Naresh Kumar Kansal and Others vs Nagar Palika and Others

R.A. Sharma, J.—Petitioners, who are members of Municipal Board, Deoband, Saharanpur (here-in-after referred to as the Board), have filed this writ petition challenging the resolution dated 15-2-1992, whereby a committee known as ''Devi Kund Fair Committee'' of five members has been appointed by the Board.

Parties have exchanged the affidavits and we have heard the learned Counsel for the parties The grievance of the Petitioners is that the members of the committee constituted by the Board by Regulation can he elected by single transferable vote in accordance with method prescribed by Clause (b) of Sub-section (1) of Section 104 of U.P. Municipalities Act (herein-after referred to as the Act); but in the instant case the appointment of the members of the committee has been made in contravention of the aforesaid provision. Learned Counsel for the Respondents has defended the impugned resolution on two grounds; firstly, the appointments of the members of only seven committees, reference of which have been made at page 135 of the Manual containing Regulation of the Board, are required to be made in accordance with Section 104 and as Devi Kund Fair Committee" is not one of those 7 committees, appointment of its members need not be made in accordance with Section 104, and secondly, the Petitioners being members of the Board, they should have raised objection in the meeting of the Board in which the appointment of members of the committee in question was made and it was open to them to propose any other name for election; and not having done so, they cannot raise their grievance in the writ petition before this Court. We agree with the learned Counsel for the Petitioner.

Section 104 of the Act, which provides for appointment of committee of the Board, so far as it is relevant is reproduced below;

APPOINTMENT OF COMMITTEES-(1) board may (and where so required by the State Government shall) --

(a) by regulation establish such committees as it thinks fit, (or as the State Government) may direct) for the purpose of exercising such powers, performing such duties or discharging such functions as may be delegated to a committee u/s 112, and

(b) by single transferable vote elect such of its members as it thinks for a period not exceeding one year to any committee so established, in accordance with the method prescribed in the Regulations made by the (Chairman) of the Legislative Council of Uttar Pradesh in pursuance of Orders 82 and 87 of the Standing Orders for the conduct of business and procedure to be followed in the Legislative Council and dated March 15 1921, the words ''the President'' and ''the Council'' occurring in the said Regulations being for purposes of this clause read as (President of the Board) and "Board" respectively, provided that the State Government may from time to time as it thinks fit amend the said Regulations for the purposes of this clause; and)

(c) by resolution remove any member (elected) under Clause (b).

Regulation 16, which has been printed at page 135 of the manual referred to hereinbefore, lays down what, "there shall ordinarily be 7 committees or so of the Board", and thereafter names of 7 Committees have been mentioned therein. This regulation does not limit the number of the committees of the Board It only says that ordinarily there shall be 7 Committees. The Board has framed separate regulations known ar Devi Kund Fair Committee''s Regulations, which have been printed in the same manual, and this committee is in addition to the 7 committees mentioned in Regulation 16. The committee in question is one of the committees which has b;-.en constituted by the Regulation by the Board and members of which are to be elected in accordance with Clause (b) of Sub-section (1) of Section 104 of the Act. Provisions of Section 104 being mandatory, it is not open to the Board to elect members of any committees except by a single transferable vote in accordance with the method prescribed by Clause (b) of Sub-section (1) of Section 104 Method for election prescribed by Clause (b) is the same, which has been prescribed in the regulations made by the Chairman of the Legislative Council of Uttar Pradesh in pursuance of Orders 82 and 87 of the Standing Orders for the conduct of business and procedure to be followed in the Legislative Council. The first submission of the learned Counsel for the Respondents is devoid of force and is rejected.

The second submission of the learned Counsel for Respondents also lacks merit. From the perusal of the impugned resolution it is apparent that when the appointment of the members of Devi Kund Fair Committee was taken up by the Board on 15-2-1992. an objection was raised by some of the Petitioners to the effect that election of the members should be held in accordance with Section 104 by a single transferable vote. This objection was rejected by the Chairman and he further directed for appointment of the members of the committee u/s 298 of the Act. In pursuance of the decision of the Chairman five names were proposed and were accepted as members of the committee in question. From the perusal of the impugned resolution, it is clear that the procedure prescribed by Section 104 for election of the members of the committee has not been followed. Section 298 on which the reliance his been placed for ignoring the procedure of Section 104 does not deal with the election of the members of the committee. No. provision of Section 298 has been placed before us on the basis of which the procedure and the method for election of the members of the committee as laid down u/s 104 can be bypassed The election of members of every committee constituted by Regulations by the Board has got to be held by single transferable vote in accordance with the method and the procedure laid down by Clause (b) of Sub-section (f) of Section 104. As the Chairman has ruled out the objection of the Petitioners for holding the election in accordance with Section 104(1)(b), they cannot be blamed for not proposing the names for appointment to the committee. By raising objection in the meeting itself against the appointment of the members of the committee in contravention of the provisions of Section 104(1)(b), the Petitioners have done everything whatever was in their power. Under the circumstances the writ petition cannot be defeated on the ground that the Petitioners have failed to propose the names for appointment as members of the committee. The election of the members of the committee in question not having taken place in accordance with the provisions of Section 104 the impugned resolution cannot be sustained.

The writ petition is accordingly allowed with costs. The resolution of the Board dated 15-2-1992 (Annexure I to the writ petition is quashed. The Municipal Board, Deoband is directed to elect the members of Devi Kund Fair Committee in accordance with Section 104 of the Act expeditiously.