JUDGMENT Brijesh Kumar and Jagdish Bhalla, JJ.
1. The above noted two writ petitions relate to the same subject matter. Hence having heard the learned Counsel appearing for the parties in both the writ petitions, they are being disposed of by this common order.
2. A motion of No Confidence appears to have been moved against Smt. Kusum Chauhan who was elected and was working as the Chairman of Nagarpalika Parishad, Balrampur. According to the report of the Presiding Officer, presiding over the meeting convened for considering the Motion of No Confidence it was carried out by a majority of two third as all the 17 members of the Parishad present had unanimously voted in favour of the Motion. The Adhyaksh Smt. Kusum Chauhan moved a representation to the State Government apart from other things, pointing out that the motion was not carried out by two third majority as provided under the provisions, namely, Sub-section (12) of Section 87-A of the Municipalities Act which provides :-
"87-A.(12) The motion shall be deemed to have been carried only when it has been passed by a majority of (two-thirds) of the total number of members of the municipality."
3. According to para 9 of the representation preferred by the Adhyaksh in all there are 27 members of the Board, 25 elected members and 2 ex-officio members including the Member of Legislative Assembly. Therefore, 18 members would constitute the two third majority of the Body having 27 members. Therefore, 17 members would not constitute the majority of two third. Hence, the Motion was not carried out. The State Government on the representation in exercise of its powers under Section 34 (1) of the Municipalities Act, stayed the implementation of the resolution. It has been submitted on behalf of the petitioner that the exercise of power by the State Government is malafide and only with a view to help out the Adhyaksh who belongs to a particular political parity. It is further submitted that once the Motion is carried out, there is no occasion to prohibit execution of the resolution. On behalf of the opposite parties, it has been submitted that there has not been any malafide exercise of power but since it was found that the Motion was not carried out by two third Majority hence, the State Government exercised its power under Section 34 (1) of the Act. We feel that all that we need to examine is as to whether the exercise of power is malafide or not.
4. The affidavits have been exchanged between the parties. There is no dispute that in all, there are 27 members of the parishad out of which 25 are elected and 2 are ex-officio members, one on whom is a Member of the Legislative Assembly. On behalf of the petitioners, it is submitted that, since he has not taken oath as a Member of the Municipal Board, he cannot be counted on the total strength of the Board. Thus the strength for the purpose of considering the majority would be reduced to 26 and for 26, 17 members would constituted two third majority which otherwise would not be there in case the total number of members is taken to be 27.
5. The learned counsel appearing for the opposite parties submit that even for the sake of argument, it is taken that the strength of the Municipal Board was reduced to 26, then too, 17 members would not constituted the majority. 17 members would fall short of two third and it would be more than 17 may be 17.33 constituting the two third majority. There seems to be force in the submission made that 17 members would fall short of two third of the strength of 26. It is also submitted and in our view without force, that it is not necessary for an ex-officio member of the Municipal Board who is sitting M.L.A. to take oath since he has already subscribed to the oath as member of the Legislative Assembly. It is also Indicated that in the form prescribed for the oath as Member of the Legislative Assembly as well as the Municipal Board, the oath is subscribed to the Constitution of India and to maintain its integrity and sovereignty etc. It is rightly submitted that once such on oath is taken as Member of the Legislative Assembly, it would not be necessary to subscribe the oath of different bodies or institutions where he would automatically get the membership on the basis of his holding the office of the Member of the Legislative Assembly.
6. Writ Petition No.. 730 (M/B) of 1998, it has been filed by the members of the Board who seem to be in favour of the Motion and have challenged the order of the State Government prohibiting the execution of the resolution and writ petition No. 562 (M/B) of 1998, it has been filed by Smt. Kusum Chauhan who is sitting Adhyaksh of the Municipal Board. In view of facts and circumstances discussed in the preceding paragraphs, it cannot be said that the State Government has exercised the power with malafide intentions and not with a view to deal with a situation in a bonafide manner which otherwise does not seem to have been provided for to be made up under any other provision. In the result, therefore, the writ petition No. 730 (M/B) of 1998 is dismissed.
7. So far as writ petition No. 562 (M/B) of 1998 is concerned, it was moved with a prayer that the notice dated 15.2.1998 convening the meeting on 26.2.1998 be quashed. Since he meeting has already been held as scheduled and it has been found by us that the Motion was not carried out by two third majority as required, this writ petition is rendered infructuous.