SARJOO PROSAD, C. J. -
(1.)THIS is an application under Art. 226 of the Constitution. It is prayed that a declaration be made that the no-confidence motion passed against the petitioner on 26th May, 1959, is illegal and void and that the respondents be restrained from enforcing the orders of the Director of Local Bodies dated 4th June, 1959, and 22nd July, 1959, as also the order of the Collector dated 23rd July, 1959.
(2.)THE facts which emerge out of the various affidavits filed by the parties may be stated as follows: THE petitioner was elected Chairman of the Municipal Board, Rajgarh, in October, 1957. ; THE total strength of the Board consists of 12 members, out of whom ten are elected and two nominated. Respondents Nos. 3 to 10 were elected and Mangla Ram and Parbati Devi were nominated members. On the 7th of May, 1959, five members of the Board made a written requisition to the Chairman to call for a special general meeting of the Board as they wanted to move a vote of no-confidence against the Chairman. This requisition was made under sec. 26 (2) of the Rajasthan Town Municipalities Act, 1951 (Act No. XXIII of 1951 - hereinafter called the Act ). THE petitioner has stated in his petition that in response to the requisition he called a special general meeting on the 16th of May, 1959; but this meeting was not attended by any of the other members, except himself and three others, viz. , one Madan Chand and the two nominated members Mangla Ram and Parbati Devi, with the result that the no-confidence motion was lost. We are, however, not satisfied that any such meeting was actually called. On the petitioner's case itself it appears that the notice of the meeting was given on the 12th of May, 1959, and the meeting was held on, the 15th of May. This in itself shows that the notice was not in accordance with sec. 26 (3) of the Act; and there are various interpretations in the notice on account of which we are not inclined to think that any such meeting actually took place on the 15th as alleged by the petitioner. THE contention of the respondents that there was no such meeting held on the 15th appears to be well-founded and we have to proceed on the assumption that there was no such meeting held at all. We see no reason why, if any such meeting were held, the five members who had sent a written requisition to the Chairman for holding a special general meeting, would not have been present on the occasion and would not have moved the resolution of no-confidence which they intended to do. Since the Chairman himself did not take any action on the requisition sent by those members, the members themselves issued a notice on the 23rd of May, 1959, calling for such a meeting to be held at 8 A. M. on the 26th May, 1959. A special general meeting was held accordingly on the 26th which was attended by 8 of the members, who all unanimously passed a vote of no-confidence in the Chairman. A copy of the resolution was then sent to the D rector of Local Bodies as required by sec. 23 (f) of the Act. THE Director of Local Bodies in his turn then informed the Collector under his letter dated 4th June, 1959, that a vote of no-confidence had been passed against the petitioner under sec. 22 (9) (a) of the Act and requested him to direct the petitioner to hand over charge to the Vice-Chairman of the Board and to hold a fresh election of the Chairman according to Rules. THE petitioner complains that before this letter was sent the Director of Local Bodies did not give him any opportunity of being heard in the matter. We do not see how there was any occasion for the Director of Local Bodies to hear the petitioner in a matter like this when all that he had to do was to inform the Collector about the no-confidence resolution, a copy of which had been received by him. THE petitioner, however, made a representation to the Director of Local Bodies impugning the vote of no-confidence passed against him ; but the Director of Local Bodies inspite of that representation supported the action of the Vice-Chairman and requested the petitioner to hand over complete charge of the Office of the Chairman to the Vice-Chairman without any further delay. It may be stated at this stage that in spite of the motion of no-confidence the petitioner persisted in continuing to act as Chairman of the Board and, therefore, the respondents Nos. 3 to 10 to this application moved this Court for issuance of a writ restraining the present petitioner from functioning as such. Ultimately in view of the letter which the Director of Local Bodies had written to the Collector to take action for the appointment of another Chairman, the writ application was not pressed before this Court ; and it was held that the petition had become infructuous and was, therefore, dismissed.
The petitioner has now challenged the validity of the no-confidence motion passed against him and the subsequent action taken by the Director of Local Bodies and the Collector in the matter. He contends that the question whether or not the vote of no-confidence had been validly passed against him was a disputed question of fact and, therefore, it could not be decided by the Director of Local Bodies or even the Collector that the petitioner's seat had become vacant, and that therefore a fresh election should be held. He also contends that the special general meeting which was held by the respondents Nos. 3 to 10 was not validly convened for passing the vote of no-confidence in the petitioner and any resolution passed at that meeting could not be legal and effective. A further contention which has been advanced by the learned counsel for petitioner is that Budha Ram, one of the respondents, who was a member of the Board, had already tendered his resignation on the 8th of the May, 1959; as such he was not entitled to take part in the proceedings of the meeting held on the 26th of May and the vote of no-confidence would be deemed to have been passed only by seven members, which was less than the requisite two-third of the entire number of members constituting the Board. The resolution was therefore said to be illegal and void. These arguments will have to be considered in the light of the relevant provisions of the law on the points raised.
Sec. 26 of the Act contains provisions in regard to the meeting of a Municipal Board. Sub-sec. (2) provides that the Chairman may, whenever he thinks fit, and shall upon the written request of not less than one-third of the whole number of members and for a date not more than fifteen days after the presentation of such request, call a special general meeting. In this case the written request was sent on the 7th of May, 1959, by five members of the Board, which fulfilled the legal requirement. Therefore under the law the Chairman had to call such a meeting not more than 15 days after the date of presentation of the written request. The Chairman not having done that, the law further provides that the Vice-Chairman or one-third of the whole number of members could call such meeting for a day not more than thirty days after the presentation of such request. Therefore, it became open to the requisitioning members of the Board to call such a meeting. Sub-sec. (3) of sec. 29 provides that - "four clear days notice of an ordinary general meeting and three clear days' notice or in cases of great urgency, notice of such shorter period as is reasonable of a special general meeting specifying the time and place at which meeting is to be held and the business to be transacted thereat, shall be given to the members, and posted u|p at the municipal office or some other public building in the municipality. The said notice shall include any mention or proposition of which a member shall have given written notice not less than ten days previous to the meeting, of his intention to bring forward thereat, and, in the case of a special general meeting, any motion or proposition mentioned in any written request made for such meeting. " Now in this case such a notice was issued on the 23rd of May, 1959, by the requisitioning members for the (purpose of holding a special general meeting. There is nothing said against the validity or publication of this notice, save in respect of the period within which the special general meeting was to be held and also in regard to the service of the notice on the petitioner and the other members of his group. The petitioner has not denied that 8 members of the Board did pass a vote of no-confidence against him as in fact they had; bur. he only challenges the validity of the meeting held on the 26th of May, 1959, on the ground that there was no compliance with the provisions of sub-sec. (3) of sec. 26 of the Act and that no notice of any such meeting was served upon him until the 28th of May, 1959, some two days after the date of the meeting. It is contended that when admittedly the notice was issued on the 23rd, the meeting could not be held on the 26th of May, 1959, only two days afterwards as under the terms of the section three clear days' notice of the meeting had to be given. The learned counsel for the petitioner submits that the provision of this sub-section are mandatory and non-compliance with the provisions rendered any such meeting illegal. He further submits that the departure from the period mentioned in the sub-sec. could only take place in cases of great urgency and in the present instance no such urgency had been established. In this context he has relied on certain decisions of this Court. We were referred to the case of Anokh Mal Vs. The Chief Panchayat Officer, Rajasthan (1) where an analogous provision, Rule 4 of the Panchayat Election Rules, 1954, came in for consideration, and it was held that the rule was mandatory and bad to be strictly followed. He also referred to the decision in Ganga Dutt Vs. Bhagwan Das Taparia (2) and Subh Karan Vs. The State of Rajasthan (3 ). These decisions have a direct bearing on the interpretation of sec. 26 of the present Act. In the earlier decision the learned Judges held on the language of sec. 26 (3) that there should be at least 3 days clear notice of a special general meeting of a Municipal Board and it was only in cases of great urgency that a notice of a shorter but a reasonable period was permissible under the law; and that in the absence of any such urgency notice given only a day earlier could not be considered to be reasonable. It was further pointed out that where the Chairman fails to call a special general meeting within 15 days of the receipt of a written request, a right accrues to the Vice-Chairman or other members to call such a meeting after the expiry of 15 days. In the other case it was also held that the words used by the Legislature in sec. 26 (3) show that notice of meeting to every member is mandatory and in the circumstances of that case failure to give notice of a meeting to one of the members was fatal to the validity of the meeting and its proceedings. These cases, therefore, lay down what the section itself says namely that it is only in cases of "great urgency" that a notice calling a meeting at a shorter period than three clear days may be considered reasonable. Whether there was any such urgency would depend upon the exigencies of each case.
The question, which arises, therefore, is whether in the circumstances of this case it can be held that the notice which was issued on the 23rd of May, 1959, for calling a meeting on the 25th can be held to be reasonable and sufficient compliance with the provisions of sec. 26 (3) of the Act. It appears from the counter-affidavit filed on behalf of the respondents Nos. 3 to 10 that the petitioner is alleged to have been guilty of repeated misconduct, forgery and fabrication of the record of the Board, and misuse of public funds by abusing his powers as Chairman of the Board. Whether it is a true or exaggerated statement of facts it is not for us to 'determine at this stage; but these members appear to have entertained the feeling that the petitioner was not acting fairly as Chairman and in the best interests of the Board. Their suspicion appears to be confirmed by a letter dated 18th May, 1959, which the Government sent to the Chairman calling upon him to show cause in regard to a certain unauthorised transfer of land under fictitious auctions after tempering with the records of the Municipality. Government considered that they had reasons to feel that the Chairman was guilty of misconduct in the discharge of his duties and, therefore, under sub-sec. fro) of sec. 22 called upon him to show cause why he should not be removed from the office of the Chairman. It further appears from the statement of the Executive Officer that at the time of the meeting on the 26th the petitioner had left the station and the minute book and other papers which were with him were not available to the members at the time of the meeting. This he appears to have purposely done. Under these circumstances it could not be said that there was no great urgency for holding the meeting on the 26th of May, T959. In any case, we find it difficult to hold that the resolution passed at this meeting should be invalidated on the ground that it was not held three clear days after the date on which the no;ice was issued. The decision of the Supreme Court in Shyabuddinsab Mohidinsab Akki Vs. Gadag-Betgeri Municipal Borough (4) fortifies the view which we have taken of the matter. Sec. 32 (2) of the Act provides that no resolution of a Municipal Board shall be deemed invalid on account of any irregularity in the service of notice upon any member, provided that the proceedings of the Municipal Board were not prejudicially affected by any such irregularity. The Supreme Court in dealing with the provisions of sec. 35 (3), of the Bombay Municipal Boroughs Act observed that - "admitting that the notice of a special general meeting had not been given in writing but had only been intimated to all the councillors who were present at a prior meeting and that the notice was not served in the manner indicated in sub-sec. (3) of sec. 35 of the Act, yet these omissions do not render the notice ineffective in law. That could only be so if those provisions were held to be mandatory. The relevant provisions would show that those provisions of sec. 35 (3) are directory and not mandatory and that any omissions in the manner of service of the notice are mere irregularities which would not vitiate the proceedings unless it was shown that those irregularities had prejudicially affected the proceedings. " Of course the decision in question was with reference to an analogous provision of the Bombay Municipal Boroughs Act, sec. 35 (3) whereof is in the same terms as sec. 35 (2) of the present Act. It is true that in the case of Subh Karan Vs. The State of Rajasthan (3) the provisions of sec. 26 (3) were held to be mandatory but the decision has to be confined to the circumstances of the case, because there no notice had at all been given to one of the members. It is difficult to say, speaking generally, that the provisions of sec. 26 (3) in regard to the period of notice must be held to be mandatory where the law itself has provided that three clear days notice was not necessary in every case and that exception could be made in cases of great urgency where a shorter period of reasonable notice would be permissible. Therefore, a discretion is left in special cases to the persons concerned to give a notice of even a shorter period and that discretion must depend upon the exigencies of a particular case. Here we are unable to say that there was no great urgency for holding the meeting on the 26th even though the notice had been issued on the 23rd of May; and the circumstances stated earlier might reasonably have implied these members to assume that they had to act with promptitude and expedition.
The next ground on which the validity of the resolution has been attacked is that notice of the meeting was not served on the petitioner and his group. On that point also it appears that the petitioner's allegation is unfounded. According to the respondents, notices duly signed and containing the no-confidence motion were sent to the members of the Board and copies of the notice were affixed at the Municipal Office and the Clock Tower in the town. These notices were also sent for service on the petitioner and the other members through a peon; but since they refused to accept the notices they were affixed on their residential houses. Further precaution of sending these notices by registered post was taken but the petitioner and the three members of his party avoided service. In the circumstances the respondents concerned had no alternative but to proceed to hold the meeting on the 26th in the absence of the petitioner and the other three members.
It is further alleged that Budharam had tendered his resignation on the 8th of May, 1959. Budha Ram has filed his affidavit stating that the allegation that be had tendered any such resignation was false ; and that he had taken part as a member of the Board in passing the vote of no-confidence against the petitioner. It appears from the affidavit filed on behalf of the respondents Nos. 1 and 2 that the petitioner was asked by the Director of Local Bodies to produce the original letter of resignation; but he did not produce the same : the allegation of resignation had been refused by Shri Budha Ram himself. On the 30th of May, 1959, the respondents Nos. 3 to 10 approached the Director of Local Bodies with affidavits that no notice was ever received by them regarding the alleged general meeting of 15th May, 1959, and that a meeting had been called on the 26th of May, 1959, in which the resolution in question was passed, a copy of which was sent to the Director. A copy of the notice with reference to the alleged meeting of the 15th May has been produced before us purporting also to bear the signature of Sajwar Khan. There are obvious interpolations in that document i|n regard to the time of the meeting as also in regard to the name of Budha Ram which was originally mentioned there and which appears to have been cancelled later and the name of Mangla Ram appears to have been over-written over some other name which was there. It, therefore, appears that there is no substance in the allegation that there was any resignation of membership by Budha Ram. The no-confidence resolution was passed by 8 members of the Board and the question that the resolution was passed by less than 2/3rd of the entire number of members of the Board does not arise.
The most Serious question which has been raised by the learned counsel for the petitioner is on the interpretation of sec. 22 (9) (a) of the Act. Sec. 22 (9) (a) says that every Chairman and Vice Chairman of a Municipal Board shall forthwith be deemed to have vacated his office if i resolution expressing want of confidence in him is passed by a majority of not less than two-thirds of the whole number of members at a special general meeting convened for the purpose. He contends that even if such a resolution had been passed, his office does not automatically become vacant, until the matter, when disputed, is decided by a competent body; and it was not open to the Director of Local Bodies to hold that his office had become vacant. The section is not very happily worded. Of course there is no specific provision in sec. 22 of the Act itself to show that in case of any dispute, as to whether or not a vote of no-confidence had been validly passed against the petitioner, which authority would be competent to decide the matter. It seems to us that a reasonable construction of the various provisions of the section would lead to the inference that as soon as such a resolution of want of confidence is passed by the requisite majority, automatically the Chairman would be deemed to vacate his office. Sub-sec. (1) of sec. 22 provides that for every Municipal Board there shall be a Chairman and a Vice-Chairman, and sub-sec. (2) says that the Chairman shall be elected, in accordance with the rules made by the Government in that behalf, by the members of the Municipal Board from amongst themselves. Therefore, it appears that when the office has become vacant in consequence of the vote of no-confidence passed against the Chairman, there is to be a fresh election for that office in accordance with the rules framed by the Government. Under sub-sec. (10) of sec. 22, when there is a vacancy in the office, the vacancy is to be filled up in accordance with the provisions of the foregoing sub-sections, and the person elected or nominated to fill up the vacancy shall hold office for the residue of the term for which the Chairman or Vice-Chairman in whose place he is so elected or nominated would have held it if the vacancy had not occurred. The scheme of the section, therefore, indicates that the vacancy happens automatically as soon as the vote of no-confidence is passed. If the petitioner was not satisfied with the validity of the no-confidence motion he could seek his remedy elsewhere. The contention of Mr. Chandmal is that under sub-sec. (10) of sec. 22 it is the Government alone which could remove him for mis-conduct in the discharge of his duties in case he refused to vacate his office as Chairman. We do not think that sub-sec. (10) has really any application to this case. Sub-sec. (10) deals with "removal" from office whereas sub-sec. (9) deals with the office becoming vacant on account of a resolution expressing want of confidence in the Chairman having been passed. The two sub-sections have to be interpreted independently of each other as they are self-contained. The language of sub-sec. (9) is very emphatic. It uses the words "shall forthwith be deemed to have vacated his office. " The use of the word "forthwith" clearly indicates that as soon as this resolution of no-confidence is passed the Chairman vacates his office. It is a pointer to the interpretation of sub-sec. (9) of the section. In this case as we have said there is no dispute that there was such a resolution passed by eight of the members of the Board; but the dispute only is that the meeting which was called was not in accordance with law. We are, therefore, of opinion that by operation of sub-sec. (9) of sec. 22 his office fell vacant after the passing of the resolution and thereafter the Director of Local Bodies or the Collector were authorised to take action to fill up the vacancy in question. In adopting the necessary procedure for filling up the vacancy the Collector or the Director of Local Bodies had to be satisfied in his mind that sub-sec. (9) had come into play and that there was a vote of no-confidence passed against the petitioner. This was a necessary corollary to their adopting the step which the law contemplates, namely, to fill up ' the vacancy in question. The statutory obligation to see that the vacancy which occurs forthwith is duly filled up rests upon these authorities. If the Collector had thought that the resolution was invalid then he could have taken action under sec. 193 of the Act and reported the matter to the Government for rescinding the resolution in question. The fact that he had not done so shows that the Collector was satisfied in his mind that sub-sec. (9) had genuinely come into operation and that the vacancy caused in the office of the Chairman on account of the motion of no-confidence had to be filled according to the procedure laid down by law.
For the above reasons we do not think that there is any substance in this application which is accordingly rejected with costs, hearing fee Rs. 100/- to be divided equally between the State and the respondents Nos. 3 to 10. .