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Awas Samasya Niwaran Sanstha, Indore and anr. Vs. State of M.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 215 of 1980
Judge
Reported inAIR1983MP12
ActsMadhya Pradesh Municipal Corporation Act, 1956 - Sections 9, 10 and 423(1); Constitution of India - Article 226
AppellantAwas Samasya Niwaran Sanstha, Indore and anr.
RespondentState of M.P. and ors.
Appellant AdvocateV.S. Samvatsar, Adv.
Respondent AdvocateSurjeet Singh, Govt. Adv. and ;S.J. Dhanji, Adv.
DispositionPetition allowed
Cases ReferredIn Gopal Jairam v. State of Madhya Pradesh.
Excerpt:
.....condensed above, and contended that a case for issuance of a writ of mandamus and a writ of quo warranto has been made out because in spite of reasonable time being available to the respondents, they have failed in discharging the duty imposed on them by law to hold the elections. accordingly, it appears-that there is failure on the part of the respondents to discharge the duty entrusted to them to hold the elections. authorities have clearly net discharged their duties under the corporation act......226 of the constitution of india for issuance of a writ of mandamus against the respondents to hold elections of the municipal corporation, indore.2. briefly stated the facts giving rise to this petition are as under:-- the municipal corporation, indore (respon-dent no. 2) is a corporate body duly constituted under section 7 of the madhya pradesh municipal corporation act, 1956 (for short, the act). shri v. v. sarvate, petitioner no. 2 is a tax payer of thempl. corporation, indore, and as such isentitled to vote at the elections for re-constitution of the said corporation. heclaims to be member of the awassamasya niwaran sanstha a society registered under the m, p. registration ofsocieties act, with its head office at 402,mahatma gandhi marg, indore ofwhich the other tax payersare.....
Judgment:
ORDER

1. This is a petition under Article 226 of the Constitution of India for issuance of a writ of mandamus against the respondents to hold elections of the Municipal Corporation, Indore.

2. Briefly stated the facts giving rise to this petition are as under:-- The Municipal Corporation, Indore (Respon-dent No. 2) is a corporate body duly constituted under Section 7 of the Madhya Pradesh Municipal Corporation Act, 1956 (for short, the Act). Shri V. V. Sarvate, Petitioner No. 2 is a tax payer of theMpl. Corporation, Indore, and as such isentitled to vote at the elections for re-constitution of the said corporation. Heclaims to be member of the AwasSamasya Niwaran Sanstha a society registered under the M, P. Registration ofSocieties Act, with its head office at 402,Mahatma Gandhi Marg, Indore ofwhich the other tax payersare also members. Last electionsfor the said corporation were held inthe year 1965. The corporation wasdissolved in the year 1970. As a consequence of its dissolution, as provided in Section 423 (1) (a) of the Act, all councillorsof the corporation vacated their office.Further by virtue of Clause (b) of Section 423 (1)of the Act, all powers and duties of thecorporation are to be exercised and performed until the corporation is reconstituted by such person or a committeeof persons as the State Government mayappoint in that behalf. The State Government has appointed an Administratorfor the purpose, who has been impleaded as respondent No. 3. The petitionerscontend that there is a statutory obligation on the respondents to hold electionsfor reconstitution of the corporation, butthey have failed to discharge the obligation in this behalf in spite of expiry ofa period of about ten years. Accordinglythe petitioners have prayed for issuanceof a writ of mandamus to compel the respondents to hold elections. Issuance ofa writ of quo warranto restraining respondent No. 3. The Administrator fromexercising powers, is also prayed.

3. On behalf of respondent No. 1 the State of Madhya pradesh, no return has been filed in spite of adequate opportunity having been granted for the purpose by this Court vide order dated 29/4/1981. On behalf of respondents 2 and 3, facts averred by the petitioners regarding the factum of dissloution of the corporation and the factum of not holding the elections have been admitted. However, the petitioner is resisted on the grounds that (i) on expiry of four years the State Government has a power to extend the period (that of dissolution) not exceeding one year in the aggregate and (ii) that no time limit is prescribed for holding the elections and (iii) that during the period the corporation remained dissolved, the Administrator has a right to function until the corporation is reconstituted. Accordingly, there is no case for issuance of either a writ of mandamus or a writ of quo warranto, as claimed by the petitioners.

4. Shri V. S. Samvastsar, learned counsel for the petitioners reiterated the contentions condensed above, and contended that a case for issuance of a writ of mandamus and a writ of quo warranto has been made out because in spite of reasonable time being available to the respondents, they have failed in discharging the duty imposed on them by law to hold the elections. Reliance was placed on the ratio of Munney Mian v. State of M. P. (1981 MPLJ 222) : (AIR 1981 NOG 58).

5. Shri Surjeetsingh learned Government Advocate, contended that in view of the fact that step are now being taken by the respondents in the direction of reconstitution of the wards, there is no occasion, for issuance of any writ claimed by the petitioners. Shri S. J. Dhanji, learned counsel for the respondents 2 and 3 reiterated the contentions condensed above.

6. Having heard the learned counsel for the parties we have come to the conclusion that this petition deserves to be allowed partly to the extent indicated hereinafter.

7. Undisputedly the corporation stood dissolved in the year 1970. The consequences of dissolution have been laid down in Section 423 of the Act. Clause (b) of Sub-section (1) of Section 423 of the Act provides that :

'Section 423 (1) (b). All powers and duties of the corporation, the standing committee and appeal committee under this Act, may until the corporation is reconstituted, be exercised and performed by such person or a committee of persons as the State Government may appoint in that behalf.'

From the aforesaid provision it is clear that all the powers and duties of the corporation are intended to be exercised by the person appointed in that behalf by the State Government, who is called the Administrator of the city. It is not the intendment of the framers of the law that the Administrator should function ad infinitum. He can function only until the corporation is reconstituted. It is true that no time limit is fixed with-in which the corporation is required to be reconstituted. However, when a statute provides no date for holding elections it has to be inferred that elections must be held within a reasonable time: and when the authority entrusted with the duty to hold elections abuses its discretion by not fielding elections for inordinately long period, the court can control its action by directing it to hold elections and by fixing a date for the same (see Ferris Extraordinary Legal Remedies, p. 386),

9. There is no dispute that there is a statutory obligation on the respondents to hold the elections for reconstitution of the corporation in accordance with the provisions placed in Section 9 and Section 10 besides other sections of the Act. There is also no dispute that for all the period after 1970 no elections have been held for reconstitution of the corporation. The period of ten years, which has so elapsed, can by no stretch of imagination be taken to be a reasonable time for the purpose. No expiation, whatsoever, has been given by the respondents explaining the delay. Accordingly, it appears-that there is failure on the part of the respondents to discharge the duty entrusted to them to hold the elections. A writ of Mandamus lies for compelling performance of a statutory duty. In Gopal Jairam v. State of Madhya Pradesh. (AIR 1051 Nag 181) Mudholkar; J. (as he then was) issued a writ of mandainus directing the authorities concerned to hold elections, which were unduly delayed. Although in the case of Manney Mian (1981 MPLJ 222 : AIR 1981 NOG 53) (supra) relied on by Shri Sam-vasisar, the question involved was that of initial constitution of the Corporation after application of the Act to Bhopal for the first time, but the principle upon which the petitioner was decided is the same. This is clear from the following extract; from Muimey Mian's case (supra) ;

'A duty is cast on the Government and the Administrator to hold elections as soon as possible for constituting the corporation under Sections 9 and 10. Thirteen years cannot be taken to be a reasonable time. Authorities have clearly net discharged their duties under the corporation Act. It amounted to abuse of discretion vested in Administrator and the Government to hold election within a reasonable time.'

9. It is true that issuance of a writ of mandamus is in the discretion of the court. However, in a case where, after dissolution of the corporation more than reasonable time has expired and the Government and the Administrator foil to hold elections for such a long time, it has to be held that a case has been made out for issuing a writ of mandamus for compelling performance of a statutory obligation in the matter of holding elections. However having regard to the fact that steps that may be necessary to be taken before holding of elections, including reconstitution of the wards and preparation of voters list, it will the reasonable to direct that elections should be held before the 31st of Dec, 1982.

10. So far as the prayer for issuance of a writ of quo warranto restraining respondent No. 3 from functioning as Administrator of the Corporation is concerned, it appears to be misconceived. The Administrator has been duly appointed and according to the law he has right to exercise and to perform all powers and duties until the corporation is reconstituted. The terminus quo is re-constitution of the corporation. Accordingly, it cannot be regarded that the Administrator is usurper of the public office he is holding. As such, no case appeal's to have been made out for issuance of a writ of quo warranto against respondent No. 3.

11. In view of the aforesaid discussion this petition deserves to be allowed and is allowed partly to the extent indicated above. The respondents are directed to hold elections for reconstitution of the Municipal Corporation. Indore in accordance with law before the end of 31st Dec, 1982. Let a writ of mandan us be issued for the purpose, The petition so far as it relates to the issuance of a writ of quo warranto, is dismissed. Costs of this petitioner shall be paid by the respondents to the petitioners. Counsel's fee is fixed at Rs. 100/-if certified. The outstanding amount of the security deposit shall be refunded to the petitioners.


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