MOHAMAD MAQBOOL MOHAMAD KHAJA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this petition filed under Article 226 of the Constitution of India, the petitioners are seeking a writ of mandamus for striking down Section 48A of the Maharashtra Municipalities Act 1965 (hereinafter referred to as the "Act") as being ultra vires of the fundamental rights guaranteed under the Constitution of India and for quashing and setting aside the order dated Feb., 5, 1981, issued by respondent No. 1 under sub-sec (1) of Sec. 48A of the said Act.

(2.) The petitioner No. 1 is the President of Nanded Municipal Council, while the petitioners Nos. 2 to 5 are its Councillors. The Municipal Council of Nanded was established under Section 8 of the Act. Section 10 onwards of the Act provide for election of Councilors to the Municipal Councils and Section 40 (1) of the Act lays down a term of five years for the Councilors elected at the general election. The term of Councilors of the Nanded Municipal Council was to expire on Dec., 16, 1979, Section 40 (1) of the Act enables the State Government ment in exceptional circumstances to extend the term not exceeding in the aggregate six years for reasons which have to be stated in the Notification to be published in the Official Gazette. In exercise of the powers conferred under this subsection, the State Government extended the term of the Councilors by a period of six months on Dec., 11 1979, A further extension of six months duration was granted on May 3, 1980, and the term of the Councilors was to expire on Nov., 30, 1980. In spite of the fact that the term was to expire in Nov., 1980, the general election to the Municipal Council was not held earlier by the State Government, but the respondent No. 2 -the Director of Municipal Administration - issued instructions only on Feb., 3, 1981 to hold the elections of the Municipal Council. It is required to be stated at this juncture that the identical situation prevailed in about 192 Municipal Councils in the State of Maharashtra. In other words, though the extended period of sib years term was over, the Municipal councilors to 192 Municipal Council continued to function as Councilors, With this background, the Governor of Maharashtra issued Maharashtra Ordinance No. 1 of 1961 on Feb., 4, 1981, The Ordinance was issued Maharashtra Ordinance No, 1 of 1981 on Feb., 4, 1981, The Ordinance was issued as the State Legislature was not in Session and the Governor was satisfied that the circumstances exist which render it necessary to take immediate action to amend the Maharashtra Municipalities Act, 1965 and also the Bombay Provincial Municipal Corporations Act, 1949 and the City of Nagpur Corporation Act, 1965 and also the Bombay Provincial Municipal Corporations Act, 1949 and the City of Nagpur Corporation Act, 1948. By this Ordinance, Section 48A was inserted in the Act. The amended Section confers power upon the State Government to appoint Administrator in the Municipal Councils where the term of the Councillors stands extended under sub-section (1) or subsection (3) of Section 40 of the Act. The Ordinance further provided that on publication of such an order by the State Government appointing an Administrator, all Councilors including the President and the vice-president shall cease to hold and shall vacate the office as Councilors or otherwise. In pursuance of the powers conferred by the Ordinance, the State of Maharashtra Published Notification on Feb., 5, 1981, whereby the term of the Councilors of 187 Municipal Councils was terminated and the Administrator was appointed with effect from Feb., 6, 1981, One of the Municipal Councils covered by this Notification is the Nanded Municipal Council which has been joined as respondent No. 3 to the petition. The petitioners challenged the said Notification by filing the present petition in this Court on Feb. 9, 1981. The petition was duly admitted on Feb., 11, 1981, During the pendency of this petition, on Mar., 21. 1981. The Ordinance was replaced by Maharashtra Act No. XII of 1981 with retrospective effect from Feb., 4, 1981, The amended Section 48A of the Act was inserted in the Act having been assented by the Governor after the Legislature approved the same. Certain alteration was effected by the Legislature while enacting Section 48A of the Act by providing that the general elections shall be held within 8 period of one year from the date of publication of the order issued under Section 48A of the Act. The petitioners thereafter amended the petition and challenged the vires of Section 48A of the Act.

(3.) The principal grounds of challenge to the vires of Section 48A of the Act are that the enactment of the Section is beyond the Legislative competence of State Legislature and the same has been enacted with mala fide intention. It is also claimed that the provisions of Section 48A of the Act are required to be struck down as it violates the fundamental rights conferred under Article 14 of the Constitution of India. The petitioners also claimed that the State Government has appropriated absolute powers under Sec. 48A of the Act to suppress the concept of Local Self Government and such absolute powers are conferred without any guidelines for its exercise. It was also claimed that the principles of natural justice were violated while publishing the Notification dated Feb., 5, 1981, The claim of the petitioners to hold the office beyond the term of six years is based on the provisions of sub-sec (3) of Section 40 of the Act. The petitioners urged that they are entitled to hold the Office of the Councillors till the day immediately preceding the date of meeting to be held under Section 19A of the Act by the newly elected Councilors. It is the claim of the petitioners that S. 48A of the Act makes wide inroad upon the fundamental rights of the petitioners to hold an elected office. On these grounds, the petitioners challenged the vires of Section 48A as well as the action taken by the Government in pursuance of the provisions of the Section by issuance of the Notification dated Feb., 5, 1981.