JUDGMENT : - By this petition, the petitioner seeks relief of quashing setting aside of the order dated 3 -7 -2006, passed by the respondent No. 1 Honble Minister, holding that the President of Municipal Council, is not eligible to vote in election for the post of Vice President, and thereby cancelling the said action, which had taken place on 20 -12 -2005.

2. The case of petitioner is that, she has been elected as Vice President of municipal Council, Umarkhed (respondent No.4) on 20 -12 -2005. The petitioner respondent No. 3 were the only contesting candidates for the post of Vice president and, that petitioner secured 11 votes, while the respondent No. 3 secured 10 votes. According to her, in view of the provisions of section 2(7), 49) and section 51A of the Maharashtra Municipal Councils, Nagar Panchayats Industrial Townships Act, 1965 (hereinafter referred to as "the Municipal Council Act" or "the Act", for short), the President of Municipal Council is titled to cast vote for said election of Vice President and view taken by the respondent No.1, is therefore unsustainable.

3. Considering the controversy involved in the matter and by consent of parties, the matter is taken up for final disposal at the stage of admission itself advocate Madkholkar, has argued for the petitioner, while Advocate A.S. Chandurkar, has argued for respondent No.3. Advocate V. R. Choudhari, presented the respondent No.4 - Municipal Council and respondent No.5 - President and learned Assistant Government Pleader Shri Kothari, appeared for respondent Nos. 1 and 2.

4. Advocate Madkhokar, while opening his arguments has stated that, the respondent No.1 while allowing the appeal preferred by the respondent No.3, as relied upon the Division Bench ruling of this Court reported at 2005(5) Mh.L.J. 50 = 2006(1) BCR 382 = 2006 (1) All M.R. 366, Baburao Narayan agade and others vs. State of Maharashtra and others. He argues that this ling has no application at all in the facts of the present case. He invites attention to the earlier judgment of this Court, reported at 1976 Mh.L.J. 695, Shripatrao Mahadeorao Jadhav and others vs. Lonawala Municipal Council, which interprets the phrase "Councillors" as used in section 2(7) and "total number of Councillors" as used in section 2(49), and argues that the Division Bench judgment in case of Bagade (supra), as relied upon by the respondent No.1 is not taking correct view of the matter. He argues that the said judgment is not at all relevant and applicable. He has also invited attention to the provisions of section 10A(4) of the Municipal Council Act, to States that in exercise of those powers the State Election Commission has issued directions on 13 -12 -2001, and has clarified that as the elected President is Councillor, he is entitled to participate and vote in the meeting to elect nominated Members and Members of Sub -committees. He argues that even this communication is not considered by the Division Bench in case of Bagade. He further invites attention to section 51A(2), to state that the statute has placed embargo upon the voting rights of Collector or other officers, while for holding meeting to elect Vice President, no such embargo is placed on the rights of President. He further invites attention to the provisions of Sub -section (4) and sub -section (5) of section 55, to state that even there, only nominated Councillors have been prohibited from voting on any resolution, relating to removal of President. According to him, therefore, the impugned order passed by the respondent No. 1 shows total non application of mind to various provisions mentioned above, and also the Division Bench judgment. He further states, if a restriction upon the right of President to vote in the meeting to elect Vice President, is read into the provisions of section 51A, it would be supplying "casus omissus". He contends that this is not permissible and to substantiate his argument he relies upon the judgment reported

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