Full Judgment Text
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PETITIONER:
MOHAN LAL TRIPATHI
Vs.
RESPONDENT:
DISTRICT MAGISTRATE, RAE BAREILLY AND ORS.
DATE OF JUDGMENT15/05/1992
BENCH:
SAHAI, R.M. (J)
BENCH:
SAHAI, R.M. (J)
KASLIWAL, N.M. (J)
CITATION:
1993 AIR 2042 1992 SCR (3) 338
1992 SCC (4) 80 JT 1992 (4) 363
1992 SCALE (1)1191
ACT:
Uttar Pradesh Municipalities Act, 1916-Sections 87-A,
47-A and 43(2)-Power of recall of elected President of
Municipal Board-No- confidence vote by Board, whether valid-
Held, removal by an elected Board of a President elected by
entire electorate is recall by electorate itself, hence
valid-Court will not interfere in matters of policy unless
it is vitiated by mala fides or extraneous considerations.
Interpretation of statutes-External aid-Evolution of a
provision-Not to be resorted to when the words of a statute
are plain-U.P. Municipalities Act, 1916-Sections 47-A and
87-A.
HEADNOTE:
The appellant was directly elected as President of the
Rae Bareilly City Municipal Board, having a population of
less than 1 lakh, in November 1988. On March 28, 1990, the
Board passed a no- confidence motion against him under
Section 87-A of the U.P. Municipalities Act, 1916. He was
thereafter required to demit office under Section 47-A of
the Act.
The appellant assailed the no-confidence motion in the
Allahabad High Court as violative of the democratic concept
of removal or recall. He contended that since he had been
directly elected by the electorate, he could not be removed
by the Board which was a smaller and different body from the
one that elected him. In 1949, the legislature had enacted
that a Chairman (now President) if re-elected after removal
by a vote of confidence could not be removed again by a vote
of no-confidence. He contended that the absence of this
safeguard in Section 47-A as it stands now, the provision
was arbitrary and in the absence of clear language it should
be held to be inapplicable to the president elected by the
electorate. He sought to draw a distinction between a
directly elected President and a President elected by the
Board. Finally, he challenged the reduction of period from
2 years to 1 year during which a no-confidence motion could
be tabled against the President.
339
Dismissing the appeal, this Court,
HELD: 1. Electing representatives is a right created by
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statute; right to remove an elected representative too must
stem from a statute. [342 D]
N.C.Ponnuswami v. returning Officer, Namakkal
Constituency & Ors., [1952] S.C.R.218; American
Jurisprudence 2nd edn. Vol.63 pp. 238, 770 & 771; Jyoti Basu
v. Debi Ghosal & Ors., A.I.R. 1982 S.C. 983; Arun Kumar Bose
v. Mohd. Furkan Ansari & Ors., A.I.R. 1983 S.C. 1311; Jack C
Plano/Milton Green berg, American Political Dictionary;
C.S. Strong, Modern Political Constitution (8th ed.); Roger
Scrutton, Dictionary of Political Through (1982); Rudolph
Heimanson, Dictionary of Political Science, referred to.
2. How the right of recall should be initiated, what
should be the procedure, who should exercise it within
constitutionally permissible limits falls in the domain of
legislative power. [343 D]
3. The provisions in the U.P. Municipality Act, 1916
providing for the election of President, his qualification,
resignation etc. are consitutionally valid. The recall of
an elected representative therefore so long as it is in
accordance with the law cannot be assailed on abstract
notions of democracy. [343 G]
4. Vote of no-confidence against an elected
representative is a direct check flowing from
accountability. Recall of elected representative ensures
true, fair, honest and just representation of the
electorate. Therefore a provision in a statute for recall of
an elected representative has to be tested not on general
and vague notions but on practical possibility and electoral
feasibility of entrusting the power of recall to a body
which is representative in character and is capable of
projecting the views of the electorate. [345 B]
5.An elected representative is accountable to the
electorate. That is the inherent philosophy in the policy
of recall. When a President who is elected by the entire
electorate is removed by such members of the Board who have
also been elected by the people, it is in fact removal by
the electorate itself. Such provision neither violates the
spirit nor the purpose of recall of an elected
representative. Rather it ensures removal by a responsible
body. [346 B]
340
Any arbitrary functioning by the President or disregard
of the statute or acting contrary to the interest of the
electorate could be known only to the Board. Therefore it
was not only proper but necessary to empower the Board to
take action, if necessary. [347 C]
6.The legislature’s power to enact Section 47-A is
derived from entry 5 of List II of VII Schedule which is
couched in very wide terms. In the absence of any challenge
of legislative competence, the omission of the proviso to
Section 47(5) is neither irrational nor arbitrary. [347 G]
Whether a President should be elected directly by the
people or by the Board was for the legislature to decide.
These are matters of policy which cannot be examined by the
court, so long as the policy is not vitiated by mala fides
or extraneous considerations. [348 B]
7.‘Historical evolution’of a provision or reference to
what preceded an enactment as an external aid should be
resorted to only when any doubt arises about the scope of
the section, and it must not override the plain words of a
statute. [348 C]
R.S. Nayak v. A.R. Antulay, [1984] 2 SCC 183; Reserve
Bank of India v. Peerless Gen. Finance & Investment Co.
Ltd., [1987] 1 SCC 424 at 450; Tumahole Bereng & Ors. v. The
King., A.I.R. 1949 PC 172 at 176; Rupert Cross, Statutory
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Interpretation, P.129; Maxwell’s Interpretation of Statutes
pp.47, 64 & 65, referred to.
Neither Section 47-A nor Section 87-A on plain reading
suffer from such defect as may necessitate ascertaining
their intent and purpose from the sections as they earlier
stood. [348 F]
8. Section 87-A applies to the President which, under
Section 43, means a President elected by the Board or by the
electorate. The Act does not make any distinction between
the two Presidents, one elected by the Board and the other
by the electorate. [351 D]
9. Section 87-A does not stand controlled by Section
47-A. Section 87-A is a substantive provision authorising
the Board to initiate action against a President for loss of
confidence, whereas Section 47-A is a procedural section
coming into operation after communication to the President
of the decision of the Board. Section 47-A has to be read
and construed so as to advance the purpose of Section 87-A
and not to frustrate
341
it. [352 G]
10. The Proviso to Section 47-A cannot be so construed
as to nullify the operation of Section 47-A to a President
elected by the electorate. A Proviso or an Exception is
incapable of controlling the operation of the principal
clause. [354 F]
Jennings v. Kelly, [1939] 4 A.E.L.R. 464; West Derby
Union v. Metropolitan Life Assurance society, 1897 AC 647,
referred to.
11. Reduction of period during which a no-confidence
motion could be tabled from two years to one year is a
matter of legislative policy which cannot be scanned by the
court. A legislature does not act on extraneous
consideration. But for lack of legislative competence or
for being arbitrary, a legislative action cannot be struck
down on ground of mala fide. Moreover this was not the
first time that this amendment was introduced. [355 C]
JUDGMENT:
Shrilekha Vidyarthi v. State of U.P., [1991] 1 SCC 212,
distinguished.
State of Himachal Pradesh v. Kailash Chand Mahajan,
[1992] 2 S.C.C. 165, relied on.
&
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2425 of
1992.
From the Judgment and Order dated 19.2.1991 of the
Allahabad High Court in W.P.No. 2832 of 1990.
Sunil Gupta and H.K. Puri for the Appellant.
Anil Kumar Gupta and A.K. Goel for the Respondents.
The Judgment of the Court was delivered by
R.M. SAHAI, J. Validity of the no-confidence motion
passed, on 28th March 1990, under Section 87-A of the U.P.
Municipalities Act (in brief ‘the Act’) by the Board against
the appellant, who was elected in November 1988 by the
electorate, directly under Section 43(2) of the Act, as
President of Rae Bareilly City Municipal Board , having
population of less than one lakh, was assailed as violative
of the democratic concept of removal or recall of an elected
representative by a smaller and different
342
body than the one that elected him, in this appeal directed
against the judgment and order of the Allahabad High Court
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rendered in a Writ Petition field under Article 226 of the
Constitution of India. Statutory arbitrariness, arising out
of application of Sections 47-A and 87-A of the Act to the
Presidents of the Municipalities either elected by the Board
or electorate as irrational and invalid of Article 14 of the
Constitution was, yet, another ground of attack. Reduction
of period from two to one year during which a vote of no-
confidence could be tabled against a President by ordinance
issued in 1990 which later became Act was challenged for
absence of any discernible and reasonable principle and
resorted to as ‘spoil system’ thus constitutionally invalid.
Democracy is a concept, a political philosophy an ideal
practised by many nations culturally advanced and
politically mature by resorting to governance by
representatives of the people elected directly or
indirectly. But electing representatives to govern is
neither a ‘fundamental right’ nor a ’common law right’ but a
special right created by the statutes,* or a ‘political
right’ or privilege’ and not a ‘natural’, ‘absolute’ or
‘vested right’.(American Jurisprudence 2nd Edn. Vol.63 p771)
‘concepts familiar to common law and equity must remain
stranger to Election Law unless statutorily
recognised’.(Jyoti Basu & Ors. v. Debi Ghosal & Ors, AIR
1982 SC 983; Arun Kumar Bose v. Mohd. Furkan Ansari & Ors.,
AIR 1983 SC 1311.) Right to remove an elected
representative, too, must stem out of the statute as ‘in the
absence of a constitutional restriction it is within the
power of a legislature to enact a law for the recall of
officers’. (American Jurisprudence Vol. 63 2nd Edn. p.238.)
Its existence or validity can be decided on the provision of
the Act and not, as a matter of policy. In the American
Political Dictionary (Jack C Plano/Milton Greenberg) the
right of recall is defined as, ‘a provision enabling voters
to remove an elected official from office before his or her
term expired’. American jurisprudence explains it thus,
‘Recall is a procedure by which an elected officer may be
removed at any time during his term or after a specified
time by vote of the people at an election called for such
purpose by a specified number of citizens’. (American
Jurisprudence Vol.63 2nd Edn. p.770.) It was urged that
‘recall gives dissatisfied electors the right to propose
between elections that their representatives be removed and
replaced by another more in
_____________________________________________________________
Ponnuswami v. Returning Officer, Namakkal Constituency
& others, [1952] SCR 218; Jagan Nath v. Jaswant Singh &
Ors., [1964] SC 210
343
accordance with popular* will’ therefore the appellant could
have been recalled be the same body, namely, the people who
elected him. Urged Shri Sunil Gupta, learned counsel, that
since, ‘A referendum involves a decision by the electorate
without the intermediary of representatives and, therefore,
exhibits form of direct democracy’ the removal of the
appellant by a vote of no-confidence by the Board which did
not elect him was subversive of basic concept of democracy.
Academically the submission appeared attractive but applied
as a matter of law it appears to have little merit. None
of the political theorists, on whom reliance was placed,
have gone to suggest that an elected representative can be
recalled, only, by the persons or body that elected him.
Recall expresses the idea that a ‘public officer is indeed a
"servant of the people" and can therefore be dismissed by
them’. * In modern political set up direct popular check
by recall of elected representative has been universally
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acknowledged in any civilised system. Efficacy of such a
device can hardly admit of any doubt. But how it should be
initiated, what should be the procedure, who should exercise
it within ambit of constitutionally permissible limits falls
in the domain of legislative power. ‘Under a constitutional
provision authorizing municipalties of a certain population
to frame a charter for their own government consistent with
and subject to the Constitution and laws of the state, and a
statutory provision that in certain municipalities the mayor
and members of the municipal council shall be elected at the
time, in the manner, and for the term prescribed in the
charter, a municipal corporation has authority to enact a
recall provision’. (American Jurisprudence 2nd Edn. Vol.63
p.771) Therefore, the validity or otherwise of a no-
confidence motion for removal of a President, would have to
be examined on applicability of statutory provision and not
on political philosophy. The Municipality Act provides in
detail the provisions for election of President, his
qualification, resignation, removal etc. Constitutional
validity of these provisions was not challenged, and
rightly, as they do not militate, either, against the
concept of democracy or the method of electing or removing
the representatives. The recall of an elected
representative therefore, so long it is in accordance with
law cannot be assailed on abstract notions of democracy.
_________________________________
* Modern Political Constitution, 8th Edn. by C.S.Strong.
Dictionary of Political Thought by Roger Scrutton 1982
* Dictionary of Political Science and Law by Rudolph
Heimansor
344
Legality of the motion of no-confidence was attacked
for absence of any specific provision applying Section 47-A
and 87-A of the Act to President elected by the electorate,
as also for being irrational if the provisions were held to
apply by interpretation as it would result in substituting
confidence of people with confidence of board which had no
concern with expression of confidence in electing the
President consequently it would be unreasonable and against
public interest. Even the concept of democracy being basic
feature of the Constitution was invoked to urge that
provisions relating to elections should be construed so as
to be inconsonance with it rather than violative of it.
Legislative history of Section 43 dealing with election of
President, Section 87-A providing for passing a vote of no-
confidence against him, Section 47-A directing him to resign
within three days form the date of communication of the
result that no confidence motion had been passed and Section
48 empowering the Government to remove a President if he
failed to resign were placed with dual purpose of
demonstrating that these sections could not apply to a
President elected by the electorate and to urge that even if
they applied they were rendered arbitrary as no safeguard or
protection has been provided to such President as existed
prior to introduction of the proviso to Section 47-A. It was
submitted that operation of the proviso to Section 47-A was
confined to a President elected by the Board therefore the
protection to a President against arbitrary action of the
Board of passing a resolution against him could be available
to such President only. And a President elected by the
electorate despite recommending supersession of Board would
be exposed to fresh election due to non-availability of the
proviso therefore it was submitted that Section 47-A itself
should be held to be inapplicable to a President elected by
the electorate otherwise it would lead to illogicity and
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irrationality. It was submitted that if there was a choice
between democratic purpose and others the court should
accept a construction which may advance constitutional
tenets of political philosophy and justice rather than
subverse it.
Force of these submissions or their merit may not be as
doubtful as its applicability to the circumstances of the
present case. Misapprehension appeared to be the foundation
for vehement submission that removal of a President, elected
by the electorate, by the Board would be substituting
confidence of people by a much smaller body which would,
apart, from violating the basic norm of recall of an elected
representative by the same body which elected him would be
unreasonable, irrational and against public interest. Vote
of no-confidence against elected representative is
345
direct check flowing from accountability. Today democracy
is not a rule of ’poor’ as said by Aristotle or of ’Masses’
as opposed to ’Classes’ but by the majority elected from out
of the people on basis of broad franchise. Recall of
elected representative is advancement of political democracy
ensuring true, fair, honest and just representation of the
electorate. Therefore a provision in a Statute for recall
of an elected representative has to be tested not on general
or vague notions but on practical possibility and electoral
feasibility of entrusting the power of recall to a body
which is representive in character and is capable of
projecting views of the electorate. Even though there was
no provision in the Act initially for recall of a President
it came to be introduced in 1926 and since then it has
continued and the power always vested in the Board
irrespective of whether the President was elected by the
electorate or board. Rationale for it is apparent from the
provisions of the Act. Under sub-section (2) of Section 87-
A the right to move the motion of no-confidence vests in the
members of the Board which under Section 9*, normally,
comprises of elected representatives. A person removed from
office of President for loss of confidence, from the very
____________________________________________________________
"Normally 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 of
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.
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
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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.
Contd on next page
346
nature of the Constitution of Board, is recall by the
electorate themselves. An elected representative is
accountable to its electorate. That is the inherent
philosophy in the policy of recall. For the President his
electorate, to exercise this right, is the Board as it
comprises of representatives of the same constituency from
which the President is elected. Purpose of Section 87-A of
the Act is, to remove elected representative who has lost
confidence of the body which elected him. It may be by
people themselves or they may entrust their power through
legislation to their representatives. In Act it is the
latter. Members of the Board are elected from smaller
constituencies. They represent the entire electorate as
they are representatives of the people although smaller in
body. A President who is elected by the entire electorate
when removed by such members of the Board who have also been
elected by the people is in fact removal by the electorate
itself. Such provision neither violates the spirit nor
purpose of recall of an elected representative. Rather
ensures removal by a responsible body. It cannot be
criticised either as irrational or arbitrary or violative of
any democratic norm. In fact construing the provision as
suggested would render it unreasonable. A President of a
Municipal Board of more than one lakh population would be
removable by the board comprising of elected representatives
whereas a President of smaller Board would virtually get
immunity from removal. It would be contrary to scheme of
the Act and against public interest.
Further Section 50 of the Act empowers the President,
without making any distinction between the two, to discharge
certain powers, duties, and functions of the Board. Section
52(1) of the Act authorises the Board to require the
president to furnish it with any return, statement,
estimate, statistics, or other information regarding any
matter appertaining to the administration of the
municipality; a report or explanation on any
__________________________________
Contd..........
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 following such occupation as may be
notified by the State Government.
Commencement of Boards’ term - The term of a
Municipal Board (including the President) begins from
the date of notification issued under Section 56 and the
term of the old Board ends on that date."
347
such matter; and a copy of any record, correspondence or
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plan or other document which is in his possession or control
as [President] or which is recorded or filed in his office
or in the office of any municipal servant. Sub-section (2)
of Section 52 makes it obligatory on the President to comply
with every requisition made under sub-section (1) without
unreasonable delay. The Board is thus visualised as a body
entrusted with responsibility, to keep a watch on the
President whether elected by it or the electorate. Any
arbitrary functioning by the President or disregard of
provision of the Statute or acting contrary to the interest
of electorate could be known to the Board only. Therefore
it was not only proper but necessary to empower the Board to
take action, if necesary. In fact the power of the board to
remove a President by vote of no-confidence under Section
87-A and right of the President to recommend its
supersection under Section 47-A(1)(a) are a check on each
other’s functioning. Comparison with provisions in
Panchayat Raj Act where a Pradhan is removable by the Gaon
Sabha was odious as a Gaon Sabha is a very small body as
compared to a Municipality. The provision consequently
cannot be held to be bad either because the Board is a
smaller or different body. Nor it can be characterised as
irrational or arbitrary. It would be unrealistic to say so.
Any challenge founded on violation of democratic norm thus
cannot be accepted.
Another off shoot of the same submission was that when
removal was by a smaller body the Legislature in 1949
provided a safeguard that a Chairman elected by people
removed by vote of no-confidence if re-elected could not be
removed again by a vote of no-confidence. According to the
learned counsel in absence of such safeguard the provision
in Section 47A, as it stands now, becomes arbitrary and in
absence of clear language it should be held inapplicable to
President elected by the electorate. The approach does not
appear to be sound. Legislature’s power to enact such
provision is derived from Entry 5 of List II of VII Schedule
which is couched in very wide terms. In absence of any
challenge of legislative competence, the omission of the
proviso to sub-section 5 of Act 7 of 1949 by amendemtn since
1955 can neither be characterised as irrational nor
arbitrary. Moreover whether a President should be elected
by the people directly or by the Board was for the
Legislature to decide. These are matters of policy which
cannot be examined by court. Legislature being the
348
best judge of the needs of the people it is for the
legislature to decide which system of electing
representatives to the elective bodies and in what manner
they should be removed would be best suitable for governance
of the State. So long the policy is not vitiated by any
mala fide or extraneous consideration the courts have
neither jurisdiction nor adequately furnished with material
to adjudicate upon its validity or correctness.
Value of ’historical evolution’* of a provision or
’reference to that preceded the enactment’ as an external
aid to understand and appreciate meaning of a provision, its
ambit or expanse has been judicially recognised* and
textually recommended. (Statutory Interpretation by Rupert
Cross, p.129 Maxwell Interpretation of Statutes pp.47 & 64.)
But this aid to construe any provision which is ’extremely
hazardous’ should be resorted to, only, if any doubt arises
about the scope of the Section or it is found to be
’sufficiently difficult and ambiguous to justify the
construction of its evaluation in the Statute book as a
proper and logical course and secondly the object of the
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instant enquiry’ should be ’to ascertain the true meaning of
that part of the section which remains as it was and which
there is no ground for thinking the substitution of a new
proviso was intended to alter’. But ’considerations
stemming from legislative history must not, however,
override the plain words of a statute’. (Maxwell on
Interpretation of Statutes, p.65) Neither Section 47-A nor
87-A on plain reading suffer from such defect as may
necessitate ascertaining their intent and purpose from the
earlier sections as they stood. That shall be clear when
relevant part of the sections are extracted. But even
otherwise there appears no merit in the submission and for
that purpose it appears appropriate to narrate, in brief,
the history of these sections. When Act 2 of 1916 was
enacted it provided for election of Chairman of the Board by
a special resolution passed by the members under Section
43(1) of the Act. Sub-section (2) provided for ex-officio
nomination by the Government of the Chairman in some
municipality. Section 48 empowered the Government to remove
a Chairman after hearing and giving reasons. It did not
contain any
____________________________________________________________
* R.S. Nayak v. A.R. Antulay, [1984] 2 SCC 183
Reserve Bank of India v. Peerless Gen. Finance &
Investment Co. Ltd., [1987] 1 SCC 424 (450)
* Tumahole Bereng & Ors. v. The King., AIR 1949 PC 172
(176)
Tumahole Bereng & Ors. v. The King., AIR 1949 PC 172
(176)
349
provision for removal of a chairman by a vote of no-
confidence. Ten years later Act 2 of 1926 brought about a
very significant change in the Act by introducing Section
47A and conferring power of removal of Chairman, other than
the ex-officio, by the members of the Board by expressing a
vote of no-confidence against him. Section 48, too, was
amended and a Chairman who failed to resign after a vote of
no-Confidence was liable to be removed, by the State
Government. Thus it was as far back as 1926 that removal of
the Chairman by elected representative found its way in the
Act. In 1933 by Act No.9 another important section 87A was
added providing for tabling of no-confidence motion against
the Chairman. In 1942 Section 47-A was omitted as the
provision for resigning by the Chairman was provided for in
Section 87-A itself. And hearing of the Chairman by State
Government under Section 48 before removal in consequence of
vote of no-confidence was deleted. Act 7 of 1949
introduced major changes in Section 43 and 47A, of the Act.
Section 43 was substituted altogether and, it for the first
time, provided for election of the Chairman simultaneously
with members of the board by the electorate directly.
Section 47-A which had been omitted by Act 13 of 1942 was
reintroduced and a Chairman against whom a vote of no-
confidence was passed was required to resign. In the
alternative he was permitted to recommend to State
Government that the Board itself may be dissolved. And if
the State Government agreed with the President then it was
the Board which was to go. The intention apparently was to
keep a check on the power of Board, too, while taking action
against the Chairman as if it was found that exercise of
power by the Board was arbitrary and President was being
removed for extraneous reasons then the Government could
interfere and direct dissolution of the Board itself. Both
the sections were amended once again in 1955 and by Act 1
the election of Chairman, known now as President, by the
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members of the Board was reintroduced, as, ’The experience
of the working of the Boards since their constitution at the
last general election has generally been one of continuing
conflict between Presidents elected by the popular vote on
the one hand and the members on the other. This has greatly
prejudiced the normal working of the Boards.’ (Objects &
Reasons of U.P. Act 1 of 1955) Section 47-A of the Act was
substituted completely and it is in this shape that the
section stands today. Section 43(1) was amended, once
again, by Act 47 of 1976 and election of President by
electorate was revived. In 1982 another change was made in
this Section by Act 17 and
350
election of President by the members of Board was confined
to Municipalities other than a city declared as such under
Section 3 having a population of less than one lakh
inhabitants. Sub-section (2) provided for election of
President of Board of such a city Municipality by the
electorate directly. From 1982 onwards, therefore, the
direct election of President by the electorate is confined
to smaller municipalities.
The pattern that is, clearly, discernible from these
provisions is that even though the manner of electing
President has been changing from time to time the method of
his removal by a vote of no-confidence by the board has
remained unchanged. The Legislature never opted for removal
of a President elected directly by the electorate itself.
That would have been practical impossibility. Sub-section
(1) and (2) of Section 87-A which are relevant are extracted
below :
"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 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."
No doubt is cast about its applicability to the
President which under Section 43, means a President elected
by the Board or electorate. Neither the language nor
context excludes its operation to the President elected
under Section 43(2) nor is there any indication to confine
it to a President elected under Section 43(1). Right to
move a motion of no-confidence under sub-section (2) against
a President vests in the Board. There is no indication that
the word President or the Board used in the sub-Section has
to be understood in any sense which may exclude from its
operation one or the other type of President or the Board of
city municipality. In fact it could not be as the Act does
not make any distinction between the two
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Presidents, one elected by the Board and the other by the
electorate. Both of them become ex-officio members of the
board under Section 49 of the Act if they are already not a
member. Duties and functions discharged under Section 7 or
8 of the Act do not make any distinction. Except for the
manner of election the Act does not envisage any difference
between the two. Willful default or abuse of power by the
Board may lead to its supersession or dissolution under
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Section 30 of the Act. And under Sections 31 and 31-A one
of the consequences of dissolution or supersession is that
the President too has to vacate the office. In other words
the functioning envisages joint working of the Board and its
President with checks and balances. Any other construction
would be artificial and against explicit language of the
Section. In absence of any indication to the contrary there
appears no warrant for the submission that Section 87-A does
not empower a Board to pass a vote of no-confidence against
a President elected directly.
Same reasoning applies to Section 47-A of the Act which
is extracted below :
"47-A. Resignation of President on vote of non-
confidence -
(1) If a motion of non-confidence in the President
has been passed by the board and communicated to
the President in accordance with the Provisions of
Section 87-A, the President shall -
(a) within three days of the [receipt] of such
communication, either resign his office or
represent to the State Government to [supersede]
the board stating his reasons therefor; and
(b) unless he resigns under clause (a), cease to
hold office of President on the expiry of 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).
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(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."
No part of the section lends support to the submission that
its applicability should be confined to President elected by
the board, only. Much was attempted to be made out of the
proviso. It was urged that since it could not apply to a
President elected by the people, the Legislature should be
deemed to have intended that it did not desire a president
elected by the people to be removed by vote of no-
confidence. This section comes into operation after a vote
of no-confidence has been passed. Law of expressing no-
confidence against a President has been provided for in
Section 87-A relevant part of which has been extracted
earlier. It applies uniformally to every President whether
elected by the Board or electorate. A President elected by
the electors has been treated at par with the President
elected by the Board. There appears no rationale to treat
them differently for any purpose. In absence of any
indication Section 87-A applies to either of the President
and a motion of no-confidence passed against any one of them
in accordance with procedure provided therein could not be
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said to suffer from any infirmity. It cannot be
legitimately urged that the applicability of Section 87-A
stands controlled by Section 47-A. The former is a
substantive provision authorizing the board to initiate
action against a President for loss of confidence. Whereas
latter is a procedural section coming into operation after
communication to the President of the decision of the Board.
The two operate in different field. One is the right of the
Board, representative body of the electors of the Municipal
Board, to remove a person for loss of confidence, the other
is a duty of the President to act
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with grace and lay down his office in keeping with
democratic tradition on mandate of recall. Section 47-A has
to be read and construed so as to advance the purpose of
Section 87-A and not to frustrate it. On plain reading of
the Section or provision there does not appear to be any
ambiguity. True from 1926 to 1942 no- confidence motion
could be brought against elected President under Section
43(1) only and not the ex-officio one nominated under
Section 43(2). But from that it cannot be held, as urged,
that Section 47-A should be held to apply to President
elected under Section 43(1) only. The ex-officio chairman
was excluded from operation of Section 47-A not by
implication but express provision. That cannot furnish any
historical basis to construe Section 47-A as applying to
only those Presidents who were elected by the board. A
clear and unambiguous proviso cannot be interpreted by
taking an analogy from earlier provision as it stood in the
past. A legislature while amending, substituting or
deleting any provision acts in presenting drawing from past
experience and providing for future. That cannot be
defeated by projecting into in the past by interpretation.
Nor can the provisions be held to be vague because they do
not provide any safeguard against moving a no- confidence
motion against the President who is re-elected as was in
1949. In fact the history goes against appellant. In 1949
Section 43 was amended and President of either Municipality
was to be elected by the electors directly as sub-section
(2) of Section 43 was substituted and it provided as under :
"(2) Simultaneously with the general election of
the members of a Board, or whenever the Provincial
Government so considers necessary, separately, the
electors of a municipality shall in the manner
prescribed, elect a person as the President of the
Board."
The sub-section now reads as under :
"(2) The President of a Board other than a Board
referred to in sub-section (1) shall be elected by
the electors in the municipality."
But the procedure for removal of the chairman under Section
87-A by vote of no-confidence by the Board remained same.
Therefore, even in 1949 a President elected from electors
was liable to be removed by the Board. As seen earlier
Section 43 underwent change in 1955 and 1982 and at present
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both the system are in vogue depending on the population of
the municipality. The legislative intention as gathered
from history of the provision indicates that removal of
President by vote of no-confidence passed by the Board was
always considered to be proper irrespective of whether the
President was elected by the Board or the electors. Removal
by Board, of President is not only feasible but in public
interest.
Even the strained construction of the proviso does not
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result in coming to the conclusion that there was
legislative omission of not providing for removal, by vote
of no-confidence of a President elected by the electors.
Merely because the proviso to Section 47-A prevents a Board
from holding election of the President in those cases where
he had made representation to the Government to supersede
the Board, it cannot be stretched to mean that sub-section
(a) of Section 47-A cannot apply to a President elected
under Section 43(2). The proviso is intended as check to
prevent the Board from taking any step which may render the
representation made by the President infructuous as if the
government accepts the representation then it is the Board
under sub-section (3) which stands dissolved and not the
President. That situation may not arise in election of a
President under Section 43(2) as election of President by
electors cannot take place immediately, therefore, there is
no danger involved, putting at naught the representation
made by the President to State Government, as is in the case
of Section 43(1). The proviso cannot be so construed as to
nullify the operation of Section 47-A to a President elected
by electorate. A proviso or an exception is incapable of
controlling the operation of principal clause. Result of
such construction would lead to absurdity as if Section 47-A
is held not to apply to President elected under Section
43(2) he will not be liable to resign even though a vote of
no-confident has been passed against him under Section 87-A
and it has been communicated to him. Merely because the
proviso cannot apply to one of the situations that may arise
cannot be reason to hold that Section 47-A(1)(a) did not
apply to President elected by the electorate. ’If the
language of the enacted part of the Statute does not contain
provision which are said to occur on it, you cannot derive
those provisions by implication from a proviso’. (West
Derby Union v. Metropolitan Life Assurance Society, 1897
A.C. 647) proviso could be used for adopting a construction
as suggested either when there was some doubt about the
scope of the section or there would have been at
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least some reasonable doubt about accepting one or the other
construction as became necessary in Jenning v. Kewlly,
(1939) 4 All England Law Reports 464 on which reliance was
placed by the learned counsel for appellant.
Reduction of period, during which a no-confidence
motion could be tabled against the President, from two to
one year was challenged and it was urged that in absence of
disclosure of any discernible and reasonable principle which
is necessary for every State action the ordinance, which
later on became Act, was liable to be struck down. Motive
was also imputed to the legislature and it was urged that
recourse was taken by the new political party as ’spoils
system’ of the election which was arbitrary and violative of
Article 14. (Kumari Shrilekha Vidyarthi v. State of U.P.,
[1991] 1 SCC 212.) No assistance can be derived from
Srilekha Vidyarthi case. A Legislature does not act on
extraneous consideration. Ordinance issued in 1990 was
replaced by Act 19 of 1990. The Act came into force on 24th
July 1990 but it was made retrospective with effect from
15th February 1990, the date when the ordinance was issued.
But for lack of legislative competence or for being
arbitrary a legislative action cannot be struck down on
ground of mollified. (State of Himachal Pradesh v. Kailash
Chand Mahajan, [1992] (2) 5 p.165.) Further it may be
noticed that this amendment was not introduced for the first
time. Period of moving a motion within 12 months from the
date of assumption of office was introduced in 1942. It was
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increased to two years by Act 41 of 1976. It was brought
down to one year again by Act 19 of 1990. What was urged by
learned counsel was that since no election had taken place
of local bodies, from 1976 to 1988, the period of two years
was never given a trial, therefore, there was no occasion
for the legislature to have reduced this period. The
argument does not appear to have been advanced before the
High Court. Necessary averments were not made even in
Special Leave Petition. There was thus no occasion for
other side to explain. That its action in reducing the
period did not suffer from any infirmity. It may be
mentioned that elections in the Municipal Board both of
members and Presidents were held in December 1988 whereas
general elections of the State Assembly leading to change of
political power were held in 1989. In absence of any
factual foundation the argument appears to be devoid of any
merit. Moreover what persuaded the legislature to reduce
the period
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is again a matter of legislative policy the wisdom of which
cannot be scanned by this Court.
In the result, this appeal fails and is dismissed. But
there shall be no order as to costs.
U.R. Appeal dismissed.
357