RADHEY SHYAM Vs. VIJAI SINGH DISTRICT MAGISTRATE

JUDGEMENT

(1.) PETITIONER Radhey Shyam has filed this writ petition under Article 226 of the Constitution to challenge the vote of non -confidence passed by the Municipal Council of Shri Ganganagar on 18th of September, 1971, against the petitioner who was holding the office of the Vice -Chairman of the said Council.

(2.) THE petitioner was the elected Vice -Chairman of the Municipal Council, Sri Ganganagar which was constituted after general elections held in, the month of October, 1970. It is alleged that there were two rival groups in the said Council, one backed by the party in power and the other by Shri Sugan Chand respondent No. 20 who had held the office of the Chairman just before the present Board was constituted. A motion of non -confidence was sponsored by a group opposing the petitioner's group and a notice thereof was given to the Collector. It is said that notice contained the signatures of 17 persons, namely, non -petitioners Nos. 4 to 20. The Collector, Sri Ganganagar, in compliance with the requirements of Section 72 of the Rajasthan Municipalities Act, 1959 (hereinafter called the Act) issued under Sub -section (3) of that section notices to all the members of the Council on 11th of September, 1971, informing each one of them that a meeting to consider the motion of non -confidence in the Vice Chairman shall be held on 18th of September, 1971. These notices were despatched from the Collector's office on 11th of September and they were sent through the post office under registered cover. Petitioner's contention is that he did not receive any such notice till 20th of September, 1971 and like him many other members of the Board also did not receive such notices with the result that a motion of non -confidence was adopted by 16 persons who attended the meeting on the 18th of September, 1971. Though the motion was adopted by a majority of votes, as there were only 30 members of the Municipal Council, the petitioner's content, on is that the resolution adopted was ab initio void as the meeting was convened on the 18th of September, 1971, in clear violation of the mandatory provisions of Sub -section (3) of Section 72 of the Act which requires the prescribed authority, that is, the Collector, to send a notice by registered post not less than seven clear days before the date of meeting. It is also contended that the notices sent by the Collector were also ambiguous as first of all the Collector fixed 20th of September, 1971, as the date of the meeting and thereafter this date was cut and 19th of September, was written and it so appears that after fixing 19th it was again cut and 18th was inserted in place of 19th. The petitioner has placed certain original notices, which have been received by the members of the Council and they are all cyclostyled showing date 20th as cyclostyled and thereafter the change was made there in by inserting 19th and then 18th. The main ground on the basis of which a challenge has been thrown to the validity of the motion of non -confidence adopted by 16 members of the Council on 18th of September, 1971, is that the non -compliance of the mandatory provisions of the law has vitiated the motion and the resolution adopted by the Municipal Council. It is, therefore, prayed that by issuing an appropriate writ, order or direction it may be declared that the meeting convened in pursuance of a notice which was issued in clear violation of the mandatory provision of the law was illegally convened and the resolution adopted should, therefore, be quashed,

(3.) AS regards the non -compliance of the provisions of Sub -section (3) of Section 72 of the Act, it is averred that the provision of Sub -section (3) is a directory provision and even if there has been some irregularity in the despatch of notice by the Collector, it should not go to vitiate the validity of the resolution adopted by the Municipal Council expressing its non -confidence in the petitioner.