Kailaash Vasantrao Ghule And Ors. vs State Of Maharashtra And Ors.
2002 Latest Caselaw 1105 Bom

JUDGMENT

C.K. Thakker, C.J.

1. This petition is filed for quashing and setting aside public notice, Exhibit "D" issued by the Collector, Nasik on 7th September, 2002 for proposing to hold general elections of Trimbak Municipal Council in the month of December, 2002.

2. The learned Counsel for the petitioners contended that the petitioner No. 1 has been duly elected as the President of Trimbak Municipal Council and he is entitled to hold the said office for a period of two years from the date of election. As he would be completing two years in April, 2003, the relief deserves to be granted in his favour to the extent that he would continue to hold the office of President till that date.

3. For the above submission, reliance was placed on section 52 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, as amended by the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships (Amendment and Continuance) Act, 1999 (Act 3 of 2000). Section 52 provides for term of office of President. The said section was amended by the Amendment Act of 1999 and now it reads as under:

"52. Term of office of President (1) The term of office of the President shall be two and a half years.

(2) Notwithstanding anything contained in sub-section (1), the term of office of the President in office on the 30th April, 1999, shall be as provided hereunder:---

(a) in case of the Councils which have not completed one year since the first meeting after the general elections, the term of the Presidents of such Councils shall be two and a half years, each;

(b) In case of the Councils which have completed the first year of their term but have not yet completed two years since their first meeting after the general elections, the term of the Presidents of such Councils shall be two years, each; and

(c) In all other cases, the term of the Presidents who are in office on the said date shall be extended to, and co-terminus with, the term of office of the elected Councillors, as provided in section 41."

4. According to the learned Counsel, Clause (b) of sub-section (2) of section 52 would apply to his case which enables the President of the Council to continue his office as President for a period of two years in case the Council had not completed two years. Since the President had taken over on 30th April, 2001, his case is covered by Clause (b) and he can hold the office of President upto 30th April, 2003. It is, therefore, contended that the action of the respondents to hold election before that date and not to allow the petitioner to function as President is contrary to law and deserves to be set aside.

5. Learned Counsel for respondent No. 3, Election Commissioner, however, contended that considering the relevant provisions of the Constitution as also the Act, an action has been taken. Article 243-U, as inserted by Part IX-A by the Constitution (Seventy-fourth) Amendment Act, 1992 lays down duration of municipalities. Clause (1) of Article 243-U reads;

"243-U(1). Duration of Municipalities, etc.---(1) Every municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer:

Provided that a municipality shall be given a reasonable opportunity of being heard before its dissolution

It was further stated that in light of the mandate of the Constitution, section 40 of the Act fixes duration of Municipal Council and declares that every Council unless sooner dissolved shall continue for a period of five years from the date appointed for its first meeting and no longer. Similarly, section 41 provides for term of office of Councillors and section 41-A makes provision for Constitution of Council.

6. In the instant case, the election of Trimbak Municipal Council was held in 1997 and first meeting of the Council was convened on December 16, 1997. Obviously, therefore, on 15th December, 2002, the Council would be completing five years. Keeping that in mind and considering the relevant provisions of sections 40, 41, and 41-A and in light of Article 243-U of the Constitution, the action has been taken by the authorities to hold election which cannot be said to be illegal or contrary to law.

7. In our opinion, the learned Counsel for respondent No. 3 is also right in submitting that in the case on hand, Clause (c) and not Clause (b) of sub-section (2) of section 52 would apply. Clause (b) will be attracted in those cases where the Councils have completed the first year of their term but not completed two years since their first meeting after the general elections. Clause (c) will cover all other cases. In the present case, election of Trimbak Municipal Council was held in 1997 and the first meetings was convened in December, 1997. Thus, it has already completed two years. Clause (b), hence, cannot apply. In our, view, therefore, Clause (c) would be attracted which provides that if the case does not fall either under Clause (a) or under Clause (b), it would be dealt with under Clause (c). Since first meeting of the Council was held on 16th December, 1997, it can continue 'no longer' than five years as per the mandate of the Constitution, i.e. after December 15, 2002. Hence, the petitioner cannot be allowed to remain in office upto April, 2003 as contended by him.

8. The petition, therefore, deserves to be dismissed and is accordingly dismissed.

9. Parties to act on a copy of this order duly authenticated by the Sheristedar of this Court.