Bombay High Court
Hemant Shriram Patil vs Nanded Waghala City Municipal ... on 1 April, 2004
Equivalent citations: 2004(4)MHLJ531
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar, V.G. Munshi
JUDGMENT R.M.S. Khandeparkar, J.
1. Since common question of facts and law are involved in both the petitions, they were heard together and are being disposed of by this common Judgment.
2. Heard. Rule. By consent, the rule is made returnable forthwith.
3. In Writ Petition No. 1691 of 2004, the petitioner seek relief in the form of direction to the respondent Nos. 1 and 2 viz. Nanded Waghala City Municipal Corporation and the Municipal Secretary thereof respectively to hold the regular proceedings of the. Standing Committee, by allowing the petitioner to act as Chairman of the Standing Committee of the said Corporation and for that the communication dated 26th February, 2004, issued by the Corporation in relation to the proceedings of the meeting held on 9th February, 2004 be quashed as well as for further direction to the Municipal Secretary to follow the procedure laid down for the proceedings for the Standing Committee and the writ in the nature of mandamus to the respondent No. 3 viz. the State of Maharashtra to exercise powers under Section 451 of the Bombay Provincial Corporations Act, 1949 (hereinafter referred to as the "said Act") in relation to the Resolution No. 238 dated 9th February, 2004, stated to have been passed in special general body meeting of the Corporation. In Writ Petition No. 2074 of 2004, the petitioner seeks to quash the notice dated 23rd March, 2004 issued by the Municipal Secretary, in relation to the meeting scheduled for 26th March, 2004.
4. The grievance of the petitioner is that, in spite of the petitioner being elected as the Chairman of the Standing Committee of the Corporation, due effect is not being given to the Resolution passed in the special meeting held on 9-2-2004 wherein the petitioner was so elected and the failure in that regard by the respondents, entitles the petitioner to seek the relief asked for. It is his further contention that considering the provisions of the said Act, Municipal Commissioner has no power to preside over the meeting of the Standing Committee for whatsoever reason and it is the petitioner who has been validly elected as the Chairman of the Standing Committee of the Corporation in the specially convened meeting, held on 9th February, 2004, is entitled to preside over the meetings of the standing committee. The respondents authorities are bound to comply with the Resolution passed in the special meeting and to follow the procedure prescribed by the provisions of law, contained in the said Act, in relation to the proceedings of the meetings of the Corporation and the Standing Committee of the Corporation and considering the same, the notice issued by the Municipal Secretary on 23rd March, 2004, is bad in law. Referring to Section 35 of the said Act, it is sought to be contended on behalf of the petitioner that the proceedings of the meeting, held on 9th February, 2004, are to be held as good and valid until the contrary is proved and the respondents having not been able to prove and establish to the contrary, the respondents are not entitled to act contrary to the resolution passed in the said meeting. The provisions of Section 448 by themselves empower the government to require the performance of the duties in default of any Municipal authorities and to issue directions in that regard to its officers, but there has to be a direction in that regard by the government, Further referring to the provisions contained in Clause 3(e) of Chapter II of Schedule D of the said Act, it is sought to be contended that it is the Chairman of the Standing Committee, who is the sole authority, empowered to preside over the meetings of the Standing Committee and the Municipal Commissioner cannot divest the Chairman from those powers.
5. On the other hand, it is sought to be contended that the meeting held on 9th February, 2004, was adjourned by the Mayor on account of certain commotion having been occurred in the proceedings of the meeting and that, therefore, any Resolution, stated to have been passed subsequent to the order of adjournment of the meeting by the Mayor, cannot be said to be the valid and lawful resolution, within the meaning of the provisions of the said Act and no value can be attached to any such resolution and for the same reason, any Councillor claiming to have been elected as a Chairman of the Standing Committee, consequent to any such resolution, cannot be considered to have been validly and lawfully elected as a Chairman of the Standing Committee and, therefore, cannot claim to be the Chairman of the Standing Committee. The petitioner was not elected as the Chairman of the Standing Committee prior to adjournment of the meeting by the Mayor, on 9th February, 2004 and, therefore, the petitioner cannot be said to be lawfully elected Chairman of the Standing Committee. In view of Section 95 of the said Act, it is the obligation of the Commissioner to lay before the Standing Committee the estimates regarding annual income and expenditure and for compliance of the said obligation, the notice dated 23rd March, 2004 in relation to the meeting, scheduled for 26th March 2004, was issued. Since till this date, there is no validly elected Chairman to the Standing Committee, the Government, in exercise of powers under Section 448(2), had appointed the Commissioner to preside over such meeting and, therefore, no fault can be found with the notice dated 23rd March, 2004. As regards the resolution under which the petitioner claims to have been elected as a Chairman of the Standing Committee, attention is drawn to Clause 1 of Chapter II of Schedule D of the said Act and more particularly, Sub-clause (d) thereof read with Section 21(5) of the said Act, to contend that the meeting can be convened only by Mayor or by Deputy Mayor and in case of failure to convene the meeting, similar meeting has to be convened by Mayor or Deputy Mayor, on requisition in that regard by not less than one forth of all the members of the Council or at least by four members of the Standing Committee and the procedure having not been followed prior to the passing of alleged resolution dated 9th February, 2004, the said so called resolution cannot be said to have been passed in a validly convened meeting. Any gathering of the members in contravention of the provisions prescribed for proceeding for Corporation under Chapter II, such gathering cannot be termed as a validity convened meeting and any resolution passed in such a meeting, cannot have legal sanctity and the petitioner cannot be said to have been lawfully elected Chairman of the Standing Committee.
6. Provisions of Section 21(1) of the said Act provide that the Standing Committee shall at its first meeting after its appointment under Sub-section (2) of Section 20 and at its first meeting in the same month in each succeeding year appoint one of its own member to be the Chairman. Sub-section (5) thereof provides that if for any reason, the Standing Committee does not appoint the Chairman under Sub-section (1) or (4), within the period of thirty days from the date of its appointment under Sub-section (2) of Section 20, or from the date following the date of retirement of one-half of the members specified in subsection (3) of that section, or from the date on which a casual vacancy occurs in the office of Chairman, as the case may be, the appointment of the Chairman, after the expiry of the said period, shall be made by the Corporation, from amongst the members of the Standing Committee, at a special meeting called and held for the purpose, within fifteen days from the expiry of the said period of thirty days. It further provides that at such meeting, the question shall be decided by a majority of votes of the Councillors present and voting and if there be an equality of votes, the presiding authority shall have and exercise a second or casting vote. Obviously, in case of failure to elect the Chairman within thirty days from the date of constitution of the Standing Committee, under Sub-section (2) of Section 20 of the said Act, the provisions of Sub-section (5) of Section 21 are attracted and in that case, the election of the Chairman of the Standing Committee will have to be in a special meeting of the Council called for the said purpose.
7. Chapter II of Schedule D of the said Act deals with the proceedings of the Corporation, Standing Committee, Transport Committee, etc. and Clauses 1 and 2 thereof relate to the proceedings of the Corporation. Clause 3 relates to the proceedings of the Standing Committee. Clause 4 relates to the proceedings of Transport Committee and Clause 5 relates to right to ask questions. Sub-clause (a) of Clause 1 provides that there shall be in each month at least one ordinary meeting of the Corporation which shall be held not latter than the twentieth day of the month. Sub-clause (d) of Clause 1 provides that the Mayor or the Deputy Mayor whenever he thinks fit and shall upon a written requisition signed by not less than one-fourth of the whole member of Councillors or by not less than four members of the Standing Committee, call a special meeting and every meeting of the Corporation shall except for special reasons to be mentioned in the notice convening the meeting, be held in the Chief Municipal Office. We have neither been informed nor our attention is drawn to any other provision empowering an authority other than Mayor or Deputy Mayor to convene the special meeting, nor any provisions of law other than Sub-clause (d) of Clause 1 of Chapter 2 of Schedule D of the said Act for that purpose. Apparently, therefore, apart from the said sub-clause, there is no other provision under the said Act dealing with the entitlement of the specified authority thereunder to convene a special meeting either of their own or at the instance of the Councillors or the members of the Standing Committee and in case it is at the instance of the Councillors, requisition has to be by not less than one-fourth of the whole number of the Councillors, whereas in case members of the Standing Council, at least four members thereof should requisition the meeting. On such requisition being made, Mayor or Deputy Mayor, as the case may be, duty bound to convene such meeting. There is no other authority specified under the said Act, which can convene such meeting.
8. Clause 3(e) of Chapter II of Schedule D of the said Act provides that every meeting of the Standing Committee shall be presided over by the Chairman, if the Chairman is present at the time appointed for holding the meeting, and if the Chairman is absent by such one of the members present as may be chosen by the meeting to be Chairman for the occasion. Apparently, the meeting of the Standing Committee is required to be preside over by its Chairman and in the absence of Chairman, any one of the members, present and chosen at such meeting.
9. Taking into consideration the above provisions of law in the said Act, it is apparent that in case of failure to elect the Chairman within thirty days from the date of constitution of the Standing Committee under Sub-section (2) of Section 20, either the Mayor or the Deputy Mayor and in case of failure on their part, at the instance of Councillors or the members of the Standing Committee, a special meeting will have to be convened for election of the Chairman of the Standing Committee.
10. It is sought to be contended that after the announcement by the Mayor regarding the adjournment of the meeting, held on 9th February, 2004, the Councillors proceeded with the meeting of the Corporation, taking recourse to Sub-clause (g) of Clause 1 of Chapter II of Schedule D of the said Act. The said Sub-clause (g) provides that every meeting shall be presided over by the Mayor, if he is present at the time, appointed for holding the same, and if the office of Mayor is vacant or if the Mayor is absent, by the Deputy Mayor or, in the absence of the Deputy Mayor, by such one of the Councillors present as may be chosen at such meeting to be Chairman for the occasion.
11. It was sought to be contended that by taking recourse to Sub-clause (g) of Clause 1, after the pronouncement of adjournment of meeting by the Mayor, the Councillors present at the venue, elected one of the Councillors, to preside over the meeting and proceeded to resolve that the petitioner was elected as the Chairman of the Standing Committee. There is no dispute that, in fact, such a resolution was sought to be passed on the said day, after the adjournment of the meeting was pronounced by the Mayor of the Corporation.
12. Sub-clause (1) of Section 21 clearly states that, "The Standing Committee shall at its first meeting, after its appointment under Sub-section (2) of Section 20 and at its first meeting in the same month in each succeeding year appoint one of its own member to be the Chairman." Apparently, irrespective of number of Councillors, only sixteen members, out of those total number of Councillors can constitute the Standing Committee. Provisions of Section 20(2) read with Section 21(1), therefore, restricts the right of electing the Chairman of the Standing Committee to those Councillors, who form the members of the Standing Committee and not to each and every Councillor. In other words, the Councillors other than the members of the Standing Committee, are not empowered to take part in the election of the Chairman of the Standing Committee under Section 21(1) of the said Act.
13. When the Standing Committee fails to exercise its powers to elect a Chairman in terms of the provisions contained in Section 21(1) of the said Act, Sub-section (5) of Section 21 empowers the Corporation to appoint the Chairman of the Standing Committee at a special meeting called for the said purpose. Such appointment has to be made by majority of votes of the Councillors, present and voting at such meeting and in case of equality of votes, power of casting vote is given to the presiding authority of such meeting. It is not in dispute that on 9th February, 2004, a special meeting was convened of the Corporation in terms of Section 21(5) of the said Act for the purpose of appointment of the Chairman of the Standing Committee. It is also undisputed fact that such a meeting did take place under the Chairmanship of the Mayor, but for some reason or other, the meeting was declared as adjourned by the Mayor. It is pertinent to note that, the factum of the declaration of the adjournment of the meeting by the Mayor is not in dispute. However, what is sought to be contended by the petitioner is that consequent to such declaration of the adjournment of meeting by the Mayor, the Councillors present at the venue proceeded to elect one of its members to preside over the meeting, in exercise of powers under Clause 1(g) of Chapter II of Schedule D of the said Act and thereafter, passed the resolution, whereunder the petitioner came to be appointed as Chairman of the Standing Committee. The petitioner, however, is not able to point out any provision under the said Act or the Rules made thereunder, which could empower the members present at a specially convened meeting under Section 21(5) to hold and/or to proceed with the meeting, which was pronounced to have been adjourned by the presiding authority of such meeting. Sub-clause (g) of Clause 1 undoubtedly provides that every meeting shall be presided over by the Mayor, if he is present at the time appointed for holding the same, and if the office of Mayor is vacant or if the Mayor is absent, by the Deputy Mayor or, in the absence of the Deputy Mayor, by such one of the Councillors present, as may be chosen by the meeting to be Chairman for the occasion. The provision in Sub-clause (g) empowers the Councillors to choose one of the Councillor to preside over the meeting only in case where the Mayor is absent or the office of Mayor is vacant and the Deputy Mayor is absent to preside over such meeting. In cases where the Mayor is present, it is privilege of the Mayor to preside over every such meeting.
14. In the case in hand, it is not in dispute that Mayor did preside over the meeting, held on 9th February, 2004. It is the Mayor, who pronounced the adjournment of the meeting. After the meeting was so adjourned, it is nobody's case that the meeting was convened either under Clause 1(g) of the said Schedule D or under any other provisions of law, contained under the said Act, or the Rules made thereunder. The so-called meeting held on 9th February, 2004, after the adjournment of meeting pronounced by the Mayor of the Corporation, by the Councillors, who are stated to have been present at that time, can be described as merely a gathering of Councillors and cannot be said to be a meeting within the meaning of the said expression under the provisions of the said Act or the Rules made thereunder. Undoubtedly, Section 35 of the said Act gives presumptive value to the proceedings of the Corporation. However, the presumption relates to the proceedings of "meeting of the Corporation" and not to "the gathering of the Councillors". In order to constitute a meeting within the meaning of the said expression under the said Act, it is not mere gathering of Councillors that would suffice, but it has to be the meeting of Councillors in terms of and under the said Act and the Rules framed thereunder and not otherwise. Any gathering of Councillors, contrary to the provisions of the said Act or Rules made thereunder, cannot be termed as valid and lawful meeting under the said Act and for the same reason, the presumption available under Section 35 of the said Act regarding validity and correctness of the proceedings of the meetings cannot be claimed by such gatherings.
15. Considering the provisions of law and undisputed facts in the matter, therefore, the claim of the petitioner that he was lawfully appointed as the Chairman of the Standing Committee, is totally devoid of substance. Once the petitioner has not been able to establish that he had been lawfully appointed as the Chairman of the Standing Committee, the question of allowing the petitioner to insist for so called right to preside over the meeting of the Standing Committee does not arise.
16. The gathering of the Councillors itself being not in accordance with the provisions of law, any resolution passed in such gathering, cannot have legal sanctity and not being a lawful resolution, and the same cannot be enforced as the resolution under the said Act. Being so, question of giving direction to the respondents to give effect to the Resolution No. 238 dated 9th February, 2004, does not arise.
17. As regards the letter dated 23rd March, 2004 by the Municipal Secretary is concerned, it clearly refers to exercise of powers by the Government under Section 448 of the said Act and that, a special meeting being convened in exercise of those powers and further empowers the Municipal Commissioner to preside over the said meeting. Section 448 deals with the powers of the Government, to require performance of duty in default of any municipal authority. Sub-clause (1) thereof provides that, "If it shall at any time appear to the State Government upon complaint or otherwise that default has been made in the performance of any duty imposed on any of the municipal authorities by or under this Act or by or under any enactment for the time being in force, the State Government may, if satisfied after due inquiry that the alleged default has been made, make an order prescribing a period for the performance of that duty; Provided that except in any case which appears to the State Government to be one of emergency, no such order shall be made until after the expiry of one month from the date of service of a written notice on the Corporation, and if the State Government shall think fit, on the Commissioner, requiring cause to be shown why such order should not be made, nor until the cause, if any, so shown has been considered by the State Government. Sub-section (2) thereof reads thus : "(2) If the duty is not performed within the period prescribed in an order made under Sub-section (1), the State Government may appoint some person to perform the same and may direct that the expense of performing such duty, together with such reasonable remuneration to the person performing the same as the State Government shall determine and the cost of the proceedings under this section shall be paid out of the Municipal Fund".
18. The provisions of Section 448, therefore, empowers the State Government to take appropriate measures in case of default being made in performance of the duty imposed on any of the Municipal authority under the said Act. The term "Municipal authority" has not been defined under Act. However, Chapter II of the said Act deals with the constitution of Municipal authorities and in terms of Section 4(1), under Clause (B) thereof, Standing Committee is one of such authorities and under Clause (C) thereof, the Municipal Commissioner. Undoubtedly, Clause 3(e) of Chapter II of Schedule D of the said Act empowers the Chairman of the Standing Committee to preside over the meeting of the Standing Committee. At the same time, it is to be noted that Section 95 requires the Commissioner to prepare annual estimate of income and expenditure and to place the same before the Standing Committee. It clearly provides that the Commissioner shall, each year on or before such date as the Corporation may from time to time prescribe have to prepare and lay before the Standing Committee, in such form as the Committee shall from time to time approve an estimate of expenditure, as well as of the balance sheet and the estimates of receipts of income as also statement of proposals as to the taxation, etc., as enumerated in different clauses of Section 95 of the said Act.
19. Considering the facts of the case, it is apparent that after the declaration of adjournment of meeting by the Mayor on 9th February, 2004, no meeting was validly convened either by the Mayor or the Deputy Mayor or was requisitioned by the Councillors or the members of the Standing Committee. The records nowhere disclose lawful appointment of any member of the Council to be the Chairman of the Standing Committee. The financial year is to expire on 31st March, 2004 and the new financial year would begin from 1st April, 2004. The mandate of Section 95 leaves no option to the respondents but to take appropriate steps to comply with the requirements thereunder. In the absence of validly elected or appointed Chairman of the Standing Committee, it is for the Government to exercise powers under Section 448 to remedy the breach committed by the Corporation and/or the Standing Committee and for that purpose, to empower an appropriate authority to preside over the meeting for due compliance of the statutory provisions and the obligation under the statute. Viewed from this angle, no fault is found with the letter dated 23rd March, 2004, issued by the Municipal Secretary, consequent to the exercise of powers of the Government under Section 448 of the said Act.
20. For the reasons stated above, there is no substance in the grievance of the petitioner in both the petitions and the petitions, therefore, fail and are hereby dismissed.
Rule discharged with no order as to cost.