Hameedsab Quaraishi vs Deputy Commissioner, Bidar and Others

The petitioner herein was till recently the President of Town Municipal Council (''T.M.C.'' for short) of Basava Kalyan in Bidar District. The said T.M.C., it is common ground, consisted apart from the petitioner himself 18 other members who were duly elected at an appropriately held election. While he has thus presiding over the destinies of that T.M.C, he appears to have had the misfortune of encountering some hostility at the hands of the members of the T.M.C. who thought it fit to move a resolution of no confidence against him and for that purpose issued a notice on 26-11-1990. With that notice one third of the Council of Members were associated and in token thereof they had subscribed their signatures thereto. Upon receipt of the said notice the petitioner did not, as expected of him, proceed to call the special general body meeting as enjoined by the provisions of the K.M. Act (for short ''the Act'') but instead he made a representation to the Deputy Commissioner, Bidar, who did not encourage him in that endeavour but instead told the petitioner to go back and face the meeting at which the no confidence motion was to be moved. Undaunted by that order the petitioner came to this Court in W.P. No. 26350/1990 and challenged the notice of no confidence motion as also the summary rejection of his prayer for intervention by the Deputy Commissioner. This Court rejected the said writ petition at the preliminary stage by an order made on 8th March, 1991 pointing out that he had jumped too quickly even before the gun went off and his endeavour did not merit any serious consideration.

Be that as it may even after the disposal of the said writ petition the petitioner took no steps to convene a meeting for considering the no confidence motion moved against him. Even while he was squatting on the resolution without any action, a third of the members again made a fresh bid at ejecting the petitioner by serving yet another notice on him to call a special general body meeting. That notice dated 20-6-1990 is at Annexure-A. The penultimate paragraph of that communication reads:

"So the special general body meeting be convened in this regard in time to show and prove his majority by the President. Hence this notice of no confidence."

The second round of activity let loose by the Councillors made no impression on the petitioner who simply went on maintaining a silence which appeared to be stoic and discreet so much so the Chief Ministerial Officer of the T.M.C. being aware of the notice lodged with the petitioner calling upon him to schedule a Special General Body Meeting appears to have approached the Vice-President for taking action in the matter as enjoined by the Act. Therefore, it is, he took the orders of the Vice-President on 6-7-1991 to call a Special General Body Meeting on 16th July, 1991 at 11 a.m. at the T.M.C. office to consider the no confidence motion against the President notice of which had already been given. This could be found at Annexure-B.

Soon after this meeting notice was issued the petitioner promptly came to this Court, filed this writ petition challenging the no confidence motion and the meeting notice fixing the date of the Special General Body Meeting to consider the no confidence motion. This Court while ordering notice declined, however, to stay the meeting scheduled to be held on 16th July, 1991 but stayed the publication of the result of the meeting until further orders.

It would appear when he failed to get an absolute order of stay stopping the meeting from being held, he appears to have gone and attended the meeting scheduled on the 16th. The proceedings of the meeting held on 16th July had been subsequently supplied by the contesting respondents who are respondents 3 to 12 as per Annexure-R10 as an appendage to the statement of objections and that document shows a meeting was held on 16-7-1991 and the no confidence motion was passed by a overwhelming majority. The result of the meeting was 17 against the petitioner and two in his favour with one of the votes cast being the petitioner''s own franchise. Unfortunately for the petitioner he was able to count only one other person to back him at the meeting. The fall-out of the meeting was the vote of no confidence was carried and passed as mentioned earlier with an overwhelming majority but in the light of the interim order of this Court the result of the voting at the meeting was not published.

At the hearing of this writ petition Mr. Ram Bhat appearing for Mr. Hulsoor for the petitioner raised and argued three points. They are:

i) The notice of Annexure-B was deficient in law because it did not allow a gap of 10 clear days from the date of notice to the date of meeting.

ii) The Vice-President was not competent to call the meeting because by that date he was no longer the Vice-President.

iii) 1/2 of the Members had not joined in tendering the notice of their intention to pass a no confidence motion. On Points 2 and 3 Mr. Ram Bhat did not venture to address arguments on a serious note. They were argued in low-key fashion.

Point No. 3 is regarding the non-association of 1/2 of the Members of the committee with the notice given to the Vice-President expressing their desire to call for a Special General Body Meeting. The requisition itself is before me and it is signed by seven persons. The argument of Mr. Ram Bhat is the signature of 7 persons found at Annexure-A had been obtained by deviant practice, cohersion, threat, etc. I am afraid all these invectives are simply thrown without any endeavour to substantiate the same. They are all party respondents in this petition and none of them have come forward with a statement or appeared before the Court so that they were unwittingly roped into moving the motion of no confidence against the petitioner. I am afraid, therefore, issue No. 3 remains a mere allegation without any vestige of proof for which reason it stands discredited.

Point No. 2 also does not detain me for the simple reason that this ground was not raised in the writ petition at all. It is only in reply to the statement of objections filed by respondents 3 to 12 this case is sought to be made out and some papers produced to prop it up. I do not think I should allow a plea put forward in the reply statement to dominate this litigation more so when it is not part and parcel of the main case put forward by the petitioner in the writ petition. I should, therefore, have little hesitation in saying that the alleged disability of the Vice-President in calling the meeting as per Annexure-B in virtue of his resignation is not an aspect which I should permit the petitioner to raise and urge at all. Even then, having heard Mr. Ram Bhat on the point, I have little difficulty in holding the point aforesaid is also not made out.

Mr. Ram Bhat told me that the Vice-President had tendered his resignation in writing to the Deputy Commissioner which is the methodology to be adopted by the Vice-President who desires to submit his resignation. But, when the matter was actually argued it was pointed out to Mr. Ram Bhat that the resignation appears to be only oral and counsel had to agree. But, then, granting that the Vice-President had submitted his resignation in writing there being no proof of the resignation having been accepted by the Deputy Commissioner, it can no longer be urged that the Vice-President had shaken off the yoke of office by the date of Annexure-B. Mr. Ram Bhat tells me that the letter of resignation was addressed to the President of the T.M.C. and not to the Deputy Commissioner. If that is so, the position becomes thoroughly indefensible (sic) the argument of resignation for under Section 40 a councillor may resign his membership and a President or a Vice-President may resign his membership or office as President or Vice-President by giving notice in writing to that effect to the Deputy Commissioner in the case of Town Municipal Council Therefore in the absence of a notice in writing addressed to the Deputy Commissioner the resignation, if any, tendered by the Vice-President in a different mode is legally ineffective and will not operate to divest him from office. If that be the fact situation the argument that the Vice-President was disabled from issuing the notice as per Annexure-B is clearly without substance and has to be rejected.

Now for Point No. 1 touching the validity of the meeting notice at Annexure-B. It is common ground the notice at Annexure-B was issued by the Chief (sic) at the behest of the Vice-President acting under the orders passed by him as per Annexure-R6 which reads:

"As per endorsement of President dated 4-7-1991 it is observed that the schedule time shown in sub-section 2 of Section 47 call a meeting within fifteen days from the presentation of the Councillors. But here the said period is completed on 4-7-1991. Hence the notes placed before the Vice-President to take further action as per sub-section (3) of Section 47, K.M. Act, 1964."

It is clear from Annexure-R6, on the basis of which the notice at Annexure-B is issued that the notice was issued on 6-7-1991 informing all councillors that a special general body meeting would be held on 16-7-1991 to consider the notion of no confidence brought forward against the President. Placing reliance on a provision of the Karnataka Municipalities Act under which it is said a melting scheduled to discuss a motion of no confidence against the President or Vice-President cannot be held before the expiry of 10 clear days reckoned from the date of the meeting notice, it is urged that the notice dated 6-7-1991 being a notice of the meeting to be held on 16-7-1991 fell short of the 10 days gap since the meeting according to the notice would be held on the 10th day itself. It is, therefore, urged that the meeting scheduled on 16-7-1991 was clearly otiose and hence whatever had been transacted at the meeting would stand totally vitiated.

With a view to assist the Court in the matter of construing the statute Mr. Ram Bhat invited my attention to a Bench decision of this Court reported in Item No 60 of short notes contained in Kar. L.J. 1982(2) page 29, Janardhana v Deputy Commissioner, Bijapur as also a decision of the Rajasthan High Court in Anokhmal v Chief Panchayat Officer, 1957 Rajasthan 388. He also placed reliance on a passage in the classic "Maxwell on interpretation of statutes."

Mr. Raikote, learned counsel appearing for contesting respondents, maintained that the notice issued in the case did not suffer from any deficiency as urged by the petitioner. He relied on a decision of this Court to support his stand.

Before going into the decisions cited on either side, it would be useful and appropriate to set out the provisions of the Act which have a bearing on the question. The relevant sections are 43, 47 and 48. Section 43 deals with the functions of the President. Clause (a) of sub-section (1) is relevant for our purpose. It reads:

"(1) Subject to the provisions of Chapter XIV, it shall be the duty of the President of the Municipal Council to- (a) preside, unless prevented by reasonable cause, at meetings of the municipal council and subject to the provisions of the rules for the time being in force under clause (a) of sub-section (2) of Section 323, to regulate the conduct of business at such meetings."

Section 47 enables the President to call for a ordinary or special general body meeting at the best of the members. Clause (3) of Section 47 provides for the holding of such a meeting by the Vice-President in case the President fails to call such a meeting. The relevant clause reads:

"(3) If the President fails to call a special general meeting as provided in sub-section (2), the Vice-President or one third of the whole number of councillors may call such a meeting for a day not more than thirty days after the presentation of such a request and require the Chief Officer or the Municipal Commissioner to give notice to the councillors to take such action as may be necessary to convene the meeting."

The next provision to be noticed is Section 48 which enjoins that an ordinary general meeting shall be preceded by 7 days notice and a special general meeting shall be preceded by 3 days notice or notice of even shorter duration. The section reads:

"48. Notice of meeting and business:

Seven clear days'' notice of an ordinary general meeting, and three clear days'' notice, or in case of great urgency notice of such shorter period as is reasonable, of a special general meeting, specifying the time and place at which such meeting is to be held and the business to be transacted thereat, shall be given by the chief officer or the municipal commissioner to the councillors, and posted up at the municipal office. The said notice shall include any motion or proposition which a councillor shall have given written notice not less than ten days previous to the meeting, of his intention to bring forward thereat and, in the case of a special general meeting any motion or proposition mentioned in any written request for such meeting:

Provided that the motion or proposition in respect of which notice is given shall relate to matter connected with the municipal administration and shall not be inconsistent with the provisions of this Act."

Having given my anxious consideration to the argument advanced by Mr. Ram Bhat, touching the insufficiency of notice, I find it difficult to accede to his submission.

In the first instance it must be remembered that the notice at Annexure-B is a notice given at the bidding of the Vice-President under Section 47(3) of the Act. The said provision makes it abundantly clear that where the President fails to hold a meeting at the request of not less than one-third of the councillors, the Vice-President or one-third of the total number of councillors may call such meeting. It is mandatory for the President to call for a special general meeting under Section 47(2) upon a request made to him in that regard in writing by more than one-third of the total number of councillors and he is under a duty to call for such a meeting within fifteen days from the date of making of such a request to him. In this case the (sic) request to call a meeting on 26-11-1990. The petitioner did not budge. Thereafter a second notice was issued on 20-6-1991 by more than one-third of the councillors to call for a special general meeting to consider a motion of no confidence against the President. On this occasion also the petitioner did not respond although under Section 47(2) of the Act he was bound to call the meeting in question at the bidding of his councillors. When the President defaulted in the performance of his duty, the Vice-President took over the chore and thereafter called the special general meeting at Annexure-B acting under Section 47(3) of the Act. If Annexure-B is scanned, assuming there is a constraint under Section 42(9) of the Act, it is absolutely in order and perfectly valid. About that there is no doubt. In other words if it is treated as a notice under Section 47(3) issued by the Vice-President acting on the request made to the President in the past, the meeting held on 16th July, 1991 being within 30 days of the motion issued on 20th June, 1991, was clearly in order.

But the argument put forward is the meeting scheduled for the 16th fell short because it was sent out on the 6th. In other words, the invitation to attend the meeting scheduled for 16th having been issued on 6th, it did not satisfy the 10 days gap or 10 days clear gap on which the petitioner insists upon. I am afraid there is no substance in that contention. Notice at Annexure-B is merely a notice issued by the municipal council calling up the members to attend the special general meeting. The notice must be held to have been issued under Section 48 of the Act under which a special general meeting can be called with just three days notice. In this case there being 10 days gap, the same is clearly in compliance with Section 48 of the Act.

Now reverting back to clause (9) of Section 42, regard being had to the fact that notice by the councillors expressing intention to move a no confidence motion against the President having been given to him on the 20th June, 1991 consideration of the same at the meeting held on 16th July being far in excess of the 10 day barrier was also in compliance with clause (9) of Section 42. This in fact is the view taken by my brother Chandrakantaraj Urs, J. in C.G. Somashankar v Town Municipal Council, ILR 1989 Karnataka 1255, wherein it was held:

"It is clear from the language employed in proviso to Section 42(9) that 10 days should be reckoned from the date of notice of intention to move the resolution and not from any other date. In the normal course, soon after 10 days the President ought to call a Special General Meeting in accordance with the requirement of Section 48."

I am in respectful agreement with the aforesaid view holding the 10 day notice in question should be reckoned from the date of intention to get the resolution moved and not from any other date.

But, then, in a decision reported in Item No. 60 of short notes of cases, 1982(2) Kar. L.J. 29 in the case of Janardhana v Deputy Commissioner of Bijapur, a Division Bench of this Court takes a different view from the one referred to supra in that it was held that the first proviso to sub-section (9) of Section 42 of the Act requires giving of atleast 10 days notice apropos the no confidence motion. On the ground that such notice was not given a resolution passed at a meeting held within 10 days from the date of notice was held to be bad and was therefore struck down by the Bench on the ground that the resolution was in breach of the statutory requirement. The facts of the case are not adumberated in the short notes. Even-otherwise one might probably support that decision on the conclusion that the no confidence motion was moved at a meeting held even before the expiry of 10 days. I would, therefore, confine it to the facts of the case. Herein I have held even the requirement of 10 days notice had been complied with as the 10 day period starts running from 20th June, 1991 in which event there will be no violation of the 10 day notice enjoined by Section 42(9) of the Act. In that view of the matter the foregoing point touching the alleged deficiency in the notice at Annexure-B fails and is rejected.

Before parting with this case I must also observe the intrepid cupidity displayed by the petitioner, who although himself a defaulter in one sense in that twice when the requisite number of members served a notice on him expressing their desire to move a no confidence motion against him, did not call for a special general meeting although duty bound to call it but makes bold to come to this Court to accuse others of having held a meeting contrary to law. The man who appears to have so craftily circumvented the provisions of the Act does not really deserve any relief at the hands of this Court in exercise of its jurisdiction under Article 226 of the Constitution. This man who is himself the cause for several complaints cannot be heard to complain that proceeding conducted by somebody else was illegal or improper even it was for some reason afflicted by non-adherence to some procedural step. He has been moving all the while from pillar to post thwarting all attempts to dislodge him in a democratic manner. He goes to the Deputy Commissioner and then comes to this Court and thereafter goes back to the meeting where he is decisively thrown out of office. Not satisfied with all that he again moves this Court for relief under Article 226 of the Constitution. May be he is entitled to all that but I am aghast at this man who thinks and acts like a cat which has nine lives.

For the reasons stated above, this writ petition fails and is dismissed with costs of Rs. 500/-. In the view I have taken I do not find it necessary to appeal to the decision of Rajasthan High Court relied upon by Mr. Ram Bhat and so also to the passage in ''interpretation of statutes'' by Maxwell with which I have absolutely no quarrel at all. When the statute says there should be 10 days notice it should be 10 days and nothing less.