AKABAR ALI Vs. GOVERNMENT OF M.P.

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 It is a body which is continuing under section 2 (2) of the Madhya Pradesh Municipalities Act, 1961, which repealed inter alia the Madhya Bharat Municipalities Act, 1954.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.) THE petition has been opposed by the respondent No.1, the State Government and by Shabbirkhan, respondent No.3. In the return filed by the State, it has been claimed that the Government has under section 332 of the M.P. Municipalities Act, 1961, the power to review the order passed on 16th May 1967 in regard to the respondent No.3 as also the power to suspend the effect of the order dated 16th May 1967 "as an incidental power" to the power of review conferred by section 332 of the Act of 1961. In his return, the respondent No.3 has supported the stand taken by the State Government. On behalf of the respondent No.2 the Municipal Council, Ratlam, the Vice President has filed a return supporting the petitioner and praying that this petition be allowed.