Dave, J. - (1.)THIS is a writ application by Shri Deo Dutt Sharma under Article 226 of the Constitution of India.
(2.)IT is common ground between the parties that the petitioner was elected as a member of the Municipal Committee, Ajmer, under sec. 7 and 8 of the Ajmer-Merwara Municipalities Regulation, VI of 1925. The said municipal committee consisted of 32 elected members arid it began to function from 10th February, 1957. The elected Chairman of this Committee was one Shri Jwala Prasad but he tendered his resignation, and after its acceptance, the petitioner was elected to the office of chairman. A few members of the committee elected Shri P. C. Jain also as the chairman but his election was set aside by a decision of this Court in writ Petition No. 1 of 1959 decided on 24. 4. 59. The petitioner-then took charge of the office 6f chairman on 25. 5. 59. Thereafter, the Ajmer-Merwara Municipalities Regulation VI of 1925 was repealed by the Rajasthan Municipalities Act No. 38 of 1959, which will hereinafter be called as the 'act', and the old municipal committee,ajmer, started functioning as Municipal Council for the city of Ajmer under the new Act, from 17. 10. 59. On 30th October, 1959, the State of Rajasthan appointed the Collector, Ajmer, as the "prescribed authority" to whom a motion of no-confidence in the Chairman of the Municipal Council could be presented according to sec. 72 of the Act. On the same day, 17 members of the Municipal Council signed a motion of no-confidence and presented it in the office of the Collector, Ajmer. A meeting of the Municipal Council was then convened and held at the Municipal Council-office, Ajmer, on 27th November, 1959, and it was presided over by the Collector. After a sharp debate, for and against the motion, when the Collector proceeded to put the motion to vote, the petitioner raised an objection that 5 of the members in that meeting suffered from disqualification under clause (xiv) of sec. 26 the Act and therefore they should not be allowed to vote. This contention was ruled out by the President on the ground that a member did not automatically cease to function on account of any disqualification under sec. 26 and that he could continue to function till his removal by the Government under sec. 63. After this ruling of the President, the petitioner and his supporters left the meeting in protest. The no-confidence motion was then carried out by the remaining 18 members. On the next day, i. e. , 28th November, 1959, the, Collector issued a memo informing the Municipal Council that Shri Deo Dutt Sharma should be deemed to have vacated his office with effect from 3 P. M. on 27th November, 1959. IT is in order to challenge the correctness of the said ruling of the Collector that the present application has been filed.
It is contended by the petitioner that the Collector had issued a notice of the meeting only to 31 members of the Council and that no notice was issued to Shri H. B. Mehta who also continued to be a member of the said Council, since his resignation was not communicated to the Council. It is next contended that the petitioner had received a communication (Document No. 3) from the Collector asking him to supply a list of the members who were suffering from disqualification under sec. 26 (xiv) of the Act, that in response to the said letter, the Commissioner Municipal Council had sent the required list of the members who were in arrears in the payment of dues for more than one year, that in the face of this information the Collector ought not to have counted their votes and that since the motion was not carried out by a majority of the total number of members, the petitioner should not have been declared to have vacated his office. It is therefore prayed that the proceedings of 27th November, 1959, should be quashed and a writ, direction or order be issued to the non-petitioners restraining them from obstructing the petitioner in Carrying out his duties as Chairman of the Municipal Council, Ajmer.

Before proceeding to set out the contentions, which have been raised in reply, it may be mentioned here, that in the original application which was filed by the petitioner he had impleaded only the Collector and the Municipal Council, Ajmer, as respondents, but later on, he has impleaded all the remaining 31 councillors as respondents. Out of the respondents, the Municipal Council and two councillors namely Shri Arjun Das and Shri Swaroop Narain have filed their replies, while the rest have not cared to file any reply and therefore the application has been heard against them exparte.

In the reply filed by the Municipal Council, it has been admitted that the five councillors named by the petitioner, namely, Sarva-Shri Khanchand, Bhola Ram, Arjun Das, Sugan Chand and Devi Lal were in arrears in the payment of tax and other dues in excess of one year's demand and thus they suffered from the disqualification under clause (xiv) of sec. 26 of the Act on 27th November, 1959. But, it has not expressed its view on the question whether the failure on the part of the said members to make payment of their dues, disqualified them to vote for or against a motion of no confidence. It has remained content with saying that it is a matter depending upon the interpretation and construction of the relevant section of the Act and that this Court alone is competent to decide this question. Regarding the absence of notice to Shri H. B. Mehta, it has been stated, that his resignation should be deemed to have been communicated to the committer when it was included in the agenda of the meeting dated 30th September, 1959, and therefore he did not continue to be a member of the Council when the Act came into force.

Respondent Swaroop Narain in his reply has also urged that Shri H. B. Mehta was not an existing member of the Council on 27th November, 1959. Regarding the arrears of dues payable by the said 5 members, it is stated by him that he had no definite knowledge, but at the same time it is Contended that assuming the above fact to be true, the said members should not stand automatically disqualified in view of the provisions of the Act and that the ruling given by the Collector was quite correct. Respondent Shri Arjun Das has denied in his reply that any amount was due to him for arrears extending over more than a year. He has, however, admitted that the claim of the Municipal Council against him for dues is pending in a civil court and is sub-judice. In short, he has denied the allegation that he was suffering from any disqualification on the date of the no-confidence motion.

The remaining 4 councillors Sarva Shri Khan Chand, Bhola Ram, Sugan Chand and Devilal have not filed any reply and nobody on their behalf has denied the allegation that municipal dues payable by them were in arrears in excess of one year's demand on 27th November, 1959.

Now, the questions which arise for determination by this Court are as follows - (1) Whether notice to Shri H. R. Mehta was necessary and the meeting dated 27th November, 1959, was not lawful because of the absence of a notice to him ? (2) Whether Sarva Shri Khan Chand, Bhola Ram, Sugan Chand, Arjun Das and Devilal were in arrears in the payment of municipal tax or dues in excess of one year's demand on 27th November, 1959, and they suffered from disqualification within the meaning of clause (XIV) of sec. 26 of the Act ? (3) In case the said five members suffered from disqualification, whether the. no-confidence motion cannot be legally said to have been carried out by the majority of the total number of members arid whether the petitioner should not be deemed to have vacated his office for that reason?

Now, regarding the first point, it has already been noted above, that the Municipal Council in its reply has stated that Shri H. R. Mehta did not continue to be member of the Council, since his resignation was accepted before 30fh September, 1959, and communicated to the Council. It may be observed that the present Act came into force from 17th October, 1959, and if Shri Mehta's resignation was already accepted under the Ajmer-Merwara Municipalities Regulation VI of 1925, he could not continue as a councillor after the new Act came into force. It appears from the proceedings recorded by the Collector dated 27th November, 1959, that no objection was raised by the petitioner before the Collector about the absence of a notice to Shri H. R. Mehta and this argument has been raised as an after-thought. Shri H. R. Mehta himself has not appeared in this Court (inspite of notice) to assert if he continued to be member of the Municipal Council after 30th September, 1959. The petitioner has not supplied enough material to hold that Shri Mehta continued as a member till 27th November, 1959, and therefore the objection raised by him is not tenable and is fit to be dismissed. There were thus only 31 members of the Municipal Council, Ajmer existing on 27th November, 1959.

(3.)COMING to the second point, the petitioner has produced certified copies of no less than 17 documents to prove that Sarva Shri Khan Chand, Bhola Ram, Arjun Das, Sugan Chand and Devilal were in arrears in the payment of municipal tax and dues in excess of one year's demand on the date on which no-confidence motion was carried out. Document No. 3 shows that on 18th November, 1959, the Collector, Ajmer, had written to the Chairman Municipal Council, Ajmer, to furnish a certificate as to how many members of the Council suffered from disqualification under sec. 26 of the Act. Document No. 4, shows that the Commissioner Municipal Council, Ajmer, supplied to. the Collector detailed particulars of arrears which were due from the said 5 members till the noon of 25th November, 1959. Learned counsel for the contending non-petitioners have cast a doubt if this list had reached the hands of the Collector before the special meeting for no-confidence motion was held. It is urged that even if this information reached him, it could not be in his possession before 26th November,1959, and the meeting could not be postponed after that date. It will be discussed, later on, as to what the Collector Ought to have done on receiving this information, but there is no reason to disbelieve the petitioner when he says that it was received by the Collector on 25th November, 1959. Document No. 3 shows that the Collector himself wanted the information to be furnished to him latest by 25th November, 1959, and when document No. 4 bears the date 25th November, 1959, it should be presumed that the Commissioner Municipal Council dispatched this list to the Collector and it must have reached his office on the same day. The Collector has not filed any reply to show, if this list was not received by him before he went to preside over the meeting. It appears from this list that an amount of Rs. 446-92 np. Was shown outstanding against Shri Khan Chand for about 8 years, Rs. 25/- were shown outstanding against Shri Bhola Ram for the last 4 years, Rs. 4l59-25 np. were shown outstanding against Shri Arjun Das from 1st September, 1948 to 31st March, 1958, and it was also shown that a suit for this amount was pending in a civil court. Shri Sugan Chand was shown in arrears of Rs. 100/- from October; 1957, while three amounts totalling Rs. 4068 80 np. were shown outstanding against Shri Devilal from 1951 52 and 1952-53. Documents Nos. 5 to 19 further show how communications were addressed on behalf of the Municipal Committee to the said 5 members for payment of arrears from time to time. Since the suit against Shri Arjun Das is pending in a civil court and he has denied his liability to pay the amount claimed from him and since his single vote is not going to make any material difference so far as this case is concerned, I do not think it proper to express any opinion about the arrears which are said to be due to him, but as regards the remaining 4 members Sarva Shri Khan Chand, Bhola Ram, Sugan Chand and Devilal, it has already been noted above that they have not cared to appear and contest the allegations made against them. A perusal of the said documents apparently shows that they were in arrears in the payment of tax and other dues in excess of much more than one year's demand and, therefore, they did suffer from disqualification within the meaning of sec. 26 (xiv) of the Act, which runs as follows: - "26. General disqualifications for membersa person, notwithstanding that be is otherwise qualified, shall be disqualified for being chosen as, and for being, a member of a board - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (xiv) Who is in arrears in the payment of any tax or other dues in excess of one year's demand: Provided that . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (e) the disqualification mentioned in clause (xiv) shall cease as soon as the arrears are paid. " A plain reading of the above provision shows that if any person is in arrears in the payment of any tax or other amount due to the municipality in excess of one year's demand, he would be disqualified not only from being elected as a member but even after the election he would be disqualified for being a member of the board. This disqualification would, however, continue only for the period during which the arrears are not paid. If the arrears are paid, then the disqualification would cease from that moment. It may be pointed out that even the contending respondents have not averred if the said 5 members had paid off the arrears before 27th November, 1959, and therefore even if the case of Shri Arjun Das be left out of consideration, it is clear that atleast 4 of the members did suffer from disqualification when they voted against the petitioner on 27th November, 1959. This brings for consideration the third point set out above.
Before proceeding to examine the arguments of learned counsel for both the patties on this point, it may be pointed out that sec. 65 (1) of the Act lays down that "for every board, there shall be a chairman and a vice-chairman". Sub-sec. (9) says that "every chairman and every vice-chairman of a board shall forthwith be deemed to have vacated his office, if a resolution expressing want of confidence in him is passed by the votes of a majority of the whole number of members at a special general meeting convened for the purpose". The term "whole number" has been defined in sec. 3 (36) as follows: - "whole number" or 'total number', when used with reference to the members of a board, means the total number of members holding office at the time". It is thus clear from the perusal of sec. 65 (9) read with the definition of the term "whole number" that in order to pass a successful resolution expressing want of confidence in the chairman or vice-chairman, the resolution must be carried out by the votes of a majority of the total number of members holding office at the time. It is also clear that su,ch a resolution should be passed at a special general meeting which is to be convened for the purpose. Sec. 72 of the Act lays down the procedure as to how a motion of no-confidence against the chairman should be moved and voted. It is not necessary to reproduce this section, because it is not contended by the petitioner if the "prescribed authority" committed any illegality in following the procedures laid down therein. The real contention of the petitioner is that even if it be held that there were only 31 members holding office on 27th November, 1959, the no-confidence, motion could be passed only by 16 valid votes and since 5 out of the 18 votes, according to him, were invalid, the Collector ought to have held that the motion was defeated. It is not disputed by learned counsel for the contending respondents that the votes of atleast 16 members out of 31 were necessary to pass a valid resolution of no-confidence in the chairman but it is urged that in the present case it was passed by 18 members and that even if 4 or 5 out of the said 18 members suffered from disqualification under sec. 26 (xiv), their votes could not be discarded for that reason. It is urged that inspire of the disqualification the members' continued to hold the office so long as they were not removed by the Government under sec. 63 of the Act. It is further contended that sec. 79 provides that "no disqualification of, or defect in the election, co-option or appointment of any person acting as member, would be deemed to vitiate any act or proceeding of the board or such committee, as the case may be, in which such person has taken part" and that according to this provision even if the said members suffered from disqualification, their resolution was valid and could not be deemed to be vitiated. According to the learned counsel, the proper course for the petitioner was to move the Government to remove the said members from the municipal council if he thought that they suffered from any disqualification. In support of his argument learned counsel has referred to Bhagwandas Burnwal vs. State of U. P. and others (I ). Learned counsel for the petitioner has urged, on the other hand, that in the first place, his client could not compel the Government to remove or even suspend the members suffering from disqualification, since it was in the power of the Government to remove or not to remove, or to suspend or not to suspend a particular member or members. It is further urged that sec. 79 of the Act was framed to protect those acts or proceedings which the municipal board performs or takes in its routine duty. It is pointed out that in the present case, the five members who were, suffering from disqualification had deprived the petitioner of his office, that for a no-confidence motion it was the duty of the 'prescribed authority' to see how many votes were valid and how many were invalid, that the votes of the members suffering from disqualification could not be taken as valid votes by any reasonable standard of judgment and therefore he has no alternate, speedy and beneficial remedy except to invoke the extraordinary jurisdiction of this Court.

I have given due consideration to the arguments of both the learned counsel. The matter is not free from difficulty. In Bhagwandas Burnwal's case (1) the petitioner was elected president of the Mirzapur municipal board, A no confidence motion was passed against him by a majority of the members constituting the board. He filed a writ petition and it was urged by him that out of 19 persons who had voted for the motion against him 4, were buffering from disqualification and so their votes against him were invalid. Repelling this contention, it was held that a person once elected, though he had incurred a disqualification, does not cease to be a member and continues as such till the expiry of the term of the board unless he has been removed under sec. 40 on that ground. At the time of seeking election he is disqualified to be chosen as a member if he suffers from any of the disqualifications mentioned in sec. 13-D and at a subsequent stage to continue unless he has been removed by the State Government on any of those grounds". Sec. 13-D and 40 of the U. P. Municipalities Act (2 of 1916) respectively correspond to sec. 26 and 63 of the Act. This case, no doubt, supports the argument of Mr. B. P. Beri, who has appeared for respondent Swaroop Narain but it appears from the judgment that the arguments before the learned Judge in that case were put in a different way. Paragraph 10 of the judgment shows that the contention raised by learned counsel for the petitioner was that on the date when the members participated in the meeting they were disqualified and even if they paid up the arrears their membership could not be revalidated. Adverting to this argument it was observed by the learned Judge as follows: - "sec. 13-D (g) which provides that on payment of arrears the disqualification will cease, to my mind, necessarily implies that the incurring of this disqualification does not amount to removal of a member from the membership nor does his membership cease by incurring any such disqualification. If the interpretation put by the petitioner is accepted the result is that the membership of a person is automatically terminated during the term of his office and is forthwith revived on payment. On a particular date when a demand is made and the member has not paid the amount he ceases to be member, and the next moment if he actually pays up the money the disqualification ceases. Such an interpretation to my mind cannot be placed on sec. 13-D. Reading therefore sec. 13-D together with sec. 38 of the Municipalities Act and sec. 40 it is' clear to my mind that a person once elected, though he had incurred a disqualification, does not cease to be a member and continues as such till the expiry of the term of the Board unless he has been removed under sec. 40 on that ground. At the time of seeking ejection he is disqualified to be chosen as a member if he suffers from any 6f the disqualifications mentioned in sec. 13-D and at a subsequent stage to continue unless he has been removed by the State Government on any of those grounds". I respectfully agree with the learned Judge to the extent that the incurring of disqualification under sec. 26 (xiv) of the Act (which corresponds to sec. 13-D (g) of the U. P. Municipalities Act) does not automatically amount to removal of a member from the municipal board or council because the removal can be made only by the Government under Sec. 63. Learned counsel for the contending parties has however tried to construe the above observation as meaning that there- is no difference between a qualified member and a disqualified member so longue as he latter is not removed construe construe the above observation as meaning that there is no difference between a qualified member and a disqualified member so long as the latter is not removed from the membership under sec. 63. I am not certain if the learned Judge meant to go so far and lay down the law as it is sought to be propounded by learned counsel for the respondent, but if that is the view, then with profound respect. I would find it difficult to accept it. To my mind the provision of sec. 26 should not be so construed that the disqualification of a member becomes meaningless so long as he is not actually removed from his office. It may be pointed out that there are certain disqualifications which once incurred cannot be washed out. There are other disqualifications like the one under sec. 26 (xiv) which are remediable. The disqualification under sec. 26 (vix) is incurred by a member as soon as he is in arrears in the payment of any tax or other dues in excess of one year's demand and that disqualification continues till he pays off the arrears. A member who suffers from such disqualification is certainly not removed automatically from his office under the scheme of the Act. Removal is the extreme penalty and if that penalty is imposed, then the member cannot function as a member thereafter,unless he is re-elected in a future election. This does not, however, mean that a member who himself suffers from disqualification is as good a member as the one who suffers from no disqualification so long as he is not actually removed from his office. To my mind, a member who incurs this disqualification loses certain rights during the period he suffers from disqualification. For instance, a member suffering from a disqualification cannot be elected as a chairman nor can he exercise a valid vote in the election of a chairman or vice-chairman. This would be clear from the perusal of Secs. 65, 66, 41, 43, 44 and 34 of the Act read together. Sec. 65 lays down that a chairman or vice-chairman shall be elected by the members of the Board from amongst themselves. Sec. 66 provides that the validity of the election of a Chairman or vice-chairman may be called in question by an election petition. Sub-sec. 3 of sec. 66 provides that in hearing the election petition, the Judge must follow the same procedure as that laid down in sec. 41 and will exercise the powers specified in sec. 43 and 44. Thus sec. 44 comes into play. Sec. 44 (4) lays down that the Judge shall declare the election of a returned candi-date to be void on any of the grounds specified in clauses (a) and (d) of sec. 34. Now, sec. 34 provides that the election of any person as member of a Board may be questioned on the grounds given therein. In the case of the election of a Chairman or vice-chairman we shall have to read chairman or vice-chairman in place of the word 'member'. According to clause (a) of sec. 34, the election of a returned candidate may be questioned on the ground that he was not qualified or was disqualified to be chosen to fill the seat under the Act. So, if a member of the board has incurred any disqualification after his election as a mere member and if after his next election as chairman or vice-chairman, it is found by the Judge hearing the election petition against him, that he was suffering from disqualification, when he was elected as chairman or vice-chairman his election to that office would be set aside. Such a member may not have been removed by the Government under sec. 63 from the membership of the municipality, but it is clear that even without removal, his position under the law is not the same as that of a qualified member. Similarly, under sec. 34 (d) the election may be set aside if it is found that the result of the election was materially affected by (iii) the improper reception, refusal or rejection of any vote or the reception of any vote which is void. A vote of a member suffering from disqualification would be a void vote and if the election of the chairman or vice-chairman has been materially affected by the reception of such a void vote, it will be set aside under this provision. This again makes it clear that a member suffering from disqualification ' has no right to be elected as a chairman or vice-chairman nor is he qualified to Vote at the election of those offices held under sec. 65 (3 ). The provision about the vote of no-confidence in a chairman or vice-chairman appears in the same sec. (65) though under sub-sec. (9 ). It provides that the no-confidence motion should be passed by the votes of a majority of the whole number of members at a special general meeting convened for the purpose. It is clear that this is not one of the ordinary meetings held for the disposal of ordinary or routine work. It is a special meeting which is convened only for the purpose of considering the motion of no confidence. Then the law provides that the resolution should be passed by a majority of votes. I have no doubt in my mind that when the members of the legislature used the term 'votes', they mean only valid votes and not the invalid votes of disqualified members. This intention becomes all the more clear by the fact that a very great importance has been attached to motion of no-confidence and it cannot be carried out only by a majority of members present at the meeting but in order that it may be effective, it should be passed by a majority of the total number of members holding office at the time. So, even though a member suffering from disqualification may be taken to be holding office till he is not actually removed from the municipal board, he cannot, in my opinion, exercise a valid vote under Sec. 63 (9) of the Act. Even on a general principle it would not be proper to hold that a member who himself sutlers from disqualification should have as much right to censure the chairman as one who does not suffer from any disqualification. To my mind, such an interpretation would put a premium on the right of a disqualified member and would defeat the very purpose for which section 26 (xiv) has been laid down. The result of such an interpretation would be that if there is a strong and honest chairman of the municipal board and if he requests the defendant members to pay off the arrears which are in excess of one year's demand, then he may be pulled down from his high office by a vote of no-confidence by the votes of such disqualified members. It is contended by the respondents' learned counsel that the only remedy of the petitioner is to move the Government under sec. 63 of the Act. It would suffice to say that the chairman may be able to retaliate against a disqualified member under the said section by obtaining his removal but it may not remedy the wrong already done to him, because the removal of such members at a later date would provide no remedy to the chairman who is already thrown out of his office by disqualified votes. In certain cases, even a removal of such members may not be possible, because as soon as such proceedings are taken, if the arrears are paid, the disqualification of these members would cease. A chairman or vice-chairman who is removed from his office by reception of invalid votes has therefore no effective or speedy remedy under Sec. 63 of the Act and his application under Art. 226 cannot be thrown out on the ground that an alternate remedy is available to him.

It is next contended by respondents' learned counsel that the no-confidence motion was passed by the majority of the members of the municipal council and according to sec. 79 the [decision of the majority cannot be invalidated simply because four or five of the members were suffering from disqualification. It may be observed that this section has been provided to save the acts or proceedings of the board or committee which are done or taken in a general meeting. It lays down that if any person who is acting as a member or chairman or presiding authority of a general meeting or a com-,mittee appointed under the Act, is found to he suffering from disqualification or if it is found that there Was any defect-in his election or co-option or appointment, then the act or proceeding of the board or such committee, as the case may be, would not be deemed to be vitiated. It is not always easy to find out which member or members suffer from a disqualification at a particular time and so this provision has been made in order to protect all routine business transacted by the board or committee as a corporate body. This section would not, however, apply to a special general meeting convened under sec. 72 read with sec. 65 (9) of the Act. It is not one of the general meetings contemplated by sec. 79. In my opinion, the person against whom a vote of no-confidence is brought can be censured only by those members who are qualified to vote on that day and those members who themselves suffer from disqualification have no right to censure him and their votes must be rejected as invalid. In Bland vs. Bucbaman (2) there was an election for the office of a Mayor and at that time one Mr. William James Newth also voted. It was later on found on the hearing of the election petition against Newth himself that he was disqualified for being elected as a member of the council. His vote in favour of the Mayor was, therefore, declared to be invalid, following the decision in Nell vs. Longbottom [ (1894) 1 Q. B. 767]. It may be observed that this decision was given inspite of a provision under sec. 42 of the Municipal Corporation Act, 1882, Which was as follows- 'the acts and proceedings of a person in possession of a corporate office, and acting therein, shall, notwithstanding his disqualification or want of qualification, be as valid and effectual as if he has been qualified. " It would appear that this authority clearly supports the view taken above.

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