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1987 DIGILAW 313 (KAR)

H. ABDUL RAHIM v. STATE OF KARNATAKA

1987-09-24

P.P.BOPANNA

body1987
BOPANNA, J. ( 1 ) THIS petition is treated as having been posted for hearing and I have heard the learned Counsel for the parties. ( 2 ) THE 1st petitioner is the Municipal councillor of Hassan City Municipal council. The 2nd petitioner is also the municipal Councillor of the very same council and both of them were elected as municipal Councillors in the general elections held to the City Municipal Council, hassan, during the month of July, 1983. Their term of office commenced on 10-8-1987 and in terms of Section 18 of the karnataka Municipalities Act, 1964 (in short the Act), the term of the Councillors elected at a general election was for a period of four years. However, proviso to sub-section (1) of section 18 of the Act provides that the government may by notification for reasons to be specified therein could extend either prospectively or retrospectively the term of office of such Councillors by such period not exceeding 24 months. It is not in dispute that the term of office of the petitioners as also of the other Councillors expired on 10-8-1987. But the State Government in exercise of its powers under Section 18 of the Act had extended their term upto 31-12-1987. Respondents 3 and 4 were elected as president and Vice-President of the aforesaid Municipal Council on 8-9-1985 and their term of office was for a period of two years as could be seen from Annexure-B filed in the Writ Petition which is a government Order dated 12-3-1983. By that government Order in pursuance of the proviso to sub-section (11) of Section 42 of the Act, the term of office of the President and Vice-President of the Hassan City municipal Council was limited to two years and elections to the said office should have been held at the end of two years. So in terms of this Government Order which applied to respondents 3 and 4, their term of office came to an end as noticed earlier on 7-9-1987 and there should have been a fresh election to the elective posts of President and vice-President after their term came to an end. However, the State Government under annexure-C dated 22-8- 1987 issued a notification in exercise of the power under sub- section (12) of Section 42 of the Act appointing respondents 3 and 4 as President and Vice-President of the Municipal Council till 31-12-1987. However, the State Government under annexure-C dated 22-8- 1987 issued a notification in exercise of the power under sub- section (12) of Section 42 of the Act appointing respondents 3 and 4 as President and Vice-President of the Municipal Council till 31-12-1987. It is this notification of the government that is challenged by the petitioners. ( 3 ) LEARNED Counsel for the petitioners submitted that the State Government having exercised the power pursuant to the proviso to Section 42 (11) of the Act it acted without jurisdiction by having recourse to the provisions of Section 42 (12) of the Act in making the impugned notification appointing respondents 3 and 4 as President and vice-President respectively upto 31-12-1987. The sum and substance of the argument of the learned Counsel for the petitioners is under the scheme of the Act and due regard being had to the provisions of Section 42 (11) and (12) of the Act, both the offices of the president and Vice-President are elective offices and unless the Government brought the case within the scope of other provisions which provided for the appointment of president and Vice-President it had no jurisdiction to issue the impugned notification appointing these persons as president and Vice-President. According to him as soon as the term of office of the president and Vice-President expired, the municipal Councillors should have elected a president and Vice-President from amongst themselves. But it was contended by the learned Counsel for respondents 3 and 4 and also by the learned Government Advocate that the provisions of Section 42 (12) of the act completely answer the challenge made by the petitioners and therefore, notwithstanding the initial appointment of respondents-3 and 4 in terms of the proviso to Section 42 (11) of the Act, the impugned notification is valid and has to be given full effect. ( 4 ) IN the light of the competing contentions, the point for consideration is whether under the scheme of the Act the government has the power to appoint respondents 3 and 4 as the President and the vice-President respectively notwithstanding the fact that their term was limited by its earlier order. Answer to this question has to be found from the relevant provisions of the act itself. Under Section 2 (6) of the Act 'councillor' means any person who is legally a member of a municipal council. Answer to this question has to be found from the relevant provisions of the act itself. Under Section 2 (6) of the Act 'councillor' means any person who is legally a member of a municipal council. It does not make any distinction between the elected member and the member whose term has been extended as in this case by the State government. Municipal Council means the council of a town or city municipality established under the Act. Under Section 12 of the Act any vacancy due to failure to elect the full number of councillors and any vacancy due to failure to elect a councillor under Section 19, may, notwithstanding anything contained in the Act, be filled up by appointment by the Government. So, appointment of councillor by the government comes into play only when there is a failure to elect the full number of councillors or due to failure to elect a councillor under Section 19. Section 17 deals with General election of Councillors and it says that a General election of councillors shall be held for the purpose of constituting a municipal council. Section 17 (2) provides for a general election for the purpose of filling the vacancies arising by efflux of time in the office of the councillors. Under section 19 of the Act where a casual vacancy occurs through the resignation or non-acceptance of office by a person elected or appointed to be a councillor or through such person becoming disqualified to be a councillor or through any election being set aside under the provisions of Section 23 or through the death, removal or disability of a councillor previous to the expiry of his term of office the vacancy shall be filled up as soon as may be after the occurrence of such vacancy by the election of a person thereto. Under Section 42 (2) of the Act for every municipal council, there shall be a President and a vice- President duly elected by the councillors among themselves. The thrust of section 42 of the Act is that the election of president and Vice-President must be by the councillors among themselves. Under Section 42 (2) of the Act for every municipal council, there shall be a President and a vice- President duly elected by the councillors among themselves. The thrust of section 42 of the Act is that the election of president and Vice-President must be by the councillors among themselves. Under section 42 (4) of the Act the Government has the power to appoint the President of the vice-President, if the municipal Council fails to elect a President or Vice-President within such reasonable time as may be specified in a notice issued by the Commissioner in this behalf and these persons so appointed by the council shall hold the office not exceeding six months before the expiry of which period fresh elections for the said offices should be held. Sub-section 11 of Section 42 provides that the term of office of every president and of every vice-president shall cease on the expiry of the term of office which is co- terminus with the term of office as the councillors. But, the proviso to Section 42 (11) of the Act provides that the government may, with the consent of the municipal council concerned direct that their term be limited to 2 years and that the election therefor be held every second year. This is what the Government had done earlier in this case under Annexure-B. That means to say, the Government had exercised its powers under the proviso to Section 42 (11) of the Act. There is no dispute about the Government's power under sub-section (11) of Section 42 of the Act. But, what is contended by the learned Counsel for respondents 3 and 4 is that under Section 42 (12) of the Act if a casual vacancy arises under the circumstances more particularly mentioned in the first part of sub-section (12) of Section 42, the vacancy in the office of the President or the Vice-President could be filled up in accordance with the proviso of the foregoing sub-section. But, in any vacancy not otherwise provided for, the government may appoint any councillor to perform all the duties and exercises all the powers of the President and Vice-President due to such vacancy. But, in any vacancy not otherwise provided for, the government may appoint any councillor to perform all the duties and exercises all the powers of the President and Vice-President due to such vacancy. According to the learned Counsel, the second part of sub-section (12) of Section 42 covers the situation that has arisen in this case, that is to say, the office of the President and vice-President had become vacant by efflux of time and, therefore, under the second part of sub-section (12) of Section 42 the government had made the impugned appointments upto 31-12-1987. The learned counsel submitted that this power is conferred on the Government in order to meet the situation caused by cessation of the office of the President and the vice-President by efflux of time and to meet a situation where the councillors by virtue of the extension of their term continued to be the councillors for a short period of 2-3 months and, therefore, the Government had thought it expedient not to hold elections for the posts of President and Vice-President. ( 5 ) THE first part of Section 42 (12) is mandatory since the word used is 'shall ; but, the second part of Section 42 (12) of the act is directory, since the word used therein is 'may'. The very fact that in the same section the words 'shall' and 'may' are used by the legislature shows that the first part of sub-section (12) of Section 42 is mandatory whereas the second part of sub- section (12) of Section 42 is only directory. That means to say, it is discretionary power conferred on the Government and that discretion has to be exercised taking into consideration the other provisions of the Act and the scheme of the act. As noticed earlier, the scheme of the act is to have elections for the elective posts of President and the Vice-President and their appointments by the Government arises only in the specified circumstances mentioned in Section 42 (3) of the Act. So unless the' Government brings this case within the provisions of sub- section (3) of section 42 of the Act, there is no scope for the appointment for the posts of President and Vice President by the Government under the scheme of the Act. So unless the' Government brings this case within the provisions of sub- section (3) of section 42 of the Act, there is no scope for the appointment for the posts of President and Vice President by the Government under the scheme of the Act. ( 6 ) THIS view is also supported by the 3 decisions of this Court in G. SEETHARAMA REDDY v. THE election OFFICER, BELLARY AND others (1966 (2) Mys. LJ. 236), in shivananda C. R. v. ELECTION officer and H'qrs. ASST. TO DEPUTY commissioner, CHICKMAGALUR (1976 (1) Kar. L. J. 389) and in M. RAMAPPA and OTHERS, v. CITY municipal COUNCIL, BELLARY and others. (1977 (1) Kar. LJ. 126 ). In the earliest decision in Seetharama Redd/s case it was held that when a provision of law lays down that the term of office of the President or Vice President shall not be co-extensive with the life of the Municipal Council as such and the law provides for annual election of the President or Vice-President, the mere fact'that the term of the Council is extended will not extend the term of office of the president or Vice-President. In shivananda's case Jagannatha Shetty J. , as he then was held that a person elected as president of a Municipal Council to a casual vacancy caused by the resignation of the previous incumbent in the office, has no right to remain in office for a full term of one year from the date he became President. Though that decision does not touch the point in issue what is necessary to notice is that under the proviso to Section 42 (11) of the Act election will have to be held every year if the term of the President or the Vice-President is limited to one year. The learned Judge observed that both the sub-sections deal with regular vacancy in the office of the President and Vice-President and to fill up such vacancy, it is obligatory to hold the election every year. This being the principle underlining the proviso to Section 42 (11) of the Act, the element of election is very much present for the appointment of the President and the Vice-President even for a short term of 3 months, that is to say, from the date they ceased to hold their office by efflux of time upto the date on which the term of the municipal councillors end. In Ramappa's case the Division Bench of this Court had to consider the resolution passed under similar circumstances. The Division Bench referred to the earlier decisions of this Court in seetharama Reddy's case and observed as follows :-"while interpreting the scope of proviso to sub-section (11) of Section 42 of Act 22 of 1964 and the power of the government 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. If, on the other hand he is elected at the time when there is in force a direction of the State government under the proviso to section 42 (11) limiting 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. "in the light of the enunciation of law in these decisions of this Court and also in the light of the scheme of the Act providing for the election of the President and the vice-President of Municipalities with special reference to Section 42 (11) of the Act and the proviso thereto, there could be no doubt that the only way of having a President and the Vice-President for the Municipality in question in this case was by election amongst the members themselves and not by appointment as was done in this case. No doubt, as contended by Mr. Reddy, learned counsel for Respondents 3 and 4, that the election for a short term of 3 months would lead to unnecessary public expenditure and waste of public time. But, when we are dealing with the provisions relating to Local bodies and public offices, the Court has to go by the strict construction of the relevant provisions to ensure that only the persons who are empowered to hold public offices hold such offices and not persons without authority of law. But, when we are dealing with the provisions relating to Local bodies and public offices, the Court has to go by the strict construction of the relevant provisions to ensure that only the persons who are empowered to hold public offices hold such offices and not persons without authority of law. When this Court has come to the conclusion that respondents 3 and 4 had no authority in the eye of law to remain as President and as the Vice-President, they must relinquish the office forthwith and they should allow the Councillors to elect the president and the Vice-President in accordance with law from among themselves. ( 7 ) ACCORDINGLY, this petition is allowed, the impugned notification Annexure-C is quashed reserving liberty to the Municipal councillors to elect their President and vice-President for the period from 9-9-1987 to 31-12-1987. ( 8 ) THE Election Officer/deputy commissioner appointed under the Act is directed to hold election for the election of the President and the Vice-President within a period of 2 weeks from the date of receipt of this order in accordance with law. ( 9 ) PARTIES to bear their own costs. Writ Petition allowed --- *** --- .