BANSILAL Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution filed by the member of the municipal council of Shajapur against the State Government as well as certain others on the allegation that the order removing him from the municipal council, and disqualifying him for a term of four years made by the Government' on 19-8-1964 under section 41 (1) and (4) of the Madhya Pradesh Municipalities Act, 1961 (hereinafter referred to as the "Madhya Prade; h Art") is illegal. The petitioner prays that this Court should, direct the State Government and the other authorities mentioned in the petition not to implement it but to allow him to continue in the membership till the end of the term for which he had been elected under the Madhya Bharat Municipalities Act of 1954 (hereinafter referred to as the "Madhya Bharat Act"). The real controversy centres round whether the removal was proper on the basis of the recommendatory resolution of the council with a bare majority (7 to 6) that is sufficient under the present (Madhya Pradesh) Act or whether it could have been only on the recommendation by a resolution of a two-third majority in the manner provided in section 16 (1) (b) of the Madhya Bharat Act. The solution would depend on whether the recommendation is saved by section 2 (2)(i) of the Act, or whether, the member's term being saved by Section 2 (2) (ii) of the same Act, the recommendation itself should have been valid under the old Act. These sections have been interpreted in connection with other topics, but it is urged by the applicant that there is a broad analogy, which of the two sub-sections would prevail in which set of circumstances is of great importance in a number of cases during the transi-tional period.

(2.) BEFORE discussing these sub-sections, it would be convenient to set out brifly the immediate occasion for the petitioner's removal. The petitioner was elected to the Municipality Shajapur in April 1961 when the law in force was the Madhya Bharat Municipalities Act of 1954. He continued as a member when the new Act, namely, the Madhya Pradesh Act came into force. Some-time in 1963 it was detected that he was guilty of a piece of impropriety involving moral turpitude. Some uniforms were to be made for the employees of the municipality and as usual tenders were called. The petitioner applied in the name of a 'darjee' who was no other than one of his shop-assistants and managed to secure the contract really in his own favour but nominally in that of the servant in contravention of the lowest tender principle. This led to the usual bickerings in the municipal council till ultimately a resolution was passed recommending his removal, not by a two-thirds majority as was necessary under section 16 (1) (b) of the Madhya Bharat Act but by a bare majority of 7 to 6 which is sufficient under section 41 (1) of the Madhya Pradesh Act. This resolution being forwarded to the Government, it gave the petitioner an opportunity to show cause, and after considering it for what it was worth, ordered his removal from the membership of the council with a further dis-ability under section 41 (4). Now the petitioner has come to this Court asking for writ or direction to the effect that this order should not be implemented because under section 2 (2) (ii) of the Madhya Pradesh Act, his membership is under the Madhya Bharat Act and Government could not act except on a recommendatory resolution passed with a two-third majority required by secr-tion 16 (1) (b) of that Act.

(3.) THE position taken by the petitioner is that the two saving provisions are mutually exclusive. When we are dealing with the municipal committee, council, board as a body or of administrative action taken by the body, we should look at the new Act. On the other hand, when we are dealing with the term of office either of these committees, councils and boards or of individual member or individual office-holders we should look at the older Act, in this case, the Madhya Bharat Act. It is pointed out that while the reference to the committee, councils and boards is found in both the sub-sections there is no mention of the President, Vice-President, Members and Councillors in the former sub-section. Again when it is a case of functions exercised and steps taken and appointments made we are to look at the first sub-section. But where we are dealing with the term of office, whether of a body or of an individual, we should look at the second sub-section. On this view the law applicable to the term of office of the member or councillor is the older Act and since the Government has acted on the recommendation of the municipal council a two-third majority was necessary and not a bare majority as would be sufficient for a recommendation under the new Act.