1. This is an application under Article 226 of the Constitution praying that a writ of mandamus be issued directing the opposite parties' Nos. 1, 2 and 3, the State of Uttar Pradesh, the District Magistrate of Mirzapur and the Civil and Sessions Judge of Mirzapur, not to act upon the resolution passed in the meeting of the 15th of December, 1956, purporting to be a motion of non-confidence against the petitioner as if passed by a majority of more than half members constituting the board. Further it is prayed that a mandamus be issued restraining the opposite parties Nos. 1 and 2 from interfering with the petitioner functioning as President of the board.
2. The petitioner was elected President of the Mirzapur Municipal Board in the general elections of the town in October 1953 on a Jan Sangh ticket. It is asserted by the petitioner that the members of the Congress Party in the Board were attempting to oust the petitioner from the presidentship of the Municipal Board. In the beginning of 1955 a non-confidence motion was moved but it was lost.
Thereafter two attempts were made to get the petitioner removed from the presidentship by an order of the State Government; but by means of writ petitions to this Court the orders of the State Government were quashed. On the 12th of November 1956, a notice of intention to move a non-confidence motion in the petitioner was given to the District Magistrate of Mirzapur signed by 20 members. On the 27th of November 1956, a notice was issued by the District Magistrate convening a meeting of the Board to consider the resolution on the 15th of December 1956.
Nineteen persons voted for the motion and eleven voted against it and five were absent on the 15th of December 1956. It is contended by the petitioner, that one Sri Rup Nath Jaiswal who was also one of the signatories to the notice of non-confidence sent his resignation from the membership of the Board to the State Government through the District Magistrate and did not participate in the meeting of the Board.
Amongst those who voted for the resolution were Sri Rama Shanker Verma, Sri Syed Mohammad Aqil, Sri A. W. Jilani and Sri N.P. Sinha. The contention of the petitioner is that Sri Rana Shanker Verma and Sri Syed Muhammad Aqil are Additional District Government Counsel of the State of Uttar Pradesh. They are working in the panel of lawyers who act as Additional Government Pleaders in criminal cases in addition to the Government Pleader at Mirzapur, and they were thus disqualified to be members under the provisions of Section 13-D of the Municipalities Act.
Sri N.P. Sinha had been in arrears of rent due to the Municipal Board in respect of a municipal plot situated in Mohalla Mukeri Bazaar which he holds on lease from the Municipal Board, Mirzapur, on an yearly rental of Rs. 206-4-0, in excess of one year's demand. A notice of demand was sent to him for payment of dues but he railed to clear them. On the 25th of September 1956, a complaint was also sent by one of the members of the Board to the Commissioner of Varnasi Division bringing to his notice the fact of arrears of Sri N.P. Sinha.
Another complaint against Sri N.P. Sinha is that he is a member of a joint Hindu family. His father Sri Section Prasad and Sri N.P. Sinha both reside in their ancestral house in Mohalla Sabri in the town of Mirzapur. There is a water tap connection by which the Municipal Board supplies water and a flat tax of Rs. 10 for the cost of supply of water is charged.
The family is in arrears in respect of those dues. Sri A. W. Jilatji resides in his ancestral house situated in Mohalla Muhant Ka Shiwala. This house has also got a water tap connection. Originally it was in the name of the father of Sri A.W. Jilani but after his death Sri A.W. Jilani is the owner and occupier of the house and resides in it, and is liable to pay tax.
3. In view of these facts the contention raised by the petitioner is that all these four members who voted in favour of the non-confidence motion were disqualified to be members under Section 13-D of the Municipalities Act. If their votes are eliminated only 15 persons voted in favour of the resolution which would not be the requisite majority under Section 87-A of the Municipalities Act inasmuch as the Board consists of 35 members.
4. Counter-affidavits have been filed in this case. On behalf of Sri Nagendra Prasad Sinha it is stated that on 12th of June 1951 he had made an application for taking a small piece of Municipal land on rent for a period of 60 years for constructing a building. No formal document of lease has so far been executed although he gave the requisite stamp also.
As no lease was executed he states that he definitely told the Board that he was not liable to pay, and he will not pay, rent, and that after he had given tile stamps no demand was made. As regards the arrears in respect of water costs of his ancestral house Sri Nagendra Prasad Sinha has stated that the liability was of his father who was the occupier of it and there was no water tax in the Board but only water rate. Only the person who took water connection will be liable and not any other person.
5. The contention raised by Sri A.W. Jilani was that after the death of his father in whose name the house was there was a partition among himself and his brother and the water connection is in the portion which is in the occupation of his brother. The rent was always paid by his brother. Even the last demand was passed on to his brother for necessary payment. He was therefore not in arrears of the rent at all.
6. On behalf of the other two members it has been stated in the counter-affidavit that they were only among the panel of lawyers; they are not paid any retainer by the State Government; they are not bound to be engaged in every case; nor they are bound not to accept a brief against the State. They are neither Additional Government Counsel nor Assistant Government Counsel, and as such they do not come within the disqualification under Section 13-D.
7. It was also contended by the opposite parties that even if they were disqualified they did not cease to be members and were entitled to participate in the non-confidence resolution fixed for the 15th of December 1956 and in the meeting convened for the consideration of the same on the 15th of December 1956.
8. Section 13-D (g) of the Municipalities Act provides that:---
'13-D (g). A person, notwithstanding that he is Otherwise qualified, shall be disqualified for being chosen as, and for being, a member of the Board if he is in arrears in the payment of municipal tax or other dues in excess of one year's demand to which Section 166 applies.'
Sub-section (f) of Section 13-D also provides that:--
''A person, notwithstanding that he is otherwise qualified, shall he disqualified for being chosen as, and for being, a member of a Board if he is in the service of the State or the Central Government or any local authority, or is a District Government Counsel or an Additional or Assistant District Government Counsel or any Honorary Magistrate or an Honorary Munsif or an Honorary Assistant Collector.'
Section 40 (1) (b) of the Municipalities Act provides that a member can be removed by the State Government on incurring a disqualification under Section 13-D. If a member therefore incurs at any stage a disqualification he is liable to be removed. There is however nothing in the Municipalities Act which provides that as soon as a member incurs a disqualification he ceases to be a member of the Board. Section 38 of the Municipalities Act provides that:--
'The term of office of a member elected or nominated to fill a casual vacancy or a vacancy remaining unfilled at the general election shall begin upon the declaration of his election or nomination under the Act and shall be the remainder of the term of the Board.'
This section to my mind clearly provides that once a person has been elected as a member he continues to be so till the remainder of the term of the Board. The power to remove a member has been specifically given to the State Government under Section 40 and unless removed a member though incurring a disqualification subsequent to his election does not cease to be a member of the Board. In view of my finding on this issue it is not necessary to go into the question whether the four members had incurred any of the disqualifications under Section 13-D.
Besides regarding the question of disqualification of Sri Nagendra Prasad Sinha and Sri A.W. Jilani on account of their being in arrears of taxes certain controversial questions of fact have been raised and in this petition this Court will not go into those questions.
9. Apart from it, Section 13-D of the Municipalities Act itself provides that:--
'13-D. A person, notwithstanding that he is otherwise qualified, shall be disqualified for being chosen as, and for being, a member of a board if he -
(g) is in arrears in the payment of municipaltax or other dues in excess of one year's demand towhich Section 166 applies.'
The disqualification under Section 13-D (g) shall cease assoon as the arrears are paid. It is therefore open toSri N.P. Sinha and Sri A.W. Jilani to remove thedisqualification on payment of the arrears.
10. The contention raised by the counsel for the petitioner was that on the date when these members participated in the meeting they were disqualified and even if they paid up the arrears their membership cannot be re-validated.
11. Section 13-D (g) which provides that on payment of arrears the disqualification will cease, to my mind, necessarily implies that the incurring of this disqualification docs not amount to removal of a member from the membership nor does his membership cease by incurring any such disqualification. It the interpretation put by the petitioner is accepted the result is that the membership of a person is automatically terminated during the term of his office and is forthwith revived on payment.
On a particular date when the demand is made and the member has not paid the amount he ceases to be a member, and the next moment if he actually pays up the money the disqualification ceases. Such an interpretation to my mind cannot be placed on Section 13-D. Reading therefore Section 13-D together with Section 38 of the Municipalities Act and Section 40 it is clear to my mind that a person once elected, though he had incurred a disqualification, does not cease to be a member and continues as such till the expiry of the term of the Board unless he has been removed under Section 40 on that ground.
At the time of seeking election he is disqualified to be chosen as a member if he suffers from any of the disqualifications mentioned in Section 13-D and at a subsequent stage to continue unless he has been removed by the State Government on any of those grounds.
12. As regards the other two members who were members of the panel, the contention raised by the petitioner was that although they may be panel lawyers the words ''an Additional or Assistant District Government Counsel' are not terms of art and anyone who discharges the functions of a Government Counsel besides the District Government Counsel can be regarded as, an Additional or Assistant Government Counsel. It is not necessary for me to go into that question in view of my decision that even if the opposite parties incurred any disqualification they did not cease to be members of the Board.
13. Another point urged on behalf of the opposite party Sri Nagendra Nath Sinha was that the water tax was not a demand to which Section 166 of the Municipalities Act applies and consequently there was no disqualification incurred by him even if it would be assumed that he was in arrears as regards that tax. I need not discuss this point either in view of my decision on the earlier issue.
14. There is therefore no force in this petition and it is rejected with costs.