{"id":109193,"date":"1961-09-20T00:00:00","date_gmt":"1961-09-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mool-chand-sharma-vs-state-of-uttar-pradesh-on-20-september-1961"},"modified":"2016-07-11T20:25:47","modified_gmt":"2016-07-11T14:55:47","slug":"mool-chand-sharma-vs-state-of-uttar-pradesh-on-20-september-1961","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mool-chand-sharma-vs-state-of-uttar-pradesh-on-20-september-1961","title":{"rendered":"Mool Chand Sharma vs State Of Uttar Pradesh on 20 September, 1961"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mool Chand Sharma vs State Of Uttar Pradesh on 20 September, 1961<\/div>\n
Equivalent citations: 1967 AIR 112, \t\t 1962 SCR (3) 718<\/div>\n
Author: R Dayal<\/div>\n
Bench: Dayal, Raghubar<\/div>\n
           PETITIONER:\nMOOL CHAND SHARMA\n\n\tVs.\n\nRESPONDENT:\nSTATE OF UTTAR PRADESH\n\nDATE OF JUDGMENT:\n20\/09\/1961\n\nBENCH:\nDAYAL, RAGHUBAR\nBENCH:\nDAYAL, RAGHUBAR\nSINHA, BHUVNESHWAR P.(CJ)\nGAJENDRAGADKAR, P.B.\n\nCITATION:\n 1967 AIR  112\t\t  1962 SCR  (3) 718\n\n\nACT:\nMunicipal Board-Member-Incurring of disqualification If\t and\nwhen   becomes\tincompetent  to\t exercise   his\t  right-U.P.\nMunicipalities\tAct,  1916 (U.P. II of 1916),  ss'.13  D(8),\n87A, sub-s.2.\n\n\n\nHEADNOTE:\nThe appellant was the President of a Municipal Committee.  A\nwritten\t notice\t of  the intention to move a  motion  of  no\nconfidence  in the President signed by nine members  of\t the\nBoard was delivered to the District Magistrate under s. 87-A\nsub-s.\t(2)of  the  U.P.  Municipalities  Act,\t1916.\t The\nDistrict  Magistrate duly convened a meeting of\t the  Board,\nbut  before  the date of the meeting the appellant  moved  a\nwrit petition in the High Court and questioned the  validity\nof  the notice.\t The writ petition was dismissed  in  limine\ninter  alia as being premature.\t The Meeting of\t the  Board.\nwas held on the due date and all the members present,  voted\nfor  the motion of no confidence and the Munsif of the\tarea\nwho  had presided declared the motion to have been  carried.\nThe  appellant by his second writ petition before\" the\tHigh\nCourt desired that the\n719\nproceeding of the meeting be quashed and the resolution\t ex-\npressing no confidence in the appellant be not given  effect\nto, by the State and the District Magistrate, for the reason\nthat  two  of the members of the Board who  had\t signed\t the\nnotice and subsequently taken part in the proceedings of the\nmeeting\t and voted, had 'incurred disqualification under  s.\n13-D  (g) of the U.P. Municipalities Act, 1916, inasmuch  as\nthey  were  in arrears in the payment of municipal  tax\t and\nother dues to which s. 166 of the Act applied.\nHeld,  that an order, dismissing a writ petition  in  limine\nnot  on\t merits but for the reason that\t it  was  premature.\ncould not operate as res judicata in subsequent proceedings.\ndoes  not automatically come under suspension, or  lose\t his\nrights\tto  take  part in the proceeding of  the  Board,  or\nperform\t the duties of a member or cease to be a  member  of\nthe   Board   merely   on   his\t  incurring   any   of\t the\ndisqualification   mentioned   in  s.  13-D  of\t  the\tU.P.\nMunicipalities Act, 1916.  A member of the Municipal  Board,\nmerely,\t by incurring the disqualification under cl. (g)  of\ns.  13-D  of  the U.P. Municipalities  Act,  1916,  was\t not\nincompetent to exercise his rights as a member of the Board.\nElection Commission, India v. Saka Venkata Subba Rao,<\/a> [1953]\nS.C.R. 1144, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 401 of 1961.
\nAppeal\tby special leave from the judgment and\torder  dated
\nMay  24, 1961, of the Allahabad’ High Court in\tCivil  Misc.
\nWrit No. 846 of 1961.\n<\/p>\n
M.   C.\t Setalvad Attorney-General for India and J.P.  Goyal
\nfor the appellant.\n<\/p>\n
C.   B.\t Agarwala and C. P. Lal, for respondents Nos. 1\t and\n<\/p>\n
2.
\nC.   K. Daphtary, Solicitor-General of India, R. K. Garg, S.
\nC.  Agarwala,  D.  P.  Singh  and  M.  K.  Ramamurthi,\t for
\nrespondents Nos. 3 to 13.\n<\/p>\n
1961.\tSeptember  20.\t The  Judgment\tof  the\t Court\t was
\ndelivered by
\nRAGHUBAR  DAYAL,  J.-This  appeal,  by\tspecial\t leave,\t  is
\ndirected  against  the\tjudgment  of  the,  High  Court\t  of
\nAllahabad dismissing a writ petition filed
\n720<\/span>
\nby  the\t appellant praying for the issue of a writ  in\tthe
\nnature of mandamus directing the State of Uttar Pradesh\t and
\nthe  District Magistrate, Meerut, not to give effect to\t the
\nresolution  passed  in\tthe meeting of the  members  of\t the
\nMunicipal  Board, Pilkhuwa, dated February 6. 1961  and\t for
\nthe quashing of the proceedings of that day.
\nThe  appellant\twas the President of  the  Municipal  Board,
\nPilkhuwa, in January-February, 1959.  On January 4, 1959,  a
\nwritten\t notice\t of  the intention to make a  motion  of  no
\nconfidence  in the President signed by nine members  of\t the
\nBoard, including Ram Nath and Kesho Ram Gupta, was delivered
\nto  the District Magistrate, Meerut, in Pursuance of  sub-s.
\n(2) of s.87-A of the U.P. Municipalities Act, 1916 (U.P. Act
\nII  of\t19 16), hereinafter called the\tAct.   The  District
\nMagistrate, Meerut, duly convened a meeting of the Board  on
\nFebruary 6, 1961.\n<\/p>\n
The  appellant\tmoved writ petition No. 367 of 1961  in\t the
\nHigh Court on February 2, 1961, and questioned the  validity
\nof  that notice.  That petition was dismissed in  limine  on
\nthe same day.  It was held that unless and until an order of
\nremoval\t is  passed actually by the State  Government  there
\ncould not be any removal of a member or anything which would
\ndisentitle  a member to take part in the proceedings of\t the
\nmeeting and that the application was also premature.
\nThe  meeting of the Board took place on February  6,  1961.
\nMr. Agarwala, Munsif, Meerut, presided over the meeting\t all
\nthe ten members who were present, voted for the motion of no
\nconfidence and the Munsif declared the motion to, have\tbeen
\ncarried.   The appellant, by his writ petition, desired\t the
\nproceedings of the meeting to be quashed and the  resolution
\nexpressing  no\tconfidence  in the appellant  be  not  given
\neffect\t to  by\t the  state  of\t U.P.  an-.’  the   District
\nMagistrate.\n<\/p>\n
 721<\/span><\/p>\n
It  was\t urged before the High Court that the MO  notice  of
\nmotion delivered to the District Magistrate was invalid\t and
\nso were the proceedings of the meeting.\t Ram Nath and  Kesho
\nRam  Gupta  who had signed the notice and  also\t Raghunandan
\nI?,;,  Prasad  who,  along  with  them\ttook  part  in\t the
\nproceedings  of the meeting and voted in support of  the  no
\nconfidence’  resolution, bad incurred, prior to\t January  4,
\n1961, disqualification under s.13-D (g) of the Act  inasmuch
\nas they were in arrears in the payment of municipal tax\t and
\nother dues in excess of one year’s demand to which s. 166 of
\nthe Act applied.  The contention was that on account of\t the
\nhaving\tincurred the aforesaid disqualification,  they\twere
\ndisqualified   from   being  members  of  the\tBoard\tand,
\nconsequently, were not competent to exercise the rights\t of
\na member of the Municipal Board.\n<\/p>\n
The  High Court held that Ram Nath had been proved to be  in
\narrears\t in payment of house tax on February 6, 196  1,\t and
\nthat  Kesho  Ram Gupta and Raghunandan Prasad  were  not  in
\narrears in payment of the Tehbzarai tax for the year 1959-60
\nand  house tax respectively.  It held that a member  of\t the
\nBoard  did  not\t cease to be a member on  his  mourning\t the
\ndisqualification   under  s.13-D(g)  and  that\t he   became
\ndisqualified  merely  to  exercise office and to  act  as  a
\nmember.\t The I-earned Judges observed :\n<\/p>\n
\t      “During\tthe   continuance   of\t the\tdis-
\n\t      qualification  the person’s right to act as  a
\n\t      member  falls into a state of suspension.\t  On
\n\t      removal  of the disqualification the state  of
\n\t\t\t    suspension\tdisappears and his right to  exer-
\n\t      cise  office as a member of the board  revives
\n\t      unless he has been removed by Government\tfrom
\n\t      membership  of the board under section  40  of
\n\t      the   Act\t during\t the  continuance  of\tdis-
\n\t      qualification.”\n<\/p><\/blockquote>\n
Holding that the motion of no confidence was valid as it had
\nbeen passed by the vote of nine members
\n722<\/span>
\nwho  constituted  the majority of more than half  the  total
\nnumber\tof members of the Board, that being  seventeen,\t and
\nthat  those  nine members of the Board being  qualified\t and
\nduly elected members of the Board, Ram Nath’s taking part in
\nthat meeting did not vitiate its proceedings in view of\t the
\nprovisions  of sub-s. (2) of s. 113 of the Act, the  learned
\nJudges dismissed the writ petition.  The learned Judges\t did
\nnot  consider the validity of the notice on merits  as\tthey
\nwere  of opinion that the order on writ petition No. 397  of
\n1961  operated\tas  res judicata, though in  view  of  their
\nopinion\t the  notice of motion of no confidence\t would\thave
\nbeen  invalid if the name of Ram Nath be excluded  from\t the
\nsignatories as in that case the number would be eight and so
\none short of the number required by the provisions of sub-s.
\n(2) of s. 87-A of the Act.  The meeting held in pursuance of
\na bad notice would also have been invalid.\n<\/p>\n
The  learned Attorney General, appearing for the  appellant,
\nhas raised the following, contentions :\n<\/p>\n
\t      (i)   The\t order dismissing writ petition\t No.
\n\t      397 of 1961 could not operate as res  judicata
\n\t      as it had been dismissed mainly on account  of
\n\t      its being premature and not on merits.\n<\/p><\/blockquote>\n
\t      (ii)  A  member  of the  Municipal  Board,  on
\n\t      incurring\t a disqualification under  s.  13-D,
\n\t      ceases to be a member of the Board so long  as
\n\t      the  disqualification exists and therefore  he
\n\t      cannot  act as a member of the Board  for\t any
\n\t      purpose.\n<\/p><\/blockquote>\n
\t      (iii) Kesho Ram Gupta was also a\tdisqualified
\n\t      member of the Board and the resolution of\t the
\n\t      Board dated February 6, 1961, holding that  no
\n\t      Tehbazari tax was due from Kesho Ram Gupta and
\n\t      that the amount deposited by him under protest
\n\t      on  February 9, 1961, be refunded., was  ultra
\n\t      vires  the  power of the Board  which  had  no
\n\t      power  to review or revise the  imposition  of
\n\t      tax.\n<\/p><\/blockquote>\n
\t      723<\/span><\/p>\n
\t      (iv)  Due to the disqualification incurred  by
\n\t      Ram Nath and Kesho Ram Gupta, both the  notice
\n\t      of motion of no confidence and the proceedings
\n\t      of  the meeting were bad as,  excluding  their
\n\t      signatures  and votes, the number\t of  members
\n\t      signing the notice and of those voting at\t the
\n\t      meeting  becomes less than half the  total  of
\n\t      the members of the Board.\n<\/p><\/blockquote>\n
\t      (v)   The\t proceedings  of  the  meeting\twere
\n\t      vitiated\teven  if Ram Nath alone, who  was  a
\n\t      disqualified  member,  had taken part  in\t the
\n\t      meeting  and were not saved by the  provisions
\n\t      of  sub-s. (2) of a. 113, as the meeting\theld
\n\t      in  pursuance of the provisions of s. 87-A  of
\n\t      the Act is not a meeting of the Board to which
\n\t      the  provisions  of sub-s. (2) of s.  113\t can
\n\t      apply.\n<\/p><\/blockquote>\n
The  learned counsel for the respondents conceded  that\t the
\norder dismissing writ No., 397 of 1961 could not operate  as
\nres judicata in’ these ,proceedings on the question  whether
\nthe notice of no confidence was a valid notice or not.
\nWe  do\tnot  agree  with  the  second  contention  .for\t the
\nappellant, or with the view expressed by the learned  Judges
\nthat  a person who incurs disqualification under cl. (g)  of
\na.  13-D of the Act becomes disqualified to exercise  office
\nand to act as a member.\n<\/p>\n
Section\t 13-C  of the Act lays down the\t qualifications\t for
\nmembership   of\t the  Board  and  s.  13-D  lays  down\t the
\ndisqualifications  for membership.  Of its ten clauses,\t the
\nrelevant  clause of s. 13-D for our purpose is cl. (g).\t  It
\nreads :\n<\/p>\n
\t      “A   person,   notwithstanding  that   he\t  is
\n\t      otherwise qualified, shall be disqualified for
\n\t      being chosen as, and for being, a member of  a
\n\t      Board  if he is in arrears in the\t payment  of
\n\t      municipal\t tax or other dues in excess of\t one
\n\t      year’s demand to which section 166 applies”.\n<\/p><\/blockquote>\n
\t      724<\/span><\/p>\n
\t      Second proviso to this section is:
\n\t      “‘Provided  further that in the case  of\t(g),
\n\t      the  disqualification shall cease as  soon  as
\n\t      the arrears are paid.”\n<\/p><\/blockquote>\n
If a member of the board falls in arrears in the payment  of
\ntax, he incurs this disqualification.  The provisions of  s.
\n13-D   do   apply  to  members\tof   the   board   incurring
\ndisqualification  during the period of their membership\t and
\nare not confined in their application to the stage  previous
\nto  the election as, in that case, the expression  “and\t for
\nbeing’\tin  the section would have been\t unnecessary.\tThis
\nexpression  has\t been interpreted  in  Election\t Commission,
\nIndia  v. Saka Venkata Subba Rao<\/a> (1) in connection with\t the
\ninterpretation of Art. 191, whose relevant provision is\t “is
\nperson\tshall be disqualified for being chosen as,  and\t for
\nbeing,\ta member of the Legislative Assembly or\t Legislative
\nCouncil of a State……… It was observed at page 1157 :\n<\/p>\n
\t      “Article 191, which lays down the same set  of
\n\t      disqualifications for election as well as\t for
\n\t      continuing as a member, and article 193  which
\n\t      prescribes the penalty for sitting and  voting
\n\t      when  disqualified, are naturally\t phrased  in
\n\t      terms  wide enough to cover  both\t preexisting
\n\t\t\t    and supervening disqualifications.”\n<\/p><\/blockquote>\n
There  is nothing in s. 13-D or in any other section of\t the
\nAct  which  provides for the suspension\t or  cessation\tfrom
\nmembership of a duly elected member on his incurring any  of
\nthe disqualifications under s. 13-D.  On the other hand\t the
\nprovisions of s. 40 of the Act lead to the inference that  a
\nmember\tincurring such a disqualification, continues  to  be
\nentitled to take part in any proceedings of the Board or  to
\nperform\t the duties of a member.  Section 40 deals with\t the
\nremoval of members and empowers the State Government
\n(1)  [1953] S.C.R. 1144.\n<\/p>\n
\t\t\t    725<\/span><\/p>\n
in  the\t case of a city or the Prescribed Authority  in\t any
\nother  case, to remove a member of the board on any  of\t the
\ngrounds\t mentioned  in cls. (a) to (f) of sub-s.  (1).\t The
\nground for removal mentioned in cl. (b) is that a member has
\nincurred any of the disqualifications mentioned in Bs.\t12-D
\nand 13-D.  Sub-sections (3), (4) and (5) of s. 40 read :\n<\/p>\n
\t      “(3) The State Government may remove from\t the
\n\t      board  a\tmember\twho in its  opinion  has  so
\n\t      flagrantly  abused in any manner his  position
\n\t      as  a  member of the board as  to\t render\t his
\n\t      continuance  as a\t member detrimental  to\t the
\n\t      public interest:\n<\/p><\/blockquote>\n
\t      (4)   Provided  that  when  either  the  State
\n\t      Government or the Prescribed Authority, as the
\n\t      case may be, proposes to take action under the
\n\t      foregoing\t provisions  of\t this  section,\t  an
\n\t      opportunity  of explanation shall be given  to
\n\t      the member concerned, and when such action  is
\n\t      taken the reasons therefore shall be placed on
\n\t      record.\n<\/p><\/blockquote>\n
\t      (5)   The\t State\tGovernment may\tplace  under
\n\t      suspension  a member, against whom  proceeding
\n\t      under   sub-sections  (3)and  (4)\t  has\tbeen
\n\t      commenced, until the conclusion of the enquiry
\n\t      and any member who has been so suspended shall
\n\t      not  so  long  as\t the  order  of\t  suspension
\n\t      continues\t to remain in force, be entitled  to
\n\t      take  part in any proceedings of the board  or
\n\t      otherwise perform the duties of a member.”\n<\/p><\/blockquote>\n
The  State  Government\tis empowered  to  suspend  a  member
\nagainst\t whom  proceedings under sub-s. (4)  had  commenced,
\ni.e., against whom action for removal is being taken on\t one
\nof the grounds mentioned ‘in cls. (a) to (f) of sub-s.\t(1).
\nA  member so suspended is not entitled to take part  in\t any
\nproceedings of the board or otherwise perform the duties  of
\na  member  during  the\tperiod of  suspension.\t It  can  be
\nlegitimately inferred from the provisions
\n726<\/span>
\nof sub-s. (5) that in the absence of an order of  suspension
\nthe   member   who  had\t not  only  incurred  any   of\t the
\ndisqualifications mentioned in s. 13-D, but against whom the
\nGovernment  might have started proceedings, was entitled  to
\ntake part in the proceedings of the board or to perform\t the
\nduties of a member so long as the Government does not  place
\nhim  under suspension.\tWe are therefore of opinion  that  a
\nmember\tof the Municipal Board does not\t automatically\tcome
\nunder  suspension  or  lose his right to take  part  in\t the
\nproceedings  of the board or perform the duties of a  member
\nor cease to be a member of the board merely on his incurring
\nany  of the disqualifications mentioned in a. 13-D.  It\t may
\nbe  mentioned  that  any  other\t conclusion  can  have\tvery
\nunstable  effect and can indefinitely make the\tvalidity  of
\nthe  proceedings  and action of the board uncertain  as\t one
\ncannot\tpredicate at any moment of time as to which  of\t the
\nmembers\t of  the board has incurred  a\tdisqualification,  a
\nmatter\twhich must be dependent mostly on the proof  of\t the
\nallegations made.  Such could not have been the intention of
\nthe Legislature.\n<\/p>\n
Kesho  Ram  Gupta and Ragbunandan Prasad  had  incurred\t the
\ndisqualification  under cl. (g) of s. 13-D of the Act,\tthey
\nwere not incompetent to exercise their rights as members  of
\nthe  board and could therefore validly sign the notice.,  of
\nmotion of no confidence and take part in the proceedings  of
\nthe  meeting held in pursuance of the provisions of s.\t87-A
\nof  the\t Act  on  February 6, 1961.   It  follows  that\t the
\nproceedings of, and the resolution passed at the meeting  of
\nFebruary  6, 1961, are valid and that the order of the\tHigh
\nCourt  dismissing the appellant’s writ petition is  correct,
\nthough for different reasons.\n<\/p>\n
In  view of this opinion., it is not necessary to deal\twith
\nthe  other  contentions\t for  the  appellant.  We  therefore
\ndismiss the appeal with costs.\n<\/p>\n
\t\t     Appeal dismissed.\n<\/p>\n
727<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mool Chand Sharma vs State Of Uttar Pradesh on 20 September, 1961 Equivalent citations: 1967 AIR 112, 1962 SCR (3) 718 Author: R Dayal Bench: Dayal, Raghubar PETITIONER: MOOL CHAND SHARMA Vs. RESPONDENT: STATE OF UTTAR PRADESH DATE OF JUDGMENT: 20\/09\/1961 BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-109193","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMool Chand Sharma vs State Of Uttar Pradesh on 20 September, 1961 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mool-chand-sharma-vs-state-of-uttar-pradesh-on-20-september-1961\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mool Chand Sharma vs State Of Uttar Pradesh on 20 September, 1961 - 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