MAHESH MULJIBHAI MISTRE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS petition challenges the validity of section 51-1a and section 52 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965; and also of Article 243-T (4) of the Constitution of India.

(2.) THE terms of office of the Chairperson of a Municipal Council was conterminous with the term of elected Councillors. By Maharashtra Act No. 41 of 1994, the said term was reduced to one year. It is contended that, in most of the local bodies, the term of office of the Chairperson is coterminous with the office of the Members, and reducing such term in the case of Municipalities in Maharashtra would be unreasonable. The second proviso to section 52 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (hereinafter referred to as "the Act"), which reads that, if a person is elected as a President to fill the casual vacancy of the office of the President, as provided in sub-section (8) of section 51, he shall continue in office of the President only so long as the person in whose place he is elected would have been entitled to continue, if such vacancy had not arisen. This proviso is also challenged on the ground that a person elected in a vacancy which is a casual one arising out of the death, or, resignation, removal, or, similar reason for removal of the President, would be entitled to continue only for the remainder of the term and he is denied opportunity to enjoy the office for the full term. A casual vacancy can always be distinguished from a regular vacancy and since the rosters of reservation of Chairpersons are made applicable under the provisions of the Act, a casual vacancy will have to be treated differently and a reservation in favour of a particular class will have to continue for the whole year, as provided in the rosters and the person from the same category will have to be elected to see that the category has reservation for a full term. It is for this reason that the Legislature appears to have inserted this proviso.

(3.) THE reservation of the post of Chairperson under Article 243-T of the Constitution of India is also challenged before us. The challenge is twofold: firstly, it is submitted that there is only one Chairpersons post in every Municipal Council and reservation of a single cadre post is impermissible. In support of this proposition, the judgment of the Supreme Court in the case of (Post-Graduate Institute of Medical Education and Research, Chandigarh v. Faculty Association and others), A. I. R. 1998 S. C. 1767, relied on. The second ground of challenge is that the Constitutional amendment gives discretion to the State Legislatures whether to reserve such post or not. It is submitted that though some Legislatures have incorporated statutory amendments making reservations, some Legislatures have not yet done so.