RAMESHWAR PRASAD Vs. COLLECTOR BHARATPUR

JUDGEMENT

(1.) THIS is an application under Art. 226 of the Indian Constitution by one Shri Rameshwar Prasad Modi praying for the issue of a writ in the nature of certiorari or any other appropriate writ, order or direction to remove the resolution dated 27. 8. 1960 declaring the motion of no-confidence as carried out against the petitioner Chairman; and "writ in the nature of prohibition or any other appropriate writ or order restraining the respondent No. 1 the Collector Bharatpur from enforcing the effect of the impugned resolution. Further prayers for restraining a fresh election of Chairman and interference with petitioner discharging duties as Chairman by the petitioner have also been made.

(2.) THE material facts are these: THE petitioner was elected a member of the Municipal Board on 6. 1. 1958, and later on, on 18. 6. 1958 he was elected Chairman of the Board. THE Board originally consisted of 18 members. One Shri Umraosingh, a member elected from Ward No. 16 died in the year 1959 and his seat remained vacant and it is not in dispute that the "whole number" or "total number of members" holding office at all material and relevant times was 17. On 24th July, 1960, a written notice of intention to make a motion of no confidence in the Chairman, the petitioner before us, signed by six members Sarv Sri Anant Prasad, Raghubir Singh, Kishan Gopal, Hari Shanker, Shamshuddin and Girraj Singh, respondents No. 13, 4, 16, 6, 9 and 5 respectively, marked Ex. P-5, was sent together with a copy of the motion marked Ex. P. 6 to the Collector Bharatpur, respondent No. 1, who is the prescribed authority for the purposes of provisions of sec. 72 of the Rajasthan Municipalities Act, 1959 (Act No. 38 of 1959 hereinafter referred to as the Act of 1959 ). Respondent No. 1, the prescribed authority, decided to convene a meeting to be held on 27th August, 1960 at 1 P. M. in the office of the Municipal Board. A notice dated 17th August, 1960 of the meeting was sent to the petitioner at first by express delivery and then by registered post, which is marked Ex. P-2.

(3.) THE opening sentence is ofcourse wide and disables persons suffering from disqualifications from standing as candidates for election, and further prevents them from continuing as members. THE section, however, does not say anything as to how the disqualifications can be noticed and given effect to. It will be convenient to point out at this stage that sec. 12 (2) of the Rajasthan Town Municipalities Act, 1951 (Act No. XXIII of 1951-hereinafter referred to as the Act of 1951) provided that "if any person elected or nominated as a member is subject to any of the disqualifications specified in sub-sec. (1), his seat shall be deemed to be vacant". Sub-sec. (5) of that Act further provided: - "if any question or dispute arises whether a vacancy has occurred under this section, the orders of the Government shall be final for the purpose of deciding such question or dispute. " THEre are, however, no similar provisions in sec. 26 of the Act of 1959. THEre are ofcourse, in the Act of 1959 various provisions under which disqualifications can be relied upon for appropriate action. Firstly, under sec. 34 (a) the election of a person as a member may be questioned by election petition on the ground that he was disqualified, to be chosen to fill the seat under the Act on the ground of disqualifications mentioned in sec. 26. Secondly, under Rule 6 (2) (a) of the Rajasthan Municipalities (Election of Chairman, Vice-Chairman, President and Vice-President) Rules, 1959 (hereinafter to be referred to as the Election Rules, 1959) a Returning Officer appointed for the purpose of holding and conducting an election of Chairman may reject nomination of a candidate on the ground that he suffers from any of the general disqualifications mentioned in sec. 26 of the Act of 1959. Similarly, under R. 3 (a) of the Rajasthan Municipal Boards' Chairmen and Vice-Chairmen and Municipal Councils' Presidents and Vice-Presidents (Election Petition) Rule, 1959 (hereinafter to be referred to as the Election Petition Rules, 1959), the election may be questioned on the ground of disqualifications mentioned in sec. 26. And, lastly, under sec. 63, disqualifications may be relied upon for enabling the State Government to remove a member but only after an inquiry and findings by a judicial officer of the rank of District Judge and only in conformity with his findings. On the basis of these provisions the case for the contesting respondents in opposition to the writ application may be appropriately stated as follows: - THE Act has made specific provisions for noticing and giving effect to disqualifications for several purposes, and that these various provisions contemplate Inquiries into the controversy and fair opportunity to all. Considering these provisions and the language of sec. 26, it does not contemplate that either the Chairman of the Board or a prescribed authority presiding over a meeting under sec. 72 of the Act of 1959 should be competent to notice and give effect to disqualifications and prevent members from exercising their rights, in a summary manner on what may very often be imperfect information and without inquiry and fair opportunity to the member concerned and that a member must be deemed to continue in office capable of exercising all rights untill removal or suspension under sec. 63. A provision in sec. 63 for the suspension of a member until the conclusion of the inquiry and the passing of a final order implicitly recognises the right of a member to continue until the valid declaration to the effect that he is disqualified.