ASFAK MOHAMMAD Vs. STATE OF M P

JUDGEMENT

(1.) INVOKING the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India the petitioner has prayed for issue of a writ in the nature of certiorari for quashment of the impugned Order dated 24-04-99 contained in Annexure P-2 whereby the respondent No. 3 has been nominated as the President of Municipal Council, Sehore by the State Government.

(2.) THE facts as have been uncurtained are that the respondent No. 3 and one Jaspal Singh Arora contested the election for the post of President of the Municipal Council and in the said election Jaspal Singh Arora was elected. His election was challenged in the writ petition forming the subject-matter of W. P. No. 1553/96 but the same was dismissed on the ground that the election could be assailed by way of an election dispute. After the dismissal of the writ petition Jaspal Singh Arora continued as the President of the Municipal Council but, eventually, was removed by the State Government under Section 41-A of the Madhya Pradesh Municipalities Act, 1961 (hereinafter referred to as 'the Act') by Order dated 26-2-99. After the removal of the President the petitioner who was Vice-President of the Municipal Council took over the charge. While he was in charge, the State Government by impunged Order dated 24-4-99 in exercise of power under Section 37 (2) nominated the respondent No. 3 as the President of the Council. According to the writ petitioner the nomination of the respondent No. 3 is illegal and contrary to the mandate of the statute. It is also averred in the writ petition that while passing the said Order of nomination the relevant provisions of the statute have not been kept in view.

(3.) A return has been filed by the respondents contending, inter alia, that the petitioner has no right to be nominated as per the provisions of the statute and he was only eligible to continue till the nomination took effect. It is putforth that the petitioner has referred to unamended provisions of the statute and claimed a right, and therefore, the writ petition is sans merit. It is also setforth that the petitioner is a member of general category, and hence, he is not entitled to be nominated as per the proviso to Section 37 (2) of the Act as the office of the President of Municipal Council, Sehore belong to the reserved category.