faizabad. In that meeting a non-confidence resolution was passed against the petitioner. When this petition was filed it was asserted in the affidavit that till then the Civil Judge had not communicated to the petitioner the result, of the meeting nor the copy of the resolution had been sent to him. The proceedings of the meeting, of 27th of August 1956 have been challenged by means of this petition.

3. The main contention raised by the petitioner is that the notification by which the provisions of Sections 47-A and 87-A have been applied to the town areas by the State Government are illegal inasmuch as they are unauthorised delegation of legislative functions. There are other points on which the validity of the notification has been challenged which I shall deal at the proper place.

4. Section 38 of the Act provides that:

''38(1) The State Government may, by notification in the Official Gazette, extend to all town areas or to any town area or to any part of a town area any enactment for the time being in force in any municipality in Uttar Pradesh, and declare its extension to be subject to such restrictions and modifications, if any, as it thinks fit.

(2) Where any enactment is so extended, any provision of this Act inconsistent with such extension or declared in the aforesaid notification to be inoperative shall cease to have effect so long as the extension is in force.'

In the exercise of the power conferred under Section 38 the notification was issued by the State Government by which Sections 47-A and 87-A of the U. P. Municipalities Act with certain modifications were applied to the town areas. The notification has been attacked by the petitioner on three grounds. Firstly, it is contended that the State Government could only extend to the town areas the enactments-winch are for the time being in force in any municipality. If there are certain Acts which are already in force in the Town Area or are in force in the Municipality and any other areas as well Section 38 does not empower the State Government to extend such Acts to the town areas. In this connection it was also urged that Section 38 contemplated cases where the other Acts which are in force in the Municipality could be extended to a town area but it does not authorise the State Government to extend the Municipalities Act itself which creates the municipalities a statutory body. In other words, this section according to the petitioner, does not empower the State Government to extend the Constitutional Act to the town areas. It was next contended that Section 38 gives very wide power to the State Government to apply the Acts with modifications and restrictions to the town areas and thus it delegates essential legislative function to the State Government. The provisions of the section therefore are unconstitutional as they exceeded the permissible limits of delegation. Lastly, it was contended that even assuming that the provisions of Section 38 are constitutional in the present case that does not permit the State Government to select certain sections of the Act which are in force in a Municipal area and extend them to a town area without extending the other parts of the Act or to extend it in such a modified form so as to effect, the essential policy underlying the enactment the part of which has been extended. In substance the argument of the petitioner is that it is the primary function of the Legislature to lay down the policy of an enactment and to lay down the rule of conduct for a delegation. If a part of a section is extended so modified as to effect the legislative policy behind the enactment which has been extended it is exercising an essential legislative function by the State Government which is going beyond the permissible limits of delegation and as such the exercise of the power is ultra vires.

5. Regarding the first contention raised by the petitioner, it is enough to point out that there are no words in Section 38 which limit the power of the State Government to extend only those enactments which are in force in a Municipality and not in force in a town area or any other areas. If such a contention is accepted then the words 'and not in force in any other area' will have to be added in the section after the words 'in force in any Municipality'. The argument was further sought to be supported by relying upon certain Acts such as Hackney Carriages Act and other minor Acts which are in force in a Municipality and it was contended that the power under Section 38 to extend only applies to such Acts, As I have already said there is nothing in the language of Section 38 restricting the power of the State Government to such Acts as have been mentioned by the petitioner. The contention of the petitioner that Section 38 gives power only to extend Acts other than the provisions of the Municipalities Act to the town areas is also to my mind not sound. It would be, as I have said, adding certain words to the section if the interpretation put by the petitioner is accepted. The Municipalities Act though it creates municipalities is itself an Act which is in force in the Municipalities and it is open to the State Government to extend a part of that Act to the town areas.

6. The main contention raised by the petitioner is that the notification issued by the State Government applying the provisions of Sections 87-A and 47-A of the Municipalities Act to the town areas is ultra, vires inasmuch as it exceeds the permissible limits of delegation. Under Section 38 of the Town Areas Act it is provided that by a notification the State Government may extend to any town area any enactment for the time being in force in any Municipality and declare its extension to be subject to such restrictions- and modifications, if any, as it thinks fit. Under this section powers have been given to the State Government by notification to extend even a part of an Act in force within the Municipal limits to town areas. It has not been seriously contended by the counsel for the petitioner that the provisions of Section 38 are illegal inasmuch as they give very wide powers to the State Government to extend the provisions of any Act to the town area so as to effect the essential policy underlying the enactment. But the notification under which the provisions of Sections 87-A and 47-A have been extended to the town area has been attacked en the ground that it exceeds the permissible limits of delegation under Section 38 itself. Reliance was placed on the case of Rajnarain Singh v. Chairman, Patna Administration Committee, Patna, : [1955]1SCR290 . As regards the validity of Section 38 it is enough to refer to the following observations in this case:

''In our opinion, the majority view was that an executive authority can be authorised to modify either existing or future laws but not in any essential feature. Exactly what constitutes an essential feature cannot be enunciated in general terms, and there was some divergence of view about this in the former (Delhi Laws Act) case (In re. Constitution of India and Delhi Laws Act (1912) etc. AIR 1951 SC 332) (B), but this much is clear from the opinions set out above : it cannot include a change of policy.'

At p. 302 (of SCR): (at p. 574 of AIR) of the report it was further observed while dealing with vires of Section 3(1)(f):

'After its amendment it does two things: first, it empowers the delegated authority to pick any section it chooses out of the Bihar and Orissa Municipal Act of 1922 and extend it to 'Patna'; and second, it empowers the Local Government (and later the Governor) to apply it with such ''restriction and modifications'' as it thinks fit.

In 1951 SCR 747: (AIR 1951 SC 332) (B), the following provision was held to be good by a majority of four to three: The Provincial Government may........ extend with such restrictions and modifications as it thinks fit..... any enactment which is in force in any part of British India at the date of such notification'.

...... ........ ...... ........

'When a section of an Act is selected for application, whether it is modified or not, it must be done so as not to effect any change of policy, or any essential change in the Act regarded as a whole. Subject to that limitation we hold that Section 3 (1) (f) is intra vires, that is to say, we hold that any section or sections of the Bihar and Orissa Municipal Act of 1922 can be picked out and applied to 'Patna' provided that does not effect any essential change in the Act or alter its policy.'

7. From these observations it is therefore clear that Section 38 by itself is not ultra vires. Any notification which applies a part of any existing Act to the town area will however be ultra vires if It effects the essential policy underlying the Act a part of which has been sought to be extended to the town area. The question therefore to be considered is whether the modified form of Sections 87-A and 47-A which has been extended to the town area changes the legislative policy behind the Municipalities Act as in force in the Municipality. In the case referred to above certain provisions of the Bihar and Orissa Municipal Act of 1922 were applied to Patna. The provisions which were applied to Patna gave power to the board to impose certain taxes. In the Bihar and Orissa Municipal Act of 1922 there were sections other than these applied to Patna which besides giving power to the board to impose tax provided for the procedure to file objections to the impositions of such tax. Those provisions were not extended to Patna and it was held by the Supreme Court in that case that as the other provisions which gave a right to a citizen to object to the imposition of the tax 'were not extended to Patna the notification essentially changed the policy underlying the Bihar and Orissa Municipal Act of 1922 and thus the Notification was ultra vires. It would therefore be necessary to examine the notification by which Sections 47-A and 87-A were extended to tile Town Area and see if the modified form of these sections has elected the essential policy underlying the Municipalities Act. It will have to be seen if the modifications were thus within the ambit and scope of Section 38.

8. It was contended strenuously by the counsel for the petitioner that the modified form of Sections 47-A and 87-A which has been extended to the Town Area have effected the essential policy underlying the Municipalities Act, Under the Municipalities Act as soon as the minutes of the proceedings in the meeting in which the resolution of non-confidence was passed are communicated to the President he is given option either to resign or to make representation to the State Government to dissolve the Board. No such right has been given under the modified Section 87-A which has been extended to the town area. Under the Municipalities Act the President was elected directly by the voters first and it was contended by the petitioner's counsel that the right to apply to the State Government for the dissolution of the Board was fundamentally based on the fact that the President was chosen directly by the electorate. By giving such a right to the President it was open to him to ask the State Government to seek the fresh verdict of the voters by dissolving the Board. By taking away the right of the President to ask for the dissolution of the board the notification has effected the essential legislative policy behind the Municipalities Act. The Municipalities Act itself now has been amended and the President is elected by the members of the Board. It cannot therefore be said that the modification has in any way effected the essential legislative policy [behind Section 87-A. In my judgment the modifications made in Sections 47-A and 87-A have not in any manner effected the essential policy underlying the Municipalities Act and as such the notification does not go beyond the provisions of Section 38 of the Town Areas Act.

9. It was also contended by the counsel for the petitioner that under the provisions of the Municipalities Act the President is an ex-officio member of the Board. Every member of the board is entitled under Section 87-A of the Act to receive notice of the non-confidence motion and the President therefore by virtue of his membership of the hoard would be entitled to receive notice of the motion and to participate in the deliberations of the meeting. As against that the provisions of the Town Areas Act do not make the Chairman an ex-officio member of the Committee and consequently he would not be entitled to any notice. The effect of it will be that he will not be entitled to receive notice of the meeting and shall not be in a position to participate in the deliberations of the meeting. The notification along with Section 87-A should therefore have extended the provisions of Section 49 of the Municipalities Act also to the Town Area which makes the President an ex-officio member of the Committee. In my judgment there is no force in this contention either. The right which has been given to the members to move a non-confidence motion against the Chairman is a right conferred on the members as representatives of the public and if such a non-confidence is expressed by the members any personal right of the Chairman is not affected. It is therefore not necessary that he should be given opportunity to participate in the voting in the meeting held for the consideration of such a non-confidence motion. By not extending Section 49 of the Municipalities Act to the Town Area the essential legislative policy has not been affected in any manner.

10. In the petition No. 2044 of 1956 it was further contended that the notice was illegal inasmuch as it had not been signed by such number of members as constituted one-half of the total number of members. It was further contended that notice was detective as no copy of the motion of non-confidence was attached to the notice and the substance of the motion of non-confidence was also not indicated therein. The substance was not communicated to the members. It is enough to point out that these defects to my mind do not vitiate the entire proceedings of the meeting. Besides this, this Court will not interfere in the exercise of, its powers under Article 226 of the Constitution with the resolution passed at the meeting unless the defects pointed out have prejudiced the case of the petitioner in any manner. Reference in this connection may be made to the following observations in the case of Ganesh Prasad Chaturvedi v. District Magistrate, Jalaun, 1956 All LJ 58 (C):

'That there had been such a failure is clear, but the jurisdiction we exercise under Article 226 of the Constitution is discretionary, and in our opinion that discretion should not be exercised in favour of the appellant in a case such as the present if we are satisfied, as in fact we are, that the failure of the Munsif to comply with the provisions of Sub-section (7) has not resulted in any prejudice at all to the appellant.'

There is therefore no force in this contention.

11. Similar defects have been pointed out by the Counsel for the petitioner in the other writ petitions Nos. 1875 of 1956 and 2165 of 1956. But as I have already observed above even assuming that these irregularities were committed in respect of the notice no prejudice was caused to the petitioner on account of the said irregularities and this Court will not interfere with the resolution passed in that meeting on that ground.

12. There is therefore no force in these petitions and they are rejected. As some irregularities were admittedly committed in the notice itself the opposite parties are not entitled to their costs and I direct that the parties will bear their own costs.


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