MUKUTDHARISHARMA Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) TWO principal questions arise for decision in this petition under article 226 of the Constitution: (1) Whether the President of a Municipal council constituted under the Madhya Pradesh Municipalities Act, 1961, continues in office after the Council stands dissolved by efflux of time; and (2) whether the Government is bound to hold elections within a reasonable time from the date of dissolution of a Council.

(2.) THE facts giving rise to this petition are that elections to the Municipal Council, Umaria, were held in May 1969. The petitioner, Mukutdhari sharma, was elected as President to the Council on 22nd May 1969. The term of the President expired after two years on 21st May 1971; but as no election to fill up the vacancy was held, the petitioner continued as President. Four years, which is the normal term of a Council, expired on 21st May 1973. By a notification published in the Gazette dated 19th September 1973, the term of the Council was extended from 21st May 1973 to 22nd September 1973. The council stood dissolved on 23rd September 1973. By another notification dated 22nd September 1973, the State Government passed an order under section 328 (6) of the Act appointing the Tahsildar as Administrator to exercise all powers and duties of the Council under the Act until the reconstitution of the Council. Even after the dissolution of the Council and appointment of the tahsildar as Administrator of the Council, the petitioner claimed that he did not vacate his office as President. The petitioner filed the present petition praying for a declaration that he continues to be President and that he will continue to hold the office until a new President is elected to take charge of the office in accordance with the provisions of the Act. The petitioner also prays for issuance of a writ in the nature of mandamus directing the State government to hold elections for reconstitution of the Council.

(3.) TO appreciate the questions raised in this petition, it is necessary first to refer to certain provisions of the Act. Section 3 (18) of the Act defines "municipality" to mean "the local area declared to be a Municipality under section 5 and any other area which the State Government may, by notification, include in such area. " "council" is defined by section 3 (8) to mean a "municipal Council constituted by or under the Act. " A Municipality is created by a notification issued under section 5. A notification under this section only declares the area to be a Municipality or the area to be included in or excluded from a Municipality. Section 18 provides that there shall be constituted for each Municipality a Council having authority over the Municipality. Every council so constituted is a body corporate having perpetual succession and a common seal. The constitution of the Council is provided in section 19. The council consists of elected and selected Councillors. Section 36, which relates to the term of Council and Councillors, reads as follows before its amendment by Act 39 of 1973: