TMI Blog2004 (4) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Appeal No.6133 of 2002. 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 on 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rie Electric Tramway Co. Ltd. reported in [AIR 1933 PC 63] and Smt. Hira Devi Ors. v. District Board, Shahjahanpur reported in [1952 SCR 1122]. He next contended that despite the 74th Constitutional Amendment, the legislature did not amend the definition of "member" under section 3(15) and the definition of the words "whole number" under section 3(36) which includes nominated members. Thus, the composition of municipal boards under section 9(a)(i) and (ii) included nominated members, who formed the part of the whole number of the members of the board and, therefore, the expression "whole number of members" in the Act cannot be construed as "whole number of elected members". He submitted that under Article 243R(2)(b), the legislature may by law provide for a manner of election of the Chairman. He submitted that the rules of 1974 provided for removal of chairman, which was different from election of the chairman. In this connection, he submitted that even though a chairperson may be elected from the electoral college of elected members, the removal could be due to 2/3rd of the members including nominated members. In the circumstances, he submitted that if one reads rule 3(8) and ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uires". For the reasons herein, it was submitted on behalf of the respondents that the "whole number of members" appearing in sub-Rules (5), (8) and (9) of Rule 3 of 1974 Rules must be construed as "total number of elected members". Before adverting to the arguments advanced on both sides, we reproduce hereinbelow the relevant provisions of the said Act (pre and post 1994): A comparative chart showing the provisions of the Rajasthan Municipalities Act, 1959 before and after the Amendment in 1994: Provisions Prior to Amendment Provisions After Amendment "9. Composition of boards.(1) Subject to the provisions contained in the succeeding sub-sections, every board shall consist of such number of seats as may be fixed by the State Government from time to time by notification in the Official Gazette. (2)- (3) xxx xxx xxx 4. All the seats fixed for a board, general as well as reserved, shall be filled up by election held in the manner provided for by and in the order made under Section 29. 5. To every board there shall be appointed by co-option in the manner provided for by order published in the official Gazette (i) Two persons belonging to the female sex if no such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice of such meeting and of the date and the time to be appointed therefore to every member of the board. (4) to (7) xxx xxx xxx (8) Upon the conclusion of the debate or upon the expiry of the said period of four hours, as the case may be, the motion shall be put to the vote of the board and the prescribed authority or his nominee shall neither speak on the merits thereof nor vote thereon. (9) If the motion is not carried by a majority specified in sub-section (9) of section 65 or if any meeting cannot be held for want of a quorum, no notice of any subsequent motion of non-confidence in the same chairman (or vice-chairman) shall be received until the expiry of a period of six months from the date of the meeting." "9. Composition of boards(1) Subject to the provisions contained in the succeeding sub-sections, but save as provided in the following provisions of this sub-section, all seats in a municipality shall be filled by persons chosen by direct election from the territorial constituencies known as wards, the number of such seats, not being less than thirteen, being fixed by the State Government from time to time by notification in the Official Gazette: (a) the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the council from amongst themselves. (5A) to (8) xxx xxx xxx (9) Every chairman and every vice-chairman of a board shall forthwith be deemed to have vacated his office, if a resolution expressing want of confidence in him is passed in accordance with the procedure prescribed. (10) to xxxxxx xxxxxxx" "72. Motion of non-confidence against chairman.(1) Motion expressing non-confidence in the Chairman or the vice-chairman shall be made and considered in the manner prescribed. (2) No notice of motion under this section shall be made within one year of the assumption of office by a Chairman or a Vice-Chairman. (3) If a motion under sub-section (1) is not carried, no notice of a subsequent motion expressing non-confidence in the same Chairman or Vice-Chairman shall be made until after the expiration of two years from the date of the meeting in which the motion was considered." Article 243R(1) (2) of the Constitution was inserted by Constitution (Seventy Fourth) Amendment Act, 1994 under Chapter XIV-B. It lays down guidelines with regard to the Constitution, composition, election and rights of the members of a municipality. We quote hereinbelow the relevant provisions: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te and time fixed thereof to every member of the board. (3) The Collector or his nominee shall preside at such meeting and if within half an hour from the time appointed for the meeting collector or his nominee is not present or is unable for any unavoidable cause to preside at the meeting, the meeting shall stand adjourned to the date and the time to be fixed and notified to the members. (4) A meeting convened for the purpose of consideration of the motion of no-confidence under these rules shall not for any reason except stated at sub-clause (3) be adjourned. (5) As soon as the quorum is present, the Collector or his nominee shall read the motion for the consideration of which the meeting has been convened and declare it to be open for discussion. No meeting for the consideration of motion of non- confidence shall be held unless the quorum is present. One-third of the whole number of members shall form the quorum. (6) Such discussion shall not be adjourned and shall automatically terminate on the expiry for four hours from the time fixed for the commencement of the meeting unless it is concluded earlier. (7) If the conclusion of the debate or upon the expiry of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not carried by a majority, such motion would fail. Reading the above provisions of the un-amended Act and the 1974 Rules, it is clear that even prior to 1994 the legislative intent was that the chairman/vice-chairman had to vacate his office on passing of no-confidence motion by requisite majority of members who had the right to vote, which included the co-opted members. In Law and Practice of Meetings by Shackleton [8th Edition Page-66] while explaining the word "Majority" the learned author states that in legislative assemblies it is usual to decide the questions by a majority of those who have voting rights. The learned author, further states, that in cases where a motion is to be determined by a majority consisting of 2/3rd of the votes, the word "Majority" would mean majority of persons entitled to vote on the proposal and once the motion is voted upon by the requisite majority, it becomes resolution of the meeting. Therefore, the word "majority" would mean majority of persons entitled to vote. In the present case, the word "majority" finds place in sections 65(9) and 72(9) of the Act prior to amendment. Therefore, even prior to 1994 amendment of the Act, the legislature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Prior to the amendment the co-opted members were at par with the elected members, however, after 1994 only elected members and members of the legislative assembly have a right to vote under section 9(1) of the Act. Under sub-section (2) of section 65, as amended, the Chairman has to be elected by "elected members of the board". This change is very important. Prior to 1994, the Chairman was to be elected by the "members of the board", which is the phrase used in the unamended section 65(2), as the co-opted members had a right to vote. However, in 1994, section 65(2) of the Act was amended and the expression "members of the board" in the old sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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