AI Structured Summary
Not yet generated for this judgment
Judgment
Shri Vipin Kumar Agarwal has filed this writ petition challenging the nomination of opposite party Nos. 5, 6 and 7 as nominated members to the Municipal Board, Puwayan District Shahjahanpur.
Shri Ravi Kiran Jain assisted by Shri Laksmi Kant Davey has been heard at considerable length. Shri S.G. Hasnain, learned Additional Chief Standing Counsel has accepted notice for the respondents State of U.P. and other State officials.
Three points have been argued by Shri Jain. First, that the respondents nomination is contrary to the provisions contained in Section 9 (1) (d). Second, that the State Government has flouted the Government Order Annexure1 which related to the requirement of qualifications which a nominated person was supposed to possess. Three, the petitioner himself made an application for being nominated which has been rejected by the order dated 112 1997 on the ground that the matter was only meant for nomination and since the District Magistrate had not been asked to forward any such name by the Government to such forwarding of the name was possible as was prayed by the petitioner.
In so far as the first point is concerned it may be noted that Section 9 (1) (d) reads as follows :
S.9. Composition of municipality (1) A municipality shall consist of a President, who shall be its Chairperson and
(a) ............ .....
(0 ..................
00 .................
(b) ..................
(d) nominated members, who shall be nominated by the State Government, by notification in the official Gazette, from amongst persons having special knowledge or experience in municipal administration and whose numbers shall in the case of
(i) Nagar Panchayat, be not less than two and not more than three.
(ii) Municipal Council, be not less than three and not more than five;
(e).Proviso1. Provided that the persons referred to in clause (d) shall not have the right to vote in the meetings of the municipality.
Provixo2...................
The arguments of Shri Jain was that since the provision quoted above re1quired the State Government to nominate members "from amongst persons having special knowledge or experience in Municipal administration" the respondent Nos. 5, 6 and 7 should not have been nominated for the simple reasons they neither have special knowledge nor experience in municipal administration.
The primary question which arises for consideration is whether when the Legislature itself has provided that the nomination can be made by the State Government even on the basis of finding a member to be having "special knowledge", how much of that matter is open to judicial scrutiny or the extent of justice ability of that knowledge which the Government has power to make the basis for nominations.
The reliance of Shri Jain in challenging the provision as contained in Article 243R is correct to the extent that the States have been empowered to lay down the law under which a Municipal Board has to be created. It is admitted that present Section 9 after the 95th amendment in the U.P. Municipalities Act brought about on 3051994, has reframed the old Section 9 so as to bring that in line with the constitutional provisions contained in Article 243R of the Constitution of India.
In the very nature of the things the elected persons who are segegated from the nominated persons, the State Government''s right created by Clause (d) empowering nomination of two and not more than three in the first contingency and three and not more than five in the second contingency is fully safeguarded by the aforesaid Clause (d) of subsection (1) of Section 9. Consequently, State Government''s satisfaction as to the extent of requirement of the special knowledge of a particular persons is not justiciable. It may further be stated here that the Constitutional provision as contained in Article 80 is having more or less the same language which permits nomination by the President of India of twelve members in accordance with the provisions of Clause (3). Clause (3) says that the members to be nominated by the President under subclause (a) of Clause (1) shall consist of persons having special knowledge or practical experience in respect of such matters as the following, namely:
Literature, science, art and social service.
There is no method on the basis of which the satisfaction of the State Government with regard to a person''s having knowledge can be gauged and therefore it must be said that this power is absolute, thus very limited scope of justiciability may be available and the judicial scrutiny may have to be confined to any apparent disqualification or defect in the person, not the extent of knowledge he may possess which has been made the basis of satisfaction of the State Government.
Coming to the second point it may be stated here that so far as the Government order is concerned it lays down the procedure in a given case when submissions of names may be sought by the State Government. The Government Orders on its effect, cannot override the statutory provisions which are already contained in Section9 (1) (d). Whenever the G.O. shall be read, it shall be read with the existing provisions as they exist.
Coming to the last argument of Shri Jain it may be pointed out that the petitioner''s application dated 29111997 addressed to the Adhyaksha, Nagar panchayat, Puwayan, Shahjahanpur for forwarding his name to the Government for being nominated was not maintainable and was rightly turned down by the Executive Officer of the Municipal Board.
The last point, apart from above three, argued by Shri Jain was that the present Government in the State which has come into power on 22nd of September, 1997 has made these nominations with mala fide intentions. It has been sworn in para16 that the impending elections to the Legislative Council from the local bodies constituency are about to be held in the last week of December, 1997 and that is why nominations have been made by the present ruling party to help its candidates.
The apprehension of Shri Jain may be correct. But the point is not whether the State Government''s action in making nomination is mala fide only for that reason but whether by making said nomination has any provision of law or the constitution being flouteo. As noted above no provision of either Section 9 (1) (d) or Article 243R of the Constitution of India has been violated, thus there is no error in the nominations made. The writ petition is dismissed summarily.