Decided on November 21,1960


Cited Judgements :-



SARJOO PROSAD, C. J. - (1.)THIS is a writ petition under Art. 226 of the Constitution of India presented by 65 tax-payers of the Municipal Board, Jalore. They have prayed that an appropriate writ be issued quashing the order of the Collector dated 28th July, 1960, whereby he suspended the implementation of various resolutions of the Board, and also for a suitable direction to the Government of Rajasthan to decide the question of disqualification of two members of the said Board.
(2.)THE last general elections to the Municipal Board, Jalore, were held in the month of May, 1958. THE strength of the Board is 8 elected and 2 nominated members. On 7th August, 1958, Shri Ugam See Modi, respondent No. 5, was elected Chairman and the Board commenced functioning from 9th August, 1958. THE Board worked well, but it is said that early in 1959 the Chairman came into conflict with a Minister in the State of Rajasthan and this conflict projected itself in the functioning of the Board. A vote of no-confidence was tabled against Shri Modi on 14th May, 1959. It is alleged that under some understanding between the parties interested Shri Modi agreed to resign and the motion of no-confidence was not pressed. Eventually Shri Modi also withdrew his resignation and as held by this Court in Writ Petition No. 319 of 1960 he continues to be the Chairman of the Board.
The alleged conflict apparently has given rise to two factions in the Board : the one headed by Shri Modi, the Chairman, consists of 4 members, while the opposition consists of 6 members - one seat remaining vacant due to a member having resigned. According to the petitioners the hostility between the two groups has paralised the efficiency of the Board and retarded its functioning in ensuring the civic amenities of the town. Of the 5 members in the opposition Sarva Shri Nihal Chand and Nath Mal, according to the petitioners, suffer from disqualifications under the Rajasthan Municipalities Act, 1959 ( Act No. 38 of 1959 - hereinafter called the Act ). These members became disqualified when the Act came into force on 17th October, 1959. The petitioner No. 1 on 22nd February, 1960, reported to the Government of Rajasthan that Shri Nihal Chand on his own showing was dismissed from the Chief Court of Jodhpur in 1934 and, therefore, had become disqualified to serve as a member of the Board under sec. 26 (iii) of the Act. The petitioners submit that the matter has been pending since then for about the last eight months and the Government has taken no action thereon. Another report was submitted to the Government regarding the disqualification suffered by Shri Nath Mal on account of his being a proprietor or Mahavir Printing Press which has been undertaking printing job for the Board and receiving payments therefor, notwithstanding the fact that the proprietor is a. member of the said Board. A notice to show cause, the petitioners allege, has been served upon Shri Nath Mal, but it is a mere eye-wash. The petitioners further submit that the inaction or tardy action regarding Shri Nihal Chand's disqualification and that of Shri Nath Mal are due to the tact that these two members were useful in seeking to oust the Chairman Shri Modi.

On 18th July, 1960, a general meeting of the Board took place. All the 9 members were present. The petitioner No. 1 and some of the citizens of the town were a so present as on lookers. At the meeting a dispute arose regarding confirmation of the minutes of the previous meeting and it is alleged that the opposition group of 5 members adopted an obstructive attitude. The Chairman held that in view of the ruling of this Court (Deodutt Sharma Vs. Collector, Ajmer - 1960 Rajasthan Law Weekly, 420) he was entitled to declare and he declared that these two members Sarva Shri Nihal Chand and Nath Mal were not entitled to vote as they stood disqualified even though the Government had not disqualified them. After the above declaration the meeting degenerated into a pandemonium and the Chairman finding himself unable to transact any further business dismissed the meeting and left the Board. The day following on 19th July, 1960, a special general meeting is said to have been called by the Chairman for transacting the agenda which had remained unfinished on the 18th and for certain other items. The 3 members in the opposition group refused to take notice and did not attend. The Chairman and 3 other members met on the 19th July and passed a number of resolutions including the one relating to lighting in the town, promotion of a girls school in Jalore and also for legal action against sarva Shri Nihal Chand and Nath Mal with a view to exclude their continued obstruction in business of the Board,

It appears that the Collector of Jalore was approached by the 5 opposition members who represented to him that the proceedings of the meeting of the 19th July, 1960, were 1 legal because they had not been given any notice of the said meeting or its agenda. On 26th July 1960, the Collector purporting to exercise his powers under sec. 285 of the Act passed the order under challenge which suspended all the resolutions passed on the 18th and 19th July save one, and on 16th August, 1960, the petitioners presented this writ petition.

Shri Ugam See Modi, respondent No. 5, the Chairman of the Board, has filed an answer to the petition. He has generally supported the petitioners' case and has further submitted that the opposition group of 5 members took away the rough notes of the proceedings of the meeting of 18th July, 1960, from the office of the Board and also the minute book of the proceedings: that the Director of Local Bodies, Rajasthan, Jaipur, who was approached regarding the disqualification of the two members expressed his helplessness in the matter which led the Chairman to act 111 accordance with the law laid down by Dave J. in Deodutt's case: that on account of the suspension of the resolutions of the 19th July, two-third of the town remained in darkness because the Collector suspended even the resolution for funds to be expended on lighting.

The respondents Nos. 3 and 4 Sarva Shri Nathmal and Nithalchand in their counter affidavit have alleged that the working of the Chairman being undemocratic the Board could not function properly. They have denied the alleged conflict between the Chairman and Shri Nathu Ram Mirdha, a Minister of the State, and claimed that the vote of no-confidence was not pursued against the Chairman because he had given assurance to resign and because of the resignation submitted by him he automatically ceased to be the Chairman of the Board. They have also supported the order passed by the Collector as being perfectly legal and necessitated by the unauthorised conduct of the Chairman. It is further alleged that though Nihal Chand, respondent No. 3, was discharged from service by the former Jodhpur State, it was not on account of any misconduct: and, therefore, he was not disqualified under sec. 26 (iii) of the Act. These respondents on the contrary took the plea that the Government of Rajasthan has been siding with the Chairman as no enquiry has been made against him inspite of many complaints. They further admit that the relations between the Chairman and the respondent No. 4 had been strained and there is litigation going on between them. While admitting also that certain orders have been passed by the Chairman on Shri Nathmal respondent No. 3 who is a proprietor of Mahavir Printing Press, it is pleaded that it does not amount to any disqualification under sec. 26 (xii) of the Act. Regarding the incident which happened in the meeting of the 18th July, respondents Nos. 3 and 4 all ge that the majority refused to confirm the minute of the previous meeting as they were incorrect and unauthorised and thereupon the Chairman left the meeting and went away. The remaining members who were then in quorum continued the meeting, considered the unfinished agenda and passed resolutions and drew up the minutes. It is admitted, however, that the Chairman made attempts to restrain the respondents Nos. 3 and 4 from exercising their rights of vote but he was not allowed to do so. They further say that the resolutions passed by the Chairman and his party in the meeting of 19th July, 1960, were entirely unauthorised and illegal. They have also contested the petitioners' locus standi and their right to move this Court on the ground that their proper remedy was to move the Government. The respondents Nos. 3 and 4 have also alleged that they had instituted a civil suit challenging the legality of order No. 210 dated 30th March, 1960, passed by the Chairman disqualifying respondent No. 4; and that the said suit has been decreed by the Munsif, Jalore, who issued a perpetual injunction against the respondent No. 5. The said decree is pending in appeal before the Senior Civil Judge, Jalore. This important fact having been concealed by the petitioners their petition should be dismissed on that account. The State of Rajasthan and the Collector have also filed a reply. They have pleaded justification for the order passed by the Collector on the authority of the law and submitted that since the enquiry was pending, they wished to keep their minds open. According to them the Collector has been authorised by the State Government under notification No. F. 4 (34)/lsg/a/59-lv dated 31st December, 1959, to exercise powers under sec. 285 of the Act.

We have heard Shri V. P. Tyagi on behalf of the petitioners, Shri Kan Singh, Government Advocate on behalf of the State and Collector, Shri Bhargava on behalf of respondent No. 5 Shri Ugam See Modi and Shri Hastimal on behalf of respondents Nos. 3 and 4.

Before we examine the petitioners' contentions on merits it will be proper to consider the preliminary objections raised by the learned Government Advocate and partly supported by Shri Hastimal. These are: - (1) That the present petitioners have no locus standi to move this Court because none of their legal rights has been infringed. (2) That the Board is a necessary party to these proceedings and in its absence the present petition must fail, The learned Government Advocate relied upon State of Orissa Vs. Madan Gopal (1) and the State of Madhya Pradesh Vs. G. C. Mandawar (2 ).

(3.)IN the first case which relates to the cancellation of mining leases by the State of Orissa, the High Court granted interim relief till a suit was instituted by the petitioners. On an appeal the Supreme Court held that Article 226 could not be used for the mere purpose of giving interim relief as the only and final relief on the application as the High Court had purported to do. IN the course of the judgment the Supreme Court observed as follows: - "the language of the Article shows that the issuing of writs or directions by the Court is founded only on its decision that a right of the aggrieved party under Part III of the Constitution (Fundamental Rights) has been infringed. It can also issue writs or give similar directions for any other purpose. The concluding words of Art. 226 have to be read in the context of what precedes the same. Therefore the existence of the right is the foundation of the exercise of jurisdiction of the Court under this Article. "
In the second case some Government servants of the State of Madhya Pradesh complained that the dearness allowance which was being granted to the Union servants within the territory of the State was higher than that which was being given to the servants of the State. They complained that it amounted to discrimination. The Supreme Court observed that Rule 44 of the Fundamental Rules confers no right on the Government servants to the grant of dearness allowance. The Court also observed that because the sources of authority for the two statutes were different, Article 14 of the Constitution can have no application. The learned Government Advocate on the basis of these two precedents has urged that unless there is a legal right in the petitioners the extraordinary jurisdiction of this Court could not be invoked by them under Article 226 of the Constitution of India. As a general proposition of law it cannot be disputed that unless there is an infraction actual or threatened of some legal right of the applicant or the applicant has direct interest in the enforcement of some legal right he cannot invoke the aid of the Court under Article 226 of the Constitution of India. The short question, therefore, is whether the petitioners in the instant case have any legal right residing in them so far as the subject matter of this controversy is concerned. A reference to the Act would go to show that the residents of the various wards in a municipal Board are the electors who return the members of the Board. These elected members go to compose a Municipal Board and the Board inter alia has certain primary and secondary functions which are to be discharged by it towards the citizens residing within the limits of the Board. There are a number of duties thus cast by the Act on the Board which is its creature with corresponding legal rights in the citizens or electors and they can in appropriate cases evidently enforce these rights. As a logical corollary, whoever interferes in the performance of these can also be made answerable to the electors and rate-payers who have a right to see that the Board functions in accordance with the law. It is in our opinion incorrect to say that the petitioners as electors and ratepayers of Jalore are strangers to the complaint with which they have come to this Court. They have thus every right to agitate against any unauthorised interference with the proper functioning of the Board in providing for their civic amenities.

The next objection is sought to be supported on the authority of the Supreme Court decision in Charanjitlal Vs. Union of India (4 ). In this case an ordinary share-holder of Sholapur Spinning and Weaving Company Ltd. , prayed for a writ of mandamus and certain other reliefs under Art. 32 of the Constitution of India challenging the validity of Sholapur Spinning and Weaving Company (Emergency Provisions) Act of 1950. Their Lordships observed as follows: - "the company and the shareholders are in law separate entities, and if the allegation is made that any property belonging to the company has been taken possession of without compensation or the right enjoyed by the company under Art. 19 (1) (f) has been infringed, it would be for the company to come forward to assert or vindicate its own rights and not for any individual shareholder to do so. " On this analogy the learned Government Advocate argued that the electors who created the Board were distinct from the Board which has an independent entity of its own and the petitioners therefore cannot assail the actions of the Board without making the Board a party. In our opinion this objection has no substance. A Municipal Board is essentially different from a company. A Board is a creature of the statute and is invested with powers of taxation, punishment, regulation and so on. In fact it discharges several governmental functions subject to limitations provided by the law. Under Art. 12 of the Constitution it is included in the definition of "state'' itself. A company, on the other hand, is the outcome of a contract which acquires a corporate charter and legal personality because the relevant statute so permits. Citizens residing within a Board cannot be treated at par with shareholders of a company. This basic difference apart, what is being challenged in the present petit on is not any action of the Board but the action of the Collector and the inaction of Government. The Chairman of the Board is also a party to the proceeding in addition to the Collector and the State of Rajasthan. The preliminary objections, therefore, fail.

Shri V. P. Tyagi at the outset abandoned his prayer for a writ of quo warranto against the respondents Nos. 3 and 4. He has, however, pressed his prayer for quashing the order of the Collector dated 28th July, 1960, and for a writ of mandamus or a writ in the nature thereof against the State for taking appropriate action against Sarva Shri Nihal Chand and Nathmal. Mainly two points, therefore, arise for determination: (1) whether the Collector's order dated 26th July, 1960 under sec. 285 of the Act is legal; and (2) whether in the circumstances of the case any direction should be issued to the State of Rajasthan. We may take-up the points in their order.


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