- (1.) SINCE in all the abovementioned writ petitions, the question, facts and law involved are common, thus, the same are being disposed of by a common judgment. However, writ petition No. 27562 of 1997 shall be the leading case.
(2.) ACCORDING to an Old fable a "jin" even if killed, takes another form and shape and lives for ever. One would have thought that after the decision in Haji Ghafoor Bux v. State of U. P. , (1991) 1 UPLBEC 505, writ petition No. 6091 of 1990 and writ petition No. 2832 of 1990, decided on 19-2-1991 and similar writ petitions by the Division Bench of this Court, sitting at Lucknow, in which I was a member, finally set at rest the controversy, that the elected members of the Municipal Board may pass a vote of non confidence against the President of the Board, who has been directly elected by the registered voters of the city and in that regard the vague concept of democracy that a person directly elected by the electorates could only be dislodged by the electorates, not by the members of the Board, would have no relevance. But the same argument which did not find favour with the Court has been raked up again, in spite of the following observations: "in the backdrop of the law discussed in the Statute that a motion of no confidence would be considered by the members of the Board even in respect of the President elected directly by the electorate. In these matters, a provision contained, in the Statute will be binding and legally hold good. " Against the said judgment passed in writ petition No. 2832 of 1990 and similar other writ petitions, decided on 19-2-1991, a special leave petition bearing No. 4165 of 1991 was filed by Mohan Lal Tripathi. The leave was granted, from which arose civil appeal No. 2425 of 1 992, which was dismissed on 15-5- 1992. Speaking on behalf of the Bench Hon'ble Mr. Justice R. M. Sahai, in Mohan Lal Tripathi v. District Magistrate, AIR 1 993 SC 2042 observed (Para 2): "democracy is a concept, a political thrust an ideal practised by many nations culturally advanced and politically mature by resorting to governance by representatives of the people elected directly or indirectly. But election representatives to govern is neither a 'fundamental right' nor a 'common law right' but a special right created by the statutes, or a 'political right' or 'privilege' and not a 'natural', 'absolute' or 'vested right'. Concept familiar to common law and equity must remain stranger to Election law unless statutorily recognised. Right to remove an elected representative, too, must stem out of the statute as 'in the absence of a constitutional restriction it is within the power of a legislature to enact a law for the recall of officers. " Its existence or validity can be decided on the provisions of the Act and not , as a matter of policy. The efficacy of such a device can hardly admit of any doubt. But how it should be initiated, what should be the procedure, who should exercise it within ambit of constitutionally permissible limits falls in the domain of legislative power. "
(3.) IN Para 4 it was further observed: "a President who is elected by the entire electorate when removed by such members of the Board who have also been elected by the people is in fact removal by the electorate itself. Such provision neither violates the spirit for purpose of recall of an elected representative. Rather ensures removal by a responsible body. It cannot be criticised either as irrational or arbitrary or violative of any democratic norm. IN fact construing the provision as suggested would render it unreasonable. A President of a Municipal Board of more than one Lakh Population would be removable by the Board comprising of elected representatives where as a President of smaller Board would virtually get immunity from removal. It would be contrary to scheme of the Act and against public interest. " In para 6 of the report, it was further held: "whether a President should be elected by the people directly or by the Board was for the legislature to decide. These are matters of policy which cannot be examined by Court. Legislature being the best judge of the need of the poeple it is for the legislature to decide which system of electing representatives to the elective bodies and in what manner they should be removed would be best suitable for governance of the State. So long the policy is not vitiated by any mala fide or extraneous consideration the courts have neither jurisdiction for adequately furnished with material to adjudicate upon its validity or correctness. ";