Full Judgment Text
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PETITIONER:
OM NARAIN AGARWAL AND ORS. ETC.
Vs.
RESPONDENT:
NAGAR PALIKA SHAHJAHANPUR AND ORS. ETC.
DATE OF JUDGMENT19/02/1993
BENCH:
KASLIWAL, N.M. (J)
BENCH:
KASLIWAL, N.M. (J)
YOGESHWAR DAYAL (J)
CITATION:
1993 AIR 1440 1993 SCR (2) 34
1993 SCC (2) 242 JT 1993 (4) 483
1993 SCALE (1)663
ACT:
United Provinces Municipalities Act 1916: Section 9 First
and Fourth provisos-Nominated women members to the Municipal
Board-Cancellation of their nomination without notice by
State Government-Whether Article 14 of the Constitution
attracted-Doctrine of pleasure-Application of.
Constitution of India, 1950: Article 14-Nominated Women
members to the Municipal Board under Section 9 of the United
Provinces Municipalities Act 1916-Cancellation of their
nomination without notice by State Government-
Constitutionality of-Doctrine of pleasure-Application of.
HEADNOTE:
In January, 1989, in accordance with First Proviso to
Section 9 of the United Provinces Act, 1916 one Smt. Sarla
Devi was nominated by the State Government as the sole Woman
member for the Municipal Board. On 15.2.1990 U.P. Ordinance
No. 2 of 1990 later on replaced by U.P. Act No. 19 of 1990
amended the proviso of Section 9 of the Act substituting a
new proviso, providing for the nomination of two Women
members by the State Government. The Amendment Act also
added a fourth proviso to the Section which provided that
the nomination of the two women members was at the pleasure
of the State Government.
On 19.2.1990 the Government issuing a general notification
and cancelled nominations of Women members in several
Municipal Boards. Cancelling the nomination of Smt. Sarla
Devi, Smt. Abida and Smt. Hazra Khatoon were nominated by
the Government on 19.4.1990.
On 22.7.1991 under Section 87-A of the Act a no- confidence
motion against one Mohd. Iqbal, the President of the Board
was initiated by some members before the District
Magistrate.. The District Magistrate fixed 12.8.1991 for
consideration of the confidence motion.
On 2.8.1991, the Government nominated Smt Shyama Devi and
Smt. Baijanti Devi as the two women members of the Board,
cancelling the nominations of Smt. Abida and Smt Hazra
Khatoon.
35
On 9.8.1991 Mohd. Iqbal, President of the Municipal Board,
against whom the non-confidence motion was pending, filed a
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writ petition in the High Court challenging the
constitutional validity of the fourth proviso to Section 9
of the Act and also challenged the notification dated
2.8.1991. Further he challenged the proceedings of no-
confidence motion initiated against him.
The High Court did not grant any stay of no-confidence
proceedings, but ordered that the outcome of the no-
confidence proceedings shall be subject to the result of the
writ petition.
In the meeting fixed on 12.8.1991 by the District Magistrate
to consider the no-confidence motion 20 members of the Board
voted in favour of the no-confidence motion, out of the
total strength of 37 members of the Board. The newly
nominated Women members by notification dated 2.8.1991
participated in the meeting, whereas Smt Abida and Hazra
Khatoon neither attended the meeting nor claimed any right
to attend the same.
The no-confidence motion dated 12.8.1991 was passed against
Mohd. Iqbal. One Om Narain, The appellant No. 1 in C.A.
Nos. 714-16 of 1993) who was the Vice-President of the Board
was elected as the President in the vacancy. The appellant-
Om Narain took charge of the office of the President of the
Board and continued to function as the president.
Mohd. Iqbal, the former President filed another writ
petition challenging the no-confidence motion dated
12.8.1991 passed against him. Smt. Abida and Smt Hazra
Khatoon also filed a writ petition, challenging the
notification dated 2.8.1991, which cancelled their
nominations and nominated Smt. Shyama Devi and Smt.
Baijanti Devi in their places.
A Division Bench of the High Court considered all the three
writ petitions two by the former President and one by the
former women members. Agreeing with the decision in Dr.
Smt. Rama Mishra v. State of U.P. (Writ Petition No. 11114
of 1990 disposed on 9.12.1991) allowed the writ petitions,
quashing the notification dated 2.8.1991 and declaring Mohd.
Iqbal to be the president of the Board.
The review application flied by the appellants was dismissed
by the High Court.
36
Being aggrieved against the High Court’s decision, the
former Vice President and the Women members nominated by
notification dated 2.8.1991 approached this Court in these
appeals (C.A.Nos. 714-716 of 1993) by special leave. The
C.& No. 717 of 1993 was by another Woman member of another
Municipal Board, having aggrieved against the judgment of
the High Court dated 9.12.1991 passed in Dr. Rama Mishra’s
case.
The appellants contended that the view taken in Dr. Rama
Mishra’s case was not correct and the view taken in Prem
Kumar Balmiki v. State of U.P. (W.P. No. 1067 of 1991,
disposed of on 13.11.1991) was correct; that the State
Legislature was competent to insert fourth proviso and to
lay down that the nominated members shall hold office during
the pleasure of the State Government; that if the initial
appointment by nomination was made on political
considerations, political considerations should be allowed
to operate in terminating such appointments made by
nomination; that there was no violation of any principle of
natural justice nor such provision was arbitrary so as to be
violative of Article 14 of the Constitution; and that the
only requirement under the second proviso to Section 9 of
the Act was that if none or only one of the members elected
under clause (b) was a woman, the State Government was to
nominate by notification two Women members or one more Woman
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member, as the case may be, so that the number of Women
members in the Board was not less than two, and that the
State Government did not violate the provision.
The private respondents submitted that once the power of
nominating the Women members was exercised by the State
Government, such nominated members could not be removed
prior to the completion of the term of the Board, unless
they were removed on the grounds contained under section 40
of the Act; that the State Government could not be allowed
to remove a nominated member at its pleasure without
assigning any reason and without affording any opportunity
to show cause; that once a Woman member was nominated, she
got a vested right to hold the office of a member of the
Board and the State Government could not be given an
uncanalised, uncontrolled and arbitrary power to remove such
member; that such arbitrary power without any guidelines
would be contrary to the well established principles of
democracy and public policy and that it would hamper the
local bodies to act independently without any hindrance from
the side of the Government.
37
Allowing the appeals, this Courts,
HELD: 1.01. The right to seek an election or to be
elected or nominated to a statutory body, depends and arises
under a statute. The initial nomination of the two Women
members itself depended on the pleasure and subjective
satisfaction of the State Government. If such appointments
made initially by nomination are based on political con-
siderations, there can be no violation of any provision of
the Constitution in case the Legislature authorised the
State Government to terminate such appointment at its
pleasure and to nominate new members in their place.
[50G-H]
1.02. The nominated members do not have the will or
authority of any residents of the Municipal Board behind
them as may be present in the case of an elected member. In
case of an elected member, the Legislature has provided the
grounds in Section 40 of the Act under which the members
could be removed, But so far as the nominated members are
concerned, the Legislature in its wisdom has proved that
they shall hold office during the pleasure of the
Government. [51B]
1.03. Such provision neither offends any Article of the
Constitution nor the same is against any public policy or
democratic norms enshrined in the Constitution. There is
also no question of any violation of principles of natural
justice in not affording any opportunity to the nominated
members before their removal nor the removal under the
pleasure doctrine contained in the fourth proviso to Section
9 of the Act puts any stigma on the performance or character
of the nominated members. It is done purely on political
considerations. [51D]
1.04. In Dr. Rama Mishra’s case, the High Court wrongly
held that the pleasure doctrine incorporated under the
fourth proviso to Section 9 of the Act was violative of the
fundamental right of equality as enshrined in Article 14 and
Article 15(3) of the Constitution. [51E]
Dr. Smt. Rama Mishra v. State of U.P. Writ Petition No. 11
114 of 1990 decided on 9.12.1991 by the Allahabad High
Court, over-ruled.
Prem Kumar Balmiki v. State of U.P. Writ Petition No. 1067
of 1991 decided on 13.11.1991 by the Allahabad High Court,
approved.
1.05. The special provision contained for nominating one
or two
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38
women members as the case may be provided in Section 9 of
the Act would be protected from challenge under clause (3)
of Article 15 of the Constitution. [52B]
1.06. The provision of pleasure doctrine incorporated by
adding proviso four does not, in any manner, take away the
right to representation of women members in the Board, but
it only permits the State Government to keep the nominated
women members of its own choice. [52C]
1.07. The right of equality enshrined under Article 14
of the Constitution applies to equals and not to unequals.
The nominated members of the Board fall in a different class
and cannot claim equality with the elected members. [52E]
1.08. Even in the case of highest functionaries in the
Government like the Governors, the Ministers, the Attorney
General and the Advocate General discharge their duties
efficiently, though removable at the pleasure of the
competent authority under the law, and it cannot be said
that they are bound to demoralise or remain under a constant
fear of removal and as such do not discharge their functions
in a proper manner during the period they remain in the
office. [52G]
1.09. The motion of no-confidence being supported by 20
members which admittedly constituted a majority of the total
strength of the members of the Board being 37, the no-
confidence motion has been rightly carried out and as a
result of which Mohd. Iqbal was not entitled to continue as
President of the Board. Similarly, Smt. Abida and Smt.
Hazra Khatoon having been rightly removed as nominated
members, they are no longer entitled to continue as
nominated members of the Municipal Board, Shahjahanpur and
in their place Smt. Shyama Devi and Smt. Baijanti Devi
shall be entitled to continue as nominated members of the
Board. [53C-D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 714-16 of
1993.
From the Judgment and Order dated 14.9.92 of the Allahabad
High Court in Civil Misc. W.P. Nos. 20731, 23861 & 24353 of
1991.
AND
Civil Appeal No. 717 of 1993.
39
From the Judgment and Order dated 9.12.91 of the Allahabad
High Court in Civil Misc. W.P.No. 11114 of 1990.
D.V. Sehgal, Ravi Kiran Jain, Sunil Gupta, Jamshed Bey, H.K.
Puri, Mrs. Rani Chhabra and R.B. Misra for the Appellants.
Sabir Hussain Saif, Shakeel Ahmed Syed, Bahar U. Barqi, Anis
Suhrawardy and Vijay Hansaria for the Respondents.
The Judgment of the Court was delivered by
KASLIWAL, J. Special leave granted.
As common questions of fact and law are involved in all the
above cases, as such they are disposed of by one single
order. First proviso to Section 9 of the United Provinces
Municipalities Act, 1916 (hereinafter referred to as ’the
Act’) provided for nomination of only one woman as a member
of the Municipal Board by the State Government. Further,
there was no provision permitting the State Government to
cancel the nomination of such member at its pleasure. One
Smt. Sarla Devi was nominated by the State Government as
the sole Woman member for the Shahjahanpur Municipal Board
(hereinafter referred to as ’the Board) in January, 1989.
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By U.P. Ordinance No. 2 of 1990 later on succeeded by
Ordinance No. 8 of 1990 and eventually replaced by U.P. Act
No. 19 of 1990, the aforesaid first proviso to Section 9 of
the Act was substituted by another proviso which made
provision for the nomination of two women members by the
State Government. Further, a fourth proviso was also added
to Section 9 of the Act which provided that the nomination
of the aforesaid two members was at the pleasure of the
State Government. The aforesaid Ordinance No. 2 of 1990 was
promulgated on 15.2.1990.
Soon thereafter on 19.2.1990, a general notification was
issued by the State Government cancelling of nominations of
Women members in several Municipal Boards in Uttar Pradesh.
The nomination of Smt. Sarla Devi also stood cancelled. On
19.4.1990, the State Government nominated Smt. Abida and
Hazra Khatoon as members of the Board under the newly
introduced fourth proviso to Section 9 of the Act. The
total strength of the Board was 37 including two nominated
women members. On 22.7.1991 Mohd. Iqbal was the President
of the Board and Shri Om Narain Agarwal was the Vice-
President of the Board. Some members of the Board on
40
22.7.1991initiated no-confidence motion against Mohd. Iqbal
before the District Magistrate in accordance with the
procedure prescribed under Section 87-A of the Act. The
District Magistrate fixed 12.8.1991 for consideration of the
no-confidence motion. In the meantime, the State Government
on 2.8.1991 in exercise of its powers under the fourth
proviso to Section 9 of the Act issued notification
cancelling the nominations of Smt. Abida and Hazra Khatoon
and in their place nominated Smt. Shyama Devi and Smt.
Baijanti Devi as the two women members of the Board. On
9.8.1991 Mohd. Iqbal filed a Writ Petition No. 20731 of
1991 in the High Court challenging the constitutional
validity of the fourth proviso to Section 9 of the Act as
well as the notification dated 2.8.1991 whereby the nomina-
tions of Smt. Abida and Hazra Khatoon were cancelled and in
their place Smt. Shyama Devi and Smt. Baijanti Devi were
nominated. Mohd. lqbal also challenged the proceedings of
no-confidence motion initiated against him. The High Court
in the aforesaid Writ Petition passed an interim order
stating that outcome of the no-confidence proceedings shall
be subject to the result of the Writ Petition but did not
grant any stay of no-confidence proceedings. Smt. Shyama
Devi and Smt. Baijanti Devi participated in the meeting
held on 12.8.1991 and so far as Smt. Abida and Hazra
Khatoon are concerned, they neither attended the said
meeting nor claimed any right to attend the same. In the
aforesaid meeting held on 12.8.1991, 20 members of the Board
voted in favour of the no- confidence motion out of the
total strength of 37 members of the Board. After the no-
confidence motion dated 12.8.1991 having been passed against
Mohd. lqbal, a casual vacancy arose in the Office of the
President of the Board by virtue of Section 47-A of the Act
and Shri Om Narain the then Vice-President was elected as
President of the Board. Om Narain took charge of the said
Office and continued to function as President thereafter.
Mohd. Iqbal then filed another Writ Petition No. 23861 of
1991 on 20th August, 1991 challenging the no-confidence
motion dated 12.8.1991 passed against him. The High Court
refused to pass any stay order in favour of Mohd. Iqbal.
Smt. Abida and Smt. Hazra Khatoon also filed a Writ
Petition No. 24353 of 1991 on 12.9.1991 challenging the
cancellation of their nominations and nominating Smt.
Shyama Devi and Smt. Baijanti Devi in their place.
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A Division Bench of the Lucknow Bench of the Allahabad High
Court in Writ Petition No. 1067 of 1991 Prem Kumar Balmiki
v. State of U.P. by order dated 13.11.1991 held that the
fourth proviso to Section 9 of the Act was constitutional
and valid and any notification issued by the State
41
Government under the said provision was also valid. Another
Division Bench of the Allahabad High Court sitting at
Allahabad in Writ Petition No. 11114 of 1990 Dr. Smt. Rama
Mishra v. State of U.P. by ’order dated 9.12.1991 held that
the fourth proviso to Section 9 of the Act was arbitrary,
unreasonable, unconstitutional and invalid and any
notification issued thereunder cancelling the nomination of
any woman member of the Board and nominating a new member
was invalid. A Division Bench of the Allahabad High Court
considered all the three Writ Petitions, two filed by Mohd.
Iqbal and one by Smt. Abida and Smt. Hazra Khatoon and by
a common order dated 14.9.1991 recorded its agreement with
the decision in Rama Mishra’s case and quashed the
notification dated 2.8.1991 whereby Smt. Abida and Smt.
Hazra Khatoon were ousted and in their place Smt. Shyama
Devi and Smt. Baijanti Devi were nominated and also
declared Mohd. Iqbal to be the President of the Board. In
this judgment the High Court though followed Rama Mishra’s
case but failed to take notice of the decision of the
Lucknow Bench of the High Court dated 13.11.1991 given in
Prem Kumar Balmiki’s case. A review application filed by Om
Narain and others was also dismissed by the High Court by
order dated 21.9.1992.
Aggrieved against the aforesaid decision of the High Court,
Om Narain Agarwal former Vice-President, Smt. Shyama Devi
and Smt. Bailjanti Devi have come in appeal by Special
Leave Petition Nos. 13621-23 of 1992. Smt. Bashiran who
was a nominated woman member in the Municipality of Varanasi
and whose nomination was subsequently cancelled has filed
Special Leave Petition No. 13004 of 1992 against the
judgment of the Allahabad High Court dated 9.12.1991 passed
in Dr. Rama Mishra’s case.
The Division Bench of the High Court in the impugned order
dated 14.9.1992 has agreed with the view taken in Dr. Rama
Mishra’s case. After taking the aforesaid view the High
Court held that the State Government had no power to cancel
the nominations of Smt. Abida and Smt. Hazra Khatoon and
to nominate Smt. Shyama Devi and Smt. Baijanti Devi in
their place. The High Court as a result of the above
finding held that the notification dated 2.8.1991 was a
nullity and that being so, the earlier notification dated
19.4.1990 nominating Smt. Abida and Smt. Hazra Khatoon
remained operative. The High Court then considered the next
question as to what was the effect of the notification dated
2.8.1991 and the motion of no-confidence passed on
12.8.1991. The High Court in this
42
regard took the view that the total strength of the members
was 37 and the motion of no-confidence was carried out by 20
members including the two nominated members Smt. Shyama
Devi and Smt. Baijanti Devi. As nomination of these two
women members was declared to be invalid, their par-
ticipation and voting right shall have to be ignored and in
that view of the matter, proceedings dated 12.8.1991 shall
be considered as having been attended only by 18 eligible
members and the motion cannot be deemed to have been carried
by a majority of the members consisting of at least 19
members. The High Court thus held that the provision of
Section 87-A (12) of the Act being mandatory and the
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resolution of no-confidence having not been passed by a
requisite majority the entire proceedings held on 12.8.1991
relating to the motion of no-confidence was non est and as
such the resolution of no-confidence passed therein was
void. The High Court also repelled the contention that till
the nomination of Smt. Shyama Devi and Smt. Baijanti Devi
was declared void, all acts done by them will be protected
by de facto doctrine. The High Court also repelled the
contention that the nomination of Smt. Abida and Smt.
Hazra Khatoon vide notification dated 19.4.1990 should also
be declared invalid on the analogy on which the notification
dated 2.8.1991 nominating Smt. Shyama Devi and Smt.
Baijanti Devi has been declared invalid. The High Court in
this regard held that the notification dated 19.4.1990 shall
remain operative unless the same is challenged and declared
to be void. It was also held by the High Court that in view
of the interim order passed on 9.8.1991 in Writ Petition No.
20731 of 1991 to the effect that the result of no-confidence
motion shall be subject to the decision of the Writ
Petition, Section 47-A(1)(b) of the Act cannot be invoked
against the writ petitioner. The High Court after recording
the above findings passed the following operative order:-
"In the result the Writ Petition No. 20731 of
1991 is partly allowed and the notification
dated 2.8.1991 (Annexure No. 3 to the
Petition) is quashed. The Writ Petition No.
23861 of 1991 succeeds and is allowed and the
entire proceedings taken up in the meeting
dated 12.8.1991 including the resolution of
no-confidence passed against the petitioner
are quashed. Annexures No. 1 and 1 A to this
petition are quashed. The respondents are
directed not to interfere with the
petitioner’s working as President of the
Municipal Board, Shahjahanpur. The Writ
Petition No. 24353 of 1991 succeeds and is
allowed. Notification dated 2.8.1991 (An-
43
nexure No. 1 to this petition having been
quashed, the respondents are directed to treat
the petitioners as members of the Municipal
Board, Shahjahanpur and permit them to act as
such. No order as to costs."
Before considering the arguments advanced on behalf of the
appellants, it would be necessary to state the relevant
provisions of the Act namely, Sections 9, 47-A and 87-A of
the Act. Section 9 of the Act including the amendment added
from 15.2.1990 is reproduced as under:-
"[Section 9. Normal composition of the board.-
Except as otherwise provided by Section 10, a
Board shall consist of-
(a) The President;
(b) The elected members who shall not be
less than 10 and not more than 40, as the
State Government may by notification in the
Official Gazette specify;
(c) The ex officio members comprising all
members of the House of People and the State
Legislative Assembly whose constituencies
include the whole or part of the limits of the
Municipality;]
[(d) Ex-officio members comprising all members
of the Council of States and the State
Legislative Council who have their residence
within the limits of the Municipality.
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Explanation.-
For the purposes of this clause, the place of
residence of a member of the Council of States
or the State Legislative Council shall be
deemed to be the place of his residence
mentioned in the notification of his election
or nomination, as the case may be] :
[Provided that if none of the members elected
under clause (b), is a woman, the State
Government may by a like notification nominate
one woman as a member of the Board and
thereupon, the normal composition of the
44
Board shall stand varied to that extent]
[Provided that if none or only one of the
members elected under clause (b), is a woman,
the State Government may, by notification,
nominate two women members or one more woman
member, as the case may be, so that the number
of women members in the Board is not less than
two and thereupon the normal composition of
the Board shall stand varied to that extent]
[Provided further that if any member of the
State Legislative Council representing the
Local Authorities Constituency does not have
his residence within the limits of any
Municipality, he will be deemed to be ex-
officio member of the board of such one of the
municipalities situated within his
constituency as he may choose :
Provided also that if none of the members
elected under clause (b) belongs to safai
mazdoor class, the State Government may, by
notification, nominate a person belonging to
the said class a member of the Board, and
thereupon the normal composition of the Board
shall stand varied to that extent.
Explanation :
A person shall be deemed to belong to the
Safai Mazdoor class if he belongs to such a
class of scavengers by occupation or to such
of the Scheduled Castes traditionally fol-
lowing such occupation as may be notified by
the State Government] :
[Provided also that a member nominated under
this section, whether before or after February
15, 1990 shall hold office during the pleasure
of the State Government, but not beyond the
term of the Board.]"
"[47-A. Resignation of President of vote of
non-confidence.-
(1) If a motion of non-confidence in the
President has
45
been passed by the board and communicated to
the President in accordance with the
provisions of Section 87-A, the President
shall
(a) With three days or the (receipt) of such
communication, either resign his office or
represent to the State Government to
(supersede) the board stating his reasons
therefore, and
[(b) unless he resigns under clause (a), cease
to hold office of President on the expiry of
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three days after the date of receipt of such
communication, and thereupon a casual vacancy
shall be deemed to have occurred in the office
of the President within the meaning of Section
44-A:
Provided that.if a representation has been
made in accordance with clause (a) the board
shall not elect a President until an order has
been made by the State Government under sub-
section (3)].
[(2) ]
(3) If a representation has been made in
accordance with sub-section (1), the State
Government may after considering the same
[either supersede the board for such period,
not exceeding the remainder of the term of the
board, as may be specified, or reject the
representation.]
[(4)*]
[(5)*]
[(6) If the State Government supersedes the
board under sub-section (3) the consequences
mentioned in Section 31 shall follow as if
there had been a supersession under Section
30.’]
"[87-A. Motion of non-confidence against
President.
(1) Subject to the Provisions of this
section, a motion expressing non-confidence in
the President shall be made
46
only in accordance with the procedure laid
down below.
[(2) Written notice of intention to make a
motion of no-confidence in its President
signed by such number of members of the Board
as constitute no less than [one-half] of the
total number of members of the Board together
with a copy of the motion which it is proposed
to make shall be delivered in person together
by any two of the members signing the notice
to the District Magistrate.]
(3) The District Magistrate shall then
convene a meeting for the consideration of the
motion to be held at the office of the board,
on the date and at the time appointed by him
which shall not be earlier than thirty and not
later than thirty-five days from the date on
which the notice under sub-section (2) was
delivered to him. He shall send by registered
post not less than seven clear days before the
date of the meeting, a notice of such meeting
and of the date and time appointed therefor,
to every member of the board at his place of
residence and shall at the same time cause
such notice to be published in such manner as
he may deem fit. Thereupon every member shall
be deemed to have received the notice.
(4) The District Magistrate shall arrange
with the District Judge for a stipendiary
civil judicial officer to preside at the
meeting convened under this section, and no
other person shall preside thereat. If within
half an hour from the time appointed for the
meeting, the judicial officer is not present
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to preside at the meeting, the meeting shall
stand adjourned to the date and the time to be
appointed and notified to the members by that
officer under sub-section (5).
(5) If the judicial officer is unable to
preside at the meeting, he may, after
recording his reasons adjourn the meeting to
such other date and time as he may appoint,
but not later than fifteen days from the date
appointed for the meeting under sub- section
(3). He shall without delay communicate in
writing to the District Magistrate the
47
adjournment of the meeting. It shall not be
necessary to send notice of the date and the
time of the adjourned meeting to the members
individually, but the District Magistrate
shall give notice of the date and the time of
the adjourned meeting by publication in the
manner provided in sub-section (3).
(6) Save as provided in sub-sections (4) and
(5) a meeting convened for the purpose of
considering a motion under this section shall
not for any reason be adjourned.
(7) As soon as the meeting convened under
this section has commenced, the judicial
officer shall read to the board the motion for
the consideration of which it has been
convened and declare it to be open for
discussion.
(8) No discussion on any motion under this
section shall
be adjourned.
(9) Such discussion shall automatically
terminate on the expiry of three hours from
the time appointed for the commencement of the
meeting, unless it is concluded earlier. Upon
the conclusion of the debate or upon the
expiry of the said period of three hours, as
the case may be, the motion shall be put to
the vote of the board.
(10) The judicial officer shall not speak on
the merits of the motion, nor shall he be
entitled to vote thereon.
(11) A copy of the minutes of the meeting
together with a copy of the motion and the
result of the voting thereon shall on the
termination of the meeting, be forwarded
forthwith by the judicial officer to the
[President and the] District Magistrate
[Provided that if the President refuses or
avoids to take delivery of the copies so
forwarded, the same shall be affixed at the
outer door of his last Known residence and .he
shall be deemed to have received the same at
the time such affixation is made.]
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[(11-A.] As soon as may be after three days of
the receipt of the copies mentioned in sub-
section (11), the District Magistrate shall
forward the same to the State Government,
together, in the event of the motion of non-
confidence having been carried, with a report
whether or not the President has forwarded his
resignation in accordance with the provisions
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of Sections 47 and 47-A;]
[(12) The motion shall be deemed to have, been
carried only when it has been passed by a
majority of [more than one-half] of the total
number of members of the Board.]
[(13) If the motion is not carried by a
majority as aforesaid, or if the meeting
cannot be held for want of quorum which shall
not be less than two-thirds of the total
number of members of the Board, for the time
being, no. notice of any subsequent motion of
no-confidence in tic same President shall be
received until after the expiry of a period of
two years from the date of the meeting.]
[(14) No Notice of a motion of no-confidence
under this section shall be received within
two years of the assumption of office by a
President.]
[(15) Nothing done by any member of the board,
the District Magistrate, the judicial officer
or the [State Government] in pursuance of the
provisions of this section shall be questioned
in any Court.]"
It was contended on behalf of the appellants that the view
taken in Dr. Rama Mishra’s case was not correct and the
view taken by the Lucknow Bench of the Allahabad High Court
in Prem Kumar Balmiki’s case was correct. It was submitted
that the State Legislature was fully competent to insert
fourth proviso and to lay down that the nominated members
shall hold office during the pleasure of the State
Government. It was submitted that the pleasure doctrine
also finds place in several other enactments including the
Constitution of India. It was submitted that under Article
75 (2) of the Constitution, Ministers of the Central
Government hold office during the pleasure of the President.
Similarly, under Article 164 (1), the Ministers in the
States of the Indian Union hold office during the pleasure
49
of the Governor. Similarly, under Article 76 (1), the
President appoints Attorney General for India and in view of
clause 4 of the said Article this office is held during the
pleasure of the President. It was also submitted that
Governors for the States are appointed by the President
under Article 155 and under Article 156 (1),. the Governor
holds office during the pleasure of the President. It was
also contended that the Office of member of Municipal Board
is a political office. It was further argued that if the
initial appointment by nomination is made on political
considerations, there appears no reason why political
consideration should not be allowed to operate in
terminating such appointments made by nomination. In these
circumstances if the Legislature has itself added the fourth
proviso to Section 9 of the Act authorising the State
Government to allow the nominated member to hold the Office
during the pleasure of the State Government, there is no
violation of any principle of natural justice nor such
provision is arbitrary so as to be violative of Article 14
of the Constitution. It was contended that the only
requirement under the second proviso to Section 9 of the Act
was that if none or only one of the members elected under
clause (b) is a woman, the State Government may by
notification, nominate two women members or one more woman
member as the case may be, so that the number of women
members in the Board is not less than two. It was submitted
that the State Government has not violated the aforesaid
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provision inasmuch as Smt. Shyama Devi and Smt. Baijanti
Devi were nominated in place of Smt. Abida and Smt. hazra
Khatoon and the number of two women members in the Board was
kept intact.
Learned counsel for the private respondents submitted that
once the power of nominating the women members is exercised
by the State Government, such nominated members cannot be
removed prior to the completion of the term of the Board
unless they are removed on the grounds contained under
Section 40 of the Act. It was also contended that the State
Government cannot be allowed to remove a nominated member at
its pleasure without assigning any reason and without
affording any opportunity to show cause. Once a woman
member is nominated she gets a vested right to hold the
office of a member of the Board and the State Government
cannot be given an uncanalised, uncontrolled and arbitrary
power to remove such member. It is contended that such
arbitrary and naked power without any guidelines would be
contrary to the well established principles of democracy and
public policy. It would hamper the local bodies to act
50
independently without any hindrance from the side of the
Government.
Section 10-A of the Act prescribes the term of the Board
which is five years. Section 38 prescribes the term of
office of members elected or nominated to fill casual
vacancies and reads as under:-
"The term of office of a member elected to
fill a casual vacancy or a vacancy
remaining unfilled at the general election
shall begin upon the declaration of his
election under the Act and shall be the
remainder of the term of the Board."
Section 39 deals with resignation by a member of the Board.
Section 40 provides the grounds for removal of a member of
the Board. Sub-section (5) of Section 40 deals with
suspension of a member. From a perusal of the above
provisions it is clear that the term of an elected or
nominated member is con-terminous with the term of the
Board. The normal term of the Board is five years, but it
may be curtailed as well as extended. If the term of the
Board is curtailed by dissolution or supersession, the term
of the member also gets curtailed. Similarly, if the term
of the Board is extended, the term of the member is also
extended. Apart from the curtailment of the term of a
member of the Board by dissolution of supersession of the
Board itself, the term of a member also gets curtailed by
his resignation or by his removal from office. Section 40
specifically provides the grounds under which the State
Government in the case of a city, or the prescribed
authority in any other case, may remove a member of the
Board. The removal under Saction 40 applies to elected as
well as nominated members. In respect of a nominated
member, power of curtailment of term has now been given to
the State Government under the fourth proviso to Section 9
added after the third proviso through the amending Act of
1990. In the cases before us, we are concerned with the
removal of nominated members under the fourth proviso to
Section 9 of the Act and we are not concerned with the
removal as contained in Section 40 of the Act. The right to
seek an election or to be elected or nominated to a
statutory body, depends and arises under a statute, The
initial nomination of the two women members itself depended
on the pleasure and subjective satisfaction of the State
Government. If such appointments made initially by
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nomination are based on political considerations, there can
be no violation of any provision of the Constitution in case
the Legislature
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authorised the State Government to terminate such
appointment at its pleasure and to nominate new members in
their place. The nominated members do not have the will or
authority of any residents of the Municipal Board behind
them as may be present in the case of an elected member. In
case of an elected member, the legislature has provided the
grounds in Section 40 of the Act under which the members
could be removed. But so far as the nominated members are
concerned, the Legislature in its wisdom has provided that
they shall hold office during the pleasure of the Govern-
ment. It has not been argued from the side of the
respondents that the Legislature had no such power to
legislate the fourth proviso. The attack is based on
Articles 14 and 15 of the Constitution.
In our view, such provision neither offends any Article of
the Constitution nor the same is against any public policy
or democratic norms enshrined in the Constitution. There is
also no question of any violation of principles of natural
justice in not affording any opportunity to the nominated
members before their removal nor the removal under the
pleasure doctrine contained in the fourth proviso to Section
9 of the Act puts any stigma on the performance or character
of the nominated members. It is done purely on political
considerations. In Dr. Rama Mishra’s case, the High Court
wrongly held that the pleasure doctrine incorporated under
the fourth proviso to Section 9 of the Act was violative of
the fundamental right of equality as enshrined in Article 14
and Article 15 (3) of the Constitution. We are unable to
agree with the aforesaid reasoning of the High Court.
Clause (3) of Article 15 is itself an exception to Article
14 and clauses (1) and (2) of Article 15 of the
Constitution. Under Article 14, a duty is enjoined on the
State not to deny any person equality before the law or the
equal protection of the laws within the territory of India.
Article 15 (1) provides that the State shall not
discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them.
Article 15 (2) provides that no citizen shall, on grounds
only of religion, race, caste, sex, place of birth or any of
them .be subject to any disability, liability, restriction
or condition with regard to
(a) access to shops, public restaurants, hotels and places
of public entertainments; or
(b) the use of wells, tanks, bathing ghats, roads and
places of public resort maintained wholly or partly out of
State funds or dedicated to the
52
use of the general public.
Thereafter Article 15 (3) provides that nothing in this
Article shall prevent the State from making any special
provision for women and children. This means that in case
any special provision is made for women, the same would not
be violative on the ground of sex which is prohibited under
clauses (1) and (2) of Article 15 of the Constitution.
Thus, the special provision contained for nominating one or
two women members as the case may be provided in Section 9
of the Act would be protected from challenge under clause
(3) of Article 15 of the Constitution. It may also be
worthwhile to note that the provision of pleasure doctrine
incorporated by adding proviso four does not, in any manner,
take away the right of representation of women members in
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the Board, but it only permits the State Government to keep
the nominated women members of its own choice. The High
Court in Dr. Rama Mishra’s case took a wrong view in holding
that the fourth proviso to Section 9 of the Act was
violative of Article 15 (3) of the Constitution under an
erroneous impression that this provision in any manner
curtailed the representation of women members in the Board.
We are not impressed with the reasoning given by the High
Court that the fourth proviso to Section 9 of the Act in any
manner deprived the fundamental right of equality as
enshrined in Article 14 of the Constitution. It is well
established that the right of equality enshrined under
Article 14 of the Constitution applies to equals and not to
enequals. The nominated members of the Board fall in a
different class and cannot claim equality with the elected
members. We are also not impressed with the argument that
there would be a constant fear of removal at the will of the
State Government and is bound to demoralise the nominated
members in the discharge of their duties as a member in the
Board. We do not find any justification for drawing such an
inference, inasmuch as, such contingency usually arises only
with the change of ruling party in the Government. Even in
the case of highest functionaries in the Government like the
Governors, the Ministers, the Attorney General and the
Advocate General discharge their duties efficiently, though
removable at the pleasure of the competent authority under
the law, and it cannot be said that they are bound to
demoralise or remain under a constant fear of removal and as
such do not discharge their functions in a proper manner
during the period they remain in the office.
Thus, in the circumstances mentioned above, we are clearly
of the
53
view that the decision in Dr. Rama Mishra’s case does not
lay down. the .correct law and is overruled and the view
taken by the High Court in Prem Kumar Balmiki’s case (supra)
is held to be correct. We do not consider it necessary to
dwell upon other arguments made before us or made and dealt
with by the High Court, as the above appeals can be disposed
of on the point already dealt and decided by us. Thus, as a
result of the view taken by us, we hold that Smt. Shyama
Devi and Smt. Baijanti Devi, the two women. members had
been rightly nominated in place of Smt. Abida and Smt.
Hazra Khatoon and were entitled to take part in the meeting
held on 12.8.1991 for considering the motion of no-
confidence against Mohd. Iqbal, the President of Nagar
Palika Shahjahanpur. Further, the motion of no-confidence
being supported by 20 members which admittedly constituted a
majority of the total strength of the members of the Board
being 37, the no-confidence motion has been rightly carried
out and as a result of which Mohd. Iqbal was not entitled to
continue as President of the Board. Similarly, Smt. Abida
and Smt. Hazra Khatoon having been rightly removed as
nominated members, they are no longer entitled to continue
as nominated members of the Municipal Board, Shahjahanpur
and in their place Smt. Shyama Devi and Smt. Baijanti Devi
shall be entitled to continue as nominated members of the
Board.
In the result, all the above appeals are allowed, the
judgment of the High Court dated 14.9.1992 in Writ Petition
Nos. 20731 of 1991, 23861 of 1991 and 24353 of 1991 and
dated 9.12.1991 in Writ Petition No. 11114 of 1990 are set
aside and all the aforesaid Writ Petitions stand dismissed.
No order as to costs.
V.P.R.
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Appeals allowed.
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