# Abdul Kadir Sliamswidfo Bohm v. M adhat. Prabhakar Oak

- **Citation:** [1962] 3 S.C.R. 718
- **Court:** Supreme Court of India
- **Decided:** 1961-05-24
- **Case number:** Civil Appeal No. 401 of 1961
- **Bench:** B. P. Sinha, P. B. Gajendraoadkar, Raghubar Dayaj
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/abdul-kadir-sliamswidfo-bohm-v-m-adhat-prabhakar-oak-2471
- **Pages:** 9

## Headnote

Municipal Board-.Mnnber-lncurring of di~qualificaliot>
lf an<l when btcomea inr.ornpeltnt to •xercise Id.• right-U.P.
Municipalitie.• Act, 1916 (U.P. II of 1916;, 88.13 D(8), 87A,
sub-•.2.
The appellant was the Pre•ident of a Municipal Committee.
A \\.'ritten notice of the intt'ntion to move a motion of no
..
,
· confidence in the President signed by nine memhcrs of the
Board \vas delivered to the District ~fagistrate under s. 87-A
.ub-s. (2) of the U.P. Municipalities Act, 1916. The District
Magistrate duly convened a meeting of the Board, .but b~~ore
the date of the meeting the appellant moved a writ pelltton
in the High Court and questioned the validity of the notice.
The writ petition \vas dismissed in limine inter alia as being
premature. The Meeting of the Board was held on the due
date and all the members present, voted for the motion of no
. ...-
confidence and the Munsif of the area who had presided de·
clared the motion to have been carried. The appellant by hi•
.econd writ petition be(orc the High Court desired that the
3 ~.C.R.
SUPREME COURT REPORTS
719
proceeding of the meeting be quashed and the resolution expreSB!ng no confidence in the appellant be not given effect to
by the State and the District Magistrate, for the reason that
two of the members of the Board who had signed the notice
and subsequently taken part in the proceedings of the meeting
and voted, had incurred disqualification under s. 13-D (g) of
the U.P. Municipalities Act, 1916, inasmuch as they were in
arrears in the payment of municipal tax and other dues to
which s. 166 of the Act applied.
Held, that an order, dismissing a writ petition in limin•
not on merits but for the reason that it was premature. could
not operate as res judicata in subsequent proceedings.
Held, further, that a member of the Municipal Board
does not automatically come under suspension, or lose his
rights to take part in the proceeding of the Bo<Lrd, or perform
the duties of a member or cease to be a member of the Board
merely on his incurring any of the disqualification mentioned
in s. 13-D of the U.P. Municipalities Act, 1916.
A member
of the Municipal Board, merely, by incurring the disqualification under cl. (g) of s. 13-D of the U.P. Municipalities Act,
I 916, was not incompetent to exercise his rights ::ts a member
of the Board.
Elution Oommi88ion, India v. Saka V•nkata Subba Rao,
(1953] S.C.R. 1144, referred to.

## Text

Abdul Kadir
Sliamswidfo Bohm
V.
M adhat. Prabhakar
Oak
lVancl.Oo J.
&pttmbtr 20.
718
SUPREME COURT REPORTS
[1962)
referred to arbitration. It seems to us that every
allegation tending suggest or imply moral dishonesty
or moral misconduct in tho matter of keeping accounts would not amount to Ruch serious allet'ation
of fraud as would impel a court to refuse to order
the arbitration agreement to be filed and refuse to
make a reforence. Looking to the allegations which
have made in this case we aro of opinion that there
are no such serious allegations of fraud in this case
P.S would ho sufficient for the court to say that thcro
is sufficient causo for not referring tho dispute to
arbitration. This contention of the appellant must
also therefore fail.
The appeal therefore fails and is here by dism isscd with cost a.
Appeal dismissed.
:IIOOL CHAND SHARMA
ti.
STATE OF UTTAR PRADESH
(B. P. SINHA, C.J., P. B. GAJENDRAOADKAR and
RAGHUBAR DAYAJ,, JJ.)
Municipal Board-.Mnnber-lncurring of di~qualificaliot>
lf an<l when btcomea inr.ornpeltnt to •xercise Id.• right-U.P.
Municipalitie.• Act, 1916 (U.P. II of 1916;, 88.13 D(8), 87A,
sub-•.2.
The appellant was the Pre•ident of a Municipal Committee.
A \\.'ritten notice of the intt'ntion to move a motion of no
..
,
· confidence in the President signed by nine memhcrs of the
Board \vas delivered to the District ~fagistrate under s. 87-A
.ub-s. (2) of the U.P. Municipalities Act, 1916. The District
Magistrate duly convened a meeting of the Board, .but b~~ore
the date of the meeting the appellant moved a writ pelltton
in the High Court and questioned the validity of the notice.
The writ petition \vas dismissed in limine inter alia as being
premature. The Meeting of the Board was held on the due
date and all the members present, voted for the motion of no
. ...-
confidence and the Munsif of the area who had presided de·
clared the motion to have been carried. The appellant by hi•
.econd writ petition be(orc the High Court desired that the
3 ~.C.R.
SUPREME COURT REPORTS
719
proceeding of the meeting be quashed and the resolution expreSB!ng no confidence in the appellant be not given effect to
by the State and the District Magistrate, for the reason that
two of the members of the Board who had signed the notice
and subsequently taken part in the proceedings of the meeting
and voted, had incurred disqualification under s. 13-D (g) of
the U.P. Municipalities Act, 1916, inasmuch as they were in
arrears in the payment of municipal tax and other dues to
which s. 166 of the Act applied.
Held, that an order, dismissing a writ petition in limin•
not on merits but for the reason that it was premature. could
not operate as res judicata in subsequent proceedings.
Held, further, that a member of the Municipal Board
does not automatically come under suspension, or lose his
rights to take part in the proceeding of the Bo<Lrd, or perform
the duties of a member or cease to be a member of the Board
merely on his incurring any of the disqualification mentioned
in s. 13-D of the U.P. Municipalities Act, 1916.
A member
of the Municipal Board, merely, by incurring the disqualification under cl. (g) of s. 13-D of the U.P. Municipalities Act,
I 916, was not incompetent to exercise his rights ::ts a member
of the Board.
Elution Oommi88ion, India v. Saka V•nkata Subba Rao,
(1953] S.C.R. 1144, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 401 of 1961.
Appeal by special leave from the judgment
and order dated May 24, 1961, of the Allahabad
High Court in Civil Misc. Writ No. 846 of 1961.
M. 0. Sttalvad Attorney-General for India and
J. P. Goyril, for the appellant.
0. B. Agarwala and 0. P. Lal, for respondents
Nos. I and 2.
0. K. Daphtary, Solicitor-General of India, R. K.
Garg, S. 0. Agarwala, D. P. Singh and M. K. Ramamurthi, for respondents Nos. 3 to 13.
1961. September 20. The Judgment of the
Court was delivered by
1861
M ool Chand Sh4rma
v.
State of Uttar
Pratksh
RAGHUBAR DAYAL, J.-This appeal, by speci'l.l
Raghu/)ar Day•I ].
leave, is directed against the judgment of the High
Court of Allahabad dismissing a writ petition filed
1961
M ool ClraAd Sharm•
v.
Slate of f.,'ttar
p,.,J,,h
720
SUPREMl!! COURT REPORTS
(1962]
by the appellant praying for the iRsne of a writ in
the nature of mandamus directing the State of
Uttar Pradesh and the District Magistrate, Meerut,
not to give cff'ect to the resolution passed in the
meeting of the members of the Municipal Board,
Pilkhuwa, dated February 6, 1961, and for tho
quashing of tho proceedings of that day.
The appellant was the President of the Muni·
cipal Il8ard, Pilkhuwa, in January-February, 1959.
On January 4, 1959, a written notice of the inton·
tion to make a motion of no confidence in the
President signed by nine members of the Board,
including Ram Nath and Kesho Ram Gupta., was
delivernd to the District Magistrate, Meerut, in
pursuance of sub·s. (2) of s.87-A of the U.P. Munioi·
palities Act, 1916 (U.P. Act IT of 1916), hereinafter
called the Act.
The District lllsgistrate, l\loerut,
duly convened a meeting of the Board on February
6, 1961.
The appellant moved writ petition No. 367
of 1961 in the High Court on February 2, 1961, and
questioned the validity of that notice.
That peti·
t.ion was di~missed in limine on the same day. It
was held that unlesH and until an order of removal
iH pa!!l!Cd actually by the St.ate Government there
coul<l not ho any removal of a. member or anything
which would disentitle a member to take part ii),
the proceedings of the meeting and that tho a.ppli·
cation wll.ll also premature.
Tho mooting of the Board took place on
February 6, 1961. Mr. Agarwala, !\Iunsif, !lleerut,
presided over tho meeting all tho ten members who
were present, voted for the motion of no confidence
arnl the l\funsif declared the motion to have been
carried. The appellnnt, by his writ petition, desir·
ed the proceedings of the meeting to be quashed
and the resolution expressing no confidence in the
a.poellant be not given effect to by the state of U.P.
an:! the District !\fa.gist.rate.
..
.r
•
--
:l S.C.R.
SUPREME COURT REPORTS
721
It was urged before the High Court that the
notice of motion delivered to the District Magistrate was invalid and so were the proceedings of
the meeting. Ram Nath and Kesho Ram Gupta
who had signed the notice and also Raghunandan
Prasad who, along with them, took part in the
proceedings of the meeting and voted in support of
the 'no confidence' resolution, had incurred, prior
to January 4, 1961, disqualification under s.13-D (g)
of the Act inasmuch as they were in arrears in
the payment of municipal tax and other dues in
excess of one year's demand to which s. 166 of the
Act applied. The contention was that on account
of their having incurred the aforesaid disqualification, they were disqualified from being members of
the Board and, consequently, were not competent
to exercise the rights of a member of the Municipal
Board.
The High Court held that Ram Nath had
been proved to be in arrears in payment of house
tax on February 6, 1961, and thatKeshoRamGupta
and Raghunandan Prasad were not in arrears in
payment o! the Tehbzarai tax for the year 1959-60
and house tax respectively. It held that a member
of the Board did not cease to be a member on his
incurring the disqualification under s.13-D(g) and
that he became disqualified merely to exercise
office and to act as a. member. The learned Judges
observed:
"During the continuance of the diqqualification the person's right to act as a
member falls into a state of suspension
On
removal of the disqualification the state of
suspension disappears and his right to exercise office as a member of the board revives
unless he hus been removed by Government
from membership of the board under section
40 of the Act during the continuance of disqualification."
Holding that the motion of no confidence was valid
as it had been passed by the vote of nine member.s
1961
Mool Chand Sharma
v.
State of U ttar
Pra<kslo
Ilagldibar Dl(Yal J,
1961
M ool CNmd Shamra
••
SIMI of Ullar
Pra4tsh
11,,,hwbar v..,.1 J.
722
SUPREME OOURT REPORTS
(1962)
who constituted the majority of more than half
the total number of members of the Board, that - •
being seventeen, and that those nine members of
the Board being qualified and duly elected members
of the Board, Ram Nath's taking part in that
meeting did not vitiate its proceedings in view of
tho provisions of sub-s. (2) of s. 113 of tho Act, the
learned Judges dismissoo the writ petition. The
learned Judges did not consider tho validity of tho
notice on merits as they were of opinion that the
order on writ petition No. 397 of 1961 operated as
res judicata, though iu view of their opinion the
notice of motion of no oonfidence would have been
invalid if the name of Ram Nath bo excluded from
the signatories as in that case the num bcr would
be eight and so one short of the number required
by the provisions of sub-s. (2) of s. 87 ·A of tho
Art. The meeting held in pursuance of a bad
notice would also have been invalid.
The learned Attorney General, appearing for
the appellant, has raised the following contention.q :
(i) The order dismissing writ petition
No. 397of1961 could not operate as resjudicata
as it had been dismissed mainly on account
of its being premature and not on merits.
(ii) A member of the l\Iunicipal Board,
•
... -
on. incurring a disqualification under s. 13-D,
ceases te> be a member of the Board so long
as the disqualification exists and therefore
. ......_
he cannot net as a member of the Board for
any purpose.
(iii) Kesho Ram Gupta. was also a disqualified member of the Board and the
resolution of the Board dated Fcbmary (),
1961, holding that no Tehbazari tax was due
from Kesho Ram Gupta and that the amount
deposited by him under protest on February 9,
1961, be refunded, was ultra t•ire.~ the power
of the Board which had no power to review
or revise the imposition of tax.
-
3 S.C.R.
SUPREME COURT REPORTS
723
(iv) Due to the disqualification incurred
by Ram Nath and Kesho Ram Gupta, both
the notice of motion of no confidence and the
proceedings of the meeting were bad as, excluding their signatures and votes, the number of mem hers signing the notice and of
those voting at the meeting becomes less than
half the total of the members of the Board.
(v) The proceedings of the meeting were
vitiated even if Ram Nath alone, who was
a disqualified member, bad taken part in the
meeting and were not saved by the provisions
of sub-s. (2) of s. 113, as the meeting held in
pursuance of the provisions of s. 87-A of the
Act is not a meeting of the Board to which
the provisions of sub-s. (2) of s. 113 can
apply.
The learned counsel for the respondents conceded that the order dismissing writ No. 397 of
1961 could not operate as res .fudicata in these
proceedings on the question whether the notice of
no confidence was a valid notice or not.
We do not agree with the second contention
for the appellant, or with the view expressed by
the learned Judges that a person who incurs disqualification under cl. (g) of s. 13-D of the Act
becomes disqualifird to exercise office and to act as
a member.
Section 13-C of the Act lays down the qualifications for membership of the Board and s. 13-D
lays down the disqualifications for membership. Of
its ten clauses, the relevant clause of s. 13-D for
.our purpose is cl. (g). It reads :
"A person, notwithstanding that he is
otherwise qualified, Phall be disqualified for
being chosen as, and for being, a member of
a Board if he is in arrears in the payment of
municipal tax or other dues in excess of one
year's demand to which section 166 applies''.
1961
M ool Ch«nd Sharma
v.
ltate of Uttar
Pradesh
Raghuhar D'!Jal ].
IHI
MHI °""" Sw""'
v:
Slalt of Uttar
Prakh
R.,~.;., v._,.1 J.
SUPREME COURT REPORTS
(1062]
Second proviso to this section is:
"Provided further that in the case of (gl,
the disqualification shall cease as soon as the
arrears are paid."
If a member of the board falls in arrears in the
payment of tax, he incurs tI1is disqualification. The
provisions of s. 13-D do apply to members of tho
board incurring disqualification during the period
of their membership and arc not confined in their
application to the stage previous to the election as,
in that case, tho expression 'and for being' in tho
aection would
have
been unneeeasary. This
expression has been interpreted in Election Commission, India v. Saka Venkata Subba Roo (1) in
connection with the interpretation of Art. 191,
whose relevant provision is "a person shall ho
disqualified for being chosen as, and for being, a
member of the Legislative Assembly or Legislative
Council of a Staw ...... ". It was obsenred at
page 1157 :
"Article 191, which lays down the same
set of disqualifications for election as well as
for continuing as a member, and article 193
which prescribes the penalty for sitting and
voting when
disqualified,
a.re
naturally
phrased in terms wide enough to cover both
pre-existing
and supervening disqualifications."
There is nothing in s. 13-D or in any other
section of tho Act which provides for the suspension or oessation from membership of a duly
elected member on his incurring any of the
disqualifications under s. 13-D. On the other hand
the provi.Bions of s. 40 of the Act lead to the inferenoe that a member incurring such a disqualification, continues to be entitled to tako part in any
proceedings of the Board or to perform the duties
of a. member. Section 40 deals with tho removal
of members and empowers the State Government
(1) [!953] S.C.R. 114-4.
3 S.C.R. SUPREME COURT :REPORTS
725
in the case of a city or the Prescribed Authority in
any other case, to remove a member of the board
on any of the grounds mentioned in els. (a) to (f) of
sub-s. (1). The ground for· removal mentioned in
cl. (b) is that a member has incurred any of the
disqualifications mentioned in ss. 12-D and 13-D.
Sub-sections (3), (4) and (5) of s. 40 read:
"(3) The State Government may remove
from the board a member who in its opinion
has so flagrantly abused in any manner his
position as a member of the board as to render
his continuance as a member detrimental to
the public intllrest:
(4) Provided that when either the State
Government or the Prescribed Authority, as
the case may be, proposes to take action under
the foregoing provisions of this section, an
opportunity of explanation shall be given to
the member concerned, and when such action
is taken the reasons therefore shall be placed
on record.
(5) The State Government may place
under suspension a member, against whom
proceeding under sub-sections (3) and (4) has
been commenced, until the conclusion of the
enquiry and any member who has been so suspended shall not so long as the order of suspension continues to remain in force, be
entitled to take part in any proceedings of the
board or otherwise perform the duties of a
member."
The State Government is empowered to suspend a
member against whom proceedings under sub-s. (4)
had commenced, i.e., against whom action for
removal is being taken on one of the grounds
mentioned in els. (a) to (f) of sub-s. (1\. A member
so suspended is not entitled to take part in any proceedings of the board or otherwise perform thfl
duties of a member during the period of suspension.
It can be legitimately inferred from the provisions
1961
M ool Chand Sh.rma
v.
State of Utt«r
Pradesh
Rathubar Dayal J.
9'11
NHI CMnd Sharma
v.
Stall of Ultar
Prod.sh
R.,h.J>ar Da;·al J.
•
726
SUPRE¥E L,'OURT REPORTS
(1962)
of sub-s. (5) that in the absence of an order of
suspension tho member who had not only incurred
an'y of the disqualifications mentioned in 8. lil-D,
but against whom the Government might have
started proceedings, was entitled to takc part in
the proceedings of tho board or to perform tho
duties of a member so long as the Government docs
not place hirn under suspension. \Ve arc there·
fore of opinion that a member of tho lliunicipal
Board does not automatically come under suspension or lose his right to take part in tho proceedings
of the boa.rd or perform the duties of a member or
cease to be a member of the board merely on his
incurring any of the disqualifications mentioned in
s. 13-D. It may bo mentioned that any other con·
clusion can have very unstable effect and can in·
definitely make the validity of tho proceedings and
action of the board uncertain as one cannot predi ·
cate at any moment of time as to which of the
members of the boa.rd has incurred a disquaJifi.
cation, a matter which must be dependent mostly
on the proof of tho allegations made. Such could
not have been tho intention of the Legislature.
Tho result therefore is th11.t even if Ram Nath,
Kesho Ram Gupta and Raghunandan Prasad had
incurred the disqualification under cl. (g) of s. 13-D
of the Act, they were not incompetent to exercise
their rights as members of the buard and could
t.herefore validly sign the notice of motion of no
confidence and take part in the proceedings of tho
meeting held in pursuance of tho provisions of
s. 87-A of the Act on February 6, 1961. It follows
that the proceedings of, and tho resolution passed
at the meeting of February 6, 1961, arc valid and
that tho order of tho High Court dismissing the
appellant's writ petition is correct, though for
different rca.aons.
In view of this opinion, it is not ncce88ary to
deal with the other contentions for the appellant.
We therefore dismiss the appeal with costs.
---
Appeal di.smusetf.
-
...
--