The main legal point established in the judgment is that the reservation of seats in Mayor-in-Council, as provided in Rule 3 (2) of Madhya Pradesh Municipalities Rules, 1998, was found to be intravires and in line with the reservation provided in the parent Act, and did not abrogate any essential feature of the Act.

( 1 ) BY this writ petition preferred under Article 226 of the Constitution of India the petitioner, a Municipal Councillor of the Municipal Corporation, Bhopal has prayed for declaration of Rule 3 (2) of Madhya Pradesh Municipalities (the Conduct of Business of the Mayor-in-Council/president-in-Council and the powers and Functions of the Authorities) Rules, 1998 (hereinafter referred to as 'the Rules') as ultra vires the S. 37 of M. P. Municipal Corporation Act, 1956 (Act of 23 of 1956) (for brevity 'the Act') and further to quash the said Rule by issue of appropriate writ, order or direction.

( 2 ) THE facts exposited in the petition are that the petitioner is a Municipal Councillor of Bhopal Municipal Council. The State Government amended the act by the Madhya Pradesh Nagarpalik Vidhi (Sanshodhan) Adhiniyam, 1998 (Act No. 20 of 1998 ). By virtue of the said amendment S. 37 was substituted. The substituted provision deals with constitution of Mayor-in-Council. It is putforth in the petition that the State Government in exercise of power conferred by S. 37 of the amended Act has enacted the rule 3 which deals with the constitution of Mayor-in-Council and sub-rule (2) of the said rule provides the manner of constitution. It is urged in the petition that the said sub-rule (2) is beyond the scope and ambit of S. 37 of the Act and, therefore, it is ultra vires. It is averred in the petition that S. 37 of the Act does not contemplate for any reservation of seats in Mayor-in-Council and sub-sec. (7) of the said provision empowers the State Government to prescribe the function and conduct of business. Reference has been made to S. 37 (2) of the Act which deals with the constitution of Mayor-in-Council. It is contended in the petition that the constitution of the body cannot be redefined in the Rule by taking shelter under the rule making power and as the same has been done it amounts to transgression of the enactment thereby making the Rule vulnerable inasmuch as the Rule creates a fetter in the power of the Mayor which has been vested in him by the Act.

( 3 ) A return has been filed by the answering respondents 1 to 3 contending, inter alia, that the Act provides for direct election of councillors and for this purpose the reservation of the seats has already been provided under S. 11 of the Act. It is putforth that in view of the reservation of the seats for the purpose of the election of the Councillors to represent the reserved wards the same has been given effect to. It is pleaded that in place of standing committees, Mayor-in-Council has been introduced. The Rule is sought to be supported by highlighting that S. 11 lays down that the councillors elected against the reserved seat are bound to be there and to ensure their minimum representation in the Mayor-in-Council, provisions have been incorporated in the Rules in question. Justification has been given in respect of the reservation of SC, ST and OBC and woman categories indicating that the same subserves the purpose of the Act.

( 4 ) WE have heard Mr. N. S. Kale, learned senior counsel along with Mr. A. Bhowmik for the petitioner and Mr. S. K. Seth, learned Additional Advocate General for the respondents 1 to 3 and Mr. A. K. Mishra, learned counsel for the respondent No. 4, the Commissioner, Municipal Corporation Bhopal.

( 5 ) IT is submitted by Mr. Kale, learned senior counsel for the petitioner that S. 37 confers power on the Mayor, who is directly elected to constitute the Mayor-in-Council from amongst the members elected Councillors and in view of such conferral of power he has the discretion to choose such member from among the elected councillors and there can not be an imposition of any rider or qualifier. It is his further submission that when such riders have been engrafted in the rule the same nullifies the discretionary power of the Mayor which is impermissible inasmuch as the main section is silent in that regard. The learned senior counsel has fur