CHHANGANI, J. - (1.) THIS is an application under Art. 226 of the Indian Constitution by one Shri Rameshwar Prasad Modi praying for the issue of a writ in the nature of certiorari or any other appropriate writ, order or direction to remove the resolution dated 27. 8. 1960 declaring the motion of no-confidence as carried out against the petitioner Chairman; and "writ in the nature of prohibition or any other appropriate writ or order restraining the respondent No. 1 the Collector Bharatpur from enforcing the effect of the impugned resolution. Further prayers for restraining a fresh election of Chairman and interference with petitioner discharging duties as Chairman by the petitioner have also been made.
(2.) THE material facts are these: THE petitioner was elected a member of the Municipal Board on 6. 1. 1958, and later on, on 18. 6. 1958 he was elected Chairman of the Board. THE Board originally consisted of 18 members. One Shri Umraosingh, a member elected from Ward No. 16 died in the year 1959 and his seat remained vacant and it is not in dispute that the "whole number" or "total number of members" holding office at all material and relevant times was 17. On 24th July, 1960, a written notice of intention to make a motion of no confidence in the Chairman, the petitioner before us, signed by six members Sarv Sri Anant Prasad, Raghubir Singh, Kishan Gopal, Hari Shanker, Shamshuddin and Girraj Singh, respondents No. 13, 4, 16, 6, 9 and 5 respectively, marked Ex. P-5, was sent together with a copy of the motion marked Ex. P. 6 to the Collector Bharatpur, respondent No. 1, who is the prescribed authority for the purposes of provisions of sec. 72 of the Rajasthan Municipalities Act, 1959 (Act No. 38 of 1959 hereinafter referred to as the Act of 1959 ). Respondent No. 1, the prescribed authority, decided to convene a meeting to be held on 27th August, 1960 at 1 P. M. in the office of the Municipal Board. A notice dated 17th August, 1960 of the meeting was sent to the petitioner at first by express delivery and then by registered post, which is marked Ex. P-2. A day prior to the date of the meeting, the petitioner sent letters under postal certificates to respondents Sarv Sri Girraj Singh, Hari Shanker, Ajai Singh, Shamshuddin and Krishna Gopal, respondents No. 5, 6, 7, 9 and 16 respectively stating that they were in arrears of taxes or dues and have had incurred disqualifications under clause (xiv) of sec. 26 of the Act of 1959. The petitioner also submitted a written objection petition to the respondent No. 1 stating that the above named five respondents having incurred disqualifications under sec. 26 sub-sec. (xiv) of the Act of 1959, could not be permitted to take part in the meeting for the consideration of the no-confidence motion. There is some controversy between the parties as to the precise time at which the objection petition was presented. The petitioner states to have filed it at 12-30 p. m. , whereas, according to Ex. P-4, a copy of the proceedings of the meeting, it appears to have been received by the respondent No. 1 at 1-15 p. m. However, the controversy is immaterial for the purposes of the present writ application inasmuch as it came up for consideration before the discussions on the no-confidence motion. The respondent No. 1 found vide his decision Ex. P-3 that Sri Girraj Singh, respondent No. 5, was in arrears of dues from September, 1956 and hence, was disqualified under sec. 26 (xiv) of the Act of 1959, and, therefore, upheld the objection of the petitioner to the effect that he was not entitled to vote. As regards the other respondents, he found against the petitioner and overruled the objection. The motion was eventually put to vote at 5 p. m. In all, nine members respondents No. 4, 6, 7, 9, 11, 13, 15, 16 and 17 voted for the motion. The petitioner also states that when respondent No. 15 Ashfaq Ali Khan raised his hand for the motion, he had objected to his participation on the ground that he had incurred a disqualification under sec. 26 (xii) of the Act of 1959. He further states that he had also challenged the constitutionality of the very notice of motion and the motion under sec. 72 of the Act of 1959. There is, however, no reference to these objections in Ex. P-4, the copy of the proceedings and the contesting respondents deny them. The respondent No. 1 finding that the total number of members was 17 and that nine members constituting majority of the total number of members, having voted for the motion, declared the motion carried out. It may also be mentioned that Hari Shanker respondent No. 6, Ajai Singh respondent No. 7 and Shamshuddin respondent No. 9 in spite of findings in their favour tendered the amounts claimed as due from them under protest to avoid unnecessary complications. The petitioner is challenging the validity of the no confidence motion by means of this writ application on the following grounds: - (1) The notice of motion of no confidence having been signed by disqualified members, namely, Girraj Singh, Shamshuddin, Krishan Gopal and Hari Shanker, could not have been taken note of and the meeting held was not a proper one, and all the proceedings taken and the declaration of no confidence as passed, are null and void. In particular, it has been emphasised that at any rate Sri Girraj Singh having been found disqualified by respondent No. 1 and having been disallowed to take part in the meeting his signatures on the written notice Ex. P-5 were of no avail, or legal effect and the notice having been validly signed by only five members, who did not constitute one-third of the total members, was not valid in law and did not provide a proper and valid foundation for the convening of a meeting for a consideration of the no-confidence meeting. (2) Secondly, it is urged that the five members, Shamshuddin, Krishna Gopal, Hari Shanker, Ajai Singh and Ashfaq Ali Khan having incurred disqualification under sec. 26 clauses (xiv and xii) had no right to vote and that the respondent manifestly erred in overruling the petitioner's objections to their voting. According to him, the votes of these five persons should have been ignored and in consequence the motion having been supported only by four persons should have been declared as not carried out. The respondents have submitted varying replies. The respondents No. 4, 6, 11, 13 15 and 16, represented by Mr. Tyagi, have strongly opposed the writ application inter alia on the following grounds : - (1) That the notices issued by the petitioner on 29. 8. 1960 to the five members claiming that they were in arrears of taxes were without foundation, and that the motive behind the issue of such notices was only to save his chair by trying to avoid the meeting. (2) That the Collector, the prescribed authority, had no jurisdiction to decide the controversy relating to the disqualifications of the members raised by the petitioner, and that he was, therefore, wrong even in restraining Sri Girrajsingh, from exercising his right to Vote. They traversed the allegations of facts relating to the disqualifications of members and contended that the various members had the right of vote, and that the motion was properly carried out. The respondent no. 5 Shri Girrajsingh, represented by Mr. Sarolia, submitted a reply admitting the allegations of the petit oner in the writ application. It is significant to observe that the reply was not supported by any affidavit initially. It was only on 19. 1. 1961, subsequently to the commencement of the arguments that an affidavit has been filed. Similarly, the respondents Nos. 3, 8, 9, 12, 14, 10, 18 and 7, represented by Mr. J. S. Rastogi, by means of two replies, one on behalf of Ajaisingh and the other on behalf of the rest, admitted the petitioner's case. The replies were not supported by affidavits and it was only, on 17. 1. 1961, that one Sri Ajaisingh has filed an affidavit. Before taking up the respective contentions of the parties, it will be desirable to to refer to sec. 26 of the Act of 1959 dealing with disqualifications of the members as the controversy between the parties has mainly centred over the alleged disqualifications : - It begins with a sentence - A person, notwithstanding that he is otherwise qualified, shall be disqualified for being chosen as and for being a member of a board. " Thereafter, follow fourteen clauses specifying the qualifications. Then there is a proviso declaring how the various kinds of disqualifications shall cease to operate.
(3.) THE opening sentence is ofcourse wide and disables persons suffering from disqualifications from standing as candidates for election, and further prevents them from continuing as members. THE section, however, does not say anything as to how the disqualifications can be noticed and given effect to. It will be convenient to point out at this stage that sec. 12 (2) of the Rajasthan Town Municipalities Act, 1951 (Act No. XXIII of 1951-hereinafter referred to as the Act of 1951) provided that "if any person elected or nominated as a member is subject to any of the disqualifications specified in sub-sec. (1), his seat shall be deemed to be vacant". Sub-sec. (5) of that Act further provided: - "if any question or dispute arises whether a vacancy has occurred under this section, the orders of the Government shall be final for the purpose of deciding such question or dispute. " THEre are, however, no similar provisions in sec. 26 of the Act of 1959. THEre are ofcourse, in the Act of 1959 various provisions under which disqualifications can be relied upon for appropriate action. Firstly, under sec. 34 (a) the election of a person as a member may be questioned by election petition on the ground that he was disqualified, to be chosen to fill the seat under the Act on the ground of disqualifications mentioned in sec. 26. Secondly, under Rule 6 (2) (a) of the Rajasthan Municipalities (Election of Chairman, Vice-Chairman, President and Vice-President) Rules, 1959 (hereinafter to be referred to as the Election Rules, 1959) a Returning Officer appointed for the purpose of holding and conducting an election of Chairman may reject nomination of a candidate on the ground that he suffers from any of the general disqualifications mentioned in sec. 26 of the Act of 1959. Similarly, under R. 3 (a) of the Rajasthan Municipal Boards' Chairmen and Vice-Chairmen and Municipal Councils' Presidents and Vice-Presidents (Election Petition) Rule, 1959 (hereinafter to be referred to as the Election Petition Rules, 1959), the election may be questioned on the ground of disqualifications mentioned in sec. 26. And, lastly, under sec. 63, disqualifications may be relied upon for enabling the State Government to remove a member but only after an inquiry and findings by a judicial officer of the rank of District Judge and only in conformity with his findings. On the basis of these provisions the case for the contesting respondents in opposition to the writ application may be appropriately stated as follows: - THE Act has made specific provisions for noticing and giving effect to disqualifications for several purposes, and that these various provisions contemplate Inquiries into the controversy and fair opportunity to all. Considering these provisions and the language of sec. 26, it does not contemplate that either the Chairman of the Board or a prescribed authority presiding over a meeting under sec. 72 of the Act of 1959 should be competent to notice and give effect to disqualifications and prevent members from exercising their rights, in a summary manner on what may very often be imperfect information and without inquiry and fair opportunity to the member concerned and that a member must be deemed to continue in office capable of exercising all rights untill removal or suspension under sec. 63. A provision in sec. 63 for the suspension of a member until the conclusion of the inquiry and the passing of a final order implicitly recognises the right of a member to continue until the valid declaration to the effect that he is disqualified. On behalf of the petitioner, various arguments have been advanced for a contrary contention. In the first instance, a great stress was laid on the opening sentence of sec. 26 disabling persons subject to disqualifications from both being chosen and continuing and it was contended that the incurring of the disqualifications was intended to imply an automatic termination of the members and that a fact of a member having become subject to this disqualification can be noticed and given effect to by a Chairman of the Board or by the prescribed authority under sec. 72 on proper materials coming to their notice. Any other interpretation will mean allowing a disqualified member to function and will result in making sec. 26 meaningless and nugatory. It was also pointed out that there are some disqualifications for which there can not be any serious controversy and they can be easily ascertained without an elaborate inquiry. It was further indicated that in case of a no-confidence motion against a Chairman and Vice Chairman, when the success or failure of motion depends on a very narrow margin the alleged disqualifications of members assume a great importance and in all fairness to the Vice Chairman the prescribed authority should be competent to prevent a disqualified member from contributing towards the removal of a Chairman or Vice-Chairman. Reference was also made to the possibilities of a strong Chairman taking steps against defaulting members and incurring their displeasure and of all conceivable and undesirable motions of no-confidence in consequence thereof, and also to the likely indifference of the Government in taking appropriate action under sec. 63 of the Act of 1959. These considerations have been pleaded for a liberal interpretation of sec. 26. Examining the language of sec. 26 in a literal and grammatical sense, I feel quite unable to accept the contention on behalf of the petitioner. Sec. 26 merely enumerates the disqualifications which disable a person from continuing as a member. It is not possible to find in the language of the opening sentence to imply that the disqualification can be noticed and found and given effect to without a proper determination of a controversy by a competent authority after inquiry. A controversy on a question whether a member has incurred disqualification is bound to arise in many cases, and the law does take note of such controversies and has provided for a determination of that controversy under Sec. 63. A reading of Sec. 26 with Sec. 63 and other provisions, already referred to earlier, is sufficient to negative a suggest on that the disqualification can be noticed otherwise than in accordance with the provisions of the Act of 1959. A reference to analogous provisions in the Indian Constitution and other laws also lends considerable support to the above conclusion. Art. 102 of the Constitution in terms similar to those of Sec. 26 of the Act of 1959 provides that a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament if he suffers from disqualifications mentioned in the subsequent clauses. Art. 103 further provides that if any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of Art. 102, the quest on shall be referred for the decision of the President and his decision shall be final. Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion. Further, under Art. 100 sub-sec. (2) the proceedings in the Parliament shall be valid notwithstanding that it is discovered subsequently that some persons were not entitled to take part in it. ;