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Shri Narayan Sitaram Kokaje Vs. the Secretary to the Government of the State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 308 of 1962
Judge
Reported in(1962)64BOMLR557
AppellantShri Narayan Sitaram Kokaje
RespondentThe Secretary to the Government of the State of Maharashtra
Excerpt:
bombay municipal boroughs act (bom. xviii of 1925), sections 25, 19(2) - government not extending term of office of councillors as contemplated by section 25(1)--whether on expiry of term of office of councillors they are entitled to function as councillors till convening of first meeting of new body of councillors.;section 25(2)(b) of the bombay municipal boroughs act, 1925, does not authorise the outgoing councillors to function actively as councillors even after the term of their office as provided by section 25(1) of the act has come to an end. section 25(2)(b) is only a deeming provision which, by a legal fiction, extends the term of the outgoing councillors so as to preserve the conceptual continuity of the municipality. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj]..........the last election of the councillors of the municipality was held in the year 1957. the four years term of office of the councillors was to expire on december 3, 1901, as provided by section 25(1) of the bombay municipal boroughs act. the collector of satara announced that the general election of the municipality would take place on october 29, 1961, but at the instance of the government of maharashtra the collector cancelled the proposed general election. it appears that the. government, decided to cancel the election because it was proposed that the sutara borough municipality should be amalgamated with the satara suburban municipality. having decided to cancel the proposed general election the government, however, did not take any steps as contemplated by sub-section (1) of section 25.....
Judgment:

Tarkunde, J.

1. A question has arisen in this case with regard to the interpretation to be placed on Sub-section 2(b) of Section 25 of the Bombay Municipal Boroughs Act, 1925.

2. The petitioner is a voter in ward No. 3 of the Satara Borough Municipality, The last election of the councillors of the municipality was held in the year 1957. The four years term of office of the councillors was to expire on December 3, 1901, as provided by Section 25(1) of the Bombay Municipal Boroughs Act. The Collector of Satara announced that the general election of the municipality would take place on October 29, 1961, but at the instance of the Government of Maharashtra the Collector cancelled the proposed general election. It appears that the. Government, decided to cancel the election because it was proposed that the Sutara Borough Municipality should be amalgamated with the Satara Suburban Municipality. Having decided to cancel the proposed general election the Government, however, did not take any steps as contemplated by Sub-section (1) of Section 25 to extend the term of office of the councillors after inviting and considering objections, if any, to the proposed extension. The term of office of the municipality having expired on December 3, 1961, the president of the municipality sought clarification from the Government with regard to the functioning of the municipality and other connected, matters. By a reply dated January 9, 1962, the Under-Secretary to the Government of Maharashtra in the Urban Development and Public Health Department informed the president that in view of Sub-section 2(b) of Section 25 the existing councillors of the municipality could continue in office until their successors came in. He also informed the president that the, standing committee and the other executive committees of the municipality could continue to function as before. It appears that thereafter on February 13, 1962, a meeting of the municipality was held, when a point of order was raised by one of the councillors as to whether the meeting of the municipality was lawfully convened. The president ruled that the point of order involved a question of law on which it was desirable to take legal opinion. He, therefore, adjourned the meeting. In these circumstances the petitioner filed the present petition under Article 226 of the Constitution against the State of Maharashtra, the Collector of Satara, Satara City Borough Municipality and the president of the municipality, asking for various reliefs including a writ requiring the Collector of Satara to hold a general 'election of the municipality without delay. At the time of admission, rule was issued only in terms of the above prayer. On behalf of the State of Maharashtra and the Collector of Satara Mr. Baptist raised a preliminary objection to the maintainability of the petition. He urged that gross delay was involved in the filing of the petition and that the petition deserved to be rejected 011 that ground. The term of the municipality expired on December 3, 1961, and the present petition was not filed till March 5, 1962. Now, the petitioner is a voter of the municipality and he claims a right of having the municipal administration conducted by a body of councillors who are duly elected and are legally competent to discharge their functions as councillors. Supposing that the petitioner is right in his contention that the present councillors are incompetent to function as such, the wrong complained of is a continuing wrong, and the fact that the application was not filed soon after the councillors became fund us officio would not disentitle the petitioner to approach this Court and get appropriate relief. We do not, therefore, think that the delay involved in filing the petition can be a proper ground for rejecting it. On the merits of the case Mr. Baptist urged that even after the expiry of the term of office of four years provided by Section 25(1), the councillors are entitled to function as councillors so long as a fresh election has not taken place and the first meeting of the new body of councillors has not been convened. Slab-section (1) of Section 25 lays down that councillors shall, save as otherwise provided, hold office for a term of four years, extensible by the order of the State Government to a term not exceeding in the aggregate five years, if on any occasion the State Government shall think fit, for reasons which shall be notified together with the order in the Official Gazette, so to extend the same. The proviso to Sub-section (1) further says that before extending the period of the term of office of the councillors the State Government shall invite and consider objections, if any, from the voters entitled to vote at the municipal election. Sub-section (2) of Section 25 is in the following terms:-

2. (a) The term of office of such councillors shall be deemed to commence on the date of the first general meeting which shall be held after such election and after the expiry of the term of the outgoing councillors hereinbefore provided and at which a quorum shall be present; and

(b) the term of office of the outgoing councillors shall be deemed to extend to and expire with the day before the date of such meeting.

3. Relying upon the provisions of Sub-section 2(1) above, Mr. Baptist argued that the term of office of municipal councillors automatically extends till the day prior to the date of the first meeting of the next body of councillors, so that even after the expiry of four years and even in the absence of any extension of the period by the State Government, the municipal councillors are entitled to function as such as long as a fresh election has not taken place and a new body of councillors has not come; to replace the present councillors.

4. In our view this interpretation of Clause (&) of Sub-section (2) of Section 25 would virtually nullify the provisions of Sub-section (1) of that section. If the councillors, who are elected at the general election, can continue to function as councillors without any dimunition in their rights and responsibilities till the next general election is held and the first meeting of the new body of councillors is convened, there is hardly any point in providing that the councillors shall hold office for a period of four years and that the period shall be extensible by the State Government for a term not exceeding hi the aggregate five, years. In our view, Clause (6) of Sub-section (2) is only a deeming provision which, by a legal fiction, extends the term of the outgoing councillors so as to preserve the conceptual continuity of the municipality. The object and the effect of the provision is not to authorise the outgoing councillors to function actively as councillors even after the term of their office as provided by Sub-section (1) has come to an end.

5. This conclusion is further supported by the provision of Sub-section (2) of Section .19. Section 19 relates to the term of office of the president and the vice-president of a Borough Municipality. Sub-section (2) of Section 19 says :

(2) On the expiry of the term of office of municipality the president and vice-president shall continue to carry on the current administrative duties of their offices until such time as a new president and vice-president shall have been elected and shall have taken over charge of their duties:

It is significant that this provision speaks of 'current administrative duties' to be carried out by the president and the vice-president 'on the expiry of the term of office of the municipality'. If the argument advanced by Mr. Baptist were correct, there would never be any interregnum between the active term of office of one body of municipal councillors and the active term of office of the next body of municipal councillors; there would consequently be no occasion for the president and the vice-president to carry on merely the current administrative duties of their offices after the expiry of the term of office of the municipality. In our view, Sub-section (2) of Section 19 clearly negatives the interpretation which is sought to be put on behalf of the Government on the terms of Clause (b) of Sub-section (2) of Section 25, Reading these provisions together, it is obvious that after the term of the municipality has come to an end, the outgoing municipal councillors do not actively function as such, but are merely deemed to continue till the day before the date of the first meeting of the next body of municipal councillors, and that in the interval between the expiry of the term of office of the outgoing municipal councillors and the first meeting of the next body of municipal councillors the president and the vice-president are authorised to carry on the current administrative duties of their offices.

6. We are, accordingly, of the view that the Government were not right in supposing that they can indefinitely postpone the general election of the municipality, and that the present municipal councillors would be able to function actively as councillors till such time as a fresh general election has not taken place and the first meeting of the new body of councillors has not been held. The voters of the municipality have, generally speaking, a right before the expiry of the term of office of the municipal councillors to vote at a fresh general election of the municipality, unless the State Government exercises their power by following the procedure laid down in Sub-section (1) of Section 25 to to extend the term of the municipality by a period not exceeding one year. Mr. Baptist, however, urged that in the present case the Government may decide to amalgamate the Satara Suburban Municipality with the Satara Borough Municipality, in which case the Government will constitute an interim municipality as provided by Clause (iii) of Sub-section (1) of Section 212-B of the Bombay Municipal Boroughs Act. It is obviously desirable that any order which we may pass on this petition should not prejudice such action as the Government might decide to take for amalgamating the two municipal bodies.

7. In the result, therefore, there will be a writ of mandamus against respondent No. 1, the State of Maharashtra, to take stops expeditiously either to hold a general election of the councillors of the Satara Borough Municipality or to extend the term of office of the present councillors under Section 25(1) of the Bombay Municipal Boroughs Act for a term not exceeding one year with effect from December 3, 1961, without prejudice, however, to such action as the Government may decide to take for amalgamating the Satara Borough Municipality with the Satara Suburban Municipality.

8. The petitioner will get his costs of the petition from respondent No. 1.


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