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Madhya Pradesh High Court · body

2014 DIGILAW 631 (MP)

Balkrishna Dubey v. State of M. P.

2014-06-09

K.K.TRIVEDI

body2014
Judgment: K.K. Trivedi, J. 1. Heard on the question of admission. 2. The petitioners, two in number, have approached this Court calling in question the Notification dated 15.5.2014, issued by the M.P. State Election Commission for holding of election on the post of Sarpanch of the Nagar Panchayat Mauganj, District Rewa. It is the contention that such an act of the respondents is in violation of the proviso to Section 37 of the M.P. Municipalities Act, 1961 (hereinafter referred to as the Act for brevity). 3. One Smt. Kaneej Fatima was elected as President of the Nagar Panchayat Mauganj in the election held in the year 2009. Such election of the said President was called in question in an Election Petition filed before the District Judge, Rewa. In Election petition No. 5/2010, after full dressed trial, the Election Tribunal reached to the conclusion that the election of said Smt. Kaneej Fatima was illegal and set aside the said election, vide judgment dated 20.12.2013. It is contended that this judgment has attained finality as it is not called in question anywhere. A vacancy on the post of President of Nagar Panchayat was thus created and exercising the power under Section 37(2) of the Act, the State Government vide order dated 4.2.2014 appointed the petitioner No. 2 as a person to exercise the powers of the President of the Nagar Panchayat. This appointment was made till the post was filled in by procedure prescribed under the Act. 4. The State Election Commission was informed about the vacancy and vide Notification dated 15.5.2014, election on the post of President of the Nagar Panchayat is notified. It is the contention that the term of the Nagar Panchayat would be completed in the month of November 2014 and regular elections are to be held before completion of terms of the said Nagar Panchayat in terms of provisions of Section 36 of the Act, therefore, there was no question of holding the bi-election for election of President in the Nagar Panchayat. Thus, the Notification itself is bad in law. It is contended that in terms of the provisions of Section 37 proviso itself, such a Notification is bad in law. 5. To understand the Scheme of election and the duration of the municipality, it would be necessary to look into the provisions of the Act. Thus, the Notification itself is bad in law. It is contended that in terms of the provisions of Section 37 proviso itself, such a Notification is bad in law. 5. To understand the Scheme of election and the duration of the municipality, it would be necessary to look into the provisions of the Act. Section 36 of the Act, which prescribes duration of the Municipality reads thus:- 36. Duration of the Municipality. (1) Every Municipality unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer. (2) An election to constitute a Municipality shall be completed.- (a) before the expiry of its duration specified in sub-section (1). (b) before the expiration of a period of six months from the date of its dissolution: Provided that where the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election under this section for constituting the Municipality for such period. (3). A Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Municipality would have continued under sub-section (1) had it not been so dissolved. (4) Subject to the provisions of this Act, the term of President and every Councillor shall be coterminous with the term of the Council. 6. The duration of the Municipality is five years from the date of first meeting of the elected council. In case the duration is not completed and a decision is taken to dissolve the Municipality, in terms of the provisions of the Act, and that is why it is specifically provided under sub-clause (b) of sub-section (2) of Section 36 of the Act that before the expiration of the period of six months from the date of its dissolution, the process of election and constitution of the elected council of the Municipality shall be completed. 7. The circumstances in which a vacancy occurred during the tenure of the Municipal Council or Nagar Panchayat as the case may be, a different set of provision is made under Section 37 of the Act, for filling of casual vacancy which reads thus:- 37. 7. The circumstances in which a vacancy occurred during the tenure of the Municipal Council or Nagar Panchayat as the case may be, a different set of provision is made under Section 37 of the Act, for filling of casual vacancy which reads thus:- 37. Filling of Casual Vacancies.-(1) As soon as the office of a President, or a seat of Councillor elected from ward, becomes vacant, or is declared vacant, or the election of President or the Councillor, as the case may be, is declared void, the State Government shall forthwith inform the State Election Commission for filling up the vacancy and the person so elected shall hold office of President or Councillor, as the case may be, only for the remaining period of the Council: Provided that if the remaining period of the Council is less than six months, such vacancy shall not be filled in. (2) Until the vacancy in the office of President is filled in under sub-section (1), all the powers and duties of the President shall be performed by such elected Councillor as the State Government may nominate in this behalf: Provided that if the office of President is reserved under Section 29-B the President shall be nominated from the elected Councillors belonging to such reserved category. 8. A reading of this provision will make it clear that in case the election of the President or a Councillor is declared as void by the Court of law, the State Government shall inform the State Election Commission for filling up the vacancy. However, in case the remaining period of the Council is less than six months from the date of vacancy, the said vacancy shall not be filled in. Sub-section (2) of Section 37 of the Act give power to the State to authorise any elected Councillor to discharge the functions of the post of President in case the election of the President is declared void by the Court of law. Therefore, both the provisions are totally different. It is not the case that the Nagar Panchayat itself was dissolved. Only a vacancy occurred on account of declaration of election of President of the Nagar Panchayat as void by the Court. That vacancy occurred on the date of decision given in the Election Petition. Action was required to be taken to fill in the post within a period of six months. Only a vacancy occurred on account of declaration of election of President of the Nagar Panchayat as void by the Court. That vacancy occurred on the date of decision given in the Election Petition. Action was required to be taken to fill in the post within a period of six months. From the date of decision, the Notification is issued within the period of six months. Therefore, misreading the provisions of proviso added to the Section 37 of the Act, claim made by the petitioners that the duration of the Nagar Panchayat is less than six months now therefore no Notification for holding of election can be issued, cannot be accepted. The simple interpretation of the proviso would be the remaining period of the Council is to be taken into account on the date the vacancy occurred and not on the date when the Notification is issued. If it is not so, the provision made in Section 37 of the Act would become redundant and meaningless. 9. In view of the aforesaid analysis, no case is made out to interfere in the Notification issued by the State Election Commission. 10. The petition fails and is hereby dismissed.