MUNICIPAL COUNCIL MALKAPUR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) GENERAL elections for electing the Councillors to the Municipal Council, malkapur were held in June 1967. Thereafter, the first meeting of the Municipal council for electing the President was held in July 1967 and it appears that one shri J. N. Jadhao, who is respondent No. 4 before us, was elected as the president of the Municipal Council. The term of the elected Councillors in the normal course would have expired in July 1972. But it appears that it was extended from time to time. Initially as there was an acute scarcity in the majority of the districts of Maharashtra in the year 1972, the State Government decided to extend the term of the Municipal Council upto 31st of December 1'972. Then came the Maharashtra Municipal Council Postponement of elections- due to Scarcity Conditions in the State) Act, 1072. By virtue of this enactment the elections were postponed. It appears from the record that in the meantime on 22nd May 1972 Shri Vallabhdas Jagannath Purohit was elected as the President of the Municipal Council. It is the case of the petitioners that after this election of Shri Purohit as a President, the opposite group in the Municipal council started making false complaints against him and the Municipal Council as a result of which initially a notice under Section 42 of the Maharashtra municipalities Act, 1965 (hereinafter referred to as 'the Act') was issued to Shri purohit who was then the President of the Municipal Council, asking him to show cause as to why he should not be removed from the Municipal Council itself. An explanation to this show-cause notice was given by him. He had also raised an objection that an action proposed to be taken under Section 42 was wholly uncalled for. Thereafter, according to the petitioners, the Director of municipal Administration ordered an inquiry against the President Shri Purohit under Section 311 of the Act. Shri Purohit and the Municipal Council challenged the said order before this Court by filing a writ petition being Special Civil appln. No. 610 of 1972 and it appears from the record that the said writ petition was duly admitted by this Court and an interim stay of further enquiry was also granted. From the record of the Special Civil Application No. 610 of 1972 it also appears that the State Government then filed an application for vacation of stay. After hearing the parties this Court modified the stay order in the following term on 15th of January 1973: "the interim stay granted on 4-5-1972 is modified in that the enquiry will proceed and the enquiry report will also be submitted but further action on the report be stayed. "

(2.) IN spite of this order it appears that instead of proceeding further with the enquiry the State Government cancelled the whole proceeding by order dated 22nd of March 1973 and instead passed an order issuing a show-cause notice dated 19-4-1973. By this order the Municipal Council was directed to show cause within 20 days from the date of its receipt as to why action under Section 313 of the Act should not be taken by the Government. The grounds on which the said action was proposed to be taken read as under:

(3.) FOR properly understanding the controversy raised before us, it will be necessary to refer to certain important provisions of the Act. Chap. II of the maharashtra Municipalities Act deals with the Municipal Councils, their area and classification. It further deals with composition of Municipal Councils and elections of the councillors. Section 40, then lays down that the Councillors elected at the general election shall hold office for a term of five years which may be extended by the State Government. Then it deals with the elections of the office-bearers including the President and the Vice-President. Chapter III of the Act deals with the duties and functions of the Municipal Council and municipal Executive including the obligatory duties and discretionary functions of the Municipal Council. Chapter VII then deals with Municipal Property, Funds, contracts and Liabilities etc. Chapter XXIII, in which Section 313 appears, then deals with Control over the Municipal Council constitution under the Act. Section 306 of the Act empowers the Director or the Collector or any officer of the government authorised by the State Government in that behalf to inspect and supervise the affairs of the Municipal Council. Director or Collector has power to call for a return or reports. Power is also conferred upon the Collector to suspend execution of the orders and resolutions of the Council on certain grounds. Extraordinary powers also are given to the Collector in the matter of execution of certain works in case of emergency. The Director is also empowered to prevent extravagance in the employment of establishment. Under Section 311 of the Act, the State Government has a power to order an inquiry to be held by any officer appointed by it in this behalf into any matters concerning the municipal administration of any Council or the matters connected therewith. Under Section 312 of the Act, power has been conferred upon the Director to issue directions in the matter to enforce performance of the duties, and then comes Section 313 of the Act, with which we are concerned in the present writ petition. Section 313 reads as under:-- -