ABDUL SAMMAD Vs. GOVERNMENT OF MYSORE AND

JUDGEMENT

(1.) The petitioner has applied for a writ to quash an order of Government dated 4-2-1955 by which it declared that a vacancy had arisen consequent on the disqualification incurred by the petitioner to continue as Municipal Councillor of Mulabagal Town Municipal Council. In his affidavit accompanying the petition the petitioner has sworn that on account of some illwill and rivalry between himself and respondent 2, then President of the Town Municipal Council, Mulabagal, the latter had suppressed and had not placed before the Council a letter of his dated 6-2-1954 which he had sent through post applying for leave of absence from the meeting of the Council and that,, in those circumstances his absence from the meetings of the Municipal Council continuously for three months -- January, February and March 1954 -- would not entail his disqualification as contemplated by Section 14(2)(c) of the Town Municipalities Act. The Deputy Commissioner, Kolar, before whom an appeal was filed by the petitioner held that the petitioner had not incurred the disqualification. The Government, after hearing; Counsel for the parties concerned as well as the Town Municipal Council, Mulabagal, observed in their order that there was no material to show that leave was granted by the Council and that the petitioner himself made no such claim. Even if his version was to be believed, he merely applied to the President for leave and inasmuch as there was no evidence to show that he had taken permission or leave to absent from the Council the petitioner had become disqualified to continue as a Municipal Councillor by reason of continued absence for three months. It is this order of Government, that the petitioner seeks to challenge.

(2.) Section 14(2)(c) provided that if any Councillor during the term for which he has- been elected or 'appointed absents himself from the meetings of the Municipal Council during three successive months except with the leave of the Municipal Council, he shall be disabled from continuing to be a councillor and his office shall become vacant. Clause (3) provides that if any question or dispute arises whether a vacancy has occurred under this section, the orders of the Government shall be final for the purpose of deciding such question or dispute. It is not disputed in this case that the petitioner was as a matter of fact absent from the meetings of the Municipal Council during three successive months and that the leave of the Municipal Council had not been obtained for such non-attendance.

(3.) It is urged by Mr. Venkataranga Iyengar, learned Counsel for the petitioner, that such leave need not be obtained in advance but could be secured oven later, after the absence. He has not been able to refer to any precedent in support of this contention. A prima facie interpretation of that section would suggest that he must apply and secure leave in advance if he wishes to absent himself during three successive months. It is, however, unnecessary to consider this matter further as the petitioner has not in fact obtained leave either before or subsequent to his absence.