N VIJAYA KUMAR Vs. MUNICIPAL COUNCIL AND ORS

JUDGEMENT

(1.) The prayer in the writ petition is for issuance of mandamus to direct the respondents to restore the petitioner to the office of Councillorship, Pollachi Municipality, Pollachi, pursuant to the powers vested in them under Section 50(4) of the Tamil Nadu Municipality Act and as prayed for in his letter dated 2.1.1989.

(2.) It is alleged in the affidavit that the petitioner was duly elected as Council or from the 11th Ward of the Pollachi Municipal Town and was functioning from 3.3.1986. It is admitted that the petitioner did not attend the meetings of the council held on 31.8.1988, 26.10.1988 and 21.12.1988. By letter dated 28.12.1988, the petitioner was informed that by reason of non-attendance of the meetings he has incurred disqualification under Section 50(1)(i) of the Tamil Nadu District Municipalities Act, 1920. It seems that on 2.1.1989 the petitioner gave a reply stating that due to his sickness he could not attend the meetings and also prayed for restoration to the councillorship. It seems that though the Municipal Council scheduled the item of restoration as one of its agendas, however, adjourned the matter to 28.2.1989 and again to 5.5.1989. The chairman enimically disposed towards the petitioner, adjourned the matter finally to 5.5.1989. On 5.5.1989, the Council refused to accede to the petitioner's request and reconfirmed the removal from councillorship.

(3.) The petitioner further alleges in the affidavit that under Section 50(4) of the Act, the respondents are bound to restore the petitioner to the office of the Councillorship in the event of his compliance of that Section. It is also alleged that this is the first time he ever sought the restoration and there was no restoration attempted for more than twice. It is also stated that Section 50(4) of the Act enjoins a statutory duty on the first respondent herein to re-admit the petitioner to the office, either at the next meeting after receipt of application for restoration or subsequently. That power is a power coupled with a duty to be exercised in favour of the applicant. It is also stated that it cannot be said that power can be exercised at the arbitrary discretion of the respondents that that it would lead to a violation of Article 14 of the Constitution of India. Section 50(4) of the Act gives only a power to be exercised in favour of the applicant. It is further stated that the refusal to restore the petitioner to the Councillorship is a malafide exercise of the power by the respondents against law.