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Kesari Mal Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberWrit Appln. No. 32 of 1956
Judge
Reported inAIR1957Raj284
ActsConstitution of India - Article 226; Rajasthan Town Municipalities Act, 1951 - Sections 22(10)
AppellantKesari Mal
RespondentState of Rajasthan
Appellant Advocate V.P. Tyagi, Adv.
Respondent Advocate R.A. Gupta, Deputy Govt. Adv.
DispositionPetition allowed
Cases ReferredWatt v. Hertfordshire Country Council
Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect -.....bapna, j.1. this is a petition under article 226 of the constitution against an order of the government removing the petitioner from the office of chairman of the town municipality of sironj.2. the case of the petitioner is that he was-duly elected as chairman or the town municipality of sironj, district kotah, and had been working as such since 26th february, 1955. he was the secretary of the praja socialist party, and for various reasons mentioned in the petition had incurred the wrath of the tehsil and district congress committees, which began to press the congress-men in authority to bring about the petitioner's removal in order to boost up the prestige of the congress in that area, and that as result of this pressure the present government, which was run by the congress party,.....
Judgment:

Bapna, J.

1. This is a petition under Article 226 of the Constitution against an order of the Government removing the petitioner from the office of Chairman of the Town Municipality of Sironj.

2. The case of the petitioner is that he was-duly elected as Chairman or the Town Municipality of Sironj, District Kotah, and had been working as such since 26th February, 1955. He was the Secretary of the Praja Socialist Party, and for various reasons mentioned in the petition had incurred the wrath of the Tehsil and District Congress Committees, which began to press the Congress-men in authority to bring about the petitioner's removal in order to boost up the prestige of the Congress in that area, and that as result of this pressure the present Government, which was run by the Congress party, ordered his removal under cover of Section 22 (10) of the Rajasthan Town Municipalities Act, 1951 (Act No. 23 of 1951). It was alleged that he was served by the Secretary, Local Self-Government, with a charge-sheet by letter dated 10th November, 1955 of which an explanation was given by him on the 3rd December, 1955. Later at an interview he explained the case to the Deputy Minister, and had shown that none of the charges were tenable; but nevertheless an order of removal from chairmanship of the Town Municipality of Sironj was passed by the Government on 24th January, 1956, and served upon him on the 6th February, 1956. It was urged that the charges were baseless, and had not been proved. It was also urged that the entire allegations, even if held to be correct did not amount to negligence in the discharge of duties, or to incapacity to act, and that the order of the Government should, therefore, be set aside. (3) The charge, Ex. P. 1, was as follows :

'Notice under Section 22 (10) of the Rajasthan Town Municipalities Act, 1951, to the Chairman, Municipal Board, Sironj.

From the complaints received against you, the audit report and other enquiry reports and your reply thereto the following stand substantiated against you :

(1) You ought to have obtained prior sanction of the competent authority to engage seven peons in anticipation of the Budget sanction.

(2) You drew advances from the Municipal Boards funds from time to time according to your requirements without obtaining sanction of the Board. You did not care to square them up.

(3) You confessed to keep the important record of the office always with you for fear that these might not be misplaced, but you should not have taken the record to your party office.

(4) It was in contravention of Rule 7 of the General Financial and Accounts Rules to adjust the expenditure of Rs. 3,200/- against 'Amanat' at the close of the year in order to avoid lapse of Budget grant.

(5) You ought to have auctioned the old radio of the Board as per its Resolution but you disposed it of to, an individual party for Rs. 250/- without undertaking the auction proceedings and without placing the matter before the Board.

(6) You did not invite tenders as per rules, for the purchase of new radio, 14 gas lanterns and a type-writer.

(7) It was unlawful on your part to refuse a member of the Board to see the proceedings which was attended by him. The reasons given are not plausible.

I am, therefore, directed to ask you please to state as to why action under Section 22 (10) of the Rajasthan Town Municipalities Act, 1951, be not taken against you and you should not be removed from the Chairmanship of the Municipal Board of Sironj for being Incompetent in the discharge of your duties. Your reply should reach this Department within 15 days of the receipt of this notice.

You should also appear before the Minister for Local Self Govt. Department in person on 30-11-55 and have your say to him'.

4. The explanation by the petitioner submitted to the Government was Ex. P. 2, in which he explained the various circumstances appearing against him, urging that none of the charges were true.

5. The order of removal from chairmanship passed by the Government under Section 22 (10) on 24th January, 1956, Ex. P. 3, is as follows :

'Whereas several complaints were received against Shri Keshrimal Jain, the Chairman, Municipal Board, Sironj;

And Whereas enquiries here made in this behalf;

And Whereas the Government considered the enquiry reports as well as the audit report of the Board;

And Whereas the said Chairman, Shri Keshrimal Jain was served with a show cause notice under Section 22 (10) of the Rajasthan Town Municipalities Act, 1951, on 10-11-55;

And Whereas the replies to the notice furnished by the said Chairman were examined by the Government.

And Whereas the Chairman produced documents in support of his replies and explained the position to the show cause notice as asked for ;

And Whereas the said Chairman, Shri Keshrimal Jain was heard and on examination of the Various reports and the written reply of the Chairman the Government found the following charges which had been mentioned in the show cause notice to the Chairman dated 10-11-55 to stand substantiated against the Chairman Shri Keshrimal Jain ;

(1) The Chairman ought to have obtained prior sanction of the competent authority to engage 7 peons in anticipation of the budget sanction.

(2) He drew advances from the Municipal Board funds from time to time according to hisrequirements without obtaining sanction of the Board and did not care to 'square them up. This is a serious financial Irregularity.

(3) The Chairman admits to keep important record of the office always with him for fear of its being misplaced. There can be no objection to it but he should have taken this record to his party office which was objectionable.

(4) It was in contravention of the General Financial and Account Rules to adjust the expenditure of Rs. 3,200 against Amanat at the close of the year in order to avoid lapse of the Budget grant.

(5) The Chairman ought to have auctioned the radio of the Board as per its resolution, but he disposed it of to an individual for Rs. 250 without undertaking the auction proceedings. He did not place the matter before the Board.

(6) The Chairman ought to have invited tenders as per rules for the purchase of the new radio 14 gas lamps and one type-writer. This was a serious irregularity.

(7) It was irregular on the part of the Chairman to have refused a member of the Board to see the proceedings of the meetings which was attended by him.

Now, therefore, in exercise of power conferred by Sub-section (10) of Section 22 of the Rajasthan Town Municipalities Act, 1951 the Government of Rajasthan is pleased to order that Shri Keshri Mal Jain be removed forthwith from the office of the Chairman of Municipal Board, Sironj, for neglecting his duties and proved himself incapable to perform his duties as substantiated from the facts before the Gov-eminent.'

6. It was strenuously argued for the State that the order of removal under Section 22 (10) of the Rajasthan Town Municipalities Act was an administrative order, and the findings of negligence and Incapacity to act as Chairman could not be interfered with by this Court.

7. The distinction between an order in the exercise of a quasi-judicial function and that passed in exercise of administrative authority is brought out in the leading case of Province of Bombay v. Khushaldas S. Advani, AIR 1950 S C 222 (A). The authority should not only have power to determine questions affecting rights of subjects, but must be under a duty to act Judicially. The power exercised in the present case is granted by Section 22 (10) of the Act which is as follows :

'Every Chairman and every Vice-Chairman shall, after an opportunity is afforded for hearing him, be removable from his office as such Chairman and Vice-Chairman by the Government for misconduct in the discharge of his duties or for neglect of or Incapacity to perform his duties or if he is unable to pay his debts.'

8. It may be pointed out that under Section 12 of the Act certain general disqualifications for becoming a member have been laid down, and under Sub-section (1)(v) it is provided that no person can be a member of a Municipal Board who has been removed from office under Section 14 or Sub-section (10) of Section 22 of the Act or in like circumstances under a like provision of any other law for the time being in force dealing with and governing local authorities. Sub-section (3) provides, among other things, that if any member during the term for which he has been elected or nominated becomes subject to any of the disqualifications specified in Sub-section (1), he shall be disabled from continuing to be a member and his seat shall be deemed to have become vacant. It is laid down in one of the provisos to Sub-section (1) that the disqualification mentioned in Sub-section (1) (v) will cease to operate after the expiry of three years from the date of removal or earlier by an order of the Government.The order of the Government, therefore, removing a chairman not only removes him from office of the chairman, but also purports to affect his removal from membership and creates a further disqualification to become member for a period of three years from the date of the order, unless the Government chooses to remove the disqualification earlier.

9. It may be pointed out in passing that the various Acts with regard to Municipalities in other States are not so drastic in effect. In the Punjab Municipal Act, 1911, the provision to remove a President is provided in Section 22. The removal of the President can be 'done by the Provincial Government on the ground of abuse of his powers or of habitual failure to perform his duties or in pursuance of a resolution requesting his removal passed by two-thirds of the members of the committee. It does not entail further removal from membership. In the Bombay Municipal Boroughs Act, 1925, a President is removable from his office by the State Government for misconduct, or neglect of, or incapacity to perform, his duty, and the President so removed is only declared not to be eligible for re-election as a President or Vice-President during the remainder of the term of office of the Municipality. The U. P. Municipalities Act, 1916, provides by Section 48 that the State Government may, at any time, if it is satisfied that there has been a persistent failureon behalf of the President in performing his duties, give him a warning, and if it finds that the failure continues, remove him from office. He may also be removed, if he has incurred some other disqualifications with which we are not concerned. Nodisability to remain a member of the Board has been provided in the U. P. Act.

10. The Chairman is the most important functionary in a Municipal Board, and is virtually in charge of the proper functioning of the Municipal Board. His functions are given in Section 23 of the Act, which are as follows :

'(a) To preside, unless prevented by reasonable cause, at all meetings of the Municipal Board, and, subject to the provisions of the rules for the time being in force under Clause (a) of Section 44, to regulate the conduct of business at such meetings;

(b) To watch over the financial and executive administration of the Municipal Board;

(c) To perform all the duties and exercise all the powers specifically imposed or conferred upon him by, or delegated to him under and in accordance with, the Act ;

(d) Subject to the provision of Section 34 and of the rules for the time being in force, to perform such other executive functions as may be performed by or on behalf the municipal board over which he presides ;

(e) To exercise supervision and control over the acts and proceedings of all officers and servants of the municipal Board in matters of executive administration and in matters concerning the accounts and records of the municipal board, and, subject to the rules for the time being in force, to dispose of all questions relating to the service of the said officers and servants, and their pay, privileges and allowances ;

(f) To furnish to such officer as may be appointed of authorised by the Government in this behalf, a copy of every resolution passed at any meeting of the municipal board ;

(g) To furnish any extract from the minutes of the proceedings of the municipal board or of any committee or other document or thing which the officer appointed or authorised by the Government in this behalf from time to time calls for under Section 193 ;

(h) In a municipality for which no Executive Officer has been appointed under Section 213, to exerciseall the powers that may be exercised in the municipality by the Executive Officer under Ch. 13, Independently of such executive functions as are allotted to him by, or delegated to him under any other provision of the Act.'

Under Section 21 of the Act, the municipal government of a municipality vests in the municipal board. The duties of the municipal board are given in Sections 53, 54 and 56, subject to such exemptions as may be granted by the Government under Section 55. A bare perusal of these sections would indicate the vastness of the purposes which have to be carried out by a municipal board for the welfare of the people residing in the municipality, and the President or the Chairman is the person in charge of all these functions. In the matter of Government control provision has been made in Ch. 12, and machinery has been provided for the inspection and supervision of the municipal board by the Government, for directing a municipal board to desist from carrying out their resolution in certain circumstances, for execution of certain works required to be done by the municipality or which may be considered necessary by the Government in certain cases, for enquiry into municipal matters by the Government, and for issue of orders to prevent extravagance, fpr performance of duties in default of the municipal board. There is a drastic power to dissolve or supersede a municipal board in certain circumstances.

11. Evolution of Local Self Government in India has been a slow process, but the resolution of Lord Ripon in 1882 has been regarded as the magnacarta of Local Self Government in India. The principle in respect of Government control may be summarised to be that the Government control over local bodies should be exercised from without rather than from within. The acts of local bodies might in certain cases need previous sanction, e. g., in matter of taxation, and raising loans, or might be set aside by Government. The local body might even be suspended or superseded in the event of gross and continued neglect of any important duty, but normally Government control should take the form of friendly advice and remonstrance only. (Local Self Government and Local Finance in the United Provinces of Agra and Oudh by Dr. M. P. Sharma, First Edition page 6). The Royal Commission of 1906 also recommended as regards outside control that the commission felt that it should take more the shape of advice and encouragement than dictation and forbidding. The Montague Chelmsford Report also laid down the principle that

'Local Self Government is the sphere where the first step towards responsible Government should be taken, and accordingly there should be as far as possible complete popular control in local bodies, and the largest possible independence for them of outside control.'

The independence achieved by India has given great impetus to the development of Local Self Government, and not only the towns, but the villages have been given several privileges by the enactment of the Village Panchayat Act in various Provinces.

12. The aforesaid provisions of the Town Municipalities Act have to be kept in view in order to determine the nature of the order passed and the power of this Court for interference, if any. Whether the extreme step of removal of a Chairman may or may not be taken in case of existence of certain basic facts is undoubtedly an administrative decision of the Government. But the power to remove, if exercised, requires the pre-existence of certain basic facts mentioned in Section 22 (10) of the Act. These basic facts according to the section are :

1. Misconduct in the discharge of his duties, or

2. neglect of his duties, or

3. incapacity to perform his duties, or

4. inability to pay his debts.

13. In the present case the basic facts alleged to have been found are existence of the neglect of the chairman of his duties and incapacity to perform his duties, and our observations must be taken to be restricted to these two circumstances of the case. There is no doubt that these facts have to be objectively determined. The fact of the incapacity to perform the duties may arise either from some physical disability or mental disability. There is no charge in respect of either of these two circumstances, and the incapacity deduced in the present case is by the circumstance of the alleged neglect of duties only, and the several charges culminate in the basic fact of neglect of duties.

14. It was contended by learned Deputy Government Advocate for the State that the determination of the objective facts as a preliminary step to the discharge of the executive functions is also in the nature of the exercise of the power of an administrative character. Reliance was placed on the following observation of Kania C. J. in Khasaldas Advani's case (A) at p. 225 :--

'When the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a certain power conferred on it, the determination of the objective fact and the exercise of the power based thereon are alike matters of an administrative character and are not amenable to the Writ of certiorari.'

15. The statute which came in for examination in the aforesaid case was Section 3, Bombay Land Requisition Ordinance (No. 5 of 1947), which ran as follows :--

'If in the opinion of the Provincial Government it is necessary or expedient to do so the Provincial Government may by order in writing requisition any land for any public purpose.'

The contention raised on behalf of the respondent and accepted by the Bombay High Court was that the question whether the premises were required for a public purpose was not a matter of mere opinion of the Government, but the decision was of a quasi-judicial nature. The majority Judgment negatived this contention. As to when a decision is quasi-judicial and when not, the observations of the Judges of the majority Judgment are important. The observations of Kanla C. J. at page 226 are :--

'When the law under which the authority is making a decision itself requires a judicial approach, the decision will be quasi-judicial. Prescribed forms of procedure are not necessary to make an inquiry judicial, provided in coming to the decision the well-recognised principles of approach are required to be followed.' Fazl All J. observed at page 228 :'An order will be a judicial or quasi-judicial order if it is made by a Court or a Judge, or by some person or authority who is legally bound or authorised to act as if he was a Court or a Judge. To act as a Court Or a Judge necessarily involves giving an opportunity to the party who is to be affected by an order to make a representation, making some kind of inquiry, hearing and weighing evidence, if any, and considering all the facts and circumstEinces bearing on the merits of a controversy, before any decision affecting the rights of one or more parties is arrived at. The procedure to be followed may not be as elaborate as in a Court of law and it may be very summary, but it must contain the essential elements of Judicial procedure as indicated by me.'

Patanjali Sastri J. agreed with the learned Chief Justice. Das J. observed at page 260 :

'(i) If a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and (ii)-if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the Statute to act judicially.'

AS observed by Kania C. J. at page 226 :--

'The observations in a case have to be read along with the facts thereof and the emphasis in the cases on these different aspects is not necessarily the complete or exhaustive statements of the requirements to make a decision quasi-judicial or otherwise.'

The provision which had to be examined by their Lordships of the Supreme Court did not require any elaborate enquiry for decision.

Fazl All J. observed at page 229 ; --

'There is no provision for any inquiry being made for determining the public purpose. Indeed it appears to me that in a large majority of cases no inquiry should be necessary as the existence of a public purpose would be self-evident or obvious, and, a mere reference to the purpose will make anyone say : This is of course a public purpose.'

Das J. observed at page 252 : --

'The result of the interpretation suggested by the respondents would be to hold that the Provincial Government had to determine judicially the existence of a public purpose as an objective fact before it proceeded to form its opinion as to the necessity or expediency of requisitioning any particular land. It is difficult to appreciate how the Provincial Government would have proceeded to decide this issue. To whom would the Provincial Govern-merit give notice that it proposed to decide this issue of the existence or otherwise of a public purpose Who would be interested to deny the existence of such a purpose at that stage None, for no particular person's land was actually sought to be requisitioned at that stage. Indeed, this issue could not arise until a person was actually threatened, with a requisition order. An interpretation that leads to such an absurd and anomalous position cannot but be rejected. It is contended that the Provincial Government had to decide this issue as and when it sought to requisition any particular land belonging to a particular person, the result will be still more anomalous. In that case the Provincial Government would be called upon to decide the self same Issue as to the existence of a public purpose as often and as many times as it would need any land for the decision in one case will not bind the owner of a different land. There would have to be as many decisions as to the existence of a public purpose as there would be number of plots of land to be acquired. Can anything be more absurd than this If the decision on the existence of a public purpose had to be made along with or simultaneously with the formation of opinion as to the necessity or expediency for requisitioning any particular land then it must be conceded that the two matters were correlated to each other and then it will be absurd to suggest that the intention of the Ordinance was to keep the two component parts in separate watertight compartments, one being required, to be decided as an objective fact and the otherbeing left to the subjective opinion of the Provincial Government. In the absence of specific provision in express language such an anomalous intention cannot be imputed to the legislative authority.'

16. The above references make it clear that in the case, which was before their Lordships, there was no question of any inquiry or decision prior to the forming of the opinion as to the necessity or expediency of requisition of land. What happened in the present case, and which ordinarily must happen in all such cases, is that there was a complaint by somebody about the acts or omissions of the Chairman. Certain enquiries were made at the instance of the Government, and a notice was Issued on 10th November, 1955, and the Chairman submitted his written reply on 1st December, 1955, and was also given a hearing personally. The relevant documents were looked into by the Deputy Minister, who gave the hearing,' and he finally recorded an order that the explanation of the Chairman was not convincing, and that the charges had been substantiated, and that the Chairman by neglecting his duties had proved himself Incapable to perform his duties. As a result of his recommendation the Government issued orders for his removal. It may be pointed out that the language of, Sub-section 10 of Section 22 is not such that the power could be exercised, if in the opinion of the Government certain facts existed, as is found in Section 203, for Instance, which confers a power on Government to dissolve or supersede a Municipal Board in certain cases. If the background of the history of the local self-government and the enormous powers and responsibilities of the Chairman are to be kept in view, and further that the Chairman is the person who has come to occupy that position because of the confidence he holds not only amongst the electorate, but also amongst his co-members, it is but proper to infer that the power granted under Section 22 (10) is not an arbitrary one to be exercised without relation to actual facts. It has been observed in Avadhesh Partap Singh v. State of Uttar Pradesh, AIR 1952 All 63 (B) by reference to the observations of the majority Judges in the case of Khushal Das (A), that:

'Upon a consideration of the whole matter, it appears to me that a quasi-judicial act requires that a decision is to be given not arbitrarily or in the mere discretion of an authority, but according to the facts and circumstances of the case, as determined upon an enquiry held by the authority after giving an opportunity to the party to be affected of being heard and whenever necessary leading evidence in support of his contentions. Whenever the authority is bound to make a decision in this way, it acts judicially or quasi-judicially. The essential difference between an administrative or executive act on the one hand and a judicial and quasi-judicial act on the other is that while in the former case, the authority vested with the power to give a decision affecting the rights of others, may be bound to enter upon an enquiry, he is not bound to give a decision as a result of the enquiry, but may act in his discretion, in utter disregard of the result of the enquiry, in the latter case, such authority is bound by law to act on the facts and circumstances as determined upon the enquiry, in which a person to be affected is given full opportunity to place his case before the authority even though the decision of such authority, whether right or wrong, may be final and may not be liable to be challenged in a Court of law.'

17. In view of the above principles it must be held that the finding of the existence of basic facts is a decision of a quasi-Judicial nature. A case very near to the facts in dispute in the present case is found reported in Mohammad Bux v. Govt. of State of U. P., AIR 1953 All 739 (C). In this case the petitioners had been removed by the Government from membership of a Municipal Board on account of certain alleged acts of the petitioners which constituted a flagrant abuse of their position as members of the Board, and their continuance as members was considered, to be detrimental to public Interest. Paragraph 13 of the judgment of Sapru J. is relevant:

'Now it strikes me that in this particular case there can be no doubt that though the decision o the Government as to whether a member has or has not acted in such a manner as to render him unfit to be a member of the Board is subjective, the process by which it arrives at the decision involves a judicial act for, in arriving at it, Government must not take into consideration any factor which is not a judicial factor. In other words, it is, on an honest application of its mind to the 'pros' and 'cons' of the case against the municipal commissioner concerned that it must arrive at its decision. It is obvious that in declaring a person unfit to be a municipal commissioner, Government is passing an order which would deprive him not only of an office to which he has been elected by the electorate but also automatically disqualify him under Section 40 (2) for a period of 'four' years from seeking election to that office. This is a serious thing to do. Obviously, therefore, in exercising it the Government must be deemed to have acted 'quasi' judicially.'

18. Apart from the above, even if it be held that the decision of the Government as to the existence of the basic facts is also in the nature of an administrative decision, the validity of such decisions depends, as explained in Kishore Singh v. State of Rajasthan, AIR 1954 Raj 264 (D), upon-

1. The authority for the exercise of the power depends on its being strictly within the limits of the statute, and the Court would not allow the power to be exercised for any collateral purpose;

2. There must be observance of the mandatory statutory procedure; and

3. There is existence of the basic facts with reference to which the power is vested, provided that the Legislature does not vest the determination of the basic facts in the authority Itself.

There Is no grievance as to the non-observance of any mandatory statutory procedure, and it is assumed that the determination of the existence of the basic facts is within the competence of the Government. The case, however, requires an examination with reference to the first principle enunciated above. What is meant by saying that the power cannot be exercised for any collateral purpose is that the power cannot be exercised with some ulterior motive that is, that the action of the Government is not mala fide. What is meant by saying that the power has been exercised strictly within the limits of the statute is that the proved or admitted facts can reasonably lead to the inference that the basic facts exist-which make out a case for the exercise of the powers.

19. The petitioner, in the present case, has alleged mala fides of the Government. It is stated in the petition, which is supported by an affidavit, that the petitioner is-the Secretary of the Praja Socialist Party, and as such was acting as the leader of the opposition in the last Municipal Board. He brought about a vote of non-confidence against the then Chairman Shri Maulana Abdul Rahim, who was Vice President of the Tehsil Congress Committee; but despite the aforesaid, resolution of no confidence, the Government did not take any action. The petitioner, however, got Shri Abdul Rahim declared incompetent to act as Chairman by bringing a suit in the Munsif's Court, Sironj. It was stated that he thus incurred wrath of the Congressparty, and within a few days of his election as Chairman, the Tehsil Congress Committee of Sironj wrote to the District Congress Committee Kotah, for bringing about the removal of the petitioner from the office of Chairman, which alone, it was stated, would prop up the prestige of the Congress in that region. It was stated in the letter at the end that if this was not done, the Congress party could not hope to win in the various elections in future, and it was prayed that the honourable leaders of the Congress would pay heed to their representation. This document is dated 26-1-1955. There were various matters in the representation of the Tehsil Congress Committee, and the Secretary of the District Congress Committee, Kotah, wrote a letter in respect of one subject on 23-4-1955, to some person enclosing the representation of the Tehsil Congress Committee. The said letter fell in the hands of the petitioner, and has been produced in this Court as Ex. P. 46. There is also the allegation of the petitioner that, he opposed Shri Brij Sundar Sharma, the present Finance Minister of the Government of Rajasthan, in the bye-election of Sironj, and also appeared as witness against Shri Brij Sunder Sharma in the election petition filed by Pt. Abhinna Hari, and it was in order to humiliate him that the present order was passed. The Government has not chosen to deny specifically the aforesaid allegations, which are contained in para. 6 of the petition, and has only replied, that para. 6 is not admitted.

20. On the strength of the affidavit of the petitioner and the-documentary evidence submitted by him, it must be held proved that soon after his election as Chairman, the Tehsil Congress Committee was working to bring about his downfall by any means, and it was sought to be made a question of the prestige of the Congress party in that region, and the Congressmen in authority were being approached for that purpose, at Jaipur. The second allegation that the petitioner, who does not belong to the Congress party, brought about the downfall of the previous Chairman Shri Abdul Rahim, who was a leading member of the Congress party, must also be held to be proved. It must also be held proved that the Government did not take any action on the passing of the non-confidence motion, and allowed Shri Abdul Rahim to continue until he was prevented from doing so by a decree of the Court of Munsif in a suit brought by the petitioner. That it should have been necessary for the petitioner to bring a suit in order to put an end to the activities of Shri Abdul Rahim even after a proper vote of non-confidence had been passed against him makes it clear that the Government had no hesitation in supporting a man of the Congress party, and in such a situation the Government must have felt annoyed by the petitioner, and a bias against the petitioner may be inferred.

21. Under Section 23(1)(f) all resolutions of the Board are sent to such officer as may be appointed or authorised by the Government in this behalf, and it is the business of the Government to take action where necessary. Under Section 22 (9), a Chairman is deemed to have vacated his office forthwith on passing of a valid resolution of no-confidence. Under Sub-section (13) of the same section the vacancy is to be lilied up in accordance with the provisions of the foregoing sub-sections. Under Section 22 (2), the Chairman is directed to be elected in accordance with the rules made by the Government in that behalf by the members of the Municipal Board from amongst themselves. Under Sub-section (5) of Section 22, if any Municipal Board fails to elect a chairman within such reasonable time as may be specified in a notice issued by the Government in this behalf, the Chairman may be nominated by the Governmentfrom amongst the members of the board. The Town Municipal Boards Chairman Election Rules, 1951, framed by the Government, provide for the District Magistrate to fix a date, place, and time, for a Special meeting of the Municipal Board for the purpose of electing a Chairman. A notice of at least 7 days for such election is to be given, and the meeting is to be presided by the District Magistrate or his nominee, but he has no right to vote. Within what time the District Magistrate has to fix a date is not provided in the Rules. A period of time is required to be fixed by Sub-section (5) of Section 22 of the Act, and it is obviously within this time that the District Magistrate is to fix a date for holding the special meeting. It was urged that the time limit fixed by the Government under Sub-section (5) does not apply to the provision for fixing a date by the District Magistrate. There is nothing in Sub-section (5) which may indicate that it was not applicable in case of a meeting to be called by the District Magistrate under the Rules, and it seems to us that this is the only provision in the Town Municipalities Act which provides for the time within which the election should take place, and a fortiori during which the District Magistrate is compelled to call the meeting. The large powers of control under Chapter XII exercised by the Government and the Director of Local Bodies, to whom powers may be delegated under Section 207 amply arm the Government to prevent a Chairman, who has been compelled to vacate office by a vote of no-confidence, from acting as Chairman, and it should not ordinarily fall to the lot of a member of the Board to institute a suit to prevent the previous Chairman, now a usurper, to act as Chairman, and this fact amply discloses the bias of the Government against the petitioner.

22. In view of the establishment of malice, the petitioner is entitled to take this Court into the facts, on which the allegations as to neglect of duties are based.

23. Negligence has three meanings. They are (1) a state of mind in which it is opposed to intention, (2) careless conduct, and (3) the breach of a duty to take care imposed by common or statute law. (Charlesworth on the law or Negligence, Second Edition, page 1). What we are concerned now is the third kind of negligence, because the words used in the section are neglect of duties.' Neglect is proved by two stages : (1) the proof or admission of certain facts, and (2) whether on that evidence negligence may be reasonably interred. The second is a question of law.

24. The first charge is :

'You ought to have obtained prior sanction of the competent authority to engage seven peons in anticipation of the Budget sanction.'

The facts in respect of this charge are mentioned in the explanation, which is supported by Exs P. 4 and P. 5. A provision was made in the budget for 1955-56 for appointment of seven peons temporarily for three months for collecting the octroi duties as in the previous year. The sanction for the budget was not received, and a report was made by the Head Clerk that it was absolutely essential to keep seven peons at the outposts, and if this was not done, the income from octroi duties would fall considerably, and cause great loss to the Board, because there would be no persons to check and realise the duties at the outposts. The Chairman recorded on 11th April 1955, that the season for income of octroi had come and the sanction of the budget had not been received, and as there was no other staff, who could be deputed for the purpose, sanction be given for the employment of seven peons in accordance with the budget provision in anticipation of its sanction. (Ex. P. 4). The action of the Chairman was put upbefore the Board and confirmed in their meeting of 17th April 1955, (Ex. P. 5). It was mentioned in the explanation that if the peons had not been appointed until receipt of the sanction of the budget, the Municipal Board would have been put to a great loss which was averted by the action taken by the Chairman.

24a. Under Section 182 of the Act, the budget is to be prepared by the Municipal Board and passed at a meeting between the 1st day of November and 1st day of January for the official year commencing from the 1st of April next following. This budget is to be sent through a particular officer to the Government for sanction. There is no allegation that the budget was not sent to the Government as provided by this section, and if the sanction with such modification as the Government may have thought fit was not received the present charge contemplates that no expenditure should have been incurred by the Chairman. If the Chairman would have acted in that manner, all work of the Municipal Board would have come to a dead stop. It the Chairman did not allow the functions of the Board to stop on his own risk, and the Municipal Board subsequently ratified that action, the only inference that can be drawn is that the Chairman was doubly conscious of his duties, and even at some risk made arrangements for their proper performance.

25. It would be of interest to note certain observations in certain English cases with reference to negligence, though in different circumstances. In Daborn v. Bath Tramways Motor Co. Ltd. 1946-2 All E R 333 (E), Asquith L. J. observed :

'In determining whether a party is negligent, the standard of reasonable care is that which is reasonable to be demanded in the circumstances. A relevant circumstance to take into account may be the importance of the end to be served by behaving in this way or in that. As has often been pointed out, if all the trains in this country were restricted to a speed of 5 miles an hour, there would be fewer accidents, but our national life would be intolerably slowed down. The purpose to be served, if sufficiently important, justifies the assumption of abnormal risk.'

These observations were quoted with approval in Watt v. Hertfordshire Country Council 1954-2 All E R 368 (F). In this case the facts were that on an emergency call at the fire station that a woman had been trapped under a heavy vehicle, the officer in charge ordered the jack to be loaded on a lorry, which was the only vehicle there capable of carrying it but on which there was no means of securing it. On the way to the scene of the accident, the driver of the lorry had to brake suddenly and the jack moved inside the lorry and injured one of the fireman, who claimed damages for negligence in setting out the jack, which ordinarily was to be fitted to a special Vehicle. Denning, L. J., observed :

'It is well settled that in measuring due care one must balance the risk against the measures necessary to eliminate the risk. To that proposition there ought to be added this. One must balance the risk against the end to be achieved. If this accident had occurred in a commercial enterprise without any emergency, there could be no doubt that the servant would succeed. But the commercial end to make profits is very different from the human end to save lite or limb. The saving of life or limb justifies taking considerable risk, and I am glad to say there have never been wanting in this country men of courage ready to take those risks, notably in the fire service.'

The Chairman, if he took the risk of appointing peons in order to save the Municipal Board fromfinancial losses, only showed his zeal in discharging his duties rather than acting with negligence.

25a. The next charge is:

'You drew advances from the Municipal Board funds from time to time according to your requirements without obtaining sanction of the Board. You did not care to square them up.'

26. The explanation of the Chairman is that he did not take any advance for his private purpose, but took such advances for the purpose of the Board, particularly for travelling expenses in connection with the business of the Board, and he invariably placed the account thereof before the Board, and no amount is outstanding. It was mentioned that the system of making advances for the purpose of the Board had been continuing from before, and he did not do anything new in this matter.

27. There is a document Ex. P. 7, a resolution of the Board, dated 21st June 1955, by which certain travelling expenses of the Chairman were approved by the Board. The charge or the finding does not mention any specific item which may have been taken by the Chairman without the sanction of the Board. But assuming that some advance was drawn by him, and later adjusted, the question is whether it amounted to neglect of duties. It may be mentioned that the allegation in the charge that any advance had not been squared up or adjusted is note substantiated. No rule or regulation has been cited by the learned Deputy Government Advocate which may have prohibited the drawing of advances in connection with journeys to be undertaken for the business of the Municipal Board. The General Financial and Account Rules of the Government of Rajasthan by Rule 412 permit advances to be made for journeys on four, subject to adjustment on the return of the officer to headquarters or 31st March, whichever is earlier. There are detailed instructions as to the amount which can be advanced to different classes of officers, with which we are not concerned. As observed by Charles Worth in his treaties on the Law of Negligence Second Edition, Page 18:

Situations tend to repeat themselves, persons find that if they do what was found to be reasonable-under similar circumstances they will themselves be free from liability. .....'

And again:

'One of the objects of law (and more particularly of the rules is to prescribe rules of conduct so that the individual will knew how to act in any given set of circumstances, and to direct him to act as a reasonable man without telling him in more detail how a reasonable man is found by experience to-act under those circumstances is to give him very little guidance.'

28. In the present case we have the fact that the rules of the Government with respect to their departments permit advances for journeys and the previous Chairman also drew advances, and, therefore, no case of neglect of duty arose in this case, in respect of the drawing of advances, which, as stated earlier, had been squared up.

29. The third charge is :

'You confessed to keep the important record of the office always with you for fear that these might not be misplaced, but you should not have taken the record to your party office.'

30. The Chairman in his explanation repudiated that any document had been kept at his party office. He, however, admitted that the record on various occasions was used to be sent to his house or Baithak for necessary orders, which was returned to the office in due course. The finding was that there was no objection to the record being kept by the Chairman with himself, but the alleged neglect of duties was said to be that he took the record tohis party office. There was no admission of theChairman that he took any record to his party office. It may also be pointed out that merely taking the record to any particular place cannot per se be any negligence, for, assuming that a person had some record in a pad in his hand, and he happened to visit his party office, it is not by any stretch of imagination, any neglect of duties. It could only arise it the record would be made available by the Chairman for inspection by unauthorised people, which is not the case here.

31. The fourth charge was:

'It was in contravention of Rule 7 of the General Financial and Account Ruled to adjust the expenditure of Rs. 3,200/- against 'Amanat' at the close of the year in order to avoid lapse of Budgst grant.'

32. The explanation of the petitioner is that there was a strike of Harijans in Sironj, and the Municipal Board by Resolution of 3rd March 1955, (Ex. P. 8) decided to take various steps for combating the situation, which required a lot of expenditure, and proposed to re-appropriate Rs. 3000 from various heads, and wrote to the Director of Local Bodies for according sanction. This sanction was not received in writing till 31st March 1955, although the Director of Local Bodies seems to have recorded such sanction in his office in the presence of the Chairman on 24th March 1954. While the expenditure had thus been incurred in maintaining the sanitary situation of the town, no amount could be actually spent, and the Secretary of the Board put up a note on 31st March 1955, that the amount of Rs. 3000 may be set apart by way of Amanat, as the said amount had been sanctioned to be spent out o the budget of 1954-55. The Chairman recorded an order on the same day that he had seen the sanction being accorded by the Director of Local Bodies in his presence on 24th March 1955, and, therefore, the amount may be kept as Amanat, after appropriating from certain heads, (Ex. P 10). The sanction was ultimately received for reappropriation by letter of the Director of Local Bodies dated 20th May 1955 (Ex. P. 9). The explanation of the Chairman was that the amount of Rs. 3000 was a special sanction for meeting the situation arising out of the Harijan strike by re-appropriation from the Budget of 1954-55. There was no such item in the budget of 1955-56, and obviously so, for the budgets are to be sent some time before January for the next year commencing from 1st April and, therefore, he thought that it was in order to show this amount as Amanat to be spent for this specific purpose. The charge seems to indicate that it was a Government grant whicn had lapsed. The money which was to be spent was, however, not granted by the Government, but was of the Municipal Board itself. The order of 20th May 1955, Ex. P. 9, is in the following words :

'With reference to the above (your letter No. 672 dated 19-3-55), administrative sanction is hereby accorded to the reappropriation of Rs. 3000 incurred in connection with the strike of the Harijans out of the saving of Rs. 3285 under head Salaries of Harijans in the Board's budget for the year 1954-55.'

The language is not quite happy. The word 'incurred' cannot quality Rs. 3000, and certain words appear to be omitted. They may be 'for liability' or 'for expenditure.' If the intention of the sanctioning authority was that the re-appropriation was sanctioned for the liability incurred, there was no neglect in keeping the amount as Amanat on 31st March 1955, and thereafter spending that amount. If the omitted words were 'for expenditure', then there would still be the question whether they mean for the actual amount given away' or 'for the liability for expenditure incurred.' It seems that the sanction in the financial year1955-56 for re-appropriation from the budget of 1954-55 would be more appropriate, if the amount had actually been given away by the end of the financial year 1954-55 in anticipation of the sanction for re appropriation. But in case money had been so spent, the Chairman would have had to face a charge of authorising disbursement of money for purposes which had not even been provided for in the budget of 1954-55 or 1955-56.

33. The matter may be examined from one more angle. A strike of Harijans had taken place in the financial year 1954-55, and the health and sanitary arrangements had broken down. It was not known how long the strike would last. immediate lay out of money was necessary to procure dust-bins and refuse-kilns, to import Harijan families from outside on tempting terms, and a host of measures requiring immediate expenditure were to be taken to secure the sanitary needs of the town. But there was no budget provision and sanction for the strike had not been anticipated. It was a new situation.

34. Should the Chairman have waited from, early March to end of May for receipt of the sanction for expenditure, and do nothing in the meanwhile Should he have, on receipt of sanction in May, spent time in familiarising himself with Government Financial Rules (which Incidentally do not seem to have been made applicable to municipal funds), and on finding that there could not have been any appropriation in 1955-56 from funds remaining unutilised in 1954-55, should have brought it to the notice of the Director of Local Bodies and written to him for a fresh sanction, and should have waited for another three months without caring what happened to the health and sanitation of the town in the meanwhile It is beyond any doubt that a, Chairman conscious of his duties would not let weeks and months pass and do nothing He would take the risk on maintaining the health and sanitation of the town by whatever reasonable steps necessary, and incur expenditure leaving it to the good sense of the powers that be to ratity the action and to grant necessary sanction for the expenditure which may have been incurred in combating an abnormal situation. It is of importance in this case that none of the charges suggest any misapplication of municipal funds, and the bona fides of the Chairman have not been challenged.

35. Be that as it may, there was ground for believing by the Chairman that the amount could be kept as Amanat because of the report of the Secretary and for the reason that it was a special sanction for a specified purpose out of municipal funds, and the purpose for which the sanction was accorded was for maintaining the duties cast upon the Municipality for the preservation of the health and sanitation of the town.

36. The question which again arises in this case is whether the alleged irregularity amounted to a neglect of duties of the Chairman, If the relevant circumstances are taken into account and due importance is given to the preservation of the sanitation of the town and to a belief that the Secretary must have been conversant with the mode of maintaining accounts and the fact that the irregularity could have been rectified by obtaining a fresh sanction, which, it was reasonable to expect, would have been ordinarily granted, there cannot be any inference of neglect of duties from the circumstance of mere irregularity narrated above.

37. It may be mentioned that the amount of Rs. 200 in excess of Rs. 3000 does not call for any separate examination, as the explahation in respect of those items is based on, more or less, similar grounds, and there can be no doubt that a freshsanction in respect of any one of these items could have been easily available: If the keeping of the amount as Amanat was, in any way, irregular, it did not in any of these cases cause any loss or risk of loss to the Municipal Board, for the actual expenditure required competent sanction. There is no dispute that competent sanction was not obtained for the disbursement of the amounts kept as Amanat.

38. The fifth charge is--.

'You ought to have auctioned the old radio of the Board as per its Resolution but you disposed it of to an individual party for Rs. 250 without undertaking the auction proceedings and without placing the matter before the Board.'

39. The explanation of the Chairman was that it had as a matter of fact, been put to auction, but nobody offered any bid, and, therefore, he invited the opinion of the members of the Board and effected the site by inviting tenders. The action was affirmed by the Board by Resolution of 17th November 1955 The explanation is proved by documents Ex P. 14 (a) dated 10th April 1955, which is an advertisement for auction of the radio, Exs. P 15 and P. 15A containing the reports that no offer was received in respect of the offer for auction for several days, Ex. P. 16, in which the members agreed to the proposal of the head clerk that it may be sold to some outside person, and Exs. P. 17 and 18 which show that various tenders were called before the sale, and Ex. P. 20 which is the resolution of the Board confirming the sale itself.

40. So far as this charge is concerned, it ap-pears to be quite contrary to the documentary evidence on record, which was available in the office of the board. The finding is totally against actual facts. There could not have been any neglect on this score.

41. The sixth charge was-

'You did not invite tenders as per rules for the purchase of new radio, 14 gas lanterns and a typewriter.'

42. The reply of the Chairman was that the charge was totally false. Various tenders were invited in every case, and the purchase was affirmed by the Municipal Board in every case. Documents Exs P 21, P. 22, P. 23, P. 24 and P. 25 are tenders for purchase of radio. The purchase of the radio itself was approved by the Board by Resolution of 17th November 1955, Ex. P. 20. The tenders in respect of the gas lanterns are Exs. P.27, P. 28, P.29, P 30 P 31 P- 32 and P. 33. The purchase was confirmed by the Board by Resolution Ex. P. 34 dated 16th April 1955. As regards the type-writer, the tenders were Exs. P. 36, P. 37, P. 33, P. 39 and P. 40. The purchase was approved by the Board by Resolution dated nth April 1955, Ex. P. 41. The allegations in these respects are totally contrary to actual facts.

43. The findings in respect of charges 5 and 6 as being contrary to actual facts proved by documentary evidence give great support to the charge of malice levelled by the petitioner against the Government.

44. The last charge was :

'It was unlawful on your part to refuse a member of the Board to see the proceedings which was attended by him. The reasons given are not plausible.'

45. The explanation is that Mr. Mohammad Ismail was present at the time of the passing of the particular resolution, but had refused to sign on it, and thereafter he had perused the register in the office, but wanted to have the resolution copied out by his friend Mr. Prem Narain Joshi, which the clerk of the office refused to permit. Mr. Ismail had only asked where he could see the resolution register, and at what time. It was explained that the Chairman in view of the previous conduct of Mr. Ismail had said that his prayer was not proper.

46. Under Section 26, Clause (9), the minutes of the meetings are required to be open to inspection by any inhabitant of the municipality at all reasonable times, and under Section 27 (3) every member of the Municipal Board has privilege to have access to the records of the Municipal Board after giving due notice to the chairman, provided that the chairman may for reasons given in writing forbid such access. The request was by a member, but he was also an inhabitant of the Municipality, and as such inhabitant he had the privilege to ask for permission to inspect the minutes book containing the resolutions of the Board. The reply of the Chairman Ex. P-43 was that the member himself was present at the meeting, and that in the resolution it had been decided to keep the proceedings confidential, and that his attitude was not in the interest of the Board, and, therefore, he did not consider that his request was proper. An argument was advanced on behalf of the petitioner that the Chairman had not in so many words refused permission to inspect the register, and Mr. Ismail had even previously inspected the register on the same day as is evidenced by Ex. P-42, the report of the head clerk. It appears that the reply given by the Chairman to Ismail should have been different, if it had come to his knowledge that Mr. Ismail had previously inspected the minutes book, and was prevented from having the resolution copied out by his friend Mr. Prem Narain. It was certainly not proper for a Chairman to judge of the propriety of the request when Mr. Ismail had a right, like any other inhabitant of the locality, to inspect the minutes book. As it happens, however, Mr. Ismail had had an inspection already, and, therefore, it cannot be said that the view of the Chairman prevented Mr. Ismail from exercising his right of inspection. No neglect of duties can be inferred on this score also.

47. As a result of the careful consideration of the entire facts and circumstances of this case, we have no hesitation in coming to the conclusion that the action of the Government in removing the petitioner Shri Keshrirnal from the chairmanship of the Municipal Board of Sironj was not bona fide, and the basic facts which enabled the Government to exercise the power of removal did not exist in the present case. It may also be stated that every one of the acts mentioned in charges 1, 2 and 7 was con-firmed by the Board, and no question of neglect of duties of the Chairman arose. The findings on charges Nos. 3, 5 and 6 were contrary to actual facts, and charges Nos. 4 and 7 do not amount to neglect of duties, in view of the special circumstances narrated above.

48. Before concluding it may be observed that the Constitution of India starts by a solemn resolution of the people of India to constitute India into a Sovereign Democratic Republic and to secure to all its citizens Justice, social, economic and political ; Liberty of thought, expression, belief, faith and worship, Equality of status and of opportunity ; and to promote among them all Fraternity assuring the dignity of the individual and the unity of the nation. In this democratic set up there will always be occasions when persons not belonging to the party who may hold the reins of Government, may come forward for election in the local bodies, and be successful in being elected to responsible positions. It could not have been the intention of the Legislature that such persons, who may be rank outsiders so far as the party in power is concerned,' should be removable on the arbitrary decision that circumstances existed which would authorise the Government to remove such outsider in spite of the real merits ofthe situation. Any other Interpretation would enable the Government to remove such an outsider, however, able and zealous he may be in the performance of his duties by a simple assertion of the existence of facts authorising removal, and thereby depriving him not only of the chairmanship but also the membership of the Board. This power could then be exercised to such an extent as would involve the elimination of all members who do not belong to a particular party by the simple ruse of bringing about their election to the post of Chairman or Vice-Chairman, and thereafter exercising the power under Section 22 (10) for their removal. The Constitution of local bodies was primarily intended to bring out the best talent without restriction to caste, creed or party, and to educate people in the matter of civic affairs and gradually to make them fit for a cooperative effort in bringing about a well are State, and this is only possible when as was originally intended there is a minimum of interference by outside agencies and the business of the Government is to offer friendly advice and guidance rather than to come upon them for petty irregularities in matters where the bona fides of the persons who enjoy the confidence of the electorate are not questionable.

49. The petition is, therefore, allowed, and theorder of the Government dated 24th January 1956,directing removal of the petitioner from the chairmanship of the Sironj Municipal Board is set aside.The petitioner will get his costs from the respondent.


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