Full Judgment Text
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PETITIONER:
JIVENDRA NATH KAUL ETC.
Vs.
RESPONDENT:
THE COLLECTOR/DISTRICT MAGISTRATE AND ANR. ETC.
DATE OF JUDGMENT24/07/1992
BENCH:
VENKATACHALLIAH, M.N. (J)
BENCH:
VENKATACHALLIAH, M.N. (J)
SAWANT, P.B.
SINGH N.P. (J)
CITATION:
1994 AIR 85
ACT:
U.P. Kehhetra Samiti and Zilla Parishad Adhiniyam,
1961:
Section 28(11)-President-No confidence motion-When
carried out-‘For’ the time being’-Interpretation of-Means at
the moment or existing position-Actual membership in
existence on date of no confidence motion.
HEADNOTE:
The appellant was elected president of the Zilla
Parishad on January 25, 1989. Two others were nominated as
members of the Zilla Parishad. On the date of its
constitution the Zilla Parishad had a total of 62 members.
On August 17, 1990, 56 members of the Zilla Parishad
moved a no confidence motion against the president under
Section 28 of the U.P. Kehhetra Samiti and Zilla Parishad
Adhiniyam, 1961. The meeting to consider the said motion
was held on September 14, 1990. 34 members were present at
the meeting. 33 members including the two nominated members
voted in favour of the motion while one member voted
against, and as such the motion of no confidence was carried
out against the president.
The appellant filed two writ petitions in the High
Court and challenged and proceedings of the meeting dated
September 14, 1990 and also his removal from the office of
the president. He further challenged the nomination of the
two nominated members on the ground that on the date of
their nomination both of them were in government service and
as such were disqualified to be members of the Zilla
Parishad, being holders of an office of profit.
The High Court by its judgment partly allowed the Writ
Petitions and set aside the nominations of the two members
holding the same to be illegal. It further held, that as
they were not lawful members of the Parishad, their names
are to be ignored, that the total strength of the members of
the Parishad for the time being comes to 60, and if these
two
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names are also excluded from the number of members who voted
for the action of no confidence, the number of such members
who voted for the motion of confidence, comes to 31. Thus,
31 members voted for the action of no confidence out of the
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total strength of 60 members, and therefore the irresistible
conclusion was that the motion of no confidence was carried
out by more than half of the total number of members of the
Zilla Parishad for the time being.
The appellant filed appeals to this Court by Special
Leave. It was contended on behalf of the appellant relying
on an earlier judgment of the High Court in Bhaiya Lal v.
P.N. Tiwari 1970 Allahabad Law Journal 36, that the words
"for the time being" in Section 28(11) of the Adhiniyam
means the total number of members in existence at the time
of the constitution of the Zilla Parishad and not on the
date when the motion of no confidence was considered.
Dismissing the appeals, this Court,
HELD : 1. "For the time being" in section 28(11) of the
Adhiniyam means at the moment or existing position. These
words indicate the actual membership in existence on the
date of the motion of no confidence. [648A]
2. The High Court in Bhaiya Lal’s case has not given
natural meaning to the expressions contained in sub-sections
12 and 13 of section 87-A of the U.P. Municipalities Act,
1916. The only meaning which can be given to the expression
"half of the total members of the Board" is the members as
existing on the date of its constitution. The High Court’s
interpretation is contrary to the plain language of the sub-
section. Similarly, the High Court fell into grave error by
not appreciating the plain meaning of the words "for the
time being" in sub-section 13 of section 87-A of the Act.
On the basis of strained reasoning it has given an
interpretation which does not flow from the simple language
of sub-sections 12 and 13 of section 87-A of the Act. The
High Court Judgment does not therefore lay down the correct
law. [647F-648B]
Bhaiya Lal v. P.N. Tiwari, 1970 All. L.J. 36, over-
ruled.
In the instant case, where out of total number of 62
members, nomination of two having been held illegal, actual
membership on the date of the motion was 60, and out of
total 34 members present in the meeting,
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33 voted for the motion and only 1 voted against, it has to
be held that the motion was carried out against the
President. [646 E-F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2652-
53 of 1992.
From the Judgment and Order dated 6.3.1991 of the
Allahabad High Court in W.P. No.8460 of 1990 and C.M.W.P.
No. 9514 of 1990.
Satish Chandra P.K. Chakraborty and Ms. Sandhya Goswami
for the Appellant.
The Judgment of the Court was delivered by
KULDIP SINGH, J. Special leave granted.
J.N. Kaul was elected president of Zilla Parishad,
Lucknow on January 25, 1989. D.K. Anand and Nand Kishore
Verma were nominated as members of the zilla Parishad. On
the date of its constitution the Zilla Parishad had total of
62 members. On August 17, 1990 56 members of the Zilla
Parishad moved a no confidence motion against the president
under section 28 of U.P. Kehhetra Samiti and Zilla Parishad
Adhiniyam, 1961 (hereinafter called as the Adhiniyam).
Section 28(11) of the Adhiniyam which is relevant is as
under:-
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"If the motion is carried with the support of more than
half of the total number of members of the Zilla Parishad
for the time being......"
The meeting to consider the motion of no confidence was
held on September 14, 1990. 34 members were present at the
meeting. 33 members including Anand and Verma voted in
favour of the motion while one member voted against and as
such the motion of no confidence was carried out against the
president.
J.N. Kaul filed two writ petitions before the Allahabad
High Court which were heard together. In the writ petitions
Kaul challenged the proceedings of the meeting dated
September 14, 1990 and also his removal from the office of
the president. He further challenged the nomination of
Anand and Verma on the ground that on the date of their
nomination both of them were in government service and as
such were disqualified to be members of the Zilla Parishad,
being holders of an officer of profit. His
645
challenge in the writ petition was based on the following
grounds:-
(1) That the nomination of Anand and Verma as
members of the Zilla Parishad was illegal as on the
date of nomination they were government servants
and were holding "office of profit".
(2) That the notice by the members intimating their
intention to move the motion of no confidence was
illegal as Anand and Verma who were disqualified to
hold the office of member of Zilla Parishad, had
signed the said notice.
(3) That the meeting dated September 14, 1990 was
in violation of mandatory provisions of the
Adhiniyam as the reguisite clear notice of 15 days
was not served upon the members nor the notice was
published by affixng the same on the notice board
of the Parishad.
(4) That the participation of Anand and Verma in
the deliberation of the meeting dated September 14,
1990 vitiates the entire proceedings of the
meeting.
(5) That the required "more than half of the total
number of members of the Zilla Parishad for the
time being" did not vote in favour of the motion.
The High Court by a reasoned judgment partly allowed
the petitions and set-aside the nominations of Anand and
Verma holding the same to be illegal. All other contentions
raised before it on behalf of Kaul were rejected. This
appeal via special leave petition is against the judgment of
the High Court.
We have heard Mr. Satish Chandra, learned Senior
Advocate on behalf of the appellant. We have been taken
through the judgment of the High Court. We do not find any
infirmity in the same. We agree with the reasoning and the
conclusions reached by the High Court. Mr. Satish Chandra,
taking support from Bhaiya Lal v. P.N. Tiwari, 1970
Allahabad Law Journal 36 has assailed the finding of the
High Court on the point that the motion of no confidence was
not supported by more than half of the total number of
members of the Zilla Parishad for the time being. The
relevant part of the High Court judgment, under appeal, is
as under:-
646
"We have the report of the Presiding Officer, Sri
Sushil Kumar Srivastava, as Annexure-3 to the
counter affidavit of the Collector, Lucknow. The
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report is quite revealing. The report shows that
in all 34 members of the Parishad were present.
After deliberations 32 members voted in favour of
the motion of no-confidence and one member voted
against the motion of no-confidence. The remaining
vote of the 34th member was debated because the
mark made by the voter was not made in the column
meant for "yes". Initially the Presiding Officer
was of the view that the vote was invalid but when
the Assistant Election Officer informed the
presiding Officer that it was not explained to the
members as to at what place the mark was to be
placed by the voter, the Presiding Officer was of
the view that since the mark was above the column
meant for "yes" the vote was valid and was cast in
favour of the motion of no-confidence. Thus, a
total of 33 members voted for the motion of no-
confidence when the total strength at that time was
62. It was not disputed that both opposite parties
nos.2 and 3 voted for the motion of no-confidence.
We have already held that they were not lawful
members of the Parishad and, as such, their names
are to be ignored. If we ignore these two members,
then the total strength of the members of the
Parishad for the time being comes to 60 and if
these two names are also excluded from the number
of members, who voted for the action of no-
confidence, the number of such members who voted
for the motion of no-confidence, comes to 31.
Thus, 31 members voted for the action of no-
confidence out of total strength of 60 members.
The conclusion was irresistible that the motion of
no-confidence was carried out by more than half of
the total number of members of the Zilla Parishad
for the time being."
Mr. Satish Chandra contended that "for the time being"
in section 28(11) of the adhiniyam means the total number of
members which were in existence at the time of the
constitution of the Zilla Parishad and not on the date when
the motion of no confidence was considered. According to
him the total number of members which should have been taken
into consideration was 62 and since the votes for the motion
were 31 which means only 50% and not more than 50%, the
motion failed. The argument has been advanced on the basis
of the judgement of a Division Bench of
647
Allahabad High Court in Bhaiya Lal’s case (supra). In that
case the High Court was concerned with the provisions of
U.P. Municipalities Act, 1916 (Act). The municipal Board
Mugal Sarai consisted of 16 members including the president.
A notice of the intention to move a motion of no-confidence
against the president was given by the members. Sub-section
(12) and (13) of section 87-A of the Act which came for
consideration before the High Court in Bhaiya lal’s case
(Supra) were as under:-
12. "The motion shall be deemed to have been
carried only when it has been passed by a majority
of more than half of the total number of members of
the Board".
13. "If the motion........which shall not be less
than one-half of the total number of members of the
board for the time being, no notice of any
subsequent motion of non-confidence in the same
president shall be received until after the expiry
of a period of twelve months from the date of the
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meeting."
The Allahabad High Court interpreted "for the time
being" in sub-section (13) of section 87-a to mean the
members of the board as they existed on the date of its
constitution and not on the date when the motion of no
confidence was considered. So far as sub-section (12) of
section 87-A of the Act was concerned the High Court
interpreted the expression "total number of members of the
Board" to mean to total number of member who were
functioning as such at the relevant time which means on the
date of the meeting and did not include members or members
who had been removed from office. We are of the view that
the High Court judgment in Bhaiya Lal’s case (supra) does
not lay down correct law. The High Court has not given
natural meaning to the expressions contained in sub-sections
(12) and (13) of section 87-A of the Act. The only meaning
which can be given to the expression "half of the total
number of members of the Board" is the members as existed on
the date of its constitution. The total number of members on
the date of the composition of the municipal board, Mugal
Sarai was 16 and as such not withstanding the removal of
member/members the motion of no confidence could only be
passed if the motion was supported by more than 8 votes. The
High Court’s interpretation is no the fact of it contrary to
the plain language of the sub-section. Similarly the High
Court fell into grave error by not appreciating the plain
meaning of the words "for the time being" in sub-section
(13) of section 87-A of the
648
Act. "For the time being" means at the moment or existing
position. These words indicate the actual membership in
existence on the date of the motion of no confidence. The
High Court on the basis of strained reasoning has given
interpretation which does not flow from the simple language
of sub-sections (12) and (13) of section 87-a of the Act.
We, therefore, hold that the High Court judgment in Bhaiya
Lal’s case (Supra) does not lay down the correct law and we
over-rule the same.
Apart from relying on the judgment of Allahabad High
Court in Bhaiya Lal’s case Mr. Satish Chandra did not
advance any other argument before us.
We, therefore, dismiss the appeal with no orders as to
cost.
N.V.K. Appeals dismissed.
649