AKBARALL ARIF Vs. GOVERNMENT OF MADHYA PRADESH

JUDGEMENT

(1.) BY this application under Article 226 of the Constitution the petitioner, who is the President of the Ratlam Municipal Council, seeks a writ of certiorari for quashing an order passed by the State Government in August 1967 suspending the operation of its earlier order made on 16th May 1967 declaring that the respondent No. 3 Shabbirkhan had ceased to be a member of the Council on account of his absence from the meetings of the Municipal Council during three successive months without obtaining leave of the Municipal Council.

(2.) THE matter arises thus. THE existing Ratlam Municipal Council is a body constituted under the Madhya Bharat Municipalities Act, 1954. It is a body which is continuing under section 2 (2) of the Madhya Pradesh Municipalities Act, 1961, which repealed inter alia the Madhya Bharat Municipalities Act, 1954. THE petitioner and the respondent No. 3 Shabbirkhan were elected as Councillors when the Ratlam Municipal Council was constituted under the Madhya Bharat Act. After the coming into force of the 1961 Act they continued to remain members of the Council by virtue of section 2 (2) of the 1961 Act. Section 14 of the Madhya Bharat Act provided that if any Councillor during the term for which he has been elected or appointed absents himself during three successive months from the meetings of the Municipality except with the leave of the Municipality, then he shall subject to the provisions of sub-section (3) be disabled from continuing to be a Councillor and his office shall become vacant. Sub section (3) of section 14 was in the following terms:-

(3.) HAVING heard learned counsel for the parties we have formed the view that this application must be granted. The short question that arises for determination is whether pending the disposal of the review petition filed by the respondent No. 3 Shabbirkhan the Government has the power to suspend the operation of the order dated 16th May 1967 so as to discontinue till the disposal of the review petition the legal effect and consequence under section 14 (3) of the Madhya Bharat Municipalities Act, 1954, of the order dated 16th May 1967. In our opinion, the Government has no such power. This is plain from sub-sections (2) and (3) of section 14 of the Madhya Bharat Municipalities Act, 1954. Under sub-section (2) if any Councillor absents himself during three successive months from the meetings of the Municipality except with the leave of the Municipality, then he is subject to the provisions of sub-section (3) disabled from continuing to be a Councillor and his office becomes vacant. By sub-section (3) the power to decide whether a vacancy has occurred because of any disability under sub-section (2) has been given to the Government in the case of a City Municipality. Sub-section (3) expressly provides that until the Government decides that the vacancy has arisen, the Councillor shall not be disabled from continuing to be a Councillor. Reading sub-sections (2) and (3) together, it is clear that when the Government takes a decision that a Councillor has incurred a disability under sub-section (2) and that a vacancy has arisen, then from the date of that decision the person ceases to be a Councillor. The cessasion of the membership of the Council from the date of the decision of the competent authority is the consequence of the statutory provision contained in sub-section (3) of section 14. This statutory consequence cannot be arrested or discontinued after the competent authority has taken a decision that the Councillor has incurred a disability and a vacancy has arisen so long as the decision stands.