MUKUNDKUMAR TRIKAMBHAI CHAUHAN Vs. STATE OF GUAJRAT

JUDGEMENT

(1.) Rule. Learned counsel Shri Nilay Anjaria appears and waives service for respondent no.1 " Election Commission, learned AGP Shri Gori waives service for respondents no.2 and 4 and learned counsel Ms. Joshi waives service for respondent no.3 " Nagarpalika. At the joint request of the learned counsel for the parties, this matter is taken up today and finally disposed of by this order.

(2.) The petitioner was elected as Municipal Councillor of respondent no.3 Balasinor Nagarpalika in the General Election held in the month of January, 2002. He was thereafter elected as Vice -President of the respondent Nagarpalika in a general meeting held on 12th March, 2003 for a period of one year and three months as there was no consensus regarding the term of the office of the Vice -President among the members who were present in the meeting (Annexure 'A'). Thereafter, once again, in a meeting held on 11th June, 2004, he was elected as Vice -President for a further period of one year and three months (Annexure 'B'). His said second term comes to an end on 11th September, 2005 i.e. day after tomorrow. The term of the President as well as Vice -President of the respondent Nagarpalika was expiring, therefore, the respondent no.2 District Collector, Kheda, by his order dated 23rd August, 2005 (Annexure 'D'), ordered to hold the elections for the post of President and Vice -President of respondent Nagarpalika on 12th September, 2005 at 12.00 noon i.e. three days from today. This is challenged in this petition by the present petitioner under Article 226 of the Constitution. Learned counsel Shri Malik for the petitioner, relying on the circular dated 17th December, 2002 (Annexure 'C') issued by the Deputy Secretary of the respondent State of Gujarat, vehemently submitted that in absence of any clarification made under the Act regarding the term of the Vice -President, it co -existed with the term of the Municipality which is going to expire somewhere in March, 2008. He, therefore, submitted that the respondent Collector could not have issued such order dated 23rd August, 2005 (Annexure 'C') for holding election for the post of Vice -President. Before appreciating the contention of Mr. Malik for the petitioner, the old Section 33 of the Gujarat Municipalities Act, 1963 (for short, 'the Act') is required to be considered which reads as under: 33. (1) Term of office of President and Vice -President - Save as otherwise provided in this Act, a president or vice -president shall hold his office for such term as the municipality shall, previous to his election determine, not being less than two years or the residue of the term of office of the municipality, whichever be less, and not exceeding [five years] and he shall be eligible for re -election: Provided that the term of office of such president or vice -president shall be deemed to extend to and expire with the date on which his successor is elected.

(3.) A bare reading of the old Section 33(1) of the Act makes it clear that there was a clear provision for the term of President as well as Vice -President of the Nagarpalika. However, with the Gujarat Act No.3 of 2000, Section 33 was amended and substituted by the following: -