RAJASTHAN HIGH COURT

                      State of Rajasthan

                      Vs.

                      Bhanwar Lal Verma

        Civil Special Appeal No. 543 of 2001
(Dr. Ar. Lakshmanan, C. J. and Bhagwati Prasad, J.)

                      10.07.2001

                      JUDGEMENT

Dr. LAKSHMANAN, C.J.

1. Heard the learned counsel for the appellants.

2. This appeals directed against the judgment passed by the learned single Judge dated
23-4-2001 in S.B. Civil Writ Petition No. 4746/2000 filed by respondent-Bhanwar Lal
to quash the order dated 12-12-2000 by which the respondent had been replaced by
another nominated member in Municipal Board, Mt. Abu.

3. We have perused the pleadings and judgment under appeal. The facts and
circumstances leading to this case are that the first respondent was nominated by the
State Government in exercise of powers under Section 9 of the Rajasthan
Municipalities Act, 1959 (in short, referred to hereinafter as 'the Act') as a member of
the Municipal Board, Mt. Abu by order dated 16-11-2000 along with one Sri
Parmanand which order was published in the Official Gazette on 25-11-2000.
However, vide order dated 12-12-2000 Yusuf Khan (responent No. 4 in the writ
petition) was nominated in place of the first respondent-Bhanwar Lal and that
Government order stood notified in the Official Gazette on 13-12-2000 (Annex. R/1 to
the writ petition). Hence the writ petition by Bhanwar Lal.

4. Before the learned single Judge it was contended by the learned counsel for the first
respondent (herein) that as the Act provides for a particular procedure for removal of
the Board's Members by holding enquiry for misconduct, the State could not have
removed the first respondent so unceremoniously and that the removal had been made
in flagrant violation of the principles of natural justice, nor any charges have been
framed under Section 63 of the Act.

5. The respondent State had taken the plea that respondent No. 4 Yusuf Khan had
initially been nominated and by inadvertence Bhanwar Lal's name had been published
in the order, therefore, it required only to issue a corrigendum and not removal of the
first respondent (herein) and nomination of respondent No. 4.

6. Yusuf Khan submitted his separate reply that the first respondent-Bhanwar Lal had
not taken the oath and, therefore, he cannot be deemed to be a Member of the Board
and his nomination is inconsequential. It was contended that the first respondent
(herein) was removed rightly as he held the office at the pleasure of the Government.

7. Dr. B. S. Chauhan, J, considered the rival submissions made by the parties and the
legal provisions and, in particular, the amended provisions of Section 9 of the Act
which authorizes the State Government to nominate three members or 10 per cent of
the elected Members of the Municipality, whichever is less, having special knowledge
or experience in Municipal Administration. The second proviso thereto reads that the
State Government shall have power to withdraw a member nominated under sub-
clause (2) at any time. Learned counsel for the first-respondent (herein) contended that
the procedure prescribed under Section 63 of the Act has to be followed and removal
without following the due procedure is impermissible under the law. In support of his
contention, reliance was placed on Kanta Devi v. State of Rajasthan,1 It was also
contended that the Government is permitted to correct a bona fide mistake occurred
inadvertently but, in the instant case, it is a case of replacement by respondent No. 4
which is not permissible. The counsel for the State had placed reliance upon the
judgment of the Supreme Court in Om Narain Aggarwal v. Nagar Palika,
Shahjahanpur 2 wherein the Supreme Court, in a similar situation, interpreted the
analogous provisions of the U.P. Municipalities Act.

8. We have perused the pleadings and also considered the arguments put forth by Sri
Kailash Joshi, learned counsel appearing for the appellants. In the instant case, the
Government had not issued any notification for removal of the first-respondent
(herein) nominating respondent No. 4. The order dated 12-12-2000 (Annex. 3) and
notification dated 13-12-2000 provide for a corrigendum to the effect that in place of
Bhanwar Lal Verma the name of Yusuf Khan be read. Before the learned single Judge
the appellants had admitted that the respondent (herein) stood nominated by mistake
which was rectified by nominating respondent No. 4. In our view, for removal of the
first-respondent and nomination of respondent No. 4, corrigendum cannot serve the
purpose. The Government ought to have issued a clear notification for removal of the
first-respondent and nomination of respondent No. 4 in his place. We have perused the
judgments cited before the learned single Judge, reported in (Commr. of Sales Tax v.
Dunlop India Ltd.) 3 and (Piara Singh v. State of Punjab)4 wherein the Supreme Court
had considered the scope and application of a corrigendum. It was held that
corrigendum can be used only to rectify a mistake of clerical or typographical error
crept in on account of omission or accidental slip; but, in case it amounts to
amendment, then corrigendum is not permissible, Corrigendum may be used only for
rectification of a mistake as permissible under Section 152 of the Civil Procedure
Code or Section 154 of the Income-tax Act but it cannot be used to change the order or
to withdraw the rights conferred upon the individual.

9. This Court in (Kandoi Kabliwala v. Asstt. Commercial Taxes Officer, Pali), 5
wherein notification granting exemption to the 'deshi sweetmeats' and 'namkins' was
issued; by a subsequent notification exemption of tax in respect of 'namkin' was
withdrawn and after some time a corrigendum was issued to the notification
withdrawing the exemption of tax in respect of 'namkin' making it applicable also to
the case of 'deshi sweetmeats', quashed the corrigendum holding that by issuing
notification the exemption from payment of tax on the sale of 'deshi sweetmeats' could
not be withdrawn with retrospective effect.

10. In Citadel Fine Pharmaceuticals v. State of Tamil Nadu 6 similar question was
considered by the Taxation Special Tribunal in which by issuing an erreta certain
exemptions were withdrawn. The Tribunal held that the two erratas to the notification
are illegal in so far as they affect the vested rights of the parties.

11. In the instant case, impugned corrigendum has been issued to correct any
typographical error or omission therein, which tant amounts to withdrawal of the
vested rights of the respondent therein. In the instant case, the appellant-Government
has not sought corrigendum to correct a typographical or arithmetical mistake. It
amounts to removal of respondent (herein) and nomination of respondent No. 4. The
Government has not issued any notification for that purpose and, therefore, it cannot
be permitted to take away the vested rights of the first respondent-Bhanwar Lal
Verma. The errata is meant (sic) correction of the typographical mistake, but it cannot
have the effect of law to take away the vested rights and therefore, except for the
purpose of correcting typographical errors like spelling mistakes, it cannot have the
effect of nullifying the concession given under the original notification.

12. We, therefore, hold that the corrigendum to the notification is illegal in so far as it
relates to the vested rights of the first respondent (herein).

13. The learned single Judge allowed the writ petition by placing reliance on various
judgments rendered by different High Courts and also by the Apex Court. In any case,
in the present case, it cannot be said that there is a corrigendum or arithmetical error.
It amounts to removal of the first respondent and nomination of another person which
takes away the vested rights of the first respondent (herein). There is no substance in
this writ appeal.

14. In the result, the writ appeal fails and is dismissed. However, the order passed in
writ petition by the learned single Judge or the dismissal of this appeal by us will not
stand in the way of the Government in following the procedure in accordance with
law.

15. The writ appeal is ordered accordingly.

Appeal dismissed.

Cases Referred.

1. ILR (1956) Raj 1062
2. (1993) 2 SCC 242
3. (1994) 92 STC 571 (All)
4. (2000) 5 SCC 765
5. (1989) 75 STC 316 (Raj)
6. (2000) 119 STC 315