Guman Mal And Anr. vs State Of Rajasthan And Ors. on 19 November, 2001

[Cites 44, Cited by 0]

Rajasthan High Court - Jaipur

Guman Mal And Anr. vs State Of Rajasthan And Ors. on 19 November, 2001

Bench: B.S. Chauhan

JUDGMENT
 

 Chauhan, J.

1. Both these petitions have been filed for quashing the No Confidence Motion dated 31.03.2001 (Annex. 5). Since common questions of law are involved in these petitions, they are being decided by this common judgment taking S.B. Civil Writ Petition No.1610/2001 as leading case.

2. The facts and circumstances giving rise to this case are that petitioner Guman Mal Parmar contested the election of Ward Member of Municipal Board, Bhinmal and on being elected as such, he was further elected as the Chairman of the said Board in 1999. A No-confidence motion was moved against the petitioner,' on which a meeting was held on 31.03.2001 for its consideration. The District Collector nominated respondent No. 4 to preside over the meeting. Seventeen members supported the motion and it was declared to have been passed. Hence this petition.

3. The facts are not in dispute. Only legal issues have been raised. Altogether there are twenty-five elected members in the Municipal Board, Bhinmal (for short, "the Board"). Two members have been nominated by the State Government vide order dated 16.11.2000 and as per the provisions of Section 9 of Rajasthan Municipalities Act, 1959 (for short "the Act"), the local M.L.A. is also an ex officio member of the Board. Therefore, the total number of members of tbe Board comes to twenty-eight.

4. Rule 3 of the Rajasthan Municipalities (Motion of No-confidence against Chairman and Vice Chairman) Rules, 1974 (for short, "the Rules, 1974") provides that V3 members of the Board may submit a written notice of intention to make motion of no-confidence in the Chairman or Vice Chairman to the District Collector and the same shall be served by registered post to all the member indicating the date, time and place and date of meeting. As per Rule 8 of the Rules, 1974, if a motion is not carried by 2/3 of the whole number of the members or if the meeting cannot be held for want of quorum, the motion of no-confidence against Chairman or Vice Chairman, as the case may be, shall be deemed to have lost. Sub-rule (9) of Rule 8' reads as under:-

"If the motion is carried by a majority of two-third members of whole number of members, the motion shall be deemed to have been passed against the Chairman or Vice Chairman, as the case may be, and such Chairman or Vice Chairman shall forthwith be deemed to have vacated his office."

5. The term "whole number" or "total number" has not been defined in the Rules of 1974, but Rule 2(2) of the said Rules provides that an expression used but not defined in the Rules, shall have the meaning assigned to it in the Act. Section 3(36) of the Act defines "whole number" or "total number" with reference to the members of a Board as the total number of members holding office at the time.

6. Thus, the basic question involved herein is as what should be the exact number of members, of which 2/3 is required to pass a No-confidence motion? According to Mr. Lodha, learned counsel for the petitioner, the whole number of the Board have been twenty-eight, as such minimum nineteen votes were required to remove the petitioner and in the instant cases, as only seventeen members have voted against the petitioner, the impugned resolution/order is liable to be quashed.

7. On the other hand, learned counsel appearing for the respondents, have submitted that "total number" or "whole number" does not include the nominated members and the M.L.A. and, thus, as 2/3 of the elected members are required for passing the resolution of no-confidence motion, the impugned resolution does not require any interference. According to them, even if it is so required, the local M.L.A. and two nominated members had not taken oath, as mandatorily required under Section 61 of the Act, and they cannot be held to be members in strict sense and as one of the elected members, namely Sri Raja Ram Bhil, was under suspension at the relevant time so he has also to be excluded while counting the total number.

8. Before proceeding on merit, it may also be pertinent to mention here that learned counsel for the respondents have raised a preliminary objection regarding hearing of the petitions contending that the respondents have challenged the constitutional validity of the provisions of Section 3(36) of the Act, defining "whole number" or "total number" and Clause (3) of Rule 9 of the Rules, 1974 by filing D.B.C.W.P. No.2879/2001 and as the said petition has been entertained by the Division Bench of this Court, the matter cannot be heard by the Single Bench and it has to be referred to the Division Bench for disposal along with the said petition. To fortify the contention, reliance has been placed upon the decision of the Hon'ble Supreme Court in State of U.P. and Ors. v. Rajesh Kumar Misra (1) wherein the Hon'ble Apex Court has held that connected writ petitions should be clubbed and heard together. In that case, the writ petition had been filed by ad-hoe appointee continuing in service by virtue of interim order of the Court but during selection process, he had been placed below in the merit list and the other persons having higher position in the select list had filed writ petition to make appointment on the basis of the merit list. The Hon'ble Supreme Court held that in such a situation, both the petitions should be heard together and disposed of by a common order.

9. Similarly, in Government of Andhra Pradesh and Ors. v. Gudepu Sailoo and Ors. (2) the Hon'ble Apex Court held that when two appeals were filed against a common judgment and two distinct questions were involved, both the appeals should have been heard together.

10. Mr. Lodha, learned counsel for the petitioners, has vehemently opposed this move on the ground that the writ petitions challenging the no-confidence motion had been filed in the last week of April 2001 (i.e. on 23 & 25.04.2001). These petitions were taken up for hearing finally on 18.09.2001; arguments were almost over, however, for paucity of time, one of respondents' counsel could not conclude his arguments and matters stood adjourned. In view of the specific averments made on behalf of the petitioners on that date, in the meanwhile respondents have filed the writ petition challenging the vires of certain provisions at a belated stage. He has submitted that hearing should be concluded by this Bench as the other case was not pending on the date of hearing and has been filed much later, after realising the seriousness of petitioner's case.

11. I agree with Mr. Lodha also for the reasons that even if the Division Bench allows the writ petition, it may be possible that the result may not have bearing on this case as the relief may be granted prospectively and in view of the concept of de-facto doctrine, the judgment may not take away the effect whatever has happened earlier. This view stands fortified by the judgments of the Hon'ble Supreme Court in Gokaraju Rangaraju v. Stale of Andhra Pradesh (3); and a recent judgment of the Constitution Bench in B.R. Kapoor v. State of Tamil Nadu (4).

12. In Harsh Dhingra v. State of Haryana and Ors. (5) the Hon'ble Supreme Court observed as under: -

"Prospective declaration of law is a device innovated by this Court to avoid re-opening of settled issues and to prevent multiplicity of proceedings. It is also a device adopted to avoid uncertainty and avoidable litigation. By the very object of prospective declarations of law, it is deemed that all actions taken contrary to the declaration of law, prior to the date o the declaration, are validated."

14. As on 18.09.2001 matters had substantially been heard and on that day no case was pending before the Division Bench, and the judgment in that case may not have any bearing on these cases, it is desirable to conclude the hearing in these cases.

15. Issue involved herein is no more res-integra. The Hon'ble Supreme Court in Raees Ahmed v. State of U.P, and Ors. (11) considered a similar controversy while interpreting the analogous provisions of U.P. Municipalities Act 1916, which provided that no-confidence motion can be passed by majority of 2/3 of the "total number" of member of the Municipality. The Court, while interpreting the term "total number", held that it included the nominated members for the reason that nominated members are also part of composition of the municipality and are referred to in the Statute as nominated members thereof. The Court held as under:-

"For the purpose of finding whether a motion of no-confidence against the President has been carried, what was to be seen is whether it has been passed by 'a majority of 2/3 of the total members of the municipality'. There can be no doubt, therefore, that on a plain construction of the Statute, the number of nominate members has to be taken into account in determining whether or not a motion of no-confidence against the President has been carried..... that nominated members may not vote does not imply that they cease to be members of the municipality or that their number should be ignored in determining whether the President has lost this confidence of 213 of the members so calculated."

16. In view of the fact that learned counsel for the respondents could not point out any difference in the provisions of the Act and the Rules herein that from the aforesaid U.P. Case, the case is squarely covered by the said judgment of the Hon'ble Supreme Court.

17. While interpreting the provision of the Act involved herein, a Division Bench of this Court in Yogesh Chandra Saini v. State of Rajasthan (12), observed as under :-

"To sum up, the above study of the rules clearly discloses that every member of the Board, whether brought in it by direct election or by co-option or by nomination, had a right to take part in the conduct of the business of the Board. The matter of removal of the Chairperson or, as the case may be, the Vice Chairperson was specifically governed by the No-confidence motion Rules...... Such motion could have been carried out only by 2/3rd majority of the whole number of members which expression included such members also who were representatives in the Municipality otherwise than as 'directly elected members'.

18. The Government of Rajasthan, while deciding a Revision No.F.53 (34):

Smt. Sangeeta Midha v. Sub-Divisional Officer, Hanumangarh, on 18.10.2001 (13), has placed reliance upon a decision of the Hon'ble Supreme Court in Raees Ahmed (supra) and decided the case accordingly.

19. Thus, in view of the above, for passing a no-confidence motion, admittedly there had not been 2/3 majority of the Total Members of the Board. The petition deserves to be allowed on that count.

20. It has been contended by the learned counsel for the respondents that the local M.L.A. has not taken the oath as mandatorily required under Section 61 of the Act, therefore, he cannot be counted for calculating the "total numbers" of members of the Municipality. This contention is not worth consideration in view of the Division Bench judgment of this Court in Yogesh Chandra Saini (supra), wherein it has categorically been held that a member of Legislative Assembly does not require to take oath afresh as required under Section 61 of the Act.

21. Learned counsel for the respondents have vehemently submitted that nominated members in this case cannot be counted for calculating the "total number" of members of the Board for the reason that the said members had not taken oath within the period prescribed under Section 61 of the Act See. 61 reads as under:-

"(1) Every member shall, before entering upon his duty as such, make and subscribe before the Collector or his nominee for the purpose an oath and affirmation in the prescribed form.

(2) Any member who fails to comply with the provisions of Sub-section (1) with a period of three months from the date of first meeting of the Board, shall be deemed to have vacated his seat."

22. It is evident from the aforesaid provisions that every member must take oath within a period of three months from the date of the first meeting of the Board.

23. That oath of the nominated members could not be administered at an earlier stage for the reason that the State Government itself was not clear whether the nominated members should also be administered the oath of the Office. The State Government issued an order dated 15.01.2001 and made it clear that if oath had not already been administered to such nominated members, it may be administered within a period of three months from 15.01.2001 or the date of notification regarding nomination, which ever was later Mr. Lodha has submitted that in view of the fact that the Government itself was not clear and had issued the Circular on 15.01.2001 to administer the oath within the period of three months thereof and even if for the fault of the State Government, the nominated members could not take oath earlier, they cannot be excluded from the total number for the reason that it was beyond their control. Such a submission is fortified from the judgment of the Hon'ble Supreme Court in Narendra Chadha and Ors. v. Union of India and Ors. (14) wherein the Hon'ble Apex Court placed reliance upon the judgment of the Privy Counsel in Montrial Street Railway Company Normandin (15) wherein the Privy Council held that a person cannot be held responsible for a thing which was beyond his control. Thus, it has been submitted by Mr. Lodha that it was an inaction and apathy on the part of the State Administration and nominated members have not committed any fault, therefore, the said nominated members have to be counted for that purpose.

24. In the instant case admittedly, Bakta Ram, the nominated member, took oath on 05.03.2001, within the period of three months from the last meeting of the Board, which took place on 19.12.2000. Raghunath Bishnoi took the oath on 16.04.2001 within the period of three months from the notification issued by the Government on 15.01.2001. Three months expired on 15.04.2001 but he took oath on .16.04.2001, for the reason that 15.04.2001 was Sunday. The Hon'ble Supreme Court in Chandra Kishore Jha v. Mahavir Prasad and Ors. (16) propounded the doctrine of impossibility the while considering the period of limitation for filing election petition and held that if the limitation expired on holiday it should be accepted on the next day on opening for the reason that the law does not expect a person to do impossible impossibilium nulla obligatio est.

25. Similar view has been reiterated in Mohammed Gazi v. State of M.P. (17); and International Woolen Mills v. Standard Wool (OK) Ltd. (18). This Court has also taken the similar view in State of Rajasthan and Ors. v. Tara (19).

26. Similar averments have been made by Mr. Lodha in reply to the submissions made by the opposite counsel that the oath had not been administered by the competent authority, nor it had been administered in the prescribed form. Section 61 of the Act provides for subscribing the oath before the Collector or his nominee for the purpose in the prescribed form. The oath had been administered by the Sub-Divisional Magistrate, Bhinmal. It has not been the case of the State nor Mr. Mehla appearing for the State could place any material on record to show that he had not been authorised by the District Collector. In absence of any document to show otherwise, it cannot be assumed that the oath had been administered by an unauthorised person. There is a presumption that official acts are regularly performed though such a presumption can be rebutted by adducing sufficient material. [Vide : Jhaman Lal v. State of Rajasthan and Ors. (20); Somasudarshan Gaud v. The District Collector, Hyderabad and Anr., (21); Ganga Ram v. Smt. Phulwati (22); and Saheed Ahmed v. Syed Qumar Ali and Anr. (23).

27. A Constitution Bench of the Hon'ble Supreme Court in Gopal Narain v. State of U.P. and Ors. (24) held that there is a presumption, when a statutory authority makes an order, that it has followed the prescribed procedure and such a presumption can only be rebutted by adducing appropriate evidence. However, the party, which makes an allegation that the act has not regularly been performed, the onus to prove lies upon him that the proper procedure has not been followed or the act has not been performed as was required under the law.

28. In Maharaja Pratap Bahadur Singh v. Thakur Man Mohan Dey and Ors. (25) the Hon'ble Supreme Court considered the scope of Illustration (e) of Section 114 of the Evidence Act and the question was : whether the Deputy Commissioner, who performed the particular function, had ever been authorised to act. The Court held that if an official act is proved to have been done, it Will be presumed to have been regularly done and in such an eventuality and circumstance, the Court can "reasonably presume that the Deputy Commissioner, under appropriate rules, was duly authorised to act' on behalf of the Authority concerned.

29. Another Constitution Bench of the Hon'ble Supreme Court, in Ajit Singh v. State of Punjab and Ors. (26) considered the case where the issue had been raised that the Consolidation Officer had never been appointed to perform the function of the said office and the order of his appointment had never been produced. The Hon'ble Court held that such an objection can hardly be entertained in the face of presumption under Section 114 of the Indian Evidence Act and, thus, it was observed that the officers should have acted under due authorization.

30. A Constitution Bench of the Hon'ble Supreme Court in State of Punjab v. Satya Pal Dang and Ors. (27) dealt with the prorogation issued by the Governor. The Court observed as under:-

"We are bound to take judicial notice of the prorogation and presume the regularity of these actions which must be interpreted as far as possible so that the things done may be valid rather than invalid."

31. In Narayan Govind Gavate v. State of Maharashtra and Ors. (28) the Hon'ble Supreme Court observed that presumption provided in Illustration (e) of Section 114, of the Evidence Act is based on well-known maxim of law "omnia praesumuntur rite esse acta" (i.e. all acts are presumed to have been rightly and regularly done). The Court further held that this presumption is, however, one of the fact. It is an optional presumption and can be displaced by the circumstances, indicating that the power lodged in an authority or official has not been exercised in accordance with law. Similar view has been reiterated in Sone Lal and Ors. v. State of U.P. and Ors. (20); Municipal Board, Saharanpur v. Imperial Tobacco of India Ltd. and Ors. (30); K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr. (31); Kiran Gupta v. Slate of U.P. and Ors. (32); Suppt. Narcotics Control Bureau v. R. Paulsamy (33); and the State Government of NCT Delhi v. Sunil and Anr. (34).

32. Thus, it is clear that in law there is a presumption that official acts have regularly been performed and such presumption can be rebutted only by adding evidence. A mere bald denial of such a performance is not sufficient to rebut the said presumption. In the instant case respondents have not produced any evidence on the basis of which such a presumption can be held to have stood rebutted. Thus, it can be held that the oath had been administered by the Sub-Divisional Officer, on being authorised by the District Collector.

33. So far as the proforma of oath is concerned, Mr.Bakta Ram had taken oath on the basis of proforma whatever had been given to him by the Competent Authority administering the oath. Thus, no fault can be found on that count. A Division Bench of Allahabad High Court, in Shabbir v. Slate (35), considered a case where the High Court Judges had taken the oath in the Old Proforma and not in accordance with the amended proforma. The Court held that though subscribing the oath required by law is mandatory and a person can only enter upon his office after making and subscribing the oath required by law and it is the administration of oath that marks the induction into the office; but taking the oath in a proforma not strictly in accordance with one for the time being in force, may be irregular but cannot be held to be fatal.

34. Moreso, Rule 69 of the Rajasthan Municipalities (Election) Rules, 1994, provides for the proforma of oath and the oath taken by the nominated members, as filed along with the documents, i.e. Annex.R/l, is exactly the true translation of the said oath- proforma prescribed under the said rule; though in exercise of the powers under Section 297 of the Act, 1959, an oath-proforma has been prescribed which is not exactly the same as prescribed under the said Rule 69. In the proforma prescribed under Section 297 of the Act, the words "nominated member" have been added, otherwise there is no difference.

35. In view of the judgment of the Allahabad High Court even if there has been some irregularity in taking oath, that cannot be fatal.

36. Moreso, such grounds had not been considered by the State at all while passing the impugned orders. The respondents cannot be permitted to fill up the blank by additional grounds which were not taken into account while passing the orders at all. A Constitution Bench of the Hon'ble Supreme Court, in Mohinder Sirigh Gill v. Chief Election, Commissioner, New Delhi (36) held as under: -

"When the Statutory Functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of additional affidavit or otherwise; otherwise an order bad in the beginning may by the time it comes to the Court on account of challenge gets validated by additional grounds later brought out."

37. Bakta Ram continued as a member till his death i.e. September, 2001 and the other member has been acting and drawing the allowance etc. till today. Thus, contention raised by the respondents on this count has no force. It has further been submitted by Mr. Lodha that impugned action has been taken by respondent No. 4 as explained in the FAX message issued by the State Government on 31.03.2001 providing that in Bhinmal, as one member was under suspension and he could not participate in the proceedings, seventeen members were required to carry the no- confidence motion (Annex. 4). Mr. Lodha has submitted that respondent No. 4 could not have acted on the instructions of the State Government and should have reached his own decision.

38. It is settled proposition of law that when Statute confers power on a particular Authority or person to perform certain functions, it cannot be exercised by any other person. [Vide: Toda Rarn v. State of Rajasthan and Ors. (37); Karan Singhji Jedeja and Anr. v. State of Gujarat and Ors. (38); State of U.P. and Ors. v. Ram Naresh Lal

37. Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly and Anr.

38. Board of High School & Intermediate Education, U.P., Allahabad v. Ghanshyam Das Gupta (41); Smt. Maneka Gandhi v. Union of India and Anr. (42) and Chandra Jha v. State of Bihar and Ors. (43).

39. In the Purtabpur Company Ltd. v. Cane Commissioner of Bihar and Ors. (44) the Hon'ble Supreme Court has observed as under:-

"The powers exercisable by the Cane Commissioner under Clause 6(1) is statutory power. He alone could have exercised that power. While exercising that power, he cannot obligate his responsibilities in favour of anyone; not even in favour of the State Government or the Chief Minister. It was not proper for the Chief Minister to have interfered with the functions of the Cane Commissioner..... The Executive Officers, entrusted with statutory discretion, may, in some cases, be obliged to take into account consideration of public policy and in some context the policy of the Minister or the Government as the whole when it is relevant factor in weighing the policy but this will not absolve them from the duly to exercise the personal judgment in individual case unless explicit statutory provisions have been made for them to be given binding instructions by a superior."

40. Similarly, in Tarlochan Devi Sharma v. State of Punjab and Ors. (45) the Hon'ble Supreme Court, after placing reliance upon a large number of its earlier judgment, observed as under :-

"In the system of Indian democratic governance, as contemplated by the Constitution, senior officers occupying good position as Secretaries, are not supposed to mortgage their own discretion, volition and decision-making authority and be prepared to give way or being pushed back or pressed ahead at the behest of the politicians for carrying out command having no sanctity in law..... No Government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior."

41. Thus, the competent authority ought not to have been influenced by the FAX Message that for passing the no-confidence motion only 17 votes were required. Mr. Mehta, appearing for the State could not explain as what was the occasion for the State Government to send such a FAX Then remains the issue of suspension of one member of the Board, viz., Raja Ram Bhil. It has been submitted on behalf of the respondents that he had been put under suspension at the behest of petitioner Guman Mal, therefore, he cannot be permitted to take the plea that he had been put under suspension with the mala fide intention. He was the signatory of no-confidence motion but could not vote for the reason of his suspension. The suspension was recommended by the Executive Officer of the Board on 10.11.2001 as is evident from Annex. R/6/2, It does not bear the signature of the petitioner, who was the then Chairman, therefore, it cannot be held that it had been at the behest of the petitioner. Moreso, it had been recommended long back, i.e. four months prior to voting on no-confidence motion, therefore, it cannot be held to have any bearing because having no close proximity of time. Sub-section (4) of Section 63 provides only for not allowing a member to work or vote or participate in the meeting of the Board but as he does not cease to be a member of the Board, he is to be counted to determine the total numbers as Section 63(1-A) of the Act provides that office shall stand vacated only on passing the order of removal.

42. Undoubtedly, a Full Bench of this Court, in Bhura Lal v. State of Rajasthan (46) for suspension, used the words "temporarily removed from holding the elective office", but it stood qualified further with words that it is so only to prevent him from further action prejudicially. Undoubtedly, the Full Bench has used the term "temporary removal" but it was only to explain that during suspension, the member was not permitted to act.

43. In Dr. Chandra Bose v. State of Rajasthan (47) this Court considered the scope of suspension under the provisions involved herein, wherein the issue had been that a Chairman of the Municipal Board, who had been put under suspension in exercise of the power under Section 63 (l)(d) and also from her original Membership of the Ward, whether she can be treated as removed, making her disqualified to contest the election during pendency of the judicial inquiry. The Court held that suspension did not amount to removal and making the person disqualified to contest the election during suspension, was not permissible. She was held to be entitled to file nomination paper being eligible for re- election in the forthcoming election of the Municipal Board.

44. Therefore, in view of the above, it cannot be held that the person, during suspension, ceases to be the member of the Board.

45. In view of the above, it is evident that ex-officio member, nominated members as well as member under suspension have to be taken into consideration while determining the "total number" of the Board. In the instant case, even if the member under suspension is not added, while calculating the total number, the result would remain the same. As the no-confidence motion has not been passed by 2/3rd majority of the total number of the members of the Board, petitions deserves to be allowed. The petitioners are accordingly allowed. Impugned resolution dated 31.03.2001 and any consequential order is hereby quashed. There shall be no order as to costs.

Unlock Advanced Research with PRISMAI

Rajasthan High Court - Jaipur