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Balwant Singh Vs. Kailash Chandra Dubey - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 607 of 1982
Judge
Reported inAIR1984MP63
ActsMadhya Pradesh Municipalities Act, 1961 - Sections 19, 43(2) and 43(5)
AppellantBalwant Singh
RespondentKailash Chandra Dubey
Appellant AdvocateGulab Gupta, Adv.
Respondent AdvocateV.S. Dabir, Adv.
DispositionRevision dismissed
Excerpt:
- - they will clearly embrace the purpose of electing a president......before me is that shartna, who was neither an elected nor a selected councillor, but who was a deemed councillor under section 43 (5), was not entitled to vote and that the election result has been materially affected by permitting sharma to vote.4. section 19 of the act provides that except as otherwise provided in this act, each council shall consist of elected and selected councillors. the subject of election and term of president and vice-president is dealt with in section 43. a candidate for the office of president need not be a member of the council; he may even be a person residing in the municipality. if such a person is elected as president, he becomes a councillor for all purposes of the act. this is provided in section 43 (5) which says : 'the president who is not a.....
Judgment:
ORDER

G.P. Singh, C.J.

1. This revision is directed against an order dated 29th March, 1982 passed by the District Judge, Hoshangabud, dismissing an diction petition filed by the applicant challenging the election of non-applicant No. 1 as President of the Municipal Committee, Hoshangabad,

2. One Girja Shanker Sharma, who was neither an elected nor selected Councillor, was the President of the Municipal Committee. The term of Sharma as President expired on 8th Feb., 1982. He, however, continued to be the President under the proviso to Section 43 (2) (c) of the Madhya Pradesh Municipalities Act, 1961. At the election for the new President, the meeting of the Council was presided over by the Collector, Hoshangabad. Sharma, the outgoing President, was allowed to cast his vote. The non-applicant Kailash Chandra Dubey obtained eleven votes and the applicant Bal-want Singh obtained ten votes. The non-applicant was declared elected by majority of one vote.

3. The main grievance of the applicant raised before me is that Shartna, who was neither an elected nor a selected Councillor, but who was a deemed Councillor under Section 43 (5), was not entitled to vote and that the election result has been materially affected by permitting Sharma to vote.

4. Section 19 of the Act provides that except as otherwise provided in this Act, each Council shall consist of elected and selected Councillors. The subject of election and term of President and Vice-president is dealt with in Section 43. A candidate for the office of President need not be a member of the Council; he may even be a person residing in the Municipality. If such a person is elected as President, he becomes a Councillor for all purposes of the Act. This is provided in Section 43 (5) which says : 'The President who is not a Councillor shall unless otherwise expressly provided, be deemed to be a Councillor for all purposes of this Act'. The result of this deeming provision is that even a non-member President becomes a Councillor for all purposes. Section 63 deals with the meetings of the Council. The meetings are presided over by the President and he has a casting vote. It is obvious that a President who is deemed to be a Councillor under Section 43 (5) has a right to give casting vote under Section 63. The proviso to Section 63 refers to the meeting of the Council for the election of the President or Vice-President. In such a meeting, the Presiding Authority is not the President but an Executive Officer and in case of equality of votes the result is decided by lot. A President whose term has expired continues in office until his successor enters upon the office. Sharma, who was the outgoing president, continued to be the President on the date of election of the new President. He was also a deemed Councillor under Section 43 (5). The effect of the deeming provision was to make him a part of the Council which otherwise consists of merely elected and selected Councillors.

5. Learned counsel for the applicant argued that a President who is a deemed Councillor under Section 43 (5) cannot be included in the Council because Section 19 says that the Council shall consists of elected and selected Councillors. I am unable to accept this argument. Section 19 opens with the words 'except as otherwise provided in the Act' which shows that ordinarily a Council will consist of elected and selected Councilors only, except in those cases where otherwise provision is made in the Act. Section 43 (5) is an otherwise provision by which a President who is not a Councillor is deemed to be a Councillor for all purposes of the Act. The words 'for all purposes of the Act' are very wide words. They will clearly embrace the purpose of electing a President. The fiction contained in Section 43 (5) has full effect unless otherwise expressly provided'. There is no otherwise provision made in the Act that a President who is a deemed Councillor under Section 43 (5) cannot vote at the election of the new President. In this view of the matter, the Collector was right in permitting Sharma to vote at the election. The question of material effect on the election on this finding does not arise.

6. The revision is dismissed, but without any order as to costs.


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