BRINDABAN PRASAD TLWARI Vs. COLLECTOR, GUNA

JUDGEMENT

(1.) THIS appeal is against an order made by Samvatsar J. in Civil Miscellaneous Case No. 21 of 1957 on 12th October 1957.

(2.) THE present Appellant, who was the Petitioner before Shri Samvatsar J., filed an application for a writ of mandamus or in the alternative for a writ of quo warrantor against the President of the Guna Municipality, who was elected at a meeting called on the 4th June 1957. The President is the 4th Respondent in the appeal before us. According to the Appellant, he was entitled to participate in the election of the President, as he had been selected on 17th May 1957 in place of the third Respondent Niaz Ahmad Solat, whose term of office was to end on the 9th June 1957. The contention of the Appellant was that in calling the meeting on the 4th June 1957 he was deprived of the chance of electing the President and that a Councillor who was going out five days later was enabled to vote. Shri Samvatsar J., after considering the Madhya Bharat Municipalities Act (hereinafter called the Act) and the rules framed there under, came to the conclusion that there was nothing in the Act which compelled the Returning Officer to call a meeting after the term of the President was over and that it was in the fitness of things that the President should have been elected before the term of the incumbent was over, so that the new President could take charge from him on the date the term came to an end. In the end Shri Samvatsar J. held that a writ of quo warrantor should not be issued in a case which was at best doubtful and that the discretionary powers under article 226 were not called for in this case.

(3.) THE Act provides for two classes of Councillors, viz. elected and selected. The elected councillors are elected at a general election held on the basis of adult franchise. The selected members, who are not to exceed one -fourth the number of the elected Councillors, are elected by the single transferable vote. The two together form the body of Councillors of which the municipality is composed. Unfortunately, the term of the office of the elected and the selected Councillors is not coterminus, because the elected Councillors continue for three years, whereas, by virtue of the Rules framed under the Act the selected Councillors continue for four years. There is also rotation amongst the selected Councilors, of whom two have to retire every two years and fresh selections have to be made. It will thus be seen that the composition of the municipality changes at the end of every two years by reason of the selected Councillors going out and Ors. being selected in their place. Again, the composition of the municipality changes at the end of the third year, when general election on the basis of adult franchise takes place. Similarly, the composition of the municipality changes at the end of the 4th year again, when the selected members have to retire in rotation and Ors. have to be selected in their place. This being the case, the point of time at which the election of the President can take place has to be found out whith reference to the Act and the Rules. We have been taken through a number of sections, from which it is contended that the point of time can be adequately gathered. On the other side, it is contended that under the Rules the point of time is in the discretion of the Returning Officer, who has to appoint the date for the election. An analysis of some of the sections of the Act, therefore, becomes necessary.