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2008 DIGILAW 204 (GAU)

Sumit Das v. Gauhati Municipal Corporation

2008-03-11

BIPLAB KUMAR SHARMA

body2008
JUDGMENT B.K. Sharma, J. 1. The two petitioners are the elected Councillors of the Gauhati Municipal Corporation. They have filed the instant writ petition praying for setting aside and quashing the decision of the Presiding Officer of the meeting pertaining to election of Mayor of the Corporation by which it has been held that the Respondent No. 3, elected as the Mayor was not disqualified under the relevant provision of the Gauhati Municipal Corporation Act, 1971. 2. The fact involved is in a very narrow compass. According to the petitioner, the Respondent No. 3 before her election as Mayor remained absent in 3 successive meetings of the Corporation held on 29.12.2006, 06.03.2007 and 18.05.2007 and thereby, she attracted disqualification to remain as a Councillor as per the provisions of Section 48(1)(b) of the aforesaid Act. 3. After the aforesaid 3 dates, the election for the post of Mayor was held on 23.05.2007, in which the Respondents No. 3 was elected. The objection raised by the petitioners regarding disqualification of the Respondent No. 3 to remain as a Councillor so as to contest the election was rejected by the Presiding Officer of the meeting held on 23.05.2007. Being aggrieved, the petitioners have filed the instant writ petition against the order of the Presiding Officer passed on 23.05.2007 with further prayer to hold the election afresh. 4. I have heard Mr. R.P. Sarmah, learned Sr. counsel assisted by Ms. R. Devi, learned Counsel for the petitioners as well as Mr. K.N. Choudhury, learned Sr. counsel assisted by Mr. S. Chamaria, learned Counsel representing the Corporation. I have also heard Mrs. M. Hazarika, learned Sr. counsel representing the Respondent No. 3 assisted by Mr. R.K. Deb Choudhury, learned advocate. Mr. U.K. Nair, learned Counsel, who was requested to render assistance to the Court, has also made his submission upon reference to various provisions of the Act and the Rules framed thereunder. 5. Section 48 of the Act deals with the disqualification from continuing as Councillor. If a Councillor absents himself during three successive months from the meetings of the Corporation except for temporary illness or other cause to be approved by the Corporation, he shall cease to hold office as such and the Government may, by notification in the Official Gazette, declare his seat to be vacant. If a Councillor absents himself during three successive months from the meetings of the Corporation except for temporary illness or other cause to be approved by the Corporation, he shall cease to hold office as such and the Government may, by notification in the Official Gazette, declare his seat to be vacant. It is under these provisions, the petitioners have projected their case having regard to the fact that the Respondent No. 3 did not attend three consecutive meetings held on 29.12.2006, 06.03.2007 and 18.05.2007. 6. As per the aforesaid provisions of Section 48 of the Act, to attract disqualification, a Councillor will have to be absent during three successive months from the meetings of the Corporation. Although Section 76 of the Act provides that the Corporation shall meet not less than once a month for the transaction of business, but it is an admitted position that no such monthly meeting was held. It is under these circumstances, the provision relating to meetings in three successive months has been construed confining the meetings held on 29.12.2006, 06.03.2007 and 18.05.2007. According to the respondents, the meeting held on 23.05.2007 being the one in 3 successive months and the Respondent No. 3having attended the same, Section 48(b) of the Act is not attracted to her case. 7. Learned counsel for the petitioners submits that the meeting held on 23.05.2007 being the one relating to the election of the Mayor, same cannot be stated to the meetings envisaged under Section 48(1)(b) of the Act. 8. Sections 80 and 81 of the Act deal with the meetings of the Corporation. As per Section 80 of the Act, the Mayor, or, in his absence, the Deputy Mayor, shall preside over every meeting of the Corporation. Section 81 of the Act provides that notwithstanding anything contained in Section 80 or elsewhere in the Act, a meeting for election of the Mayor and the Deputy Mayor, shall be presided over by the Commissioner of the Plains Division. It is the case of the respondents that having regard to the provisions of Sections 80 and 81 of the Act, there is no distinction between the meetings relating to transaction of business of the Corporation and the meeting relating to election of the Mayor. 9. It is the case of the respondents that having regard to the provisions of Sections 80 and 81 of the Act, there is no distinction between the meetings relating to transaction of business of the Corporation and the meeting relating to election of the Mayor. 9. It is in the above context, it has been argued by the learned Counsel for the respondents that the Respondent No. 3 having attended the fourth meeting on 23.05.2007 falling within three successive months taking the aforesaid dates of the meetings as the months, Section 48(1)(b) of the Act is not attracted. 10. Apart from the above, as pointed out by Mr. U.K. Nair, learned Counsel assisting the Court, Rule 2(iv) of the Gauhati Municipal Corporation (Conduct of Business) Rules, 1973 defines "presiding Officer" as the President of the meeting of the Corporation as provided under Sections 80 and 81 of the Act. Thus, there is no distinction between the meetings envisaged under Sections 80 and 81 of the Act. Rule 7 of the Rules prescribes arrangement of the list of business, one of which is any election by the Corporation. Thus, the election being apart of the meeting of the Corporation and the Respondent No. 3 having attended one of the meetings, falling within three successive months construing the dates of holding the meetings as the months, cannot be said to have earned disqualification from being a Councillor. 11. Mr. Nair, learned Counsel has also drawn my attention to Section 84 of the Act prescribing quorum relating to transaction of business in any meeting of the Corporation. Section 84 of the Act, apart from other business, also includes election of Mayor. Thus, the plea of the petitioner that the meeting held on 23.05.2007 being only in respect of the election of Mayor, does not come within the purview of the meetings envisaged under Section 48(1)(b) of the Act cannot accepted. 12. Apart from the above, the preliminary objection raised by the learned Counsel for the respondents regarding maintainability of the writ petition cannot be said to be without any substance. Section 59(c) of the Act defines "election" which includes election of Mayor as well. Section 60 of the Act provides for election petition to be presented before the prescribed authority. The prescribed authority is the jurisdictional District Judge. Section 59(c) of the Act defines "election" which includes election of Mayor as well. Section 60 of the Act provides for election petition to be presented before the prescribed authority. The prescribed authority is the jurisdictional District Judge. Section 62 of the Act provides the ground for declaring the election to be void, one of which is the candidate on the date of election being disqualified. Rule 90(C) of the Gauhati Municipal Corporation Election Rules, 1973 defines "the Court" as the District Judge at Guwahati. 13. The Presiding Officer of the meeting held on 23.05.2007 rejected the objection on the ground that there was no resolution approved by the Corporation0 and neither there was any notification notifying disqualification of the Respondent No. 3. Section 48 of the Act dealing with the disqualification of the erring Councillor provides issuance of notification by the Government in the Official Gazette declaring the seat to be vacant. When the particular Councillor ceases to hold office, the Commissioner of the Corporation shall at once intimate in writing the fact to the Councillor and the Government and report the same to the Corporation at its next ensuing meeting. In absence of any such notification declaring the Respondent No. 3 to have disqualified to remain as a Councillor, the Presiding Officer was left with no option than to accept the nomination of the Respondent No. 3. 14. For the all the foregoing reasons, I do not find any merit in the writ petition and accordingly, it is dismissed. Before parting with the case record, I place on record my note of appreciation for the assistance extended by Mr. U.K. Nair, learned Counsel, who on being requested to render such assistance, readily agreed to do so.