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IN THE HIGH COURT OF BOMBAY
Kanadeand M.P. Pendse M.L. J.
Mohamad Maqbool Mohamad Khaja and others .... Petitioners.
Versus
State of Maharashtra and others .... Respondents
Writ Petn. No. 431 of 1981 decided on 1-7-1981.
Advocate appeared:
B. R. Naik with R. V. Naik for petitioners.
C. J. Sawant, Addl. Govt. Pleader with D. P. Hegde, Asstt. Govt. Pleader for respondents 1 2 and Advocate General.
LOCAL GOVERNMENT - MUNICIPALITIES - TERM OF OFFICE OF COUNCILLORS - EXTENSION OF TERM - POWER OF STATE GOVERNMENT - CONDITIONS - APPOINTMENT OF ADMINISTRATOR - VALIDITY - MAHARASHTRA MUNICIPALITIES ACT, 1965 (MAHARASHTRA ACT XL OF 1965), SEC. 40(1), 40(2), 40(3), 48A - MAHARASHTRA ORDINANCE NO. 1 OF 1981 - CONSTITUTION OF INDIA, ART. 14, 226.
Fact of the Case:
The petitioners, who were the President and Councillors of the Nanded Municipal Council, challenged the vires of section 48A of the Maharashtra Municipalities Act, 1965 (the Act) and the order dated February 5, 1981 issued by the State Government under sub-section (1) of section 48A of the Act. Section 48A empowered the State Government to appoint an Administrator in Municipal Councils where the term of the Councillors stood extended under sub-section (1) or sub-section (3) of section 40 of the Act. The petitioners contended that the enactment of section 48A was beyond the legislative competence of the State Legislature and that the same was enacted with mala fide intention. They also claimed that the provisions of section 48A of the Act violated the fundamental rights conferred under Article 14 of the Constitution of India.
Finding of the Court:
The Court held that the enactment of section 48A of the Act was within the legislative competence of the State Legislature and that the challenge that the section conferred absolute powers without any guidelines was not correct. The Court also held that the grounds of mala fide were denied and so also the contention that the principles of natural justice were violated while publishing the Notification dated February 5, 1981. The Court further held that the petitioners' claim to hold the office beyond the term of six years was totally misconceived and that the provision of sub-section (3) of section 40 of the Act was merely a stop-gap arrangement and did not extend the term of the Councillors beyond the aggregate term of six years.
Issues: 1. Whether the enactment of section 48A of the Maharashtra Municipalities Act, 1965 (the Act) was beyond the legislative competence of the State Legislature? 2. Whether the provisions of section 48A of the Act violated the fundamental rights conferred under Article 14 of the Constitution of India? 3. Whether the Notification dated February 5, 1981 issued by the State Government under sub-section (1) of section 48A of the Act was mala fide? 4. Whether the principles of natural justice were violated while publishing the Notification dated February 5, 1981?
Ratio Decidendi: 1. The power to grant includes the power to withdraw. The State Government was conferred with the power to give extension for a period of one year in exceptional circumstances. As the power is conferred to grant extension, there is nothing illegal or illogical if the authority is further provided to withdraw such extension in changed circumstances. 2. The State Legislature was perfectly competent to enact section 48A of the Act and it does not suffer from any infirmity and does not offend any provisions of the Constitution or the fundamental rights guaranteed by the Constitution of India. 3. The Court was not satisfied about the challenge to the notification on the ground of mala fides. The averments in the petition on this count were not, at all, satisfactory. The allegations were too vague to require any investigation. 4. The petitioners had no right to hold the office of the Councillor after the expiry of their term. In these circumstances, the submission that the principles of natural justice were violated by not giving them a notice before taking action deserved to be turned down.
Final Decision: The petition failed and the rule was discharged, but in the circumstances of the case, there was no order as to costs.
2. The petitioner No. 1 is the President of Nanded Municipal Council while the petitioners Nos. 2 to 5 are its Councillors. The Municipal Council of Nanded was established under section 8 of the Act. Section 10 onwards of the Act provide for election of Councillors to the Municipal Councils and section 40(1) of the Act lays down a term of five years for the Councillors elected at the general election. The term of Councillors of the Nanded Municipal Council was to expire on December 16, 1979. Section 40 (I) of the Act enables the State Government in exceptional circumstances to extend the term not exceeding in the aggregate six years for reasons which have to be stated in the Notification to be published in the Official Gazette. In exercise of the powers conferred-under this sub-section, the State Government extended (he term of The Councillors by a period of six months on December 11, 1979. A further extension of six months' duration was granted on May 3, 1980 and the term of the Councillors was to expire on November 30, 1980. In spite of the fact that the term was to expire in November 1980, the general election to the Municipal Council was not held earlier by the State Government, but the respondent No. 2- the Director of Municipal Administration-issued instructions only on February 3, 1981 to hold the elections of the Municipal Council. It is required to be stated at this juncture that the identical situation prevailed in about 192 Municipal Councils in the State of Maharashtra. In other words, though the extended period of six years' term was over, the Municipal Councillors continued to function as Councillors. With this background, the Governor of Maharashtra issued Maharashtra Ordinance No. 1 of 198I on February 4, 1981. The Ordinance was issued as the State Legislature was not in Session and the Governor was satisfied that the circumstances exist which render it necessary to take immediate action to amend the Maharashtra Municipalities Act, 1965 and also the Bombay Provincial Municipal Corporations Act, 1949 and the City of Nagpur Corporation Act, 1948. By this Ordinance, section 48A was inserted in the Act. The amended section confers power upon the State Government to appoint Administrator in the Municipal Councils where term of the Councillors stands extended under subsection (1) or sub-section (3) of section 40 of the Act. The Ordinance further provided that on publication of such an order by the State Government appointing an Administrator, all Councillors including the President and the Vice-President shall cease to hold and shall vacate the office as Councillors or otherwise. In pursuance of the powers conferred by the Ordinance, the State of Maharashtra published Notification on February 5, 1981 whereby the term of the Councillors of 187 Municipal Councils was terminated and the Administrator was appointed with effect from February 6, 1981. One of the Municipal Councils covered by this Notification is the Nanded Municipal Council which has been joined as respondent No. 3 to the petition. The petitioners challenged the said Notification by filing the present petition in this Court on February 9, 1981 The petition was duly admitted on February II, 1981. During the pendency of this petition, on March 21, 1981, the Ordinance was replaced by Maharashtra Act No. XII of 198I with retrospective effect from February 4, 1981. The amended section 48A of the Act was inserted in the Act having been assented by the Governor aft
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