MANOHARSINGH Vs. STATE

JUDGEMENT

(1.) This is a petition under Art.226 of the Constitution.

(2.) The material facts giving rise to this petition, briefly, are as follows : - As a result of elections held in May, 1963, the petitioner was elected as a member of the Municipal Council, Neemuch, from Ward No.18. The petitioner has averred that actuated by political considerations, a complaint was made to the Collector, district Mandsaur, that the petitioner had ceased.to be a councillor by virtue of the provisions of S.38(1)(b) M.P. Municipalities Act, 1961 (hereinafter referred to as'the Act'), as he had absented himself without leave of absence for three consecutive months from the meetings of the Council. On 10-6-85, a notice was accordingly issued to the petitioner by the Collector, who is the prescribed authority under S.38(2) of the Act, to show cause why he should not be held to have incurred disqualification as a Councillor. The petitioner showed cause and contended that he had applied for and was granted leave of absence at the meetings of the Council and that he had, therefore, not incurred any disability, as alleged The petitioner has averred that he produced before the Collector orders granting leave of absence to the petitioner but the Collector passed an order on 23-7-85 declaring that the petitioner had incurred the disqualification on the ground specified in S. 38(1)(b) of the Act and had, therefore, ceased to be a member of the Council. Aggrieved by the order passed by the Collector, the petitioner preferred an appeal under S. 38(3) of the Act, to the Commissioner, Revenue Division Ujjain as the State Government had delegated its powers under S. 38(3) of the Act, to the Commissioner, under the provisions of S. 345 of the Act. By his order dt 10-9-1985 the Commissioner, Ujjain Revenue Division, held that from the record, it was established that the petitioner had not remained absent at the meetings of the Council for three consecutive months. The Commissioner, therefore, allowed the petitioner's appeal and set aside the order passed by the Collector. As a result of the order passed by the Commissioner, the petitioner did not cease to be a Councillor. By the letter D/- 18-10-1985. the Collector intimated to the Councillors including the petitioner the election programme for the election of the President Senior Vice President and Junior Vice-President, to be held on 31-10-85. The petitioner was accordingly invited by the Chief Municipal Officer to attend the meeting of the Councillors scheduled to be held on 31-10-1985. The petitioner had proposed the name of one Premsukhlal Jaiswal, who was one of the candidates for the office of the President but when the petitioner went to participate in the meeting of the Council held on 31-10-85, he was not allowed to take part in the proceedings and was informed by the Collector that the petitioner had ceased to be a Councillor, in pursuance of the directions of the State Government staying the operation of the order passed by the Commissioner, Ujjain Division allowing the appeal of the petitioner. The petitioner contends that the State Government had no jurisdiction to pass any order staying the operation of the order passed by the Commissioner and that in fact no such order was passed by the State Government. The petitioner, therefore, contends that he was unlawfully prevented from participating in the meeting of the Council held on 31-10-85. The petitioner avers that at the meeting of the Council held on 31-10-85 not only the petitioner was not allowed to vote but the candidate proposed by him for the office of the President was also not allowed to contest as his name was proposed by the petitioner, who, it was alleged, had ceased to be a Councillor. The petitioner has, therefore, prayed that the order of the State Government staying the operation of the Commissioner's order allowing the appeal preferred by the petitioner be quashed and the elections held on 31-10-1985 be set aside.

(3.) The petition is resisted by the respondents. On behalf of the respondent it is contended that though the Commissioner had power to hear an appeal from the order passed by the Collector declaring that the petitioner had ceased to be a Councillor, the order of the Commissioner was liable to be revised by the State Government under S. 331 of the Act and that as the State Government had stayed the operation of the order passed by the Commissioner, the petitioner could not be allowed to participate in the meeting of the Council held on 31-10-1985. It was also contended that the remedy of an election petition was available to the petitioner and that the petitioner was not entitled to any relief. It was further urged that the order passed by the Commissioner was a nullity as it was passed in violation of the principles of natural justice and that in any event, by virtue of the notification issued under S. 38(1) of the Act, notifying that the petitioner had ceased to be Councillor, the petitioner was not entitled to take part in the meeting of the council held on 31-10-85 till that notification was revoked by another notification.