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2004(3) Supreme 712
Supreme Court of India
(From Rajasthan High Court)
V.N. Khare, CJI., S.B. Sinha & S.H. Kapadia, JJ.
Ramesh Mehta -Appellant
versus
Sanwal Chand Singhvi & Ors. -Respondents
Civil Appeal No. 6133 of 2002
With
Civil Appeal Nos. 6134-6135, 6136 & 8564 of 2002
And
Civil Appeal No. 2393 of 2003
Decided on 20-4-2004
Counsel for the Parties :
For the Appearing Parties : Manish Singhvi, Naresh Kumar, Ms. Monica Arora Garg, Advocate for Goodwill Indeevar, Ms. Sandhya Goswami, Sushil Kumar Jain, A.P. Dhamija, H.D. Thanvi, Sarat Sinthania, Punit Jain, L.P. Singh, Ms. Pratibha Jain, Advocates.
As per S.H. Kapadia, J. for V.N. Khare, CJI and for himself
Held : In the present case, on facts, we are concerned with post 1994 position. Article 243R brought about a drastic change in the matter of composition of municipalities. It lays down guidelines with regard to the constitution, composition, election and rights of the members of a municipality. Under the said Act, members of a municipality are persons chosen by direct election by the residents of a municipal area (ward). Article 243R(2)(a)(i) allows the legislature of a State to appoint any person as a member of the board who has special knowledge in the field of municipal administration, however, the proviso appended to the said Article precludes persons nominated under sub-clause (i) from having a right to vote in the meetings of the municipality. The Constitution, therefore, makes a distinction between elected members and nominated members who play essentially an advisory role. Pursuant to the 74th Constitutional amendment of 1994, sections 9, 65 and 72 of the Act were amended. (Para 12)
The scheme of post 1994 Act is that the chairman/vice-chairman shall be elected by the elected members of the boards and their office shall stand vacated on passing of no confidence motion by the elected members of the board. The position which, therefore, emerges is that both before and after 1994, the no-confidence motion had to be voted upon by members who were entitled to vote. As stated above, section 3 of the Act begins with the words “unless the context otherwise requires”. Section 3(36) defines the expression “whole number”/“total number” to mean total number of members holding the office at the given time. The said expression “whole number of members” finds place in rule 3(5), (8) and (9). Hence, we have to read rule 3(5), (8) and (9) in the context of the provisions of the said Act. As stated above, the basic scheme of the Act prior to 1994 and post 1994 has remained unchanged. In both cases, the legislative intent has been that the office of the chairman/vice-chairman shall stand vacated on passing of no-confidence motion by the members of the board who are entitled to vote. Hence, in our view, the expression “whole number” or “total number” connotes the “total number of elected members”. (Para 12)
To sum up, under pre 1994 and post 1994 provisions, the legislature intended that chairman/vice chairman shall be removed on passing of no-confidence motion by requisite majority of members having right to vote. (Para 14)
As per S.B. Sinha, J. (Concurring Judgment)
The decisions of the courts as regard right of participation of the member who was an elected or who had a right equal to that of an elected member had been taken notice of by Brother Kapadia, J. The said decisions are pointers to the fact that only elected members and those who are to be treated at par were entitled to participate in a proceeding initiated for removal of the Chairman of the Municipality. By reason of the amendment in the Constitution and consequent amendment by the State Legislature in the Rajasthan Municipalities Act, however, no indication has been given that by reason thereof a special right is sought to be created in the nominated members although they would not participate in such a proceedings and would not have any voting right either at the election of the Chairman or in the proceedings for his removal. We, therefore, are of the opinion that the rules which were made in the year 1974 having not been amended; with a view to give an effective and proper meaning must be construed to mean that only members with voting right are entitled to participate in that proceedings and not the nominated members. With these additional reasons, I entirely agree with the opinion of Brother Kapadia, J. (Paras 42 to 45)
Judgment
Kapadia, J.-The question raised in these civil appeals is - whether in counting “the whole number of members of the municipal board” in terms of rule 3(9) of the Rajasthan Municipalities (Motion of Non-Confidence against Chairman/Vice-Chairman) Rules 1974, nominated members have to be taken into consideration?
2. For sake of convenience, we refer to the facts in Civil Appeal No. 6133 of 2002.
3. On 19.8.2000, elections were held for the Municipal Board, Sanchar, district Jalore. The appellant Ramesh Mehta was elected as Chairperson of the Municipal Board. On 24.10.2000, the State Government nominated two members on the Board. On 6.10.2001, the total number of members of the municipal board consisted of 20 elected members, 2 nominated members and one MLA (Ex-officio). Thus, the total number of members of 6.10.2001 were 23. On that day, the no confidence motion was moved against the Chairperson, in which 15 members voted for the motion. The motion was conducted by the SDO, Sanchar as a nominee of the Collector, Jalore. According to the SDO, the no confidence motion stood carried out as the whole number of members on the board, excluding the nominated members, was 21 and 2/3rd of 21 was 14, against which 15 members voted for the motion. According to the appellant, the decision of SDO was erroneous as the whole number of members of the board was 23 and not 21 as determined by the SDO and 2/3rd of 23 being 15.33, the motion stood defeated. The decision of the SDO was challenged by the appellant herein in the High Court by filing petition No. 4178 of 2001. By judgment and order dated 21.5.2002, the learned Single Judge of the Rajasthan High Court, Jodhpur Bench held that in counting the whole number of members, nominated members have also to be taken into account even though they had no right to vote. The learned Single Judge relied upon the judgment of this Court in the case Raees Ahmad v. State of U.P. reported in [(2000) 1 SCC 432]. Aggrieved by the decision, the respondent herein carried the matter in appeal to the Division Bench of the High Court, which took the view that the expression “whole number of members” used in rule 3(9) of Rajasthan Municipalities (Motion of No-Confidence against Chairman/Vice-Chairman) Rules, 1974 (hereinafter referred to as “the 1974 Rules”) excluded nominated members. It was observed by the Division Bench that the said rule 3(9) of the 1974 Rules is required to be read with section 3(36) and section 9 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as “the Act”) and if so read, the expression “whole number of members” would exclude nominated members. Consequently, the appeal was allowed and the decision of the SDO was confirmed. Hence, the original petitioner, the ousted Chairman of the Municipal Board has come by way of civil appeal. The question herein is common in all civil appeals herein.
4. Shri Manish Singhvi, learned counsel appearing for the appellant submitted that the right to elect is neither a fundamental right nor a common law right. It is a statutory right. He submitted that the electoral college which elects a person may be different from the electoral college which removes such person from the post. In this connection, he placed reliance for purposes of illustration on Articles 54 and 61 of the Constitution. He submitted that in each case of election and removal, the Court has to examine the Act in question. Elaborating his argument, it was urged that the entire thrust of the argument of the respondent was that the words “whole number of members” must be construed as “whole number of elected members” and, therefore, the respondent is claiming casus omissus. He submitted that this Court has repeatedly held that a matter which should have been but has not been provided for in a statute cannot be supplied by the Courts. In this connection, he relied upon the judgment of the Privy Council in the case of Hansraj Gupta v. Dehra Dun Mussoorie Electric Tra
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