ASHA SINGH Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Two interesting and seminal questions of law that arise for consideration in this writ petition are : whether a Mayor while constituting the Mayor-in-council under the provisions of M.P. Municipal Corporation Act,, 1956 (hereinafter referred to as the 'Act) is required to obtain prior consent of a councilor who is to be taken in as a member; and whether after the Mayor-in-Council is constituted if there is resignation of a member, the functions of the Mayor-in-Council to be carried out by the Municipal Corporation on the ground that it has lost its legal status ? To put it differently, can any elected councilor be compelled to act against his will; and whether vesting of power with the Municipal Corporation because of incomplete nature of the body, Mayor-in-council, would tantamount to the analogy of "Matsya Nyaya' that the big fish devours the small one ?

(2.) Invoking the extra-ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India the petitioner has prayed for issue of a writ of certiorari for quashment of orders dated 29-4-2000, Annexures-P-1 and P-2 passed by the Principal Secretary. Urban Administration Department, respondent No. 2 herein, by which it has been conveyed that the constitution of Mayor-in-council is not in accordance with law, and hence, the powers vested in Mayor-in-Council shall be exercised by the Municipal Corporation.

(3.) The facts as have been uncurtained in the writ petition are that the Municipal Corporation, Rewa consists of 45 wards and the election in respect of these wards had taken place on 22-12-89. On that very date the election for the post of Mayor was held and the petitioner was elected as Mayor. It is set forth that the petitioner contested the election as a B.J.P. candidate and defeated Smt. Asha Tiwari who contested on a Congress ticket. It is averred in the writ petition that from amongst 45 Councilors eight councilors belong to Bhartiya Janta Party, thirty councilors have roots in Congress and Bahujan Samaj Party, five candidates are independent and the rest are from Janta Party and Communist Party. The respondent No. 4 was elected as the Speaker of the Corporation by the councilors. It is putforth in the writ petition that after the petitioner was elected as a Mayor of the Corporation as per requirement of Section 37 of the Act she constituted the Mayor-in-Council which was notified on 19-1-2000. One Molai Kol belonging to Scheduled Tribe was included in the Mayor-in-Council as per the mandate under Rule 3(2) of Madhya Pradesh Municipalities (The Conduct of Business of the Mayor-in-Council/President-in-Council and the Powers and Functions of the Authors ties) Rules, 1998 (hereinafter referred to as 'the Rules'). The said councilor subsequently resigned at the instance of respondent No. 4. Letter of resignation was not submitted to the Mayor but was handed over to Commissioner. Municipal Corporation who forwarded the same to the petitioner. After the resignation of said Molai Kol the respondent No. 4 in the Council meeting projected that the constitution of Mayor-in-council was illegal and invalid. At this juncture the Commissioner sent a communication dated 28-1-2000 seeking clarification from the State Government regarding the legal position of the constitution of the Mayor-in-council in view of the resignation of said Molai Kol. It is pleaded in the writ petition that the petitioner explained his stand to the State Government justifying the validity of the constitution of Mayor-in-Council. It is alleged that without appreciating the clarification given by the petitioner, the respondent N6. 2 being politically influenced sent two letters as contained in Annexures-P-1 and P-2 dated 29-4-2000 indicating that the constitution of Mayor-in-Council is illegal and therefore the powers of the Mayor-in-Council shall vest in the Municipal Corporation. After the receipt of the aforesaid two letters the petitioner sent a detailed memorandum explaining the position in regard to legality and validity of the constitution of Mayor-in-Council. It is averred that the constitution of Mayor-in-Council was done by the petitioner as per requirement of Section 37 of the Act and Rule 3(2) of the Rules. It is further urged that the resignation of Molai Kol would not affect the constitution of Mayor-in-Council, and hence, the communications sent by respondent No. 2 reek of mala fide.