Punjab-Haryana High Court
Surjit Mehta And Ors. vs The State Of Haryana And Ors. on 19 May, 1992
Equivalent citations: (1992)102PLR143
JUDGMENT A.L. Bahri, J.
1. This writ petition has been filed by eight persons who are members of the Municipal Committee, Yamuna Nagar. Out of them petitioner No. 1 Surjit Mehta was the President and petitioner No. 2 Uggar Sain was Senior Vice-President of the Municipal Committee. They challenge in this writ petition notice issued by respondent No. 3, Sub Divisional Officer (Civil), Yamuna Nagar, convening a meeting of the members of the Municipal Committee for April 2, 1992. to consider motion of no-confidence against the President and the Sr. Vice-President of the Committee. The aforesaid notice is Annexure P. 1 to the writ petition.
2. Earlier, the Municipal Committee had passed a resolution, operation of which was stopped by respondent No. 3, whose order was challenged successfully in CWP No. 3177 of 1992. It was immediately after the decision was rendered by the High Court that the steps were taken to dislodge the President and the Sr. Vice-President of the Municipal Committee that the impugned notice was issued Reference was made to different provisions of the Haryana Municipal Act, 1973 (hereinafter referred to as 'the Act') and the Rules framed thereunder. In order to put pressure upon members of the Municipal Committee a case was got registered at the Police Station against Naresh Kumar Sharma, one of the members of the Municipal Committee, on January 30, 1992. He was asked to oppose the President and the Sr. Vice -President. Since he did not oblige the authorities, a false case was registered against him under Sections 353, 332 and 186 of the Indian Penal Code. Although offences were bailable, his bail bonds were not accepted by the Police. Some application was submitted to the Deputy Commissioner on March 27, 1992 in which a prayer was made for calling meeting of the members for expressing no-confidence in the President and the Sr. Vice-President of the Municipal Committee. Notice issued by respondent No. 3 did not mention the number of persons who had signed no-confidence motion. It also did not mention the date of the requisition made to the Deputy Commissioner. Notics Annexure P. 1 is dated March 30, 1992 purporting to have been issued under Section 21(2) of the Act stating therein that the meeting would be held on April 2, 1992 at 4.00 p.m. It was to be treated as a special meeting and the agenda was no-confidence motion against the President and the Sr. Vice-President. No notice of this meeting was given to the petitioners. Some of the persons alleged to have signed the proceedings of the meeting, however, they were not in a position to sign the same. Some of the persons were out of station and were not physically present in the city of Yamuna Nagar; one person was stated to be away to Nasik. Anything done in pursuance of notice Annexure P. 1 could not be sustained. Notice was issued in contravention of the provisions of the Act and the Rules. The Deputy Commissioner, as well as the S D.O. (Civil) .could not decide whether such a meeting was to be a special meeting or ordinary one. For special meeting 48 hours notice was required, whereas for ordinary meeting 7 days clear notice was required Primarily the notice was challenged on the grounds, inter alia, (i) that no request for convening the meeting was made to the President; (ii) that the proceedings were initiated by an authority not competent to take notice of the same; and (iii) that there was no provision for treating a meeting where no-confidence motion was considered to be a special meeting. Prayer was made for quashing notice Annexure P. 1 and the proceedings taken in consequence there. On notice of motion having been issued reply was filed on behalf of the respondents by the Deputy Commissioner, Yamuna Nagar. A separate reply was filed by respondent No. 4 Gurmukh Singh, Municipal Commissioner. All these respondents contested the writ petition, inter alia, asserting that a meeting of the members of the Committee was in fact held wherein no-confidence motion was passed against the President and the Sr. Vice-President. A notice was legally issued under the orders of the Deputy Commissioner by the Sub Divisional Officer (Civil), Yamuna Nagar. Sufficient time was given in the notice for holding of the' meeting. The petitioners refused to accept the notice and the same was pasted at their houses. We have heard counsel for the parties and have also gone through the documents submitted alongwith the pleadings.
3. At the outset it may be stated that different provisions in the Haryana Municipal Act provides for the functioning of the Municipal Committee by the elected members. The Municipal Committee is thus constituted to function in a democratic manner i. e. by holding election of its members by the voters of the locality. Those elected members after taking oath were supposed to elect the President, and the Sr. Vice-President of the Municipal Committee who were to implement the decisions taken by the Municipal Committee. It is in this manner that the people were to rule in the Municipal Committee for the benefit of the people. The President and the Sr. Vice-President are to function as leaders of the majority party having their confidence. The moment they lose such confidence, obviously they could not hold the elected posts of the President and the Sr. Vice President The provision exists in the Act to which reference would be made later that posts of the President and the Vice-President shall be deemed to have fallen vacant on passing of no-confidence motion against them. With this background in mind now the stage is set for referring to the different provisions of the Act, the Rules, and the bye-laws and the facts of the case. Section 21 of the Act deals with subject of no-confidence motion which reads as under :- .
Section 21: "Motion of no-confidence against President or Vice-President -(1) A motion of no-confidence against the president or vice-president may be made in accordance with the procedure laid down in the rules.
(2) The Deputy Commissioner or such other officer not. below the rank or an Extra Assistant Commissioner, as the Deputy Commissioner may authorise, shall convene a meeting for the consideration of the motion referred to in sub-section (1). in the manner laid down in the rules, and shall preside at such meeting.
(3) If the motion is carried with the support of not less than two-thirds of the members of the committee, the president or vice-president, as the case may be, shall be deemed to have vacated his office.
(4) If a no confidence is passed against the president and the vice-president simultaneously or otherwise, the Sub-Divisional Officer (Civil) of the area in which the municipality is situated or any other officer not below the rank of an Extra Assistant Commissioner authorised by the Deputy Commissioner shall henceforth exercise the powers and discharge the functions of the president till the election or appointment of a president is notified or a vice-president is elected.
(b) A meeting referred to in sub-section (2) shall be presided over by the Deputy Commissioner or the officer authorised by him, but neither he nor such officer shall have the right to vote at such meeting."
4. Sub-section (1) of Section 21 contemplates making of motion of no-confidence in accordance with the procedure laid down in the rules. However, it may be stated at this stage that no rules on the subject have so far been framed. Under sub-section (2) of Section 21 it is the Deputy Commissioner or other officer authorised by him who is to convene meeting of the members of the Municipal Committee for consideration of motion of no-confidence and in view of sub-section (3) of Section 21 if such motion is carried out by not less than 2/3rd. members of the committee, the President or the Vice-President, as the case may be, shall be deemed to have vacated the office. In view of sub-section (5) of Section 21 such a meeting is to be presided by the Deputy Commissioner or the officer so authorised by him and Chairman present is not to exercise any right of vote in such a meeting. This further indicates that a meeting of the members of the Committee where motion of no-confidence against the President or the Vice-President is to be considered is to be provided by an independent person such as the Deputy Commissioner or the person to be authorised by him in this matter.
5. Section 25 of the Act provides for holding meeting members of the Committee from time to time for transaction of business. At least once in every month such a meeting is to be held. Even on requisition being made for the purposes of transaction of business of the committee a meeting could be called within a period of 10 days. If such a meeting is not called within the prescribed time as above, the Deputy Commissioner on receipt of requisition could call the meeting. It may be stated that ordinary meeting of the members of the committee could be called by giving seven days' notice and a special meeting by giving forty-eight hours' notice. In this respect reference may be made to bye law.-4 of the Haryana Municipal bye laws, 1981. Reference was also made by counsel for the petitioner to Sections 74 and 83 of the Act which refer to procedure for imposition of taxes in a special meeting of the Committee. Further reference is not necessary as the argument addressed was only to the effect that as and when special meeting; was to be held, a special provision was made in the Act.
6. Shri T. S. Doabia, learned counsel for the petitioners has argued that the procedure adopted by the respondents in summoning the meeting for the purposes of consideration of no-confidence motion against the President and Sr. Vice-President of the Municipal Committee was contrary to the provisions of the Act and the Rules. Such an application for calling a meeting was required to be made to the President at the first instance and he could call the meeting within a period of ten days as provided under Section 25 of the Act. On his failure to do so the Deputy Commissioner was to call the meeting within a period of 10 days as provided under sub-section (3) of Section 25 of the Act. Secondly, it has been argued that since there was no provision in the Act to treat a meeting for the aforesaid purpose a special meeting, it was to be treated as an ordinary meeting for which seven days' notice was required and not forty-eight hours' notice giving lesser time. This vitiates all the proceedings of the Committee held in pursuance of the aforesaid notice Annexure P.I. Thirdly, it has been argued that petitioners Nos. 1 to 6 were not served with the notice of the meeting. The reports of pasting the notice at their residence cannot be acted upon when such persons were very much in town and especially petitioners Nos. 1 and 2, President and the Sr. Vice-President were working in the official capacity
7. There is no merit in either of the contentions raised above. Since rules for making motion of no confidence against the President or Senior Vice-President have not been framed as required under sub-section (I)- of Section 21 of the Act, it cannot be said that such a motion was required to be made first to the President or the Senior Vice-President. Present is a case whereby one motion of no-confidence against the President as well as the Senior Vice-President was sought to be moved and in view of sub-section (1) of Section 21, referred to above, the Deputy Commissioner or the parson authorised by him could convene the meeting for consideration of such a motion. 22 members of the Committee had moved no-confidence motion against the President and the Senior Vice President before the Deputy Commissioner and under his directions the Sub-Divisional Officer (Civil), Yamuna Nagar, convened the meeting. When no specific law provides for making such a motion to the President or the Vice-President as rules have not so far been framed, the action of the Deputy Commissioner to entertain such a motion who was competent to convene the meeting for consideration of such motion, cannot be held to be without jurisdiction or against the provisions of the Act. The contention is, therefore, repelled.
8. Shri T. S Doabia. Advocate, has argued that the meeting for the purpose of consideration of no-confidence motion against the. President or the Vice-President was to be considered an ordinary meeting for which 7 day's notice was required to be issued as per Regulation and under Section 25 of the Act, the President or the Vice-President could requisition the meeting within a period of 10 days. The contention of counsel for the petitioner again cannot be accepted in this respect. Rather this contention is counter to the other contention raised that since the Act provided for special meeting to be called for tax purposes for which forty-eight hour's notice was necessary, and the aforesaid provisions would not be attracted as there was specific provision to treat such a meeting, a special meeting. If this is so, such a meeting cannot be considered as an ordinary meeting which is contemplated under Section 25 of the Act. Under this provision a meeting is to be called for transaction of business which obviously relates to functioning of the Municipal Committee for day-to-day business-. Obviously a motion for no-confidence cannot be considered an ordinary business of the Municipal Committee. It is only when extra-ordinary situation arises i.-e. the elected office-holder, President or Vice-President loses confidence of at least 2/3rd members of the Municipal Committee that a no-confidence motion is required to be considered and if such a motion is carried out, the President and the Vice President shall be deemed to have vacated the posts. Thus, in such extra-ordinary circumstances the meeting called cannot be treated to be an ordinary faceting. Since rules have not been framed as required under sub- section (1) of Section 21, though strictly the other provisions of the Act or the rules may not be applicable, just to meet the arguments of the learned counsel for the petitioners some logic can be derived from the policy enshrined in Rule 70 of the Haryana Municipal Election Rules, 1978. When first meeting of the members of the Municipal Committee after the elections is to be held the same is to be called within a period of fourteen days from publication of notification of election and forty-eight hour's notice is required to be given as election of President and Vice-President is also to take place after the members take the oath of allegiance. The contention of Shri T. S. Doabia, Advocate, for the petitioners that forty eight hour's notice is not sufficient for canvassing votes cannot be accepted. A forty-eight hour's notice is considered sufficient for canvassing to elect President and Vice-President from amongst the members of the Municipal Committee duly elected, such a notice giving forty-eight hour's time would be sufficient in the absence of any specific rules framed on the subject to enable the President or the Vice-President to canvass and to make an attempt to secure votes in their favour for the failure of the no-confidence motion.
9. It has been argued on behalf of the petitioners that there was no proper service on petitioners Nos. 1 to 6 of the notice Annexure P-l of holding of the meeting for consideration of no-confidence motion. On this point there is a dispute on facts as assertion of the petitioners has been refuted with a specific allegation, particularly regarding petitioners Nos. 1 and 2, the President and the Senior Vice President that they refused to accept the notice and thereafter under orders of the Secretary of the Municipal Committee the notice were pasted outside their houses In this respect additional affidavits have also been filed on behalf of the respondents. Even for the sake of arguments it is assumed either that there was no service on six of the petitioners of the notice of holding meeting of the service was defective i. e. not in accordance with the procedure laid down under different bye-laws of the Municipal Committee, it would not make any difference in the present case.
10. Breach of any procedural provision would not automatically result in making the result as invalid unless it is shown that any prejudicial order has been passed which is in contravention of the substantive provisions of the Act. Minimum quorum having been prescribed for different types of meeting of the Municipal Committees and if such quorum is complete, it can transact the business. Non- service or defect in service on some of the members will not invalidate the decisions taken in the meetings. Two-third of the total number of members having been required to pass no-confidence motion against the President and Vice-President as required under Section 21 (3) of the Act, having passed such a resolution under the. Chairmanship of Deputy Commissioner or duly authorised person by him, such a resolution will not be invalidated merely on the ground that some of the other members of the Committee, such as the petitioners, were not duly served and they were not given sufficient time for canvassing.
11. It cannot be lost sight of that for election of President, only simple majority of the members of the Committee is required, as prescribed under Section 18 of the Act, whereas for no-confidence motion against the President, two-third members of the Committee are required to vote for. If petitioners Nos. 1 and 2 still claim majority in the committee, there would be no bar for them to be re-elected in the next meeting to be called for the purpose.
12. Notice of the meeting could either be served personally or if the member was not available, be left at his house with any servant or male member or pasted at the house. These are different manners in which notice could be served as provided under different provisions of the Act, Rules or the bye-laws, which fact is not disputed. In the present case as per the stand of the respondents some of the petitioners refused to accept service and the notices were pasted at their houses It would be sufficient compliance of the provisions for service of notice. As already stated above, since quorum in the meeting was complete as 2/3rd members participated therein, the resolution voting no-confidence against the President and the Senior Vice President, thus, cannot be nullified This question was for consideration before the Full Bench in Gyan Singh v. The District Magistrate, Bijnor and Ors., A. I. R. 1975 All. 315. It would be useful to refer para 18 of the judgment wherein it was observed as under :-
"It would be sufficient compliance of the directory provision of this sub-section if notice is served on the members not by registered post but by any other mode and in that situation the motion of no-confidence which may be carried at the said meeting cannot be nullified on the ground of any literal non-compliance of service of notice by registered post."
The matter was also for consideration before the Supreme Court in K. Narasimhaiah v. H. C. Singri Gowda , A. I. R. 1966 S. C. 330. a case relatiag to Mysore Town Municipalities Act. In para 11 it was observed as under : -
"Giving" of anything as ordinarily understood in the English language is not complete unless it has reached the hands of the person to whom it has to be given. In the eye of law however "giving" is complete in many matters where it has been offered to a person but not accepted by him. Tendering of a notice is in law therefore giving of a notice even though the person to whom it is tendered refuses to accept it. Thus as soon as the person with a legal duty to give the notice despatches the notice to the address of the person to whom it has to be given, the giving is not complete."
In para 14 it was observed as under : -
"It is necessary also to remember that the main object of giving the notice is to make it possible for the Councillors to so arrange their other business as to be able to attend the meeting. For an ordinary general meeting the notice provided is of seven clear days. That is expected to give enough time for the purpose. But a lessor period of three clear days is considered sufficient for "special general meetings" is that these are considered more important meetings and Councillors are expected to make it convenient to attend these meetings even at the cost of some inconvenience to themselves. Where the special general meeting is to dispose of some matter of great urgency it is considered that a period of even less than three clear day's notice would be sufficient"
In para 19 it was observed as under :-
"The existence of this provision in Section 36 is a further reason for thinking that the provision as regards any motion or proposition of which notice must be given in Section 27 (3) is only directory and not mandatory".
13. On the ratio of the decision of the Supreme Court, referred to above, it is quite clear that giving of notice is mandatory which in the present case was complied with as before convening the meeting notices were given by the Sub-Divisional Officer (Civil). As far as service of the notice is concerned, the same is directory. This provision can be complied with in any of the modes i. e. by personal service or otherwise. In the present case when Rules have not been framed on the subject only reasonable notice could be given. Four day's notice is considered reasonable for holding a meeting for consideration of no-confidence motion. Accepting the stand of the respondents that on refusal to accept the notices by the petitioners, the same were pasted at their houses, it would be sufficient compliance of the provisions, the contention of counsel for the petitioners is repelled.
14. For the reasons recorded above, we are of the firm opinion that the resolution passed in the meeting carrying vote of no-confidence against the President and the Senior Vice-President, the petitioners, cannot be nullified. Likewise the meeting held in response to notices giving four day's time cannot be held to be illegal. Finding no merit in the writ petition the same is dismissed. There will be no order as to costs.