BASANTILAL Vs. DISTRICT MAGISTRATE, MANDSAUR

JUDGEMENT

(1.) THE petitioners were duly elected as councillors of the Municipal Council, Mandsaur in January 1975 for a term of four years. They were detained by the District Magistrate. Mandsaur under MISA on 27 -6 -1975. Consequently, they did not attend the meetings of the Municipal Council held on 13 -12 -1975, 1 -8 -1975. 5 -8 -1975, 12 -8 -1975, 4 -9 -1975, 20 -9 -1975, 17 -10 -1975, 21 -10 -1975 and 25 -10 -1975. The request of the petitioners to the District Magistrate on 6 -8 -1975 and 22 -9 -1975 for permission to attend the meetings of the Municipal Council was not acceded to. Their application to the President of the Municipal Council on 22 -9 -1975 for permission to remain absent, as they were under detention and they were not permitted by the District Magistrate to attend the meetings was not fruitful. The State Government of Madhya Pradesh initiated proceedings before the District Collector, Mandsaur under section 38 (2) of the M.P. Municipalities Act (hereinafter called the Act) on the ground that the petitioners by absenting themselves from the meetings of the council during three consecutive months from the meetings of the council from 13 -7 -1975 had incurred disqualification under section 38 (1) (b) of the Act Thereupon the District Collector issued show cause notices dated 14 -11 -1975 to the petitioners requiring them to appear before him on 19 -11 -1975 to submit their replies and defend themselves. The show cause notices were served on the petitioners in the Central Jail, Indore at about 6 p.m. on 15 -11 -1975. On 17 -11 -1975, telegrams were sent by the petitioners to the District Collector to the effect that they are sending their replies. In fact, the petitioners sent replies on 17 -11 -1975 to the show cause notices to the Collector from jail by registered post but they were returned as refused. The copies of the reply were despatched by the petitioners again with a covering letter dated 23 -11 -1975. The District Collector by his order dated 13 -12 -1975 declared the seats of the petitioners in the Municipal Council, Mandsaur as vacant under section 38 (1) (b) of the Act from the date of notification by the State Government as they did not attend the meetings of the Municipal Council for over three month nor have they obtained any exemption under the Act. Aggrieved by the decision of the' Collector. the petitioners filed the writ petitions under Article 226 of the Constitution of India to quash the impugned orders on the ground that they did not absent themselves within the meaning of section 38 (1) (b) of the Act and. therefore, they are illegal, improper and without jurisdiction and for a declaration that they entitled to continue as members of the council till the expiry of the term of membership The respondents filed Return contending interalia that the petitions are liable to be dismissed in limine on the short ground that the alternative statutory remedy of appeal to the Commissioner under section 38 (3) of the Act has not been availed of that the District Magistrate did not allow the petitioners to attend the meetings as the very purpose of detention under MISA would be defeated if the permission sought for was granted; that the President of the Council was only appraised of their inability to attend but no specific permission or exemption was sought for by the petitioners and that the impugned orders are competent and valid and there is no merit in these writ petitions.

(2.) THE sum and substance of the contention of Shri S D. Sanghi, learned counsel for the petitioners that the impugned orders must be quashed is twofold: (i) that the petitioners did not absent themselves during three consecutive months from the meetings of the council. as they were confined in jail under MISA and the provisions of section 38 (1) (b) can be applied only to cases where the members of their own volition and free will or due to negligence or any other fault absent themselves from attending the meetings and (ii) the impugned order are also violative of the principles of natural justice. as no reasonable opportunity of being heard as provided under the Act is afforded to them. This claim of the petitioners is opposed by Shri G.S. Solanki, learned Deputy Government Adovocate contending interalia that section 38(1) (b) is attracted to every case of absence by a member during three consecutive months irrespective of the reason or cause for such absence; that the petitioners must be held responsible for their illegal acts, which resulted in their detention under MISA and, therefore. the natural consequence of their absence is to forfeit their right to continue as members of the Municipal Council and that the impugned orders are valid and proper; but not violative of any rule of natural justice of statutory provisions and that the petitions are liable to be dismissed infinite on the ground that the petitioners have failed to avail the statutory remedy of appeal against the impugned orders. Shri Sanghi replied that the preliminary objection about the maintainability of writ petitions raised by the respondents should not be sustained in view of the fact that no useful purpose would he served by preferring an appeal to the State Government, the statutory appellate authority or its delegated authority as the very proceedings which resulted in the impugned orders, have been initiated in these cases by the State Government and further the writs have been admitted by a Division Bench of this Court and the time for preferring appeals has expired long ago.

(3.) WE shall first take up the question No. (1) relating to preliminary objection about the maintainability of the writ petitions. True as contended by the respondents, a right of appeal against the decision of the Collector under section 38 (1) and (2) is provided to the State Government under section 38 (3) which reads thus : -