- (1.) THIS is an application by Milapchand under Art. 226 of the Constitution for a writ of quo warranto in connection with the membership of Shrimati Ichhudevi in the Municipal Board of Didwana. The application has been opposed by Shri Shyam Sunder, Chairman of the Municipal Board, Didwana and Smt. Ichhudevi.
(2.) THE facts of the case on which the application is based are these. Shrimati Ichhudevi was a nominated member of the Board. She attended various meetings of the Board and the last meeting attended by her was on the 2nd of January, 1957. THEreafter it is said that she did not attend any meeting of the Board till the 9th of June, 1957. She also did not obtain any leave from the Board for her absence from the meetings of the Board during this period. THE applicant's case is that as Shrimati Ichhudevi did not attend the meetings of the Board consecutively for four months and did not get any leave from the Board for her absence, she has become disabled from continuing to be a member and her seat shall be deemed to have become vacant after the 2nd of May, 1957 under sec. 12 (3) (c) of the Rajasthan Town Municipalities Act (No. XXIII of 1951) (hereinafter called the Act ). THE application goes on to say that the lady in question attended the meeting of the Board on the 9th of June, 1957 on which an objection was raised about her being a member of the Board. This objection was overruled by the Chairman and consequently the present application has been filed. The opposite parties have admitted the facts so far as they have been given in the application, but they supplement these facts by certain other facts. These facts are that Shrimati Ichhudevi made an application for leave to the Chairman of the Board for three months on the 21st of January, 1957. That application was allowed by the Chairman, who granted leave to her. She again made another application on the 5th of May, 195/ for two months' further leave. On this application the Chairman made a note that it should be put up before the Board for sanction. The application of the 5th of May, 1957 came up before the Board on the 9th of June, 1957 and at that time the Chairman also mentioned that an earlier application had been made for three months leave on the 21st of January, 1957. Eventually the Board decided by majority to give leave to Shrimati Ichhudevi for the entire period. It is, therefore contended on behalf of the opposite parties that in view of this sanction of leave by the Board, Shrimati Ichhudevi did not incur the disqualification under sec. 12 (3) (c) of the Act. On these facts, the main question that arises for consideration is whether the Board can grant leave to a member even after the period of four months has expired on an application made within the period. Learned counsel for the applicant relied in this connection on Vishwanath vs. The State (I) to which one of us was a party. In that case sec. 12 (3) (c) came up for interpretation and it was held that if a member was absent for four consecutive months, he becomes disabled from continuing to be a member and his seat is deemed to have become vacant and there was no provision anywhere in the Act for waiving this disqualification once it is incurred. There is, in our opinion, no reason to differ from the view taken in that case so far as the interpretation of sec. 12 (3) (c) is concerned. But there is one trivial distinction between the facts of that case and the facts of the present case and the interpretation that has been given to sec. 12 (3) (c) has to be applied according to the facts of each case. The distinction between that case and the present case is this. In that case, there was no application for leave by the members who were held to have been disabled from continuing as such. In the present case, however, there were two applications for leave by Shrimati Ichhudevi - -one on the 21st of January, 957 and the other on the 5th of May 1957. We have, therefore, to see what difference this fact would make in the application of sec. 12 (3) (c) to the case before us Now it is well-known that members of municipal boards are honorary workers. In such cases, it seems to us only fair that if they apply for leave, they should, generally speaking, be granted that leave without any fuss. It is true that the Act provides that if the absence is of a certain duration, the membership will terminate automatically and this has been done in the interest of seeing that only such people remain members of the board who take interest in its proceedings. At the same time, the Act recognises the necessity of a member sometimes having to absent himself and has, therefore, provided for grant of leave to the member by the board. Sec. 12 (3) (c) lays down that a member cannot be absent for more than four consecutive months except with the leave of the board without forfeiting his membership. It further provides that even where the board grants leave it shall not be for more than six consecutive months. Thus sec. 12 (3) (c) contemplates that the member should not be absent without leave for four consecutive months and that, in any case, he cannot be absent for more than six consecutive months even with leave without losing his membership. There is, however, no specific provision in sec. 12 (3) (c) which lays down that the member cannot absent himself for more than four consecutive months without first getting the leave from the board, even though he might have applied for leave within time. The main question, therefore, that falls for consideration in cases like the present is whether the board can grant leave after four months have passed on an application for leave made before that period and whether such grant of leave will save the member from incurring the disqualification provided in section 12 (3) (c ). We have given the matter our earnest consideration and have come to the conclusion that there is nothing in section 12 (3) (c) which prevents the board from giving leave in a case where the application has been made within four months, even after this period of four months is over, provided always that the leave is sanctioned within the maximum period of six months. Our reasons for coming to this conclusion are these. Membership of the board is honorary and it may very well happen that sometimes a member may not be able to attend meetings of the board for a considerable time. In such a case, if he applies for leave, we see no reason why that leave should not be granted to him. But it may happen for one reason or another, as it has happened in this case, that though the member has applied for leave within time, the application may not be put up before the board at all within the period of four months. This may be due to mistake, as in this case, or carelessness or even dishonesty. But that, in our opinion, should not result in the member being disqualified for no fault of his own. In such a case, even if the application, which is made within time, is put up after four months and is granted but, always within the period of six months, which is the maximum time for which the board can grant leave the disqualification is not incurred, for the absence for consecutive four months is not without leave. The disqualification under section 12 (3) (c) arises it there is absence for four consecutive months except with the leave of the board. All that was said in Vishwanath's case (1) was that the disqualification was automatic and there was no provision any where for waiving this disqualification once it was incurred. Normally, if no application has been made within four months and there is continuous absence for four months without an application, the disqualification will be incurred immediately the four months are over. But, where there is an application for leave and the member has done all that he could do to get the leave of the board, the disqualification in our opinion, would not arise till the application for leave is disposed of by the board, but always within the maximum period of six months, for beyond that even the board has no right to grant leave. We see no difficulty in holding this keeping in view the decision in Vishwanath's case. It seems to us that this is also the just view to take, as otherwise members of the board might incur disqualification for no fault of theirs and on account of mistake or carelessness or dishonesty of some officer of the board. It could not be the intention of the legislature that the member should be so penalised for the mistake, carelessness or dishonesty of others. We are, therefore, of opinion that even though the disqualification under section 12 (3) (c) is automatic, it does not arise in circumstances like the present till the application for leave is disposed of by the board, provided always that this is done within the maximum period of six months from the last attendance of a member at a meeting of the board. Let us now apply this view to the facts of this case. The last meeting attended by Shrimati Ichhudevi was on the 2nd of January, 1957. She made her first application for three months on the 21st January, 1957 which was granted by the Chairman. It seems that the Chairman was labouring under the mistaken idea that he could grant the application, though in reality it was only the board which could grant leave unless the board could delegate this function to the Chairman under some provision of the Act. In this case, however, there is no question of delegation and we need not consider it further. So it is clear that Shrimati Ichhudevi had done all she could to get leave. It was only on account of the mistake of the Chairman that she was not granted leave for three months. If that leave had been granted to her, and there is no reason why it should not have been granted she would not have incurred any disqualification even up to the 9th of June, 1957 as she would not have been absent without leave for more than four consecutive months on that date. When she could not attend meetings within three months after her application, she applied again on the 5th of May, 1957 and she was actually present in the meeting of the 9th of June, 1957. It seems that it was only in May, 1957 that the Chairman realised that he could not grant leave and that only the Board could do so. It is unfortunate that even after having realised this, he did not put up the two applications of Shrimati Ichhudevi in the meeting of the Board which was held on the 12th of May, 1957 and it was only on the 9th of June, 1957 when an objection was raised to the presence of Shrimati Ichhudevi in the meeting of that day that he brought out the application of the 5th of May and mentioned the application of the 21st of January. The fault, therefore, in this case lay not with Shrimati Ichhudevi, but with the Chairman, who out of mistake and carelessness did not put up her application to the Board when he should have done so. But as the application of the 5th of May was put up in the meeting of 9th June and the application of 21st January was also mentioned and as the Board decided to grant her leave for the entire period which was less than six months and the leave was granted within the maximum period of six months, it cannot be said that Shrimati Ichhudevi incurred the disqualification in view of what we have said above as to the interpretation of sec. 12 (3; (c ). We, therefore, dismiss the application but in view of the circumstances and the mistake of the Chairman of the Board, we order the parties to bear their own costs. . ;