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Vidarbha Nagarpalika Parishad and ors. Etc. Vs. State of Maharashtra and ors. Etc. - Court Judgment

LegalCrystal Citation
SubjectElection;Constitution
CourtMumbai High Court
Decided On
Case NumberWrit Petn. Nos. 512 of 1981, 824 to 826 and 833 of 1984
Judge
Reported inAIR1986Bom147; 1985(2)BomCR724; (1995)87BOMLR492; 1985MhLJ887
ActsMaharashtra Municipalities Act, 1965 - Sections 40A, 40(1), 40(3) and 51; Constitution of India - Articles 14 and 226
AppellantVidarbha Nagarpalika Parishad and ors. Etc.
RespondentState of Maharashtra and ors. Etc.
Appellant AdvocateC.G. Madkholkar and;Usha Purohit, Advs.
Respondent AdvocateB.P. Jaiswal, Adv. and;V.V. Naik, Asstt. Govt. Pleader
Excerpt:
maharashtra municipalities act (mah. xl of 1965), sections 48a, 40(3), 40(1), 40(8), 19a, 313 - validity of section 48a--effect of deeming provision under section 40(3)--existing councilors elected for five years but whose term is extended for sixth year whether have right to continue in office until general elections are held--during extended period whether councilors can take even long term decisions--right of councilors to continue in office whether fundamental right or statutory right--section 48a whether lays down sufficient guidelines for exercise of power thereunder--order under section 48a--requirements for its validity--reasons for order whether necessary--opportunity of hearing whether required to be given to municipal councils and councilors before passing order of supersession.....madhava reddy, c.j.1. this batch of writ petitions is referred to a larger bench to reconsider the constitutional validity of s. 48a of the maharashtra municipalities act (act no. xl of 1965), 1965 (hereinafter referred to as 'the act'), which was upheld by a division bench of this court in mohamed maqbool v. state of maharashtra : air1982bom312 . section 48a of the act reads as follows:'48a. (1) notwithstanding anything contained in section 40 or any other provisions of this act, where the term of office of five years of the councilors of any council has expired and the state government is of opinion that in the changed circumstances the continuance of such councilors in office is not necessary or expedient, the state government may, at any time, even during the period the terms stands.....
Judgment:

Madhava Reddy, C.J.

1. This batch of writ petitions is referred to a larger Bench to reconsider the constitutional validity of S. 48A of the Maharashtra Municipalities Act (Act No. XL of 1965), 1965 (hereinafter referred to as 'the Act'), which was upheld by a Division Bench of this Court in Mohamed Maqbool v. State of Maharashtra : AIR1982Bom312 . Section 48A of the Act reads as follows:

'48A. (1) Notwithstanding anything contained in Section 40 or any other provisions of this Act, where the term of office of five years of the councilors of any Council has expired and the State Government is of opinion that in the changed circumstances the continuance of such Councilors in office is not necessary or expedient, the State Government may, at any time, even during the period the terms stands extended under sub-sec. (1) or (3) of S. 40, by order published in the Official Gazettee, direct that

(a) all councilors of the Council (including the President and the vice-president) shall, as from the date specified in the order, cease to hold and shall vacate their offices as Councilors or otherwise; and

(b) the person appointed by the State Government, from time to time, shall be the Administrator to manage the affairs of the Council, during the period from the said date up to the day proceeding the date on which the first meeting of the reconstituted Council after the general election is held, where there is a quorum. Such general election shall be held within a period of one year, from the date of publication of the order issued under this sub-section in the Official Gazette.

Provided that this period of one year may be extended, from time to time, by the State Government, in exceptional circumstances, to a period not exceeding two and held years in the aggregate, by notification in the official Gazette, for reason, which shall be stated in the notification.

(2) During the said period, all the powers and duties of the Council and its various authorities under this Act or any other law for the time being in force shall be exercised and performed by the Administrator.

(3) The Administrator may delegate any of his powers and duties to any officer for the time being serving under the Council.

(4) The Administrator shall receive such remuneration from the municipal fund, as the State Government may, from time to time, by general or special order, determine.'

To appreciate how and why their question arose and why the Division Bench by its order dt. 14th Sept. 1984 thought it necessary that the view expressed in Mohamad Maqbool's case : AIR1982Bom312 should be reconsidered, it is enough to notice the facts in Writ Petition No. 825 of 1984. That is a petition by Ballarpur Municipal Council through its President initially seeking a writ of mandamus or any other appropriate writ restraining the State Government (a) from exercising its powers under S. 48A of the Act and superseding the Council and (b) from appointing an Administrator to the Council on the ground that S. 48A of the Act was violative of Arts. 14 and 19 of the Constitution. This petition was filed on 30th Mar. 1984. On that very day, the government in exercise of its powers conferred by sub-sec. (1) of S. 48A of the Act, issued a notification (I) directing that all Councils specified in the Schedule, including the Presidents and vice-presidents, shall cease as from 1st April 1984 and vacate their offices and (ii) appointing the Chief Officers as Administrators to manage the affairs of the respective Councils for a period of one year.

2. The Municipal Councils of Murtizapur, Arvi and Mangrulpir, three other Municipal Councils specified in the Schedule, are respectively the petitioners in Writ Petitions Nos. 824, 828 and 833 of 1984. Vidarbha Nagarpalika Parishad, an organization of all the Municipal Councils situated in the eight districts of Vidarbha is a registered body recognized by the State of Maharashtra. This body also has filed Writ Petition No. 512 go 1981 assailing the validity of S. 48A of the Act introduced by the Maharashtra Municipalities Amendment Act (No. 1 of 1981), as violative of Article 14 of the Constitution.

3. The five year term of Ballarpur Municipal Council prescribed under S. 48A commenced on 6th Aug. 1978, when the first meeting of the newly elected body was convened. That five year term expired on 6th Aug. 1983, and the same was extended up to 31st Mar. 1984 by the Government in exercise of its powers under sub-sec. (1) of S. 40 of the Act under Notification No. ELN-1083/776/CR-188/83/UD-14 dt.21st May 1983. Thought the Government had power to extend the term of the Municipal Councils up to a period of one year, the then Minister of Urban Development, Mr. Ramrao Adik, is alleged to have stated that Administrators would be appointed to all the Municipal Councils in Maharashtra whose extended term expired on 31st Mar. 1984 and that those appointments would become effective from 1st April 1984. He is also alleged to have clarified that this did not mean that the Government was not intending to hold elections and that necessary formalities for holding the elections of the Municipal Councils were completed and the Government intended to hold the elections before the rains set in. The petitioner claimed that so far as Ballarpur Municipal Council was concerned, the division of wards and reservation of seats for the area of Municipal Council was finally notified in the Government Gazette on 4th April 1983 in Part I-A of the Nagpur Division Supplement. The final list of voters was published on 19th Jan. 1984. Necessary rules envisaged by S. 17 of the Act to regulate the conduct of elections under the Act were framed and all formalities contemplated by Sections 10 and 11 and other provisions of the Act were completed. The only step that remained to be taken was to issue a proper notification calling for elections and fixing dates for various stages in the process of the elections and appointing Returning Officers and Assistant Returning Officers, who would take further steps to hold the elections. In spite of the above, instead of holding elections, the Government proposed to take action under S. 48A of the Act to supersede the Councils and appoint Administrators by issuing a Notification No. MUG-1084/473/CR-73/84/UD-14 dt. 30th Mar. 1980. Petitioners submit that while according to the existing proviso, the aggregate period after which the Municipal Council could be superseded was two and half years. The Maharashtra Ordinance No. 11 of 1983 promulgated with effect from 20th May 1983 introduced in the proviso to CI. (b) of sub-sec. (1) of S. 48A the words '3 years'. That period was to expire on 5th April 1984. It is the contention of the petitioners that it was incumbent upon the State Government to hold elections before that date. A Bill which sought to introduce S. 7A in the Bombay Municipal Corporation Act and which was likely to become an Act any time, then further amended the proviso to CI. (b) of sub-sec. (1) of S. 48A by substituting the words 'four years two months' in place of '3 years and 2 months'. The Municipal Councils which were superseded by an order dt. 5th April 1981 would continue to be under the Administrators for a full period of four years two months, which would expire on 5th April 1985. That Bill merely stated that Government intended to prepare a fresh list of voters who have attained the age of 21 years on 1st Jan. 1984 and in those circumstances sought an extension of the period of suppression and continuance of the Administrators. The petitioners contend that that cannot be deemed to be changed circumstances justifying the suppression. It is contended that Section 48A vests an unbridled and arbitrary power in the State Government to supersede elected bodies for an indefinite period without laying down any guidelines for the exercise of that power and is, therefore, violative of Art. 14 of the Constitution. It is further contended that in any event, the Government, which is empowered to form its opinion under S. 48A that in changed circumstances the continuance of such Councilors in office is not necessary or expedient and there is need to extend the period of suppression, should give an opportunity to the Councilors to make their representation against the proposed order of suppression and that extension of the period of suppression and appointment of an Administrator without giving such an opportunity is violative of the principles of natural justice. The order of suppression itself records no reason for suppression or for extending the period of suppression and thus suffers from the breach of the principles of natural justice. The elected councilors have a right under sub-sec. (3) of S. 40 of the Act to continue in office until 'the date of the special meeting, after the general election, held to elect the President under S. 51'. That right cannot be arbitrarily curtailed by the State Government by exercising its power under S. 48A of the Act without recording reasons and without giving an opportunity to the councilors.

4. The Division Bench in Mohamad Maqbool's case : AIR1982Bom312 proceeded to uphold the validity of S. 48A on the premises that (Page 422) (of Mah LJ) : (at P. 317 of AIR):

'......... The outgoing councilors, in view of fixed tenure of office, cannot hold charge on expiry of term but by a deeming provision are allowed to function, till the special meeting of the new councilors is held. This sub-section does not create any right in the outgoing councilors to remain in office beyond the expiry of their term, nor such legal fiction would amount to automatic extension of term. Sub-sec, (3) of S. 40 the Act does not provide for any extension but contemplates a situation where election of the new Councilors have not entered the office because the meeting under S. 19A of the Act is not held. The reading of three sub-sections of S. 40 of the Act would come into operation provided the elections of the new councilors is almost over, Sub-sec. (3) of S. 40 of the Act can have no application in cases where the elections are not held. It is not permissible for the councilors whose terms has expired to claim that they can remain in office as long as the fresh elections are not held and the meeting under S. 19A of the Act is not convened.'

The Court further held (page 423) (at P. 318) :

'........... The legal fiction created by sub-sec. (3) of S. 40 of the Act only enables him to carry out day to day administrative work till the meeting of the new councilors under Section 19A of the Act is held, and does not permit to take any long term policy decisions.'

In the case the validity of Section 48A was challenged on the ground that it was beyong legislative companied on the Maharashtra legislature. The validity was also challenged on the ground that it violates fundamental rights guaranteed under Article 14 fo the Constitution. Both these grounds of attack were negatived. Now before us, the first ground of legislative competence is not taken. The attack is now only on the second ground, namely that that provision violates the fundamental right guaranteed to a citizen under Article 14 of the Constitution.

5. We may notice at the outset that the term of the Councils as extended under the notification of 21st May 1983 would have expired on 31st March 1984. Though the Government had power to extend the term further, it did not choose to do so and instead sought to supersede the Councils by the notification dated 30th March 1984. The contention of the petitioners is that in view of sub-section (3) of Section 40, the term would be deemed to extend and expire with the day immediately preceding the date of the special meeting, after the general election convened to be held to elect the President under Section 51. In upholding the validity of Section 48A Mohamad Maqbool's case : AIR1982Bom312 rejected this contention. We are, however, unable to agree with the view of the Division Bench in so far as it holds that the councilors have no right to continue in office after the expiry of the term of five years for which they were elected and the deeming provision contained in sub-section (3) of Section 40 merely creates a legal fiction and does not create any right to remain in office as long as fresh elections are not held and the special meeting under Section 19A (51) of the Act is held.

6. Before proceeding to discuss this aspect, it would be useful to keep in mind what the Supreme Court has said with reference to elections to local bodies and vesting of powers in such units of Self Government in the light of the Directive Principles of State Policy. The Supreme Court emphasized this aspect in Narendra v. Manikral, : [1978]1SCR193 , which throws light on the primary object of several enactments constituting local bodies in the following words

'Elections to local bodies and vesting of powers in units of self Government are part of the Directive Principles of State Policy (Art. 40 of the Constitution) and, in a sense, a homage to the Father of the Nation, standing as he did for participate democracy through decentralisation of power. Unfortunately, after holding elections to the Bidar Board and making people believe that they have elected their administrative representatives at the lowest levels, the State Government did not bring to life the local board even long after the High Court had disposed of the challenges to the elections in June 1972. A government, under our Constitution must scrupulously and energetically implement the principles fundamental to the governance of the country as mandated by Art. 37 and, if even after holding election Development Boards are allowed to remain moribund for failure to notify the curtailment of the administrator's term, this neglect almost amounts to dereliction of the constitutional duty. We are unhappy to make this observation but power to the people, which is the soul of a republic, stands subverted if decentralisation and devolution desiderated in Art. 40 of the Constitution is ignored by executive inaction even after holding election to the floor level administrative bodies. The evolutionary distance to ideological Rajghat from power-jealous State capitals is un-willingly long indeed, especially in view of the familiar spectacle of long years of failure to hold elections to local self-government units and gross inaction even in issuing simple notifications without which elected bodies remain still-born. 'We, the people' is not constitutional mantra but are the power-holders of India from the panchayat upward'.

We may now examine the specific provisions in the light of this broad perspective.

7. Section 40 of the Act reads as follows :

'40(1) Save as otherwise provided by this Act, councilors, elected at a general election, shall hold office for a term of five years, which may be extended by the State Government in exceptional circumstances by notification in the Official Gazette, to a term not exceeding in the aggregate six years for reasons which shall be stated in such notification.

(2) The term of office of such councilors shall be deemed to commence on the date of the special meeting, after the general election, held to elect the President under S. 51.

(3) Notwithstanding anything contained in sub-secs. (1) and (2), the term of office of the outgoing councilors shall be deemed to extend to and expire with the day immediately preceding the date of such meeting.

(4) A Councillor elected at a by-election shall hold office so long only as the councillor in whose place he is elected would have held it if the vacancy had not occurred.

(5) The term of office of a co-opted Councilor shall commence with effect from the date on which his name is published in the Official Gazette and it shall be conterminous with the term of the elected councilors.

(6) The term of office of a nominated Councillor, if nominated prior to the date on which the meeting referred to in sub-sec. (2) is held, shall commence from the date of such meeting, If councilor is nominated after such meetings is held, his term shall commence from the date on which his nomination is published in the Official Gazette. His term shall be co-extensive in either case with the term of the elected councilors.

(7) The term of office of a Councillor elected at a general election whose result is published in the Official Gazette under sub-sec. (1) of S. 19, after the first publication of the results thereunder, shall commence with effect from the date on which his name is published in the Official Gazette, but shall be conterminous with the term of the elected councilors whose results are first published as aforesaid.'

Sub-section (1) of S. 40 fixes the term of office of the councilors elected at a general election at five years. This term of five years may be extended by the State Government in 'exceptional circumstances' by notification in the Official Gazette to a term no exceeding in the aggregate is years. For so extending the term, the government would have to record reasons which reasons must be stated in the notification extending the term. As laid down in sub-sec. (2) of S. 40 the term of office of such councilors shall be deemed to commence on the date of the special meeting, after the general election, held to elect the President under S. 51. Prior to the amendment sub-sec. (2) of S. 4-0 referred to the election of the President under S. 19A by S. 51. Section 51(1) directs that every Council shall have a President, who shall be elected from amongst the councilors, who are elected or deemed to be elected. The President can, therefore, be elected only after the councilors are elected at a general election. Under sub-sec. (2) of S. 51 the Collector is required to convene a special meeting of the councilors for election of the President within twenty-five days from the date on which the names of councilors elected to a Council are first published under sub-sec. (1) of S. 19. The proviso thereto enjoins that this special meeting shall not be held before the expiry of the term of office of outgoing councilors as determined under Section 40 declares that notwithstanding anything contained in sub-ss. (1) and (2), the term of office of the outgoing councilors shall be deemed to extend and expire with the day immediately preceding the date of such meeting, that is, the special meeting to elect the President contemplated by S.51 and referred to in sub-sec. (2) of S. 40 of the Act. If that were all perhaps the Councilors undoubtedly cannot claim that they have any right to continue in office beyond a period of six years; but sub-sec. (1) of Section 40 itself is subject to the other provisions of the Act which operates only if it is not otherwise provided by the Act. A combined reading of sub-ss. (1), (2) and (3) of Section 40 and S. 51 of the Act would lead to the conclusion that although under sub-sec. (1) of S. 40, the term of office of the elected councilors is five years and the Government may, having regard to the exceptional circumstances, after recording the reasons extend the term by one year, that clause being subject to the other provisions of the Act, if it is provided otherwise in the Act, sub-ss. (1) and (2) of S. 40 will have to yield to those other provisions. Sub-sec. (3) of S. 40 not only provides otherwise that what is provided in sub-ss. (1) and (2) of S. 40, but it also overrides those sub-sections. Though sub-ss. (1) and (2) of S. 40 fix the term of office of the councilors at five years and if extended at six years by virtue of sub-sec. (3) of S.40 the said term shall be deemed to extend to and expire with the day immediately preceding the date of the special meeting referred to in S. 51 of the Act. That meeting would be held only after the general election to the Council but necessarily within twenty-five days after the names of councilors are published. This deeming provision contained in sub-sec. (3) of S. 40 thus extends the term of the councilors beyong five years for which they were elected and beyond the aggregate the period of six years up to which the Government could extend that term by virtue of sub-sec. (3) of S. 40 it shall be deemed to stand extended until the general elections are held and the meeting for electing the President is covered. This extended term would terminate on the day immediately preceding the date fixed for election of the President. This extended term is as much the term of office of the councilors and the President and the vice-president as is the term fixed under sub-sec. (1) of S. 40 and the term which they get by virtue of any extension granted under a notification of the Government under sub-sec. (1) of S. 48A of the Act is. There is nothing in the Act to indicate that during this 'extended' term of office the councilors area powered only 'to carry out day to day administrative work till the meeting of the new councilors under S. 19A of the Act is held, and does not permit to take any long term policy decisions' as held in Mohamad Maqbool's case : AIR1982Bom312 . No doubt, this legal fiction is created to have continuity in the administration and to every vacuum in the functioning of the Municipal Council. In our view, there is absolutely no warrant for holding that continuity in administration only contemplates carrying out day-to-day administration and not taking long term decisions. Moreover, any long term policy decision taken is subject to the will of the majority in the Council constituted from time to time under the Act. In any event, in the absence of a specific provision in the Act declaring that the councilors, whose term of office is deemed to extend to and expire with the day immediately preceding the date contemplated by S. 51, have only to carry on day-to-day administration and not take long term policy decision, it is inappropriate to impose any such restriction on them by judicial fiat. On the other hand, it is significant to note that sub-sec. (3) not merely states that the councilors continue in office, but declares that 'the term shall be deemed to extend'. This fiction is precisely created because under sub-sec. (1) read with sub-sec. (2) of S. 40 and S. 51, the term of office expires on the completion of five years or on completion of the period specified in the notification issued under sub-sec. (1) of S. 48A. When a fiction is sought to be created by the statute, it is obligatory to assume a situation which actually does not exist but the legislature requires for the purpose of the Act to be deemed to exist. When the legislature says that the term shall be deemed to extend, that fiction is created and in the absence of the words restricting the scope and ambit of this fiction, it operates for all intents and purposes. If during the the term of office envisaged under sub-sec. (1) of S. 40 any decision could be taken, all such decisions could be taken during the term which the councilors get by virtue of the deeming provision in sub-sec. (3) of S. 40. In State of Bombay v. Pandurang, : 1953CriLJ1049 the Supreme Court held

'When a stature enacts that some thing shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and not bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be give to the statutory fiction and it should be carried to its logical conclusion.'

8. In H. H. Advani v. State of Maharashtra, : 1971CriLJ5 the Supreme Court held that the meaning to be attached to the word 'deemed ' must depend upon the context in which it is used and cited the observations made in St. Aubyn v. Attorney-General (1951) 2 All ER 473 as under 'The word 'deemed' is used a great deal in modern legislation. Sometimes it is used to impose for the purpose of a statute an artificial construction for a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible.'

To our mind, in the context of S. 40 of the Act the word 'deemed' occurring in sub-sec. (3) of S. 40 leads to the conclusion that although in fact there is no extension of the term under any notification issued by the Government by virtue of sub-sec. (3) of S. 40, it is deemed to be extended and if the councilors have a right to continue in office by virtue of sub-sec. (1) of S. 40 for a period of five years or for the extended period as specified in the notification subject to a maximum of six years in the aggregate, they have a right to continue in office for the term envisaged by sub-sec. (3) of S. 40 That is what a Division Bench of this Court in Municipal Council, Malkapur v. State of Maharashtra. : AIR1977Bom244 has held dealing with S. 313 of the Act under which the State Government is empowered to appoint an Administrator if in its opinion the Council, inter alia, is not competent to perform the duties imposed upon it by or under the Act or any other law for the time being in force or persistently makes default in the performance of such duties. Dealing with the contention that the right of the councilors is affected by exercise of the power vested in the Government under S. 313 of the Act, the Court observed

'...........the term of the councilors under S. 40 of the Act is five years, it may be extended by the State Government under exceptional circumstances. The term of office of the councilors commences on the day of the meeting held after the general election to elect the President under sub-sec. (2) of S. 40. Notwithstanding the provisions of sub-ss. (1) and (2) of the said section, the term of office of the outgoing councilors is deemed to be extended to and expired with the day immediately preceding the date of such meeting. Apparently, therefore, the existing councilors are entitled to continue in office under the statute till the new councilors are elected. Though, therefore, the initial term of the councilors has expired, they are entitled to continue in office.'

No doubt, as observed in Mohamad Maqbool's were made in the context of the contention raised on behalf of the State Government that the writ petition did not survive and 'had become infructuous in view of the subsequent enactment's and events referred to in the additional affidavit'. Still, the observations are not obiter. In that case also, the term of the councilors had already come to an end and was extended because of the postponement of the general election and the term of the Administrator was also extended. In view of the subsequent enactments and postponement of election and the Maharashtra Municipal Councils and Municipal Corporations (Postponement of Elections During the Emergency) Act, 1975, the question was in view of the subsequent enactments and events the petition had become infructuous. It was therefore necessary to decide whether the elected councilors had a right to continue in office. We are, therefore, unable to agree with the observations made by the Division Bench in Mohamad Maqbools's case that 'there was nothing in the observations of the Division Bench in Malkapur Municipal Council's case : AIR1977Bom244 to conclude that the term of the councilors automatically stands extended under sub-sec. (3) of S. 40 of the Act even in cases where the general elections to elect fresh councilors are not held' and that 'the reliance upon the decision of the Division Bench in Malkapur Municipal Council's case is misconceived'.

9. Somewhat similar provisions occurring in Ss. 27 and 28 of the Bombay Village Panchayats Act 1958 (3 of 1959), which are in pari materia with the provisions contained in S. 40 of the Act, came up for consideration before the Supreme Court in Tehsildar, Hinganghat v. Deorao. : AIR1976SC768 and the Court held

'..........the scheme of the Act is that ordinarily and generally fresh election for filling up the office of the members of the Panchayat should be held before the expiry of their term as provided in sub-sec. (1) of S. 27 or within the term extended under sub-sec. (2). The proviso to sub-sec. (1) of S. 28 also lends support to this view. But the term of office of members under S. 27 in express language is subject to the other provisions of the Act because the expression used in sub-sec. (1) is 'save as provided in this Act'. The office of the members of the Panchayat is not to remain vacant and, therefore, sub-sec. (2) of S. 28 by a deeming provision extends the term of the office of the outgoing members to the day before the meeting called and held in accordance with sub-sec. (1).'

In that case, since the fresh election held in 1966 was set aside and no meeting was held, the Court declared

'...........the term of the office of the respondents, the outgoing members, stood extended and did not expire until the day before the holding of the meting of the duly elected members.'

The dicta of the Supreme Court laid down in the context of the Bombay Village Panchayats Act fully supports the view we have taken above.

10. In Mohamad Maqbool's case : AIR1982Bom312 reference was also made to another decision of a Division Bench of this Court in Narayan Sitaram Kokaje v. Secretary Government : (1962)64BOMLR557 , which was a case under S. 25 of the Bombay Municipal Boroughs Act, 1925, in which it was held :

'Section 25(2) (b) of the Bombay Municipal Boroughs Act, 1925, does not authorise the outgoing councilor to function actively as councilors even after the term of their office as provided by S. 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 councilors so as to preserve the conceptual continuity of the Municipality.'

11. To reach the conclusion, by placing reliance on the above observations in Mohamad Maqbool's case : AIR1982Bom312 it was assumed that sub-sec. (2)(b) of S. 25 of the Bombay Municipal Boroughs Act was ' almost identical' to sub-sec. (3) of S. 40 of the Act. Actually sub-sec (2)(b) of S. 25 reads as follows :

'(b) the term of office of the outgoing councilors shall be deemed to extend to all expire with the day before the date of such meeting'

We must point out that Mohamad Maqbool's case wholly missed the fact that the most important words 'Notwithstanding anything contained in sub-ss. (1) and (2)' occurring in sub-sec. (3) of S. 40 of the Act are omitted in sub-sec. (2)(b) of S. 25 of the Bombay Municipal Boroughs Act. The non obstinate clause occurring in sub-sec. (3) of S. 40 of the Act which gives S. 40 an overriding effect over the other provisions of the Act is absent in sub-sec. (2)(b) of S. 25. The same consequences as under the Bombay Municipal Boroughs Act cannot, therefore, flow under the Maharashtra Municipalities Act.

12. We must also notice that in adopting the principle enunciated by the Division Bench in Narayan's case 1926 BomLR 557 to reach the conclusion it did, the Division Bench in Mohamad Maqbool's case : AIR1982Bom312 overlooked the provisions in sub-sec. (2) of S. 19 of the Bombay Municipal Boroughs act, which reads as follows :

'(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.'

This provision which authorises the President and vice-president who continue in office to only 'carry on the current administrative duties of their offices' was particularly taken into account in Narayan's case to arrive at the conclusion that the deeming provision in S. 25(2)(b) of that Act 'does not authorise the outgoing Councilors to function actively as councilors' but merely preserves the conceptual continuity of the Municipality. In Narayan's case 1962 BomLR 557, the Division Bench held that 'the object and the effect of the provision (S. 25(2)(b) is not to authorise the outgoing councilors to function actively as councilors to function actively as councilors even after the tern of their office as provided by sub-s. (1) has come to an end.' It was also observed that any other interpretation of CI. (b) of sub-sec. (2) of S. 25 of the Bombay Municipal Boroughs Act 'would virtually nullify the provisions of sub-sec. (1) of that section'. Perhaps, it is so under that Act, But by the non obstante clause in sub-sec. (3) of S. 40 the Act, that is precisely what was intended to be done, Where election is not held by the time the normal term of five years, or the extended term expired, the legislature obviously intended sub-sec. (3) of S. 40 to operate. Even while vesting the power in the Government under sub-sec. (1) to extend the term of the councilors beyond five years, the legislature did not think it advisable vest power in the government to extend the term of the elected councilors beyond six years. Yet in enacting sub-sec. (3) of S. 40 the legislature does make provision to meet a situation where the elections are not held, at least before the expiry of the extended term. But for sub-sec. (3) a hiatus would be created where the Council would be left without an elected body. In our view, sub-sec. (3) clearly discloses the legislature's intent that the primary object of the legislature in enacting the Municipalities Act is to keep an elected body in charge of the Municipal Councils constituted under the Act. Act 40 of 1965 is an Act to unify, consolidate and amend the law relating to Municipalities in the State of Maharashtra. The Municipal Councils which are declared under S. 8 of the Act to be corporate bodies are comprised primarily of councilors elected at Ward election and of councilors co-opted by the elected councilors. Continuance of the elected body is the rule and superseding such a body is an exception. The power of suppression vested under S. 48A is to be exercised only in view of the changed circumstances; or it can be exercised under S. 313 only when default is committed by the Council. Otherwise the Act contemplates general election being held before the expiry of the term, of office of the sitting councilors so that one elected body is succeeded by another elected body. If the exceptional circumstances envisaged by sub-sec. (3) of S. 40 warrant an extension of the and a notification is issued, that term stands extended up to a maximum period of six years in the aggregate. If these exceptional circumstances continue but in the changed circumstances the continuance of such a Council is not necessary or expedient, only then the power under S. 48A could be exercised. Having regard to the object of the enactment it cannot be said that the legislature intended to put an end to the elected councilors to continue in office only because elections are not held by the State Government which duty is cast under the Act upon the Government and not the Council itself. That that is what is intended by the legislature in enacting sub-sec. (3) of S. 40, is further made clear in directing that the power under S. 48A may be exercised 'even during the period the term stands extended under sub-sec. (1) or (3) of S. 40.' In so enacting the legislature made its intention abundantly clear to teat the term extended under sub-sec. (1) of S. 40 and the term deemed to stand on the same footing and have the same consequence and then proceeded to empower the State Government to order cessation of the term. In view of the reference in S. 48A to both sub-sec. (1) and sub-sec. (3) of S.40, it cannot be contended that the elected councilors have no right to continue in office until the special meeting, after the general election, is held for electing the President under S. 51. It was argued by Mr. Jaiwal, learned Government Pleader for the State, that if the deeming provision in sub-sec. (3) of S. 40 is read as extending the term of the councilors and of the Council in all cases where elections are not held before the expiry of the original term or the extended term it would amount to a residuary provision and not a deeming provision. According to hi, if the legislature intended to make a residuary provision in sub-sec. (3) of S. 40, it would have used the words 'shall stand extended' and not the words 'shall be deemed to extend' . In our view the Court must concern itself with the actual words occurring in sub-sec. (3) of S. 40, which is undoubtedly a deeming provision. We are unable to see why by such a deeming provision, the legislature could not have provided for a situation not covered by sub-sec. (1) of S. 40. In fact, as discussed above, it precisely intends to bring about the same consequences by applying the non obstante clause. The legislature evidently postulated that under some unforeseen circumstances election, which normally should and generally would have been held, may not have been or could boot be held, and provided for the continuance of the elected councilors in office to manage the affairs of the Council vesting a further power in the State Government under S. 48A to bring about the cessation of their office if there were changed circumstances. In the face of the non obstinate clause in sub-sec. (5) of S. 40 the Act and the specific provision in sub. (2) of S. 19 of the Bombay Municipal Boroughs Act we do not feel persuaded to adopt the view taken by the Division Bench in Narayan's case 1962 BomLR 557 with reference to sub-sec. (2)(b) of S. 25 of the Bombay Municipal Boroughs Act.

13. It is argued for the State Government that if sub-sec. (3) of S. 40 of the Act itself extends the term of the Council and of the councilors until the general elections are held to constitute a Municipal Council in the expiry of five-year term, there was need for the legislature to have empowered the State Government in sub-sec. (1) of S. 40 to extend the term of the councilors and the Municipal Council for reasons to be stated in the notification for a period of one year. It may at first blush appear that sub-sec. (1) of S. 40. But, a close scrutiny will make the intention of the legislature explicit. In the absence of specific order extending the term of the councilors on the expiry of five-years' term, the Municipal councilors would not be certain for how long they would continue in office. That would necessarily affect the management of the affairs of the Councils. Normally, elections are expected to be held just when the five-year term is about to expire or very soon there after. But, if in any exceptional circumstance, as stated in sub-sec, (1) of S. 40, elections cannot be so held the legislature obviously intended that the outgoing Counvillors should know for how long they would continue in office. It is for that purpose that it empowered the State Government to extend the term for a specific period not exceeding an aggregate period of one year. That period was fixed in the hope that the State Government would hold elections at least within that one year or immediately thereafter. Only because the State Government does not hold elections as intended by the legislature, the legal consequences envisaged by sub-sec. (3) of S. 40 do not stand curtailed. The extension of the term of the councilors envisaged by sub-sec. (3) of S. 40, though for an uncertain period, is certainly conterminous with the holding of the general elections and the summoning of the Special meeting under S. 51 to elect the president. This extension is by virtue of sub-sec. (3) of S. 40 itself and is in no way affected by the exercise of the power of the State Government under sub-sec. (1) of S. 40 to extend the term of the councilors up to a maximum period of one year. When sub-sec. (3) of S. 40 has an overriding effect on account of the non obstinate clause contained therein, the inaction of the State Government which defeats the State Government which defeats the object of the enactment cannot curtail the legal consequences flowing from sub-sec. (3) of S. 40. In our view, nothing contained in sub-sec. (1) of S. 40 affects the extension of the term of the councilors until the holding of the special meeting under S. 51 after the general elections. The councilors acquire this right by virtue of sub-sec. (3) of S. 40 and that right cannot be defeated by the inaction of the government for a period of more than one year.

14. We, therefore, conclude that if the general election is not held even by the time the extended term of the councilors envisaged by sub-sec. (1) of S. 40 expires, the councilors sec. (3) of S. 40 until the election is held and a special meeting is covered to elect the President as envisaged by S. 51 of the Act. This right, of course, is subject to the power that may be exercised by the State Government under S. 48A of the Act.

15. We are, however, unable to accept the contention of the learned Counsel for the petitioner Mr. Madkholkar that this right is a fundamental right. A right to vote or hold an elective office in a Municipal Council is not a under the Constitution. It is a right conferred by the statute and the rule made thereunder. In fact, the Municipal Council itself is constituted under the Act. There is nothing in the constitution which compels the State legislature to bring in a legislation constituting the Municipal Councils; much less does it confer any right on a citizen to hold any office in any Municipal Council, that being a right created under the legislation passed by a competent legislative body. Only such citizens who are voters and who possess the requisite qualifications prescribed by S. 15 of the Act and who are not disqualified as specified in S. 16 of the Act may be elected and after being elected have a right to continue in office in accidence with the provisions of the Act. They have no right independent or of the statute; much less do they have a fundamental right to continue as the councilors of any Whatever rights they have, emanate from the Act and are governed by the provisions of that Act. Sub-sec. (3) of S. 40 gives them a statutory right to continue in office until the special meeting of the duly elected councilors is convened under S. 51 to elect the President, it does not confer any fundamental right guaranteed under the Constitution. Mohamad Maqbool's case : AIR1982Bom312 in so far as it lays down that S. 40(3) does not confer any right on the elected Councillor's to continue in office until that point of time is, in our opinion, not correctly decided.

16. The question that still remains to be considered is, if the petitioner has statutory right, is S. 48A in so far as it authorises the State Government to notify in the Official Gazette that all Counfillors of the Council shall as from the date specified in the order, cease to hold office and shall vacate their offices as councilors or otherwise and in so far as it empowers the State Government to appoint an Administrator or continue the Administrator to manage the affairs of the Council until the day preceding the date of which the first meeting of the reconstituted Council is held after the general election valid. The validity of Section 48A of the Act is challenged mainly on the ground that they have a right to continue in office until the general elections are held and the special meeting to elect the President is convened. In Mohamad Maqbool's case : AIR1982Bom312 the attack was on the ground that it was beyond the legislative competence of the Maharashtra State Legislature. That was turned down and that contention is not raised before us now. In fact, it is conceded that the legislature is competent to enact Section 48A. What is however contended is that Section 48A vests a blanket power in the State Government to direct that all councilors of the Council shall cease to hold and shall vacate their offices as councilors, and to appoint an Administrator and violates Article 14 of the Constitution. Let us examine if it vests a blanket power with any guidelines. At the outset as declared by the Supreme Court in Narendra Kumar's case, : [1960]2SCR375 dealing with Section 3 of the Essential Commodities Act :

'............It is fair and proper to presume that in passing this Act the Parliament could not possibly have intended the words used by it,viz, 'may by order provide for regulating or prohibiting the production, supply and distribution thereof, and trade and commerce in', to include a power to make such provisions even though they may be in contravention of the Constitution. The fact that the words 'in accordance with the provisions of the articles of the Consequence. Such words have to be read by necessary implication in every provision and every law made by the parliament on any day after the Constitution came into force. It is clear therefore that when Section 3 confers power to provide for regulation or prohibition of any essential commodity it gives such power to make any regulation or prohibition in so far as such regulation and prohibition do not violate any fundamental rights granted by the Constitution of India.'

17. The State Legislature in enacting Section 48A could never have intended to vest any arbitrary and unguided power in the State Government which would render it void as violative of Art. 14 of the Constitution. Section 48A, which opens with a non obstinate clause, overrides S.40 and other provisions of the Act and vests power in the State Government to be exercised under certain conditions. the conditions are that subsequent to the extension of the term of the Council, the circumstances have changed and in those changed circumstances, continuance of the councilors this power the State Government is enjoined by S. 48A to form an opinion in regard to those factors. Of course, what these changed circumstances could be, are not specified in that section; nor is it stated therein as to on what material the State Government should form its opinion. It is now well settled that such vast power of order cessation of the extended term of office of the councilors itself does not lay down guidelines for exercising the power, it does not necessarily vest an arbitrary and unbridled power in the Government violative of Article 14 of the Constitution. In Maneka Gandhi v. Union of India, : [1978]2SCR621 reviewing the entire case-law on the point in the context of the power vested in the Passport Authority under S. 10 of the Passports Act, 1967, the Supreme Court held

'............Now, the law is well settled that when a statute vests unguided and unrestricted power in an authority to affect the rights of a person without laying down any policy or principle which is to guide the authority in exercise of this power, it would be affected by the vice of discrimination since it would leave it open to the Authority to discriminate between persons and things similarly situated.'

However, it was observed in that very judgment :

'When the legislature has enacted particular provision it must be presumed to make the provision in consonance with the Constitution and not in violation thereof and it did not intend to confer any power which could be violative of any of the fundamental rights including Art. 14. If with a reading of a particular provision in the context of an enactment guidelines could be discerned for exercising the power, then that provision cannot be deemed to be violative of Art. 14.'

Having regard to the fact that S. 10(3) itself directed that the passport could be impounded 'in the interest of the general public', it was held that it provided sufficient guidelines for the exercise of the power and that it cannot be said to be unguided and unfettered. The Court also observed

'.............when the order impounding a passport is made by the Central Government, there is no appeal against it, but it must be remembered that in such a case the power is exercised by the Central Government itself and it can safely be assumed that the Central Government will exercise the power in a reasonable and responsible manner. When power is vested in a high authority like the Central Government, abuse of power cannot be lightly assumed. In any event, if there is abuse of power, the arms of the Court are long enough to reach it an to strike it down.'

In view of the above and several other factors referred to therein the Court declared

'............The power conferred on the Passport Authority to impound a passport under S. 10(3)(c) cannot, therefore, be regarded as discriminatory and it does not fall foul of Art. 14.'

The Court further stressed

'.............But every exercise of such power has to be tested in order to determine whether it is arbitrary or within the guidelines provided in S. 10(3)(c)'.

So too in this case, in determining whether the power vested under Section 48A of the Act is an unguided an unfettered power, we will be in error if we restrict our attention to S, 48A alone, We must not forget that this power is vested in the State Government, Further that power is required to be exercised by the State Government having regard to the changed circumstances. Further having regard to the changed circumstances, the Government must form an opinion that it is not necessary or expedient to continue the Council and the councilors. That power must necessarily be exercised consistent with the other provisions of the Act, the object and intendment of the Act, the rights conferred on the councilors under the Act and keeping in view the consequences that flow from the exercise of this power. All these need not be specified in S. 48A which vests the power of suppression in the State Government. That must be gathered from a reading of the entire enactment and the object for which the enactment is made. The several provision of the Act make it clear that the object of the legislature is to constitute Municipal Councils in the State mainly composed of councilors elected for a term of five years. Such a body must ordinarily be replaced only by holding general election to the Municipal Councils and as laid down in S. 40 read with S. 51, until the newly elected councilors assume office and elect their President, the previous body should continue. The Act further envisages that if for any reason election is not held by the time the five year term of the councilors expires, the State Government may in exercise of its power under sub-sec. (1) of S. 40 extend its term by one year, As discussed above, if election is not held in time the existing councilors would by virtue of sub-sec. (3) of S. 40 of the Act continue until of election is so held. However, extension contemplated by sub-sec. (1) of S. 40 could be ordered by the State Government 'in exceptional circumstances' and 'for reasons which shall be stated in such notification'. It is in this context that the power vested under S. 48A has to be viewed and exercised. From these provisions it would become clear that extension of one year granted in view of the exceptional circumstances and for reasons to be recorded and the extension that is conferred by the statute under sub-sec. (3) of S. 40 may be terminated under S. 48A. That is an overriding power vested in the State Government and that has to be exercised in the changed circumstances and the changed circumstances in turn should be such that in the opinion of the State Government continuation of such councilors is not necessary or expedient. the consequences of exercising such power is to put an end to the term of the elected councilors and to appoint an Administrator. If election is held, automatically the elected councilors would come into office and elect their President and the new Council would come into being. Until then, the old Council and the councilors would continue and question of appointing an Administrator would not arise. In other words, the power under S. 48A may be exercised when it is not necessary or expedient to continue the councilors but, at the same time, the changed circumstances are such that general election cannot be held to elect new councilors in place of the old. While the exceptional circumstances should have justified continuance of the old councilors by granting extension the State Government would on a consideration of the changed circumstances should have formed an opinion that it is not necessary or expedient to continue those councilors. There could be a variety of factors contributing to change of circumstances. May be the law and order situation is such that the councilors elected are unable to meet and manage the affairs of the Council; may be there is an external threat or internal unrest in which it is not expedient to continue the elected body and it is necessary to have an administrator to head the Council; may be out of the total number of elected councilors several have resigned and vacated their offices or the vacancies may have occurred otherwise and the minimum number of councilors to contribute a quorum is not available to transact the business; may be even though all are present the squabbles among the councilors are such that no business could be transacted or the Council is otherwise unable to function effectively. These are only some of the situations that are illustrative; many more could be visualised. The State Government may have initially extended the term of office, but in the changed circumstances may legitimately form an opinion that it is no longer expedient to continue the councilors in office and the circumstances may be such as necessitate the appointment of an Administrator. Keeping in view the general object of the enactment, the primary object being that the civic affairs should be managed by the elected councilors and they should be replaced only in view of the changed circumstances, 'the State Government could bona fide form an opinion that the councilors should cease to hold office and an Administrator should be appointed. it must be remembered that the power under S.48A is vested not in any individual officer but in the State Government itself. that power cannot be exercised during the five year term for which the councilors are elected. it may be exercised only during the extended term of their office or during the extended term which the councilors get by virtue of sub-sec. (3) of S. 40, because no general election is held. though all these limitations upon the exercise of the power by the State Government are not expressly laid down in S. 48A, as observed by the Supreme Court in Maneka Gandhi'scase : [1978]2SCR621 dealing with S. 10(3)(c) of the Passports Act declared, they must necessarily be implied. So too in reading S. 48A of the Act it must necessarily be implied that the State Government should form its opinion with regard to the changed situation keeping in view the object of the enactment and other relevant circumstances. The power cannot be exercised arbitrarily. The legislature should not be taken as having intended to vest an arbitrary power in the State Government which would be violative of Art. 14. Reading S. 48A in the light of the express provisions and the necessary intendment thereof, we hold that the Act lays down sufficient guidelines for the exercise of the power by the State Government under S.48A; the power vested is not arbitrary and violative of Art. 14. Section 48A does not violate the fundamental right guaranteed to a citizen under Art. 14 and is perfectly valid.

18. The question therefore that remains to be considered is whether the impugned order of the State Government made under S. 48A and notified in the Official Gazette complies with the statutory requirements and is not arbitrary. It is argued that the impugned order of the State Government is arbitrary and does not take any of the relevant factors into account and is therefore violative of Art. 14 of the Constitution. It is also contended in this context that the State Government ought to have heard the Municipal Councils before making that order and that inasmuch as it has failed to do so, it offends the principles of natural justice.

19. When S. 48A is held to be not violative of Art. 14 only because in forming the opinion the State Government must keep in view the guidelines deducible from the enactment and its intendment, in order that the impugned notification be sustained it must be shown that the guidelines discernible from a reading of the enactment as a whole have been kept in view, and an opinion formed on the relevant material. It should be noticed that the power under S. 48A has to be exercised with reference to each Council and the councilors of that to each Council and the councilors of that Council. It may be that the changed circumstances at a given point of time are common to all the Municipal Councils. But that may not be so always. Often they are not. To form its opinion to make an order under S. 48A the changed circumstances with reference to each of the Councils have to be taken into account by the State Government. The act does not in terms lays down that in forming its opinion the State Government should give a hearing to the councilors or record reasons for the order. But the order that is made under S. 48A affects the statutory right of the councilors to continue in office until election are held, which, as discussed above, vests in the councilors not be virtue of any order made by the Government but by virtue of S. 40(3) of the Act. No doubt, the power vested under S. 48A may be exercised notwithstanding anything contained in S. 40 and in particular under sub-sec. (1) and (3), is terminated not by virtue of S. 48A itself but as a result of the State Government exercising its power under S. 48A. The order made by the State Government in exercise of that power must also stand the test of Art. 14 and should not be arbitrary. In Maneka Gandhi's case, : [1978]2SCR621 Bhagwati, J., dealing with the question whether the order under S.1093)(c) of the Passports Act contravened any fundamental rights emphasized

'....................though the impugned order may be within the terms of S. 10(3)(c), it must nevertheless not contravene any fundamental rights and if it does, it would be void.'

So too, when S. 48A itself is upheld as not violating Art. 14 of the Constitution of the assumption that the State Government is required to act in accordance with the Guidelines provided by the various provisions of the Act and the necessary intendment thereof, the order passed thereunder cannot be sustained if it does not observe those guidelines or is otherwise arbitrary. S. 48A of the Act can be saved from the attack that it vests arbitrary power in the State Government to supersede a Council and terminate the elected councilors' terms of office and discriminate between one Council and another and the councilors of one Council and the councilors of another Council and thus violates Art. 14 of the Constitution, only on the assumption that the legislature intended that power to be exercised in the light of the guidelines provided by the Act. To show that the State Government has not acted arbitrarily in terminating the councilors' right to continue in office until the election is held and to show that it has acted in the light of the guidelines provided by the enactment, there must be some material to establish the changed circumstances as would justify the State to form the opinion that it is not necessary or expedient to continue the councilors in office. The fact that such a power is vested in the Government, of course, is a factor to hold that the legislature took care to vest it in a high authority, so that it may not be arbitrarily exercised. But, as observed by the Supreme Court in Maneka Gandhi's case, that by itself does not give the order immunity from attack that it is an arbitrary order. In Maneka Gandhi's case, : [1978]2SCR621 the Supreme Court observed as follows

'............. we must straightway concede it, that merely because a statutory provision empowering an authority to take action in specified circumstances is constitutionally valid as not being in conflict with any fundamental rights, it does not give a carte blanche to the authority to make any order it likes so long as it is within the parameters laid down by the statutory provision. Every order made under a statutory provision must not only be within the authority conferred by the statutory provision, but must also stand the test of fundamental right. Parliament cannot be presumed to have intended to confer power on an authority to act in contravention of fundamental rights. It is a basic constitutional assumption underlying every statutory grant of power that the authority on which the power is conferred would act constitutionally and not in violation of any fundamental rights. This would seem to be elementary and no authority is necessary in support of it, but if any were needed, it may be found in the decision of this Court in Narendra Kumar v. Union of India : [1960]2SCR375 .'

20. That order though administrative in nature affects the right of the councilors as well as the Municipal Council which is a body corporate. It has civil consequence hence would be open to judicial review. Merely because the State Government is entitled to form its opinion and may pass an order under S. 48A it does not cease to be justiciable. The Supreme Court in Hosted Gammon v. State of Orissa, : (1975)IILLJ418SC dealing with the question whether the order of the State Government refusing to make reference under section of the Industrial Disputes Act which reference could also be made only upon the satisfaction of the Central Government held

'The Executive have to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter nor should take into account wholly irrelevant or extraneous consideration. They should not misdirect themselves on a point of law. Only such a decision will be lawful. The Courts have power to see that the Executive act lawfully. It is no answer to the exercise of that power to say that the Executive acted bona fide nor that they have bestowed painstaking consideration. They cannot avoid scrutiny by Courts by failing to give reasons. If they give reasons and they are not good reasons, the Court can direct them to reconsider the matter in the light of relevant matters, though the propriety, adequacy or satisfactory character of these reasons may not be open to Judicial scrutiny. Even if the Executive consider it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all relevant facts.'

In S. L. Kapoor v. Jagmohan, : [1981]1SCR746 dealing with the suppression of the Municipal Committee under S. 238(1) of the Punjab Municipal Act (3 of 1911), the Supreme Court held

'.................. A Committee as soon as it is constituted, at once, assumes a certain office and status, is endowed with certain rights and burdened with certain responsibilities, all of a nature commanding respectful regard from the public. To be stripped of the office and status, toe be deprived of the rights, to be removed from the responsibilities, in an unceremonious way as to suffer in public esteem, is certainly to visit the Committee with civil consequences. In our opinion the status and office and the rights and responsibilities to which we have referred and the expectation of the Committee to serve its full term of office would certainly create sufficient interest in the Municipal Committee and their loss, if superseded, would entail civil consequences so as to justify and insistence upon the observance of the principles of natural justice before an order of suppression is passed.'

In Swadeshi Cotton Mills v. Union of India, : [1981]2SCR533 the Supreme Court laid down

'............... It cannot be laid down as a general proposition that whenever a statute confers a power on an administrative authority and makes the exercise of that power conditional on the formation of an opinion by that authority in regard to the existence of an immediacy, its opinion in regard to that preliminary fact is not open to judicial scrutiny at all. While it may be conceded that an element of subjectivity is always involved in the formation of such an opinion, but, as was pointed out by this Court in Barium Chemicals : [1967]1SCR898 , the existence of the circumstances from which the inferences constituting the opinion, as the sine qua non for action, are to be drawn must be demonstrable, and the existence of such 'circumstances', if questioned must be proved at least prima facie.'

At page 836 the Supreme Court held :

'.................If the satisfaction of the Government in regard to the existence of any of the conditions (I) and (ii), is based on no evidence, or on irrelevant evidence or on an extraneous consideration, it will vitiate the order of 'take over', and the Court will be justified in quashing such an illegal order on judicial review in appropriate proceedings. Even where the statute conferring the discretionary power does not, in terms, regulate or hedge around the formation of the opinion by the statutory authority in regard to the existence of preliminary jurisdictional facts with express checks, the authority has to form that opinion reasonably like a reasonable person.'

21. When the order of the Government made under S. 48A is attacked as arbitrary and violative of Art. 14 it must be shown that what the changed circumstances were and what was the material before the Government to form the requisite opinion that it was not expedient or necessary to continue the elected expedient or necessary to continue the elected councilors and that it was necessary to appoint an administrator. It was next argued that principles of natural justice also should be observed in making such an order. As observed by the Supreme Court in A. K. Kraipak v. Union of India, : [1970]1SCR457 , even in administrative matters where they affect the right of a citizen, the authorities vested with the power should act justly and fairly by observing the principles of natural justice. Hegde, J. speaking for the Court declared

'The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. the concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely (1) no one shall be a judge in his own cause (nemo debet esse judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi judicial esquires must be held in good fiath, without bias and not arbitrarily or unreasonably. But in the course of years maybe more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the Courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is not questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative esquires. Often times it is not easy to draw the line that demarcates administrative esquires from quasi-judicial esquires. Esquires which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial esquires as well as administrative esquires. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy v. University of Kerala, ................ : [1969]1SCR317 the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.'

This view was reiterated and re-affirmed by the Supreme Court in D. F. O. South Khari v. Ram Sanehi, : AIR1973SC205 . The Supreme Court in Maneka Gandhi's case, : [1978]2SCR621 declared

'................The law must, therefore, now be taken to be well settled that even in an administrative proceeding, which involves civil consequences, the doctrine of natural justice must be held to be applicable.'

22. It was argued that observance of the principles of natural justice is not ordained by S. 48A of the Act. These principles may have to be observed where the Municipal Council is sought to be superseded by the State Government under S. 313 of the Act before the expiry of five year term, but it cannot be so construed that the power is sought to be exercised under S. 48A during the extended term to which the councilors are not entitled. On principle this contention cannot be accepted.

The Supreme Court repelled this contention is S. L. Kapoor v. Jagmohan, : [1981]1SCR746 and held

'..............S. 238(1) did not provide for such an opportunity and so, by necessary implication, it must be considered that the principle audi alteram partem was excluded. We are unable to agree with the submission.................... It is not always a necessary inference that if opportunity is expressly provided in one provision and not so provided in another opportunity is to be considered as excluded from that other provision. It may be a weighty consideration to be taken into account but the weightier consideration is whether the administrative action entails civil consequences.'

In Mohinder Singh Gill v. Chief Election Commr., New Delhi, : [1978]2SCR272 the Supreme Court held

'We have been told that wherever the Parliament has intended a hearing it has said so in the Act and the rules and inferentially where it has not specificated it is otiose. There is no such sequitur. The silence of a statute has no exclusionary effect except where it flows from necessary implication. Art. 324 vests a wide power and where some direct consequence on candidates emanates from its exercise we must read this functional obligation.'

But as observed in Suresh Koshy George v. University of Kerala, : [1969]1SCR317 'these principles are not embodied rules. What particular rule of natural justice should apply to a give case must depend to a great extent on the facts and circumstances of that case, the frame-work of the law under which the enquiry is held and the constitution of the Tribunal or body of person appointed for that purpose. Whenever a complaint is made justice had been contravened the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.'

23. Keeping these principles in view if we examine the complaint in this case against the impugned order of the Government under S. 48A. we find that the then Minister for Urban development is alleged to have made a press statement that the term of the dusting councilors which was to expire on 31st Mar., 1984 would not be extended and that Administrators would be appointed in respect of the said Councils. The reason why the government had taken this decision was not mentioned in the press statement. In fact, on that very day, the impugned notification was issued. It is asserted that with regard to Ballarpur Municipal Council all the necessary steps including division of wards, publication of the final voters' list and all formalities under Ss. 10 and 11 of the Act were completed. Under S. 17 the State Government has framed rules for conducting the elections. Rule 5 of the Maharashtra Municipalities Election Rules, 1966 empowers the Collector to appoint Returning Officer and Assistant Returning Officer in respect of any election. Rule 9 of the said Rules empowers the Returning Officer to appoint a Presiding Officer and Polling Officer and R. 11 provides that the Returning Officer, Assistant Returning Officer, Presiding Officers and Polling Officers shall work under the direction and supervision of the Collector. All formalities required by Ss. 10 and 11 having been completed, when the Collector was required to issue a proper notification calling for elections and which rested exclusively with the Collector, who is a subordinate of the State Government, the State Government issued the impugned notification. The notification does not give any reason why the Government was of the opinion that continuance of the said councilors in office was not necessary or expedient. it merely records that the term, as extended by the Government notification dt. 21st May, 1983 'is due to expire on 32nd Mar., 1984.' If that was all the reason, then the Government should have held the elections as contemplated by the Act. The fact that the term is expiring is a ground to hold elections and not a ground to put an end to the term of the elected councilors which stood extended under sub-sec. (1) read with sub-sec. (3) of S. 40. The changed circumstances should be such, which as discussed above, are not merely those that required cessation of the term of the councilors but must be such that a new Council could not be brought into existence in the normal course and required the management of the affairs of the Council by an Administrator. There is no indication elections to the Municipal Councils could not be held and why the Administrator was sought to be appointed instead of allowing the elected councilors to continue. There is also not even the slightest indication therein as to what the changed circumstances which justified superseding 24 Municipal Councils existing in different regions of the Maharashtra State. on course S. 48A does not require reasons to be recorded. But, inasmuch as this notification has civil consequences and affects the rights of the councilors which are justiciable upon a complaint of arbitrariness, it is obligatory upon the State Government to state the circumstances justifying the formation of the opinion to order cessation of the term of the Councilors and appointing Administrators. What all is stated in the affidavit filed in reply on behalf of the State is :

'...............In the eventuality, when the General Election of the Council cannot be held on account of some temporary difficulties, in such contingency giving short extension to the normal term of the Council is desirable and justified, in the interest of the Municipal Administration. However, in a contingency, it is not possible to hold general election for considerable long time owing to administrative and various other reasons. It is not desirable or expedient to continue the councilors in office for an indefinite period. The Govt. therefore, promulgated on 4-2-1981 an Ordinance of 1981, where under by way of amendment S. 48A was introduced. This Ordinance was replaced on 14-31981 by Act No. XII of 1981. The provision under the amended S. a48A has been (given) retrospective effect from 4-2-1981.

That the State Government had initially decided to hold Municipal Elections on the basis of 1981 census population figure, which was to be made available by mid of 1981.

..............................

..............................

The State Legislature with a view to meet such situation by Act No. LXIX of 1981. on 28-12-1981 introduced the proviso to CI. (b) of sub-sec. (1) of S. 48A.'

In regard to the allegations against the then Minister for Urban Development, Shri R. W. Adik, it was stated that they were not were neither admitted nor denied. It was stated that the Government did not intend to supersede the Municipal Council as alleged by the petitioner. The alleged threat was misconceived. The Government decided to hold elections on the basis of 1981 census population figures. The authenticated Census figures have been made available by the Census Department in July 1982. Consequently, the work relating to formation of wards and the finalisation of the matters relating to reservation of seats for Scheduled Caste and Scheduled Tribe having regard to the concentration of population of these Castes or as the case may be of these Tribes in any particular ward was in progress. Thereafter, steps were to be taken to prepare the list of voters and to formulate election programme. In view of this it was not feasible to hold the general election of Municipal Councils before June 1983. Therefore, it was thought fit to extend the term of the Councils up to 31st Mar., 1984. The Government accordingly by exercising the power under sub-sec. (1) of S. 40 extended the period up to 31st Mar., 1984. It is then submitted that for holding an election of the Municipal Council on the basis of electoral roll of the Maharashtra Legislative Assembly as in force on 1st Oct., 1983 was taken as the basis for the preparation of Municipal Electoral Roll. That Electoral Roll included person who had completed 21 years of age on 1st Jan., 1983 and that Electoral Roll has undergone further revision with a view to include those who had completed 21 years of age on 1st Jan., 1984. The duly revised Electoral Roll of the Maharashtra Legislative Assembly was finally published on 31st Jan., 1984. It was obligatory to prepare Municipal Electoral Roll on the basis of said revised electoral roll of the Assembly. it was further stated :

'................. It was neither feasible nor practicable to finalise such ward rolls and ward lists................... before 31st Mar., 1984.' )

That was to be done after giving 45 days' time. it was stated that election could not be held during the monsoon and further extension to the councilors could not have been granted beyong June 1984 and therefore the impugned notification was issued. though all this is stated in the affidavit in reply, it is rather difficult to understand as to why election could not be held when 1984 census list was published and Assembly was available even by 31st Jan., 1984. Even assuming that there were some difficulties and when even according to the State Government it intended to hold election shortly as discussed above, the councilors continue in office under sub-sec. (3) of S. 40 until the general elections are held. The State Government has not given any reason in the reply as to why it thought it expedient to order cessation of the term of the councilors and why it thought that the management of the affairs of the Councils should vest in the Administrators and not continue with the existing elected Councilors. No averment is made about the changed circumstances which justified such and action; much less has any record been produced to throw light on it. While the State Government was not required to record reasons, it was certainly required to form its opinion on same material. That material must be evident from the record produced before the Court and stated in the reply so that the Court could examine whether the opinion was formed as envisagedby the Act taking all the relevant circumstances into consideration. In the absence of any such material, the Court would have no option but to conclude that the State Government exercised its power under S. 48A of the Act. The impugned notification would be violative of Art. 14 of the Constitution. The fact that all the Municipal Councils have been superseded may only answer the allegation of discrimination, but not the attack on the ground of arbitrariness of the order.

23A. Of course, when suppression is ordered under S. 313, even the five-year term to which the councilors are entitled by virtue of sub-sec. (1) of S. 40 is curtailed and when that right is sought to be curtailed in exercise of this power under S. 313, it is required to record reasons. However even S. 313 does not in terms required notice to be given but suppression could be ordered only on the grounds specified in Cls. (a) to (e) of sub-s. (1) of S. 313. A finding on it must necessarily required some enquiry and any adverse finding would have a reflection on the councilors as such collectively and/or individually on the councilors as such. But the effect of cutting short the initial term of 5 years of the extended term is the same whether it is ordered under S. 313 or under S. 48A of the Act. We have held above that the elected councilors have a right to continue in office until general elections are held. The exercise of the power under S. 48A by the State Government has civil consequences in that, that right to continue in office is put an end to. In exercising a power which has civil consequences, the principles of natural justice must be observed.

24. In Sudan v. Kolhapur Municipal Corporation, : AIR1985Bom114 S. 7-A1 of the Bombay Provincial Municipal Corporations Act, 1949, which is in pari materia with S. 48A of the Act, and came up for consideration before a Division Bench of this Court. Concurring with the view taken in Mohamed Maqbool's case, : AIR1982Bom312 the Division Bench held that since there is no vested right in the councilors to continue in office after the expiry of normal term, the government was not bound to give any notice to the councilors before taking any action under S. 48A of the Act and that the principles of natural justice will not apply to such a case. The councilors have no vested right to get their term extended. Once it is held that such an extension cannot be held that no order could have been issued under S. 7-A1 of the Bombay Provincial Municipal Corporations Act, unless an opportunity of being heard was given to the petitioner. The Court further held that before issuing an order under S. 7-A1, the State Government has to form an unbiased opinion that in the changed circumstances the continuance of the Councilors in office is not necessary or expedient. As the conclusions reached in this decision are based on the same reasoning as in Mohamed Maqbool's case, which proceeds on the footing that the councilors have no right to continue in office after the expiry of five-year term and do not have a vested right to an extension of their term, with which we, for the reasons stated view taken both in Mohamed Maqbool's case, : AIR1982Bom312 and in Sudam's case, : AIR1985Bom114 is not correct. The impugned order having been made without giving any opportunity either to the Municipal Councils or the councilors against the proposal to supersede them and appoint an Administrator it offends all principles of natural justice is therefore unsustainable and must be quashed.

25. At the conclusion of the arguments, however, Mr. Madkholkar fairly conceded that though as a logical consequence of quashing the impugned notification the Municipal Councils and Councillor must be restored to office, he does not press for reinstating them. He only seeks a writ of mandamus directing the State Government to hold the elections expeditiously. Having regard to the fact that the learned Assistant Government Pleader has filed a statement before us on 8th Feb., 1985 which has been taken on record, stating that the Government would be holding elections by the end of April 1985, it has become unnecessary for us to consider whether a direction to hold elections should be given or whether it should be left to the State Government to consider holding election or extending the term or appointing an Administrator. we are happy to note that the State Government has duly fulfilled is assurance and issued notification even before the judgment was pronounced. We, therefore, while quashing the impugned notification and holding that the existing councilors had a right to continue in office until a valid notification is issued under S. 48A of the Act, deem it unnecessary to issue any writ, direction or order. The writ petitions are allowed to the extent indicated above but in the circumstances we make no order as to costs. Ordered accordingly.


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