SHRIPATRAO MAHADEORAO JADHAV Vs. LONAWALA MUNICIPAL COUNCIL

JUDGEMENT

(1.) This case raises an interpreting question as to the true interpretation of Section 65 and 66 of the Maharashtra Municipalities Act, 1965 (hereinafter referred to as 'the Act') . A few facts so far as relevant to the points are these: At the election of the Lonawala Municipal council. respondent NO.1 herein held in the month of November, 1974, petitioner Nos. 1 to 14 and opponents Nos. 3 to 14 were elected as councillors. Opponents No. 15 are both co-opted councillors. It is admittedly a `C` class council. A meeting was convened on 25th January, 1975, after elections, for determining the strength of the Standing Committee as also the composition thereof in addition to the election of the subjects Committees, in accordance with the provisions of Section 62 of Section 66 of the Act. The total strength of the elected councillors of this council admittedly consists of 26 elected councillors, two co-opted councillors and the President directly elected by the voters under Section 51 if the act. The council thus consists in all of 29 councillors, the president also being a deemed councillor, according to the definition of the word "councillor" under Section 2 (7) of the Act Excepting where context indicates to the contrary. Five subjects Committees were constituted and it was decided that vice-president should be the chairman of the Planning and Development Committee. It was then unanimously decided that the standing Committee should consist of 9 members. Thereafter the question as to the composition of the Standing Committee was taken up. At this stage, two questions arose for consideration -- firstly whether President can tae part in the deliberation of the council and vote at such election and, secondly whether the strength of the Standing Committee so determined should be inclusive or exclusive of the President. The President ruled that he was entitled to take part in deliberations of the said council meeting and exercise vote at such election, and he was to be a member of the Standing Committee, in addition to 9 members; strength determined under Section 65 (2) of the Act being exclusive of the President. Validity of this decision of the President is challenged by the petitioners in this Special Civil Application under Article 226 of the Constitution.

(2.) Now the one year period of the Standing committee has expired and the points can be said to have become now points can be said to have become now only of academic interest. But Mr. Dalvi and Mr. Agarwal, the learned advocates appearing respectively for the petitioners, and respondents 1 and 2, i.e. the Municipal Council and the president requested that the points should be thrashed out, as the same are likely to arise every year and affect such elections, in all the councils in Maharashtra. We have, therefore, acceded to this request of the learned advocates, and accordingly heard the arguments.

(3.) Mr. Dalvi's first contention that, the President has not right to take part in the deliberations of the council and to vote at the time of the election of the councillors to Standing Committee. The contention does not appear to us to be well founded. The answer should not admit of any serious doubt. Under Section 9 of the Act, every council consistence of (1) the President, (2) Councillors elected at Ward elections, and (3) the co-opted councillors. The president thus is one of the constituents of the council. This itself is enough to clothe him with the right to take part in the deliberation and vote at every meeting of the council. Rather, it would be his duty to do so. The definition of the word "councillor" also includes president, in addition to the elected and co-opted councillors. A statutory fiction is thus introduced to this effect. This definition would prevail, unless the context in a given situation otherwise indicates. We are concerned in this case with Section 66 of the Act, which is as follows: