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Mohamad Maqbool Mohamad Khaja and ors. Vs. State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberWrit Petn. No. 431 of 1981
Judge
Reported inAIR1982Bom312; (1981)83BOMLR573; 1982MhLJ417
ActsMaharashtra Municipalities Act, 1965 - Sections 19A, 40(3) and 48A; Maharashtra Municipalities Act, 1981; Constitution of India - Articles 14 and 226
AppellantMohamad Maqbool Mohamad Khaja and ors.
RespondentState of Maharashtra and ors.
Appellant AdvocateB.R. Naik and;R.V. Naik, Advs.
Respondent AdvocateC.J. Sawant, Addi. Govt. Pleader,;D.P. Hegde, Asst. Govt. Pleader and;Adv. General
Excerpt:
maharashtra municipalities act (mah. xl of 196$), sections 40, 19a, 48a (inserted by mah. xii of 1981) - constitution of india article 14; seventh schedule, list ii, entry 5 -- scope and object of section 40(3) -- councillors if can claim to hold office beyond term of six years -- state legislature whether competent in enacting section 48a -- expression ''changed circumstances' in section 48a -- implication of -- section 48a whether confers absolute powers on state government without any guidelines -- notification under section 48a issued without notice to councillors holding office beyond six years -- principles of natural justice whether violated -- natural justice.;sub-section (3) of section 40 of the maharashtra municipalities act, 1965 has only a limited application and legal fiction.....pendse, j. 1. by this petition filed under article 226 of the constitution of india, the petitioners are seeking a writ of mandamus for striking down section 48a of the maharashtra municipalities act 1965 (hereinafter referred to as the 'act') as being ultra vires of the fundamental rights guaranteed under the constitution of india and for quashing and setting aside the order dated feb., 5, 1981, issued by respondent no. 1 under sub-sec (1) of sec. 48a of the said act.2. the petitioner no. 1 is the president of nanded municipal council, while the petitioners nos. 2 to 5 are its councillors. the municipal council of nanded was established under section 8 of the act. section 10 onwards of the act provide for election of councilors to the municipal councils and section 40 (1) of the act lays.....
Judgment:

Pendse, J.

1. By this petition filed under Article 226 of the Constitution of India, the petitioners are seeking a writ of mandamus for striking down Section 48A of the Maharashtra Municipalities Act 1965 (hereinafter referred to as the 'Act') as being ultra vires of the fundamental rights guaranteed under the Constitution of India and for quashing and setting aside the order dated Feb., 5, 1981, issued by respondent No. 1 under sub-sec (1) of Sec. 48A of the said Act.

2. The petitioner No. 1 is the President of Nanded Municipal Council, while the petitioners Nos. 2 to 5 are its Councillors. The Municipal Council of Nanded was established under Section 8 of the Act. Section 10 onwards of the Act provide for election of Councilors to the Municipal Councils and Section 40 (1) of the Act lays down a term of five years for the Councilors elected at the general election. The term of Councilors of the Nanded Municipal Council was to expire on Dec., 16, 1979, Section 40 (1) of the Act enables the State Government ment in exceptional circumstances to extend the term not exceeding in the aggregate six years for reasons which have to be stated in the Notification to be published in the Official Gazette. In exercise of the powers conferred under this sub-section, the State Government extended the term of the Councilors by a period of six months on Dec., 11 1979, A further extension of six months duration was granted on May 3, 1980, and the term of the Councilors was to expire on Nov., 30, 1980. In spite of the fact that the term was to expire in Nov., 1980, the general election to the Municipal Council was not held earlier by the State Government, but the respondent No. 2 - the Director of Municipal Administration - issued instructions only on Feb., 3, 1981 to hold the elections of the Municipal Council. It is required to be stated at this juncture that the identical situation prevailed in about 192 Municipal Councils in the State of Maharashtra. In other words, though the extended period of sib years term was over, the Municipal councilors to 192 Municipal Council continued to function as Councilors, With this background, the Governor of Maharashtra issued Maharashtra Ordinance No. 1 of 1961 on Feb., 4, 1981, The Ordinance was issued Maharashtra Ordinance No, 1 of 1981 on Feb., 4, 1981, The Ordinance was issued as the State Legislature was not in Session and the Governor was satisfied that the circumstances exist which render it necessary to take immediate action to amend the Maharashtra Municipalities Act, 1965 and also the Bombay Provincial Municipal Corporations Act, 1949 and the City of Nagpur Corporation Act, 1965 and also the Bombay Provincial Municipal Corporations Act, 1949 and the City of Nagpur Corporation Act, 1948. By this Ordinance, Section 48A was inserted in the Act. The amended Section confers power upon the State Government to appoint Administrator in the Municipal Councils where the term of the Councillors stands extended under sub-section (1) or sub-section (3) of Section 40 of the Act. The Ordinance further provided that on publication of such an order by the State Government appointing an Administrator, all Councilors including the President and the vice-president shall cease to hold and shall vacate the office as Councilors or otherwise. In pursuance of the powers conferred by the Ordinance, the State of Maharashtra Published Notification on Feb., 5, 1981, whereby the term of the Councilors of 187 Municipal Councils was terminated and the Administrator was appointed with effect from Feb., 6, 1981, One of the Municipal Councils covered by this Notification is the Nanded Municipal Council which has been joined as respondent No. 3 to the petition. The petitioners challenged the said Notification by filing the present petition in this Court on Feb. 9, 1981. The petition was duly admitted on Feb., 11, 1981, During the pendency of this petition, on Mar., 21. 1981. The Ordinance was replaced by Maharashtra Act No. XII of 1981 with retrospective effect from Feb., 4, 1981, The amended Section 48A of the Act was inserted in the Act having been assented by the Governor after the Legislature approved the same. Certain alteration was effected by the Legislature while enacting Section 48A of the Act by providing that the general elections shall be held within 8 period of one year from the date of publication of the order issued under Section 48A of the Act. The petitioners thereafter amended the petition and challenged the vires of Section 48A of the Act.

3. The principal grounds of challenge to the vires of Section 48A of the Act are that the enactment of the Section is beyond the Legislative competence of State Legislature and the same has been enacted with mala fide intention. It is also claimed that the provisions of Section 48A of the Act are required to be struck down as it violates the fundamental rights conferred under Article 14 of the Constitution of India. The petitioners also claimed that the State Government has appropriated absolute powers under Sec. 48A of the Act to suppress the concept of Local Self Government and such absolute powers are conferred without any guidelines for its exercise. It was also claimed that the principles of natural justice were violated while publishing the Notification dated Feb., 5, 1981, The claim of the petitioners to hold the office beyond the term of six years is based on the provisions of sub-sec (3) of Section 40 of the Act. The petitioners urged that they are entitled to hold the Office of the Councillors till the day immediately preceding the date of meeting to be held under Section 19A of the Act by the newly elected Councilors. It is the claim of the petitioners that S. 48A of the Act makes wide inroad upon the fundamental rights of the petitioners to hold an elected office. On these grounds, the petitioners challenged the vires of Section 48A as well as the action taken by the Government in pursuance of the provisions of the Section by issuance of the Notification dated Feb., 5, 1981.

4. In answer to the petition, Smt. Asha K. Shele, the Assistant Secretary. Urban Development and Public Health Department, Government of Maharashtra, has filed return sworn on Apr., 29, 1981, By this return, it is submitted that the claim of the petitioners to hold the office beyond the term of six years is totally misconceived. The respondents claim that the provision of sub-section (3) of Section 40 of the Act is merely a stop-gap arrangement and does not extend the term of the Councilors beyond the aggregate term of six years. According to the respondents, a peculiar situation arose whereby the term of the Councilors of a large number of Municipal Councils expired but the Councilors continued to remain in office by resort to the provisions of sub-section (3) of. 40 of the Act and. Therefore, it was necessary to amend provisions of the Act to meet such unusual situation. The State of Mahahrashtra claims that the enactment of Section 48A of the Act was perfectly within the legislative competence of the State Legislature and the challenge that the Section confers absolute powers without any guidelines is not correct. The grounds of mala fide are denied and so also the contention that the principles of natural justice were violated before issuance of the notification. The petitioner No. 1 has field an affidavit-in-rejoinder sworn on June 10, 1981 and reiterated the submissions made in the petition.

5. In view of these rival submissions, it is first necessary to determine the ambit and scope of Section 40 of the Act which provides for the term of office of the Councilors. It would be convenient to set out the provisions of sub-sec. (1). (2). And (3) of Section 40 of the Act to understand the controversy involved in the petition:-

'(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 held under Section 19A to co-opt Councilors.

(3) Notwithstanding anything contained in sub-sections (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'.

The plain reading of sub-section (1) of Section 40 of the Act makes it clear that the elected Councilors are entitled to hold office for a term of five years. The term can be extended by the years. The term can be extended by the State Government for one more year but such extension can be given only in exceptional circumstances and for reasons which shall be stated in the Notification to be published in the Official Gazette, In other words, there Is no inherent right in the elected Councilors to remain in office beyond the period of five years. The extension of period of five years. The extension of period is not a right conferred on the Municipal Councilors but the extension of period is not a right conferred on the Municipal Councilors but the extension can be granted by the State Govt. Only in exceptional circumstances. It is implied in sub-section (1) of Section 40 of the act that in normal circumstances, general elections should be held before the expire of the term of five years. The exceptional circumstances may arise where holding of an election is not possible. Times of war of where the area is under floods or famine are some of the circumstances where the State Govt. May exercise the power to extend the term. The power to extend the term is also circumscribed by the sub-section providing that such extension shall not be beyond the period of one year from the date of expiry of five years. Sub-section (2) of See. 40 of the Act provides for a starting point to determine the period of term of office of five years. The period will begin to run from the date of the special meeting held under Section 19A of the Act to co-opt the Councilors.

6. Section 10 onwards of the Act provide for holding of the general election to the Municipal Council and S. 19 (1) of the Act provides that the names of the elected Councilors shall be published in the Official Gazette. Section 19A of the Act lays down that within 25 days from the date on which the names of Councilors elected to a Council are published or, as the case may be, first published, under sub-section (1) of Section 19, in the Official Gazette, or from the date on which the result of election of President is published under sub-section (3) of Section 51, in the official Gazette, whichever is later. The Pertained of the new Council shall convene a special meeting of the Councilors for CO-option of Councilors. The term of the Councilors shall be deemed to commence on the date of such special meeting. In other words, though the Councilor is declared to be elected by publication of his name in the Official Gazette, his term of five years would not commence from that date but by legal fiction provided under sub-sec. (2) of Section 40, the term would begin to run from the date of the meeting convened under Section 19A of the act. The reading of sub-sec (1) and (2) of the Act makes it crystal clear that the normal term of the Municipal Councilors is for a period of five years and could be extended by the State Government in exceptional circumstances by one more year. It is further clear that the legislature intended that the general elections should be held before the expiry of the term of five years in normal circumstances and six years in exceptional circumstances where the Government extends the term. It is implied in the provisions of Sec 40 of the Act that the general elections must be held before the term of the Councilors expires. It is well recognised principle in this country that the local bodies should be manned by the elected representatives of the common man, and Section 40 of the Act was enacted obviously to advance that purpose.

7. The sub-section (2) of Section 19A of the Act provides that notwithstanding anything contained in sub-sec. (1) special meeting of the newly elected Councilors shall not be held before the expiry of the term of office of the outgoing Councilors. Such a meeting has to be normally convened within a short duration after the expiry of term of outgoing Councilors. It is possible that a meeting may be held immediately after the expiry of the term but the Legislature in its wisdom realised that in some cases there would be time-gap between date of expiry of term and holding of special meeting. In such interregnum, there would be no effective administration of Council and to overcome such situation, the Legislature provided by sub-section (3) of Sec. 40 of the Act that notwithstanding anything contained in sub-sections (1) and (2), the term of office of outgoing Councilors shall be deemed to extend to and expire with the day immediately preceding the date of such meeting. By this sub-sec. (3) a legal fiction is created to have the continuity in administration and to avert vacuum in the functioning of Municipal Council. The outgoing Councilors, in view of fixed tenure of office, cannot hold charge on expiry of term but by a deeming provisions are allowed to function, till the Special meeting of the new Councillors is held, This sub-sec does not create any right in the outgoing Councillors to remain in office beyond the expiry of their term, nor such legal fiction would amount to automatic extension would amount to automatic extension of term. It is necessary to emphasise that the term of the office of the Councilors is fixed by provisions of sub-sec (1) of Sec 48 of the Act and it could not be extended beyond the aggregate term of six years. Sub-sec (3) of S. 40 of the Act does not provide for any extension but contemplates a situation where election of the new Councilors has already been held. The reading of the three sub-sec 40 of the Act would come into operation provided the elections of the new Councilors are held or the process of election of the new Councilors is almost over. Sub-sec (3) of Sec, 40 of the Act can have no application in cases where the elections are not held. It is not permissible for the Councilors Whose term has expired to claim that they can remain in office as long as the fresh elections are not held and the meeting under Section 18A of the Act is not convened.

8. Dr. Naik, the learned counsel appearing in support of the petition, submits that sub-sec (3) of S. 48 or the Act automatically extends the term of six years if the special meeting as contemplated under Section 19A of the Act is not held. Dr. Naik urges that the sub-sec (3) of Sec. 40 of the Act opens with a non obstinate clause and it is indicative of the fact that the term can extend beyond six years in cases where elections are not held. It is difficult to accept this submission. The Legislature has provided for a fixed term of five years under sub-sec (1) of S. 40 of the Act and which could be extended by one more year in exceptional circumstances. The fact that even the extension of one year could be only in exceptional circumstances and that too by selling out the reasons in the Notification to be published in the Official Gazette clearly indicates that the Legislature never intended that the term of the Councilors should be postponed beyond the duration of five years. The Legislature never desired to create the monopoly of the Councilors by holding the post of Municipal Councilor for indefinite time. It is difficult to conceive that by enactment of sub-sec. (3) of Section 40 of the Act, the Legislature intended that the outgoing councilors should hold office even beyond the hold office even beyond the period of six years merely because the elections of the new Councilors are not held, On the other hand, there is intrinsic evidence in sub-section (3) or Section 40 of the Act to hold that is would come into play provided the elections of the new Councilors are already held. The acceptance of the submission of Dr. Nail would lead to a very curious situation, as the existing Councilors can continue in their office for indefinite period by taking advantage of the fact that the elections are not held even after the elections are not held even after the expiry of six years. It is impossible to accept such a construction because that would lead to the destruction of the basic and fundamental rights conferred upon the voter to elect his representative for a duration of time. Sub-section (3) of Section 40 of the Act cannot be so read as to confer a charter upon the Councilors to remain in office for all time to come. In our judgment. Sub-section (3) of Section 40 of the Act cannot be so read as to confer a charter upon the Councilors to remain in office for all time to come. In our judgment. Sub-section (3) of Section 40 of the Act has only a limited application and a legal fiction was created by the Legislature only to overcome possible vacuum which may occur in exceptional cases. It is not permissible for any Councilor to take resort to that sub-section to claim that he can remain in office as a matter of right beyond the extended period of six years. In our judgment, the term of office of the Councilor comes to and end at the expiry of five years or six years as the case may be and he ceases to hold and vacates the Office of the Councilor of the expiry of the term. The legal fiction created by sub-section (3) of Section 40 of the Act only enables him to carry out day to day administrative work till the meeting of the new Councilors under Section 10A of the Act is held, and does not permit to take any long term policy decisions. In these circumstances. In out judgment the convention urged by Dr. Naik that the term of the Councilors would automatically stand extended beyond six years under sub-sec. (3) of Section 40 of the Act even in cases where general election for electing fresh Councilors is not held without any merit.

9. In this connection, it would be proper to make a reference to the provisions of Section 25 of the Bombay Municipal Boroughs Act, 1825 which provide for the term of office of Councilors after general election. Sub-sec (2) of Section 25 of the Act inter alia provides that the terms of office of Councilors shall be deemed to commence on the date of the first special meeting, while the term of office of the outgoing Councilors shall be deemed to extend to and expire with the day before the date of such meeting Sub-section (2) (b) of Section 25 of the Bombay Municipal Boroughs Act, 1825, reads as under :-

'the term of office of the outgoing councilors shall be deemed to extend to and expiry with the day before the date of such meeting.'

The question with regard to the interpretation to be placed on this sub-section came for consideration before the Division Bench of the Court. The provisions of this Sub-sec and that of sub-sec (3) of Section 40 of the act are almost identical. The Division Bench in a judgment in the case of Narayanan Sitaram Kokaje v. Secretary to the Government of the State of Maharashtra reported in (1982) 64 Bom LR. 987, held that sub-sec. (3) (b) of Section 25 of the Bombay Municipal Boroughs Act, 1925, does not authorise the outgoing Councilors to function actively as Councilors even after the term of then office even after the term of their office as provided by sub-section (1) of Section 25 of the Act has come to an end. The sub-section is only a deeming provision which by a legal fiction extends the term of outgoing Councilors as to preserve that conceptual continuity of the Municipality are in entire agreement with the interpretation but by the Division Bench on the Said sub-section. The view which we are taking of the provisions of sub-section (3) of Section 40 of the Act is in accordance with the decision recorded by the Division Bench. In our judgment, the object and the effect of the provisions is not to authorize the outgoing Councilors in function actively as Councilors even after term of their office has come to an end. The sub-section merely provides for an interregnum between the term of the office of one body of the Municipal Councilors and the term of the office of the next body of the Councilors. The sub-section relates only to and covers the interregnum between the expiry of the term of the outgoing Councilors and the taking over charge of the new Councilors. In this view of the matter, the contention of the petitioners that they are entitled to continue in the office as councilors till the next elections are held and the special meeting of the newly elected Councilors is held under S. 19A of the Act cannot be entertained. The term of the office of the petitioners having expired, they have no right whatsoever to hold the office or claim any lien thereon by resort to the provisions are not entitled to claim the relief that they should he deemed to have continued as Councilors after the expiry of the term of six years and on the date when the Government of Maharashtra under S. 48A of the Act.

10. On behalf of the petitioners reliance was placed on the judgment at the Division Bench of this Court in the case of the Municipal Council, Malkapur v. State of Maharashtra reported in : AIR1977Bom244 to submit that under sub-sec. (3) of S. 40 of the act even though the term of the Councillors had expired, they are entitled to continue in office. In out judgment, the reliance on this decision is misplaced. The Division Bench was not considering the scope of the provisions of S. 40 of the Act, The question which came for consideration before the Division Bench was in respect of the action taken by the Government under S. 313 of the Act by appointing an Administrator and the Division Bench had laid down the principles which must be observed before passing that order. In para 14 of the judgment the Division Bench dealt with an objection raised on behalf of the Government that the petition itself had become infructuous in view of the subsequent enactment's and events referred to in the additional affidavit. One of the circumstances relied upon on behalf of the State was that the term of the Municipal Councilor had come to an end and, therefore, it was futile to consider whether the appointment of an Administration was in accordance with law of otherwise. The Division Bench did not accept the contention and held that an illegal order cannot be cured by mere fact that the term of the Councilors has expired. The petition filed to challenge the order of appointment of the Administrator during the subsistence of the term cannot be defeated by the mere fact that on the date of the hearing of the petitioner the term has expired. While dealing with this contention, the Division Bench made and observation that though the initial term of the Councilors has expired, they are entitled to continue in office. WE are unable to read anything in this observation to conclude that the Division Bench has held that the tern of the Councilors automatically stand 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, In out judgment, the reliance upon the decision of the Division Bench in Malkapur Municipal Councill's case : AIR1977Bom244 is misconceived.

11. That takes us to the consideration of challenge to the vires of S. 48A of the acts. 48A of the Act reads as under:-

'(1) Notwithstanding anything contained in Section 40 of 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 term stands extended under sub-sec (1) of )3) of S. 40, by order published in the Official Gazette, 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, form 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 preceding 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 publications of the order issued under this sub-section in the Official Gazette.

(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 of special order, determine'

Before we advert to the contention urged by Dr. Naik in support of the petition it would be appropriate to refer to the statement annexed to the Ordinance issued by the Government of Maharashtra on Feb., 4, 1981 and which was subsequently replaced by the amending Act. The Statement, inter alia, mentions that the Government was under the impression that the term of the outgoing Councillors is deemed to be automatically extended even after the expiry of the normal term of five years or extended term of six years until the general election is held and the successors enter on their office. The Government further considered that such Councilors who claim to continue by automatic extension may not be able or inclined to attend to all the important matters except day to day administration of the local authority. The statement further recites that general election cannot be held on account of some temporary difficulties and in such cases, short extension may be justified, but when it is not possible to hold the general election for a longer period for administrative or other reasons. It is not desirable to continue such Councilors indefinitely. In view of these peculiar circumstances that some of the Councilors of the Municipal Councils have continued to held the office for 7 or 8 years, the Government felt that amendment to the Act was seriously called for and as the Legislation was not in Session, the Governor issued the Ordinance. The Ordinance, as it stood, enabled the Government to appoint Administrator who could function till the day preceding the day on which the first meeting of the reconstituted Council after the general election is held. In the amended S. 48A of the Act, it was provided that such general election shall be held within a period of one year from the date of the publication of the order issued under the sub-section appointing the Administrator.

12. The first challenge to the Enactment of S. 48A of the Act is that it is beyond the legislative competence of the Maharashtra Legislature.It is urged that Entry 5 in List II of the Constant, does not authorise the State Government to dissolve the term of the existing Councillors and to appoint an Administrator. Entry 5 in Lst II of the Constn reads as under:-

'Local Government, that is to say the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-government of village administration.'

The entry permits the State Legislature to provide for constitution and powers of municipal corporations. The setting up of local self-government is one of the requirements of the Constitution and the State Legislature is entitled to legislate with reference to the constitution and powers of such local government. It is not disputed by the petitioners that it is permissible for the Legislature to determine the duration of the terms of th Councilors, but what is urged is that it is not permissible for the Legislature to provide for reduction of term already extended. The submission is that once the State Government extends the term of the Municipal Councilors beyond the normal term of five years, then it is not permissible for the State Government to reduce it or to curtail it before the expiry of such period. We do not find any merit in this submission. It is well settled that the power to grant includes the power to withdraw, The State Government was conferred with the power to give extension for a period of one year in exceptional circumstances. As the power is conferred to grant extension, there is nothing illegal of illogical if the authority is further provided to withdraw such extension in changed circumstances. The grant of extension is left to the discretion of the State Government though undoubtedly such discretion is to be exercised in exceptional circumstances and for sound reasons. The State Legislature, by enactment of S. 48A of the Act. Merely conferred the power on State Government to withdraw such extension in changed circumstances and in our judgment, the State Legislature was perfectly within the compass of its Legislative competence while empowering the State Legislature to do so. Entry 5 enables the State Legislature to, legislate in regard to the constitution and powers of the Municipal Corporations. Fixation of a term of the Councilor or grant of extension in such term and withdrawal of such extension are matters which are so closely connected with the constitution and powers of the local government that we have no hesitation whatsoever in concluding that the State Legislature was perfectly competent in enacting S. 48A of the Act.

13. The petitioners then submit that while enacting S. 48A of the Act, the Legislature did not merely confer the power upon the Government to appoint an Administrator by reducing the term of the Councilors in cases where the extension has been given under sub-sec. (1) of S. 40 of the Act, but also authorised the State Government to exercise the power in cases where sub-sec. (3) of S. 40 of the Act applies. In other words. The submission is that the Government could exercise powers under S. 48A of the Act and appoint an Administrator even in cases where general elections are held and fresh Councilors are elected but have not yet taken over the charge. The basic and fundamental rights conferred on the voters, says Dr. Naik, to have representation on the local self-government through their elected representatives is sought to be defeated by insertion of S. 48A in the principal Act, it was urged that Entry 5 in List, II enables the State Legislature to constitute local government and regulates the administration by elected representatives but does not permit to pass legislation which would destroy the principle of local government by local people. In our judgment, the contention is not sound because we do not read S. 48A of the Act in the manner suggested by the petitioners. It is undoubtedly ture that S. 48A (1) of the Act refers to the situation where the term of office of five years has expired and the Councilors are in office in view of the extension granted by the State Government under sub-sec (1) of S. 40 of the Act and so also to the deemed continuation under sub-sec (3) of S. 40 of the Act. Shri Sawant, the learned Additional Government Pleader, submits and we find considerable merit in his contention that while enacting S. 48A of the Act. Shri Sawant, the learned Additional Government says shr sawant, was under an erroneous impression that the Councilors can continue indefinitely in their office even after the expiry of their term because of the provisions of sub-sec (3) of S. 40 of the Act. Shri Sawant submits that the Councilors of large number of Municipal Councils continued to hold the office even after the expiry of term of six years by resort of sub-sec. (3) of S. 40 and in these circumstances, the Government felt it necessary to cover the cases of such Councilors also by inserting sub-sec. (3) of S. 40 in the sweep of S. 48A (1) of the Act. Shri Sawant submits that the intention of the Legislature in inserting sub-sec (3) of S, 46 in S. 48A of the Act was obviously to cover only those cases where the tenure of six years is over the general elections are not held but Councilors are continued with out any authority by resort to sub-sec (3) of S. 40 of the Act. In our judgment, the powers could be exercised by 1982 Bom./31 VII G - 17 the State Government under S. 48A of the Act only in cases where the State Government has extended the term of Councilors from five years to six years and such extension is still subsisting. We will deal with this aspect later in greater detail, and suffice if to say here that it is neither the intention of the Legislature, nor the plain reading of S. 48A indicates that the Government could exercise the powers under the said amended Section and could appoint the Administrator even in cases where the elections are already held. The submission of Dr. Naik that by enacting this amending Section. The and could appoint the Administrator even in cases where the elections are already held. The submission of Dr. Naik that by enacting this amending Section, the Government decided to by pass the election of Municipal bodies by the citizens is not correct. We do not think that the Legislature intended to confer the power upon the Government to appoint the Administrator to prevent the elected representatives of people from taking over charge of Councils. It hardly requires to be stated that the State Government is quite bound to hold elections for the purpose of filling up of the posts of the Councilors in the Municipal Councils before the expiry of the normal term of the Councilors in the Municipal Councils before the expire of the normal term of the Councilors. It is only in exceptional circumstances where the elections could not be held that an extension could be given. It is possible that the situation may arise that even during the extended period the elections could not be held as where the war has broken our and in such circumstances after the expire of the term of six years, there would be a vacuum in the administration of the Municipal Council. In such situation where the term six years there would be a vacuum in the administration of the Municipal Council. In such situation where the term of six years is expiring and the elections could not be held for sound reasons, that the Government could well exercise the powers under S. 48A of the Act before the term of expire of six years. We hope and trust that the State Government would exercise the powers under S. 48A of the Act only in such cases and such cases alone and in no other circumstances. Reading amended Section as it is, in our judgment, the State Legislature was perfectly competent to enact the Section under challenge and the petitioners grievance that the enactment was the State Legislature deserves to be repelled. By taking into consideration the pith and substance of the legislation and well-settled principle that entries in the List attached to the Schedule of the Constitution should be liberally construed the challenge on the ground of legislative competency deserves to be repelled.

14. The next ground of challenge to the enactment of S. 48A of the Act is that it violates the fundamental rights guaranteed under Art. 14 of the Consent. It is now well-settled that the legislation can be struck down only on the ground of legislative competency or violation of any fundamental rights or on the ground that the legislation is opposed to the Constitutional provisions. A reference can be usefully made in this connection to decision of the Supreme Court in the case of Municipal Committee, Amritsar v. State of Punjab reported in : [1969]3SCR447 . It is also well-settled that the burden of proof is on the party who challenges the validity of the legislation on the ground that it offends the provisions of Art. 14 of the Constitution of India, Shri Justice Khanna, speaking for the Court, in a decision of the Supreme Court in the case of the Anant Mills Co. Ltd v. State of Gujarat reported in AIR 1975 SC 1034 observed:-

'There is a presumption of the constitutional validity of a statutory provision. In case any party assails the validity any provision on the ground that it is violative of Article 14 of the Constitution. It is for that party to make the necessary averments and adduce material to show discrimination violative of Article 14'

The averments in the present petition in regard to the infringement of Art. 14 of the Constn, are to be found only in para 43 (h) of the petition. The averment of the petitioners is that the State Govt. Has failed to lay down any guideline for exercise of the power and as the power could be exercised arbitrarily and can fluctuate from one case to another, the legislation suffers from the vice of Art. 14 of the Constn. The reliance is placed on behalf of the petitioners on the decision of the Supreme Court in the case of Smt. Maneka Gandhi v. Union of India report Maneka Gandhi v. Union of India reported in AIR 1976 SC 597 and especially the observations of Shri Justice Bhagwati in para 56 of the Judgment. The learned Judge observed that Art. It is a founding faith of the Constitution and the pillar on which rests securely the foundation of out democratize republic Equality is a dynamic concept, observed the learned Judge, with many aspect and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. The Supreme Court further observes that where an act is arbitrary. It is implied in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Art 14 of the Consent. The legislation must answer the test of reasonableness in order to be in conformity with Art. 14 and that implies that at must be 'right and just and fair' and not arbitrary, fanciful or oppressive. It is urged that S. 48A of the Act is neither fair, nor just nor reasonable but on the contrary is oppressive and unreasonable.

15. Shirr Sawant, on the other hand, urges that the averments made by the petitioners are insufficient and do not spell out the reasons to conclude that the impugned section is violative of art 14 of the Constn. The learned counsel further submits that S. 48A of the Act makes o discrimination between the Councilors placed in the similar situation and the challenge that the powers conferred are arbitrary, unfair and unjust is without any substance. In our judgment, the challenge to the impugned section on ground of violation of Art. 14 of the Constitution of India cannot be accepted It is necessary, at this stage, to examine the true ambit and scope of S. 48A of the Act. The section provides that notwithstanding anything contained in S. 40 of the Act, the State Government may, at any time, order that the term of all the Councilors as from the date specified would come to an end and all the Councilors shall cease to hold and shall vacate their offices as Councilors. It further enables the Government to appoint an Administrator to manage the affairs of the Council till the first meeting of the reconstituted Council after the general election is held. It further casts an obligation upon the State Government to hold the general election within a period of one year from the date of the publication of the order. It is necessary first to determine in which circumstances the Government can exercise the powers under S. 48A of the Act. The reading of S. 48A (1) of the Act makes two things clear first that the State Government must arrive at a conclusion that in the changed circumstances, the continuance of the Councilors in office is not necessary or expedient and, secondly the normal term of five years f such Councilors has expired but the State Government has extended the term in pursuance of the powers conferred under sub-sec. (1) of S. 48 of the Act. It is obvious that the State Government cannot exercise the power under S. 48A of the Act any time during the subsistence of the normal term of five years of the Municipal Councilors. The right to exercise the power under this Section accuser provided the extended term of one year is still subsisting. As observed herein above, the State Government is conferred with the power to extend the term for one year beyond the normal term of five years only in exceptional circumstances and which are also required to he recorded in writing in the notification to be published in the Official Gazette. The State Government can extend the term only for a period of the year over the normal term of five years and not beyond that. The special circumstances which prompted the Government to exercise the power of the extension may not be available or may drastically change during the period of that one year itself, and only in those cases where the Government is satisfied that the changed circumstances do not make it expedient to continue the Councilors in their office that the power of S. 48A of the Act can be exercised. In other words. Two circumstances must exist before resort to the provisions of S. 48A of the Act and those circumstances are (1) the extended term of the Councilors under sub-sec (1) of S. 40 of the Act is still running and, (2) the Government is satisfied that in the changed circumstances which were prevalent when the Government decide to extend the term of the Councilors beyond the normal period of five years. The apprehension of the petitioners that the 'changed circumstances' is an expression which is not definite and can be attributed different meaning or variety of meanings which can fluctuate from one situation to another is not well founded. The changed circumstances do not depend upon the whims or caprice of the State Government, but such circumstances must have reference to the circumstances which Government thought were exceptional at the time of giving extension to the Councilors. S 40 (1) of the Act provides that exceptional circumstances which prompt the Government to give extension should be recorded in writing and must be incorporated in the Notification to be published in the Official Gazette. That clearly indicated that special circumstances are justifiable in Court and are not left in the whims of the executive. It follows that the reference to the changed circumstances in S. 48A of the Act has reference to the circumstances referred to in S. 40 (1) of the Act and the action of the Government based upon such changed circumstances would also be open to scrutiny in the Court of law. The construction would harmonize the provisions of S. 48A of the Act with that of S. 10 of the Act.

16. Dr. Nail submits that once the powers are exercised under S. 48A of the Act, it is open for the Government to postpone the elections indefinitely and continue the Administrator to manage the affairs of the Council and thereby defeat the fundamental rights of the voter to have his elected representative to manage the affairs of the local government. The submission is not accurate because S. 48 (1) (b) of the Act casts an obligation upon the Government to hold the general election within a period of one year from the publication of the order. Dr. Naik sounded an apprehension that the Legislature may amend the provision over and aver again and extend the period fixed for holding the general election it is not possible to assume that Legislature would act in such a fashion to defeat the fundamental principle on which our Republic has been founded. We hope and trust that no Legislature in this country would deprive the citizen of his right to vote and have his elected representative on the local Government. The apprehension of Dr. Naik in this connection seems to be unfounded.

17. Dr. Naik then urges that absolute powers are conferred upon the State Government without any guidelines and there is a danger that the powers would be exercised to the detriment if the citizen and, therefore as laid, down in Smt, Maneka Gandhi's case : [1978]2SCR621 , the absolute powers without any guidelines is itself a ground to hold that fundamental rights conferred under Art. 14 of the constn. Are infringed. We are not prepared to accept such a broad submission. In the first instance, we are not satisfied that absolute powers are conferred upon the state Government without any guidelines. As mentioned here inabove, the guidelines are provided as the powers can be exercised only in changed circumstances and only in cases where the extended term of one year after the expiry of normal period of five years is still running and subsisting. Only in those and those cases that the Government can exercise the powers and that too because of the changed circumstances which led the Government to conclude that the continuance of the councilors during the extended term is not expedient. In our judgment, the guidelines are clear and specific and in cases the guidelines are violated or any order is passed which is not in consonance with the provisions of the section, then it is always open for the aggrieved party to approach this court. As the action of the Government in extending the terms beyond the normal period of five years is justifiable, so also the action of the Government exercise powers under S.48A of the Act, and therefore in our judgment, the submission of the petitioners that the impugned section suffers from the vice of Art 14 of the constn. Is without any merit and deserves to be turned down. As both the grounds of legislative competency and of the violation of the fundamental rights under Art. 14 of the consent. Are without any substance the challenge to the validity of S.48A of the Act must be turned down. In our judgment, the state Legislature was perfectly competent to enact S.48A of the Act and it does not suffer from the any infirmity and does not offend any provisions of the constitution or the fundamental rights guaranteed by the constitution of India. We hold that the provisions of section 48A of the Act are intra vires.

18. That leaves the question as regards the validity of the Notification issued by the Stated Government on Feb 5 1981. The petitioners clam that the Notification was issued mala fide by the state Government and was politically motivated. The averments in his connection are to be found in para 14 (a) of the petition. It is claimed that the impugned order was issued on the ground of political consideration.viz., that the congress (I) party was reasonably satisfied that they would not be able to capture power in the municipal councils. According to the petitioners as the party in power in the state Government was not sure of the results of the municipals elections, recourse was taken to the provisions of S.48A of the Act to supersede the municipal councils. This is the only averment in regard to the alleged mala fide action on the part of the state Government. In para 20 of the return filed on behalf of the Government, the allegations about the Government the allegations about the fides are denied. We are not satisfied about the challenged to the notification on this count. In the first instance, the averments in the petition on this count are not , at all satisfactory. The allegations are too vague to require any investigation. It is well-settled that when a party challenges certain action on the ground of mal fides, it is necessary that the details are set out in the petition itself. The petition is silent as regards the requisite averments and no details are set out in the petition itself. The petition is silent as regards the requisite averments and no details are furnished save and except a wild averment that the state Government belongs to Congress (I) party and was not confident of the success in the election to the municipal success in the election to the municipal councils. In our judgment, th's averment is too vague to require consideration in petition under Art. 226 of the constitution of India, and Dr Nailk realizing this positing very rightly did not press the contention.

19. There is another aspect of the matter which cannot be overlooked. The normal term of the petitioners to hold the office of the councilor was over on Dec. 16 1979 and even the extended terms of one year was over by Nov. 30. 1980. After the expiry of that term. The petitioners had no right to remain in t he office because of the provisions of section 40 of the Act In spite of expiry of term, the petitioners continued to remain in office merely because the fresh general elections weren't held. It is true that the holding of the election was exclusively within the powers of the state Government and the municipal councilors have no control over it, but that does not enable the councilors to claim any right to remain in office after the term expires. In more than 186 municipal councils, the municipal councilors were holding their offices even after the extended term was over, and in such circumstances. The Legislature had to report to amend the provisions of the Act and make a provision which would enable the state Government to appoint an Administrator. We have made it very clear that it is not open for the state Government to appoint an Administrator. We have made it very clear that it is not open for the state Government to claim that the elections will not be held but the powers under section 48A of the Act would be exercised even after the expiry of the term has still not run out of its period. The Government has issued the notification in the present case because of the misconception as regards the true interpretation of the provisions of Sec.40 of the Act and on an assumption that sub-section (3) of section 40 enables the councilors to remain in office as long as the elections are not held and the special meeting is not held. We have pointed out how the assumption was erroneous and that the powers under section 48A of the Act can exercised only in cases where the two circumstances mentioned here in above are in existence. It is true that in an unusual situation which the Government has to fact, the powers have been exercised even in cases where the period of six years has expired but we are not willing to hold that the exercise of the powers in such circumstances was tainted with mala fide intention. For these reasons, though the powers under section 48A are exercised beyond the expiry of six years, in the present case, we are not inclined to strike down the notification.

20 There is one more ground of challenge to the Notification dated Feb. 5 1981 and that is that the principles of nature justice were not observed by the state Government in as much as no notice was given to the petitioners before taking action. In our judgment, the submission is devoid of any merit and does not require detailed consideration. As we have found that the petitioners have no right to hold the office of the councilors after the expiry of the period of six years, the Government was not bound to give any notice to the petitioners before taking action under section 48A of the Act. We fail to appreciate the force in the submission of Dr.Nailk that principles of natural justice are violated even though the person who claims violation, had no right to remain in office. In these circumstances, the submission deserves to be turned down. Even otherwise, we enquired from the learned counsel as to what cause could have been shown if any notice was given, and Dr. Nailk had no effective answer. In our judgment neither the provisions of section 48A of the Act , nor the Notification dated February 5, 1981, suffers from any infirmity and the petitioners are not entitled to any relief.

21. Accordingly the petition fails and the rule is discharged, but in the circumstances of the case, there will be no order as to costs.

22. Petition dismissed.


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