TARA CHAND Vs. STATE OF PUNJAB AND OTHERS

JUDGEMENT

(1.) This is a petition under Articles 226 and 227 of the Constitution filed by Tara Chand challenging the legality of the order dated 15th of November, 1967 passed by the Director, Local Government, Punjab, Chandigarh, respondent No. 2.

(2.) The elections to the Municipality Kharar, district Rupar, were held on 2nd October, 1967, in which the petitioner, along with ten others, was elected a member. These elections were held in accordance with the programme published under Rule 3 of the Punjab Municipal Election Rules, 1952 (hereinafter called the Rules). The election of the petitioner along with others was notified by the Deputy Commissioner, Rupar, in the Punjab Government Gazette dated 13th of October, 1967 as required by Section 24(1) of the Punjab Municipal Act, 1911 (hereinafter referred to as the Act), this being a Municipality of the second class. The members of this newly elected Committee had to take oath of allegiance and then elect one of them as President of the Committee under Sections 24 and 20 of the Act. Under Rule 5 of the Rules, the Deputy Commissioner or any gazetted officer appointed by him in that behalf, was empowered to convene the first meeting of the newly constituted Committee within a period of 14 days of the publication of the notification of the election of the members of that Committee, after giving them 48 hours notice, for administering the oath and then electing a President and a Vice-President. On 21st October, 1967, the Deputy Commissioner, Rupar, in exercise of the powers conferred on him under Rule 5, appointed Shri K.N. Kashyap, Sub-Divisional Officer (Civil) Kharar, to perform all functions on his behalf that Rule in regard to the newly constituted Committee of Kharar Municipality. On that very day, Shri K.N. Kashyap issued a notice for, convening the said first meeting on 24th of October, 1967. This notice, according to the petitioner, was duly served on the same date, i.e. 21st October, 1967, on all the elected members personally. The meeting was then held on 24th October, 1967 under the chairmanship of shri K.N. Kashyap at 11 a.m., the time fixed in the notice. Out of the 11 elected members, only three, namely, the petitioner, Shri Kishan and Naranjan Dass were present. The oath of allegiance was then administered to the members present. After that, question arose as to whether the meeting was a proper one for the election of the President and the Vice-President inasmuch as only three out of the 11 members were present. Shri K.N. Kashyap held that the meeting convened was neither a special nor an ordinary one for which the quorum had been filed and, therefore, the election of the President and Vice-President could be held. In order to avoid any subsequent objections, he however, contacted Shri K.K. Mookerjee, IAS, Director, Local Government, Punjab, on telephone and sought his advice. He too was of the same opinion and said that the only precaution to be taken was that it should be verified that 48 hours notice had been served on all the members. That having been done, the election of the President and Vice-President was held and the petitioner was unanimously elected as the President and Shri Kishan the Vice-President. The proceedings of administering the oath and of holding the election of the President and Vice-President were duly recorded as required by Rule 5. On 31st of October, 1967, the papers regarding the election of the President were sent by Shri Kashyap for the approval of the Director, Local Government, Punjab as required by Section 20(1) of the Act. The Director was also requested to notify the petitioner's name after according his approval. On 15th of November, 1967, the Director, however, instead of giving approval to the election of the President addressed a communication to the Deputy Commissioner, Rupar, advising him to convene another meeting of the Committee, where the oath of allegiance should be administered to the other members and then hold a fresh election in accordance with law, because the quorum necessary for holding the meeting as laid down in Section 27(2) of the Act and bye-law No. 5 of the Business Bye-laws of the Municipality Kharar, was not there on 24th of October, 1967 and, consequently, the elections held at that meeting were illegal. That led to the filing of the present writ petition on 20th November, 1967.

(3.) It was contended by the learned counsel for the petitioner that the meeting held on 24th October, 1967 was neither a special nor a general meeting as envisaged under the provisions of the Act. The said meeting was convened under Rule 5, whereunder no quorum was prescribed. Rule 5 specifically dealt with the convening by the Deputy Commissioner of the first meeting of the newly constituted Committee for administering the oath of allegiance to the members elected and thereafter electing the President and the Vice-President of the Committee. No quorum, according to the learned counsel, had been prescribed for such a meeting in the said Rule. After the type of notice mentioned in the Rule had been served on the newly elected members, the Deputy Commissioner or any gazetted officer appointed by him in that behalf, had to administer the oath of allegiance to the members present and thereafter the President and the Vice-President had to be elected. It was also provided in the Rule that the said meeting would be deemed a validly convened meeting of the Committee, notwithstanding anything contained in any bye-laws made under the provisions of Section 31 of the Act. The meeting convened under this Rule, according to the learned counsel, was a special type of meeting. The quorum provided for in Section 27 of the Act was for ordinary and special meetings held for the conduct of the business by the Municipal Committee. No business as such was to be conducted in the first meeting of the newly constituted Committee under Rule 5. The petitioner had been duly elected in the meeting held on 24th of October, 1967 and the State Government could not withhold its approval to the election of the petitioner on the ground that the election held in that meeting was illegal, inasmuch as the quorum necessary for the meeting as laid down in Section 27(2) of the Act read with Bye-law No. 5 framed by the Municipal Committee, Kharar, under the provisions of the Act was not there. In the alternative, the argument of the learned counsel was that if the meeting convened under Rule 5 was to be treated as an ordinary meeting, as held by the Director, Local Government, Punjab, while passing the impugned order, the quorum required for such a meeting was complete on 24th of October, 1967. According to Section 27(2), the quorum necessary for the transaction of business at an ordinary meeting of a Committee shall be such number or proportion of the members of the Committee as may, from time to time, be fixed by the Bye-laws, but it shall not be less than 3. According to Bye-law No. 5 framed by this Committee, the quorum for an ordinary meeting had to be atleast 1/3rd of the total number of members actually serving at the time, but it had not to be less than 3 in any case. The number of members present on 24th October, 1967 was undoubtedly three. According to the learned counsel, the total number of members actually serving at the time when the meeting was held was 3, because only three elected members had been administered the oath of allegiance. It was only when an elected member had been administered the oath of allegiance that he could enter upon his duties under Section 24 of the Act and it was after he had so entered that it could be said that he was actually serving. In the instant case, only three elected members had taken the oath and it were they who had entered upon their duties and were actually serving at the time. According to Bye-law No. 5, the requirement regarding quorum, as already mentioned above, was that it should be 1/3rd of the total number of members actually serving at the time. In th present case, it would, therefore, be one. But since the Bye-law specifically provided that it could not be less than three in any case, the minimum number who had to be present for making the quorum was three and three members were admittedly present in that meeting. Under these circumstances, according to the learned counsel, the Director, Local Government, had erred in law in holding that the quorum was not complete on 24th October, 1967 and therefore, elections held in that meeting were not valid. It was also submitted that Section 20 of the Act was hit by Article 14 of the Constitution, inasmuch as it gave unguided and arbitrary powers to the State Government for withholding the approval to the election of the President of the Committee. No principles had been laid down either in the Act or in the Rules framed thereunder for the guidance of the persons concerned for giving or withholding the said approval.