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A.P. Kadirvelu Naicker Vs. K.M. Lakshmana Mudaliar, Chairman, Municipal Council and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1962)2MLJ182
AppellantA.P. Kadirvelu Naicker
RespondentK.M. Lakshmana Mudaliar, Chairman, Municipal Council and anr.
Cases ReferredKing v. Beer L.R.
Excerpt:
- .....of his term of office, or of the last meeting which he attended, or of his restoration to office as councillor under sub-section (4), as the case may be, or if within the said period less than three meetings have been held, absents himself from three consecutive meetings held after the said date.section 50 (4) provides:where a person ceases to be a councillor under clause (i) of sub-section (1), the executive authority shall at once intimate the fact in writing to such person and report the same to the council at its next meeting. if such person applies for restoration suo motu to the council on or before the date of its next meeting or within fifteen days of the receipt by him of such intimation, the council may at the meeting next after the receipt of such application restore.....
Judgment:
ORDER

Jagadisan, J.

1. In both these Writ Petitions, filed under Article 226 of the Constitution the petitioner is an elected Councillor of the Arcot Municipal Council and the first respondent is also a Councillor and Chairman of the said Municipal Council. The prayer in W.P. No. 1115 of 1961 is for the issue of a writ in the nature of quo warranto questioning the right of first respondent to hold office as Chairman of the Council. The relief sought for in W.P. No. 1117 of 1961 is one for the issue of a writ of mandamus directing the second respondent the Commissioner of the Municipal Council Arcot to comply with the provisions of Section 50 (4) of the District Municipalities Act.

2. The petitioner submits that the first respondent has become disqualified to continue as member of the Municipal Council, Arcot and a fortiori to function as the Chairman. The ground of disqualification urged is that the first respondent absented himself from the meetings of the Council for a period of three months consecutively since the date of the last meeting of the Council which he attended on 12th April, 1961. The first respondent denies having become subject to any disqualification. He submits that he attended a meeting of the Council on 17th June, 1961 and though this meeting was a special meeting under Rule 8 of Schedule III of the Madras District Municipalities Act, it was not a meeting covered by the Explanation to Section 50 of that Act and that his attendence at such meeting saves him from the disqualification arising out of non-attendence of meetings. There is thus a dispute between the parties as to whether the first respondent is disentitled to hold office under Section 50 (1) (i) of the District Municipalities Act. That provision reads as follows:

Subject to the provisions of Section 51, a Councillor shall cease to hold his office, if he.(i) absent himself from the meetings of the Council for a period of three consecutive months reckoned from the date of the commencement of his term of office, or of the last meeting which he attended, or of his restoration to office as Councillor under Sub-section (4), as the case may be, or if within the said period less than three meetings have been held, absents himself from three consecutive meetings held after the said date.

Section 50 (4) provides:

Where a person ceases to be a Councillor under Clause (i) of Sub-section (1), the Executive Authority shall at once intimate the fact in writing to such person and report the same to the Council at its next meeting. If such person applies for restoration suo motu to the Council on or before the date of its next meeting or within fifteen days of the receipt by him of such intimation, the Council may at the meeting next after the receipt of such application restore him to his office of Councillor.

3. The Act provides a machinery for adjudication of disputes arising out of an. alleged disqualification of any member to hold office and that is Section 51. It is as follows:

(1) Whenever it is alleged that any person who has been elected as a Councillor is disqualified under Sub-section (1) of Section 48, Section 49, Section 50 or Section 60 and such person does not admit the allegation, or whenever any Councillor is himself in doubt whether or not he has become disqualified for office, under Section 50 or Section 60, such Councillor or any other Councillor may, and the Executive Authority, at the request of the Councillor shall apply to the District Judge of the District in which the Municipality is situated.

(2) The said Judge, after making such inquiry as he deems necessary, shall determine whether or not such person is disqualified under Sub-section (1) of Section 48, Section 49, Section 50 or Section 60 and his decision shall be final.

(3) Pending such decision the Councillor shall be entitled to act as if he were not disqualified.

It cannot be doubted that an information in the nature of a quo warrants) will not be issued by this Court under Article 226 as a matter of course. It is only a discretionary relief which the Court can grant or refuse according to the facts and circumstances of each case.

The Court would inquire into the conduct and motives of the applicant, and the Court might in its discretion decline to grant a quo warranto information where it would be vexatious to do so, or where an information would be futile in its results, or where there was an alternative remedy which was equally appropriate and effective. (Halsbury's Laws of England, Vol. II, 3rd Edition, page 149).

4. The petitioner has failed to avail himself of the special remedy provided for declaring the office vacant as prescribed by Section 51 of the Act. It is contended by Mr. T. Chengalvarayan, learned Councel for the petitioner, that the statutory remedy under Section 51 of the Act is not adequate, efficacious or speedy and that a writ of quo warranto should not be refused on the ground of the subsistence of the other remedy. I must observe that there is no averment in the affidavit in support of the application that the statutory remedy was not availed by the petitioner because of its inefficiency or futility. There is no reason for the petitioner to apprehend that his remedy before the District Judge provided for under the Act will not stand him in good stead.

5. Learned Counsel for the petitioner relied upon the decision in the King v. Beer L.R. (1903) 2 K.B. 693 and contended that the remedy by way of quo warranto was the only proper remedy and that it cannot be barred by reason of other statutory provisions. In that case a debtor was adjudicated a bankrupt in April, 1899, and in the following July obtained an order of discharge, subject to suspension for two years and a half which came into operation in January, 1902. In November, 1902, an election was held of Councillors for a Municipal Borough, at which he was nominated and declared elected. In 1903 a rule nisi was obtained for a quo warranto calling on him to show cause why he held and exercised the office of Borough Councillor. It was held that the remedy by quo warranto was taken away by Section 87 of the Municipal Corporation Act, only in those cases where the election was questioned on the ground of disqualification for election, and that bankruptcy being by Section 32 of the Bankruptcy Act, a disqualification not merely for election, but also for holding the office of Councillor, quo warranto would lie. It is really unnecessary to consider the applicability of implication of the ratio of that decision to the present case as the question is not whether a quo warranto under Article 226 will lie. Undoubtedly the Writ is maintainable but yet the Court has got a discretion to grant or refuse it. Even in England the rule, as it now obtains, is thus set out in Halsbury's Laws of England, Volume II, 3rd Edition, page 145:

Certain limitations were imposed on the scope of the information by statutory provisions to the effect that elections to certain offices should not be questioned on the ground that the person elected was at the time of election disqualified, save by election petition. In 1933 an alternative form of proceedings was substituted for informations in respect of the qualification of persons acting as member of a local authority or as Mayors of Boroughs, and it was provided that except in the form so substituted no proceedings, whether by way of information in the nature of quo warranto or otherwise, should be taken against a person on the ground that he had, while disqualified for acting as a member of a local authority or Mayor of a Borough, so acted or claimed to be entitled so to act. In 1938 all informations in the nature of quo warranto were abolished, and it was provided that, in any case where a person acted in an office in which he was not entitled to act and an information in the nature of quo warranto would have lain against him the High Court might, at the instance of any person who would have been entitled to apply for such an information, grant an injunction restraining the former from so acting and might (if the case so required) declare the Office to be vacant.

It seems to be clear that the relief, of quo warranto is only a discretionary relief, and that it can be refused on the ground that the applicant can pursue other remedies particularly prescribed by the very statute under which he complains that a person has usurped a public office.

6. I am therefore of opinion that W.P. No. 1115 of 1961 should be dismissed observing that the petitioner is free to move the appropriate District Court under Section 51 of the Act.

7. I am also of opinion that no mandamus can issue against the Commissioner of the Municipal Council directing him to act under Section 50 (4) of the Act. The petitioner admittedly did not move the Commissioner and demand the performance of his statutory duties under that provision of law. It may be that the Commissioner is of the opinion that the first respondent is not under any disqualifications by reason of the non-attendance of the meetings. It may yet be open to the petitioner to apply to the Commissioner to act under Section 50 (4) of the Act and to move this Court afresh, if the Commissioner improperly refuses to discharge his statutory functions.

8. These petitions are dismissed and the rule nisi issued in each case is discharged. The petitioner will pay the costs of the respondents in W.P. No. 1115 of 1961, Advocates fee Rs. 100 one set.


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