BHAGWANDAS BURNWAL Vs. STATE OF U P

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution praying that a writ of mandamus be issued directing the opposite parties' Nos. 1, 2 and 3, the State of Uttar Pradesh, the District Magistrate of Mirzapur and the Civil and Sessions Judge of Mirzapur, not to act upon the resolution passed in the meeting of the 15th of December, 1956, purporting to be a motion of non-confidence against the petitioner as if passed by a majority of more than half members constituting the board. Further it is prayed that a mandamus be issued restraining the opposite parties Nos. 1 and 2 from interfering with the petitioner functioning as President of the board.

(2.) The petitioner was elected President of the Mirzapur Municipal Board in the general elections of the town in October 1953 on a Jan Sangh ticket. It is asserted by the petitioner that the members of the Congress Party in the Board were attempting to oust the petitioner from the presidentship of the Municipal Board. In the beginning of 1955 a non-confidence motion was moved but it was lost. Thereafter two attempts were made to get the petitioner removed from the presidentship by an order of the State Government; but by means of writ petitions to this Court the orders of the State Government were quashed. On the 12th of November 1956, a notice of intention to move a non-confidence motion in the petitioner was given to the District Magistrate of Mirzapur signed by 20 members. On the 27th of November 1956, a notice was issued by the District Magistrate convening a meeting of the Board to consider the resolution on the 15th of December 1956. Nineteen persons voted for the motion and eleven voted against it and five were absent on the 15th of December 1956. It is contended by the petitioner, that one Sri Rup Nath Jaiswal who was also one of the signatories to the notice of non-confidence sent his resignation from the membership of the Board to the State Government through the District Magistrate and did not participate in the meeting of the Board. Amongst those who voted for the resolution were Sri Rama Shanker Verma, Sri Syed Mohammad Aqil, Sri A. W. Jilani and Sri N.P. Sinha. The contention of the petitioner is that Sri Rana Shanker Verma and Sri Syed Muhammad Aqil are Additional District Government Counsel of the State of Uttar Pradesh. They are working in the panel of lawyers who act as Additional Government Pleaders in criminal cases in addition to the Government Pleader at Mirzapur, and they were thus disqualified to be members under the provisions of Section 13-D of the Municipalities Act. Sri N.P. Sinha had been in arrears of rent due to the Municipal Board in respect of a municipal plot situated in Mohalla Mukeri Bazaar which he holds on lease from the Municipal Board, Mirzapur, on an yearly rental of Rs. 206-4-0, in excess of one year's demand. A notice of demand was sent to him for payment of dues but he railed to clear them. On the 25th of September 1956, a complaint was also sent by one of the members of the Board to the Commissioner of Varnasi Division bringing to his notice the fact of arrears of Sri N.P. Sinha. Another complaint against Sri N.P. Sinha is that he is a member of a joint Hindu family. His father Sri Section Prasad and Sri N.P. Sinha both reside in their ancestral house in Mohalla Sabri in the town of Mirzapur. There is a water tap connection by which the Municipal Board supplies water and a flat tax of Rs. 10 for the cost of supply of water is charged. The family is in arrears in respect of those dues. Sri A. W. Jilatji resides in his ancestral house situated in Mohalla Muhant Ka Shiwala. This house has also got a water tap connection. Originally it was in the name of the father of Sri A.W. Jilani but after his death Sri A.W. Jilani is the owner and occupier of the house and resides in it, and is liable to pay tax.

(3.) In view of these facts the contention raised by the petitioner is that all these four members who voted in favour of the non-confidence motion were disqualified to be members under Section 13-D of the Municipalities Act. If their votes are eliminated only 15 persons voted in favour of the resolution which would not be the requisite majority under Section 87-A of the Municipalities Act inasmuch as the Board consists of 35 members.