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1977 DIGILAW 9 (KAR)

M. RAMAPPA v. CITY MUNICIPAL COUNCIL, BELLARY

1977-01-24

K.J.SHETTY, K.VENKATASWAMI

body1977
JAGANNATHA SHETTY, J. ( 1 ) THIS petition under Art. 226, has been brought before us upon a reference made under S. 9 of the High Court Act. ( 2 ) THE petitioners are Councillors of the City Muncipal Council, Bellary, bhasker Naidu, respondent-4 is also a Councillor, but on 3rd Septr, 1974, he was elected as President of the Municipal Council. His right to continue as President bevond the term of one year, is the only question that falls for determination in this petition. ( 3 ) THE rase of the petitioners, to state briefly, is as follows: The City municipal Council, BPllarv, was originally governed by the Mysore City municipalities Act. 1933. The term of office of the members of the Municipal council was four years. Under 8. 23 (12) of the said Act, the term of every President and of every Vice-President was made co-extensive with the term of his office as Councillor. But the proviso to that sub-section empowered the Govt in special cases, with the consent of the Municipal council concerned to direct that the term of the office of the President and of the Vice-President "be limited to one year and that elections there for be held every year. " In exercise of this power, the State Govt passed ar order No PLN 41 CEL 61 d. 21st Now 1961 relating to the Bellary municipality. The order provided that "the term of the President, vice-President of the Municipal Council, Bellary. be limited to one year and that the election therefor be held every year". ( 4 ) THE Mysore City Municipalities Act, 1933 came to be repealed bv the Karnataka Municipalities Act. 1964 (Act 22 of 1964 ). After Act 22 of 1964 was brought into force, in July 1974, there was a general election to the Municipal Council Respondent-4 and the petitioners, among others, were elected as Councillors Tn the meeting of thp Municipal Council held on 3rd Septr 1974, respondent-4 was elected as President. ( 5 ) ON 31st July 1975, the Municipal Council passed the following resolution :" 262 Resolutions moved by the Presiding Authority with the leave of the Council under proviso to sub-sec (2) of the S. 59 of the karnataka Municipal Act, 1964. ( 5 ) ON 31st July 1975, the Municipal Council passed the following resolution :" 262 Resolutions moved by the Presiding Authority with the leave of the Council under proviso to sub-sec (2) of the S. 59 of the karnataka Municipal Act, 1964. Sub: Term of the office of the President and Vice-President of the City Municipal Council, Bellary the communication d 29th July 1975 of 30 Municipal Councillors was read out. It is observed that on a resolution bearing No. 1 d. 14-11-1961 of the previous Municipal Council, the Govt. vide their order no PLM 41 CEL 61 d 21-11-61 accorded sanction to the said resolution limiting the term of the office of the President and Vice-President of city Municipal Council, Bellary for a period of one vear. A similar resolution was also adopted by the former Municipal Council in CR. No. 1001 d. 1-9-70. Tn view of the changed circumstances and in the interest of all round development of the City and also in view of execution of massive development programme like under-ground drainage scheme, comprehensive improvements to the existing water supply system, construction of railway under-bridge, development and distribution of sites and implementation of other social and economic programme as laid down by the Govt for execution as emergent works, it is desirable and not to confine the term of the office of the President and vice-President of the City Municipal Council, Bellary for one year, so as to maintain the continuity of action in implementation of some of these time-consuming projects, Therefore, it is appropriate to cancel the said resolution. Resolution: After discussion, it was unanimously resolved to rescind the previous Council resolutions No. d. 14-11-61 and No. 1001 d. 1-9-70 under S. 57 of the K. M. Act 1964 and that the Govt may be requested to communicate sanction to this resolution. " ( 6 ) THE above resolution was forwarded to the Govt for approval. The State Govt by order d. 5th August 1975 made an order in these terms:" Proceedings of the Government of Karnataka subject: Term of office of the President and Vice-President of city Municipal Council, Bellary. Read: Letter No. C-2/75 d. 1-8-1975 received from the President, City Municipal Council, Bellary. Preamble: In the Govt order d. 21-11-1961, the term of the office of the President and Vice-President of the Bellary Municipality was restricted to one year. Read: Letter No. C-2/75 d. 1-8-1975 received from the President, City Municipal Council, Bellary. Preamble: In the Govt order d. 21-11-1961, the term of the office of the President and Vice-President of the Bellary Municipality was restricted to one year. In the letter read above, the President, City Municipal Council, bellary has stated that he assumed charge on 4-9-1974, and that 30 councillors as against 35 have resolved to rescind the previous resolution of the City Municipal Council, Bellary restricting the term of the office of the President and Vice-President, City Municipal Council bellary to one year and to extend the term to full 4 years as in case of Councillors. They have requested that the Calendar of events for holding election to the office of President and Vice-President, City municipal Council, Bellary may not be issued. Government order d. 21-11-1961 was based on the provisions of the mysore City Municipality Act, 1933 which enabled Govt to curtail the terms after consulting the Municipal Council. This Act stood repealed by the Karnataka Municipalities Act, 1964. With this repeal, the order d. 21-11-1961 ceased to have effect. The said order is not saved by the 1964 Act. The 1964 Act provides for a term of four years. Though govt is given the power to curtail, the provision is different from that in the 1933 Act in as much as this curtailment is to be ordered with the consent of the Municipal Council. Consent is not the same thing as 'consultation' provided in the 1933 Act. Moreover, there is no right accrued or liability incurred in pursuance of the order d. 21-11-1961, which only can be saved from the effects of the repeal. Thus, the order itself not being in existence, the terms of office of the President and Vice-President subsequent to 1964, has not been limited to one year. It runs for the full period of the term of the councillors that is four years. Accordingly, it is hereby ordered that the term of office of the president and Vice-President, City Municipal Council, Bellary shall be co-terminus with the term of office of the Councillors. By Order and in the name of the Governor of Karnataka sd/- (C. N. Narasimhaiah), under Secty to Govt, Health and Municipal Admn Dept," ( 7 ) TAKING advantage of the aforesaid Govt Order, respondent-4 refused to vacate the office after the period of one year. By Order and in the name of the Governor of Karnataka sd/- (C. N. Narasimhaiah), under Secty to Govt, Health and Municipal Admn Dept," ( 7 ) TAKING advantage of the aforesaid Govt Order, respondent-4 refused to vacate the office after the period of one year. He said that he has a right to remain in office for a full term of four years. The petitioners, therefore, have moved this Court with an application under article 226 to quash the said Govt Order and also to issue a writ of quo-warranto to oust respondent-4 from the office of the President. ( 8 ) LET us now consider the contention urged. The main reason given by the Govt in the impugned order is that Act 22 of 1964 provides a term of four years to every President and it has not been curtailed to one year by any order made as required under the proviso to sub-sec (11) of S. 42 of the said Act. The Govt have also observed that the Order d. 21st Novr, 1961 made under the Mysore City Municipalities Act, 1933 did not survive after the repeal of the said Act This view of the Govt. in our view, is patently erroneous and contrary to the decision if this Court in g. Seetharama Reddy v. Election Officer Bellary (1) In that rase, the validity of the Govt Order d. 21st Novr. 1961 camp for consideration. While dealing with the contention that that Order did not after Act 22 of 1964 came into force, Tukol, J, speaking for the Court obrerved as page 239 :" Now it is necessary to decide whether this notification survives and continues to govern the term of the office of the President or of the Vice-President as the case may be, even under the Act of 1964, in this connection reference has to be made to S. 382 which is the repealing section and contains certain saving clauses. The Mysore City municipalities Act, 1933 is one of the Acts which has been expressly repealed by that section. . . . The plain effect of this proviso is to continue the notification of Nov 21, 196] as if it were a notification issued under the corresponding provisions of this Act. Further, that notification shall continue fo be in force unless find until superseded by anything done or any action taken under this Act. . . . The plain effect of this proviso is to continue the notification of Nov 21, 196] as if it were a notification issued under the corresponding provisions of this Act. Further, that notification shall continue fo be in force unless find until superseded by anything done or any action taken under this Act. " (Emphasis supplied) the principles stated in the above decision are binding on us. It must therefore be stated that the G. O. d. 21s Novr, 1961 was saved and continued as if it were an order made under the conosponding provision of act 22 of 1964, i. e. , under sub-sec (11) of S. 42 It may be recalled that that G. O. limited the President and Vice-President of the municipal Council, Bellary, to one year and that the election therefore be held every year. ( 9 ) WHILE interpreting the scope of proviso to sub-sec (11) of S. 42 of act 22 of 1964 and the power of the Govt thereunder this Court in Chandrappa v. Tahsildar, Jamkhandi (2) observed as follows :" If a person is elected in circumstances or at a time when the term was four years according to the legal provision applicable, he should normally retain that term. Tf, on the other hand, he is elected at the time when there is in force a direction of the State Govt under the proviso to Sec. 42 (11) liming the term to one year, the legal source of that term is the said direction and he should have a term of office of only one year. "it was further observed :" Once a Municipal Council adopts a resolution, it binds that council which has a perpetual succession, which means it binds every set of Councillors who from time to time are elected to constitute or reconstitute the same. " ( 10 ) THE legal position thus being clear, we now consider the next question as to whether the G. O. dt. 5th August 1975 has superseded the g. O. dt. 21st Nov. , 1961. Plainly, it has no such effect. It was not an order made under the proviso to sub-sec (11) of S. 42, nor it could be said to be an order falling within the scope of the said proviso. It appears to be a clarification made by the Govt. 21st Nov. , 1961. Plainly, it has no such effect. It was not an order made under the proviso to sub-sec (11) of S. 42, nor it could be said to be an order falling within the scope of the said proviso. It appears to be a clarification made by the Govt. But that clarification, as we have earlier observed, is clearly opposed to the decision of this Court in Seetharama reddy's case (1 ). ( 11 ) IN the result this petition is allowed, the G. O. dt. 5th August, 1975 (Ext. 'h') is quashed, with a direction to the Deputy Commr (Respt-3) to take steps to hold election forthwith to the office of the President, Municipal council, Bellary, in accordance with law. It is not necessary to issue any further direction to remove the petitioner from the office, since it is reported to us by Counsel for the 4th respondent that the 4th respondent has tendered his resignation as President. We record the submission. ( 12 ) BEFORE parting with the case, we may observe that the principles stated in the decisions in Seetharama Reddy's case (1) and Chandrappa's case (2) hence forward are of academic interest in view of the recent amendment to the proviso to sub-sec (11) of S. 42 of Act 22 of 1964 limiting the term of office of the President and Vice-President to two years and further providing that the period so limited shall operate only during the term of the Municipal Council passing a resolution to that effect, in the circumstances, we make no order as to costs. --- *** --- .