ABDULGANI ABDULBHAI KURESHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this group of petitions, vires of Sec. 7A and Sec. 6(3) of the Bombay Provincial Municipal Corporations Act, 1949 ('the Act' for short) as applicable to the State of Gujarat have been brought in challenge. Alongwith the said challenge are raised alternative contentions centering round applicability of the said provisions to the four Municipal Corporations functioning under the Act. At the admission stage of these petitions, by consent of parties, petitions were treated as admitted and were heard finally.

(2.) In order to appreciate the contours of controversy centering round these questions, it is necessary to glance through a few background facts.

(3.) Background Facts : Four municial corporations concerned in these petitions are : (1) Ahmedabad Municipal Corporation, (2) Surat Municipal Corporation, (3) Baroda Municipal Corporation, and (4) Rajkot Municipal Corporation. They were reconstituted in the year 1987 under the provisions of the Act. As per Sec. 6(1) of the Act, terms of office of elected councillors expire at the end of five years if not extended for further period upto one year by the State of Gujarat in exercise of its powers under Sec. 6(1) subject to following the procedure laid down therein. It is not in dispute that terms of the councillors of the reconstituted corporations were to expire between 6th and 12/02/1992 as five years' period would be over since the dates of first meetings of councillors elected in the general elections to these corporations held in 1987. It is also not in dispute that their terms are not extended uptil now by the State under Sec. 6(1) for a further period of one year and for that purpose, no procedure under the said provisions has been followed by the State of Gujarat. As per impugned Sec. 7A of the Act, on expiry of the terms of the councillors, State of Gujarat is enjoined to appoint administrators to take over charge of these corporations and the maximum period for which charge can be taken by the administrators would be two and half years within which elections for reconstituting these corporations have to be undertaken and completed by the State and other authorities under the Act. The petitioners some of whom are Mayors, Deputy Mayors and Chairmairman of standing committees of concerned corporations and others who are sitting councillors, tax payers and voters residing within the areas of concerned corporations have moved these petitions for appropriate reliefs against the State of Gujarat and the Municipal Commissioners of the concerned corporations for restraining them from resorting to Sec. 7A of the Act and from appointing administrators on the expiry of the terms of outgoing councillors of these Corporations. They have also sought mandamus or appropriate directions in the nature of mandamus against the concerned authorities calling upon them to initiate election process for reconstituting these Corporations and in the mean time it has to extend the terms of the councillors for a period of one year more or for permanently restraining the State of Gujarat from resorting to Sec. 7A and from appointing administrators of these Corporations till fresh elections to these Corporations are held. They have challenged vires of Sec. 7A of the Act both on the ground of legislative competence as well as on the ground that these provisions are violative of Art. 14 of the Constitution. Their contention is that the State of Gujarat has extended the terms of Gram Panchayats and District Panchayats functioning under the Gujarat Panchayats Act, 1961 on the ground that figures for 1991 Census are not still ascertained and hence, it is not possible to demarcate the wards had to fix number of councillors for such Panchayats; while for the Corporations, they have held out a hostile treatment by not extending their terms though the ground put forward for not holding fresh elections to these Corporations is the .same namely that population figures for 1991 Census are not still ascertained and it is not possible to demarcate the wards and to fix number of councillors for such wards. This has been done, according to the petitioners, with an oblique political motive as three of these Corporations are manned by rival political party, viz., Bhartiya Janta Party while the State Government comprises of minority Government of Gujarat Janta Dal supported by Congress party. Therefore, both factual and legal mala fides are alleged underlying the action of the State in not extending the terms of these Corporations for one year as per Sec. 6(1) of the Act. It is also contended that on the very ground that Census figures of 1991 are not available and hence election cannot be held for municipalities, the respondent-State has extended the terms of some of the municipalities like Unjha and Dabhoi while they have appointed Administrators under the Gujarat Municipalities Act for other municipalities similarly situated like Kalol and Borsad and in this connection, petitions are filed in this Court and the learned single Judge has entertained the petitions against non-extension of the terms of the concerned municipalities and has granted interim relief directing the State of Gujarat to grant extension to the councillors of these municipalities. Even though Letters Patent Appeals against these interim orders are admitted by this Court, the said circumstance is cited as an instance which according to the petitioners, shows that the State of Gujarat has acted arbitrarily and with oblique motive and has resorted to picking and choosing the local authorities for the purpose of granting and non-granting of extension.