1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3368 OF 2009 Sau. Madhuri Nilkanth Phalak, Age : 32 years, Occupation : Social Service, Presently working as President of Bhusawal Municipal Council, Resident of Bhusawal, Taluka Bhusawal, District Jalgaon ..PETITIONER VERSUS 1. The State of Maharashtra Through the Urban Development Department, Mantralaya, Mumbai -32 2. The Collector, Jalgaon, District Jalgaon 3. The State Election Commission, Through the Election Commissioner Maharashtra State, Mumbai 32 4. The Bhusawal Municipal Council, Through its Chief Officer, Bhusawal, District Jalgaon 5. Rekha Santosh Chaudhari, Age : 38 years, Occ.Social Service, R/o Shanimandir Ward, Bhusawal, Dist. Jalgaon ..RESPONDENTS Mr V.J. Dixit, Senior Advocate with Mr Mukul Kulkarni for the petitioner; Mr K.G. Patil, AGP for respondents no.1 & 2; Mr S.T. Shelke, Advocate for respondent no.3; Mr R.N. Dhorde, Advocate holding for Mr P.S. Dighe for respondent no.5. 2 WITH WRIT PETITION NO.3544 OF 2009 Madhuri Nilkanth Phalak Age : 32 years, Occupation : Social Service, Presently working as President of Bhusawal Municipal Council, Resident of Bhusawal, Taluka Bhusawal, District Jalgaon ..PETITIONER VERSUS 1. The State of Maharashtra Through the Urban Development Department, Mantralaya, Mumbai -32 2. The Collector, Jalgaon, District Jalgaon 3. The State Election Commission, Through the Election Commissioner Maharashtra State, Mumbai 32 4. The Bhusawal Municipal Council, Through its Chief Officer, Bhusawal, District Jalgaon 5. Rekha Santosh Chaudhari, Age : 28 years, Occ.Social Service, R/o Shanimandir Ward, Bhusawal, Tq. Bhusawal Dist. Jalgaon ..RESPONDENTS Mr V.J. Dixit, Senior Advocate with Mr Mukul Kulkarni for the petitioner; Mr K.G. Patil, A.G.P. for respondents no.1 & 2; Mr S.T. Shelke, Advocate for respondent no.3; Mr G.V. Wani, Advocate for respondent no.4; Mr R.N. Dhorde, Advocate holding for Mr P.S. Dighe for respondent no.5 (intervenor). 3 CORAM : P.V. HARDAS AND R.K. DESHPANDE, JJ. DATE : 19 June, 2009 ORAL JUDGMENT (PER R.K. DESHPANDE, J.) Rule. Rule returnable forthwith. With the consent of learned Counsel for the parties both these petitions are heard finally at the stage of admission. 2. Since both these petitions raise a common question, these petitions are being decided by this common judgment. In Writ Petition No.3368 of 2009 the petitioner prays for issuance of a writ for directing respondents to follow section 52 read with sec.57 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 in its letter and spirit and also prays for a declaration that the term of the petitioner for the post of President of Bhusawal Municipal Council is from 10.3.2007 till 9.9.2009. The petitioner has also prayed for restraining the respondents from obstructing the petitioner from performing her duties and functions as the President of Bhusawal Municipal Council till 9.9.2009. In Writ Petition No.3544 of 2009 the petitioner has prayed for quashing the election programme declared by the 4 respondent no.2 on 18.6.2009 in respect of the post of President of Bhusawal Municipal Council. 3. The facts as are necessary for the decision of these petitions may briefly be stated thus :- The petitioner in Writ Petition No.3368 of 2009 claims to have been elected as a Councillor in the general elections of the Bhusawal Municipal Council held in November, 2006. The petitioner was thereafter elected as the President of the Bhusawal Municipal Council as per the result declared on 10.3.2007 and took over the charge of the post of President on 10.3.2007 and since then has been acting as the President. On 26.12.2006 the first general meeting of the newly elected Councillors was convened for electing the President of the Municipal Council. It appears that on 22.12.2006 one Shri Ashok Kumar Asandas Maidasani had filed Writ Petition No.2938 of 2006 before the principal seat of this High Court at Bombay seeking disqualification of several Councillors of Bhusawal Municipal Council under the provisions of the Maharashtra Local Authority Members Disqualification Act, 1986. It also appears that an ad interim order 5 came to be passed by the Division Bench at Bombay, whereby the declaration of the result of the election to the post of President of Bhusawal Municipal Council was stayed. The order as aforestated passed by the Division Bench of this Court came to be challenged before the Supreme Court by filing Special Leave Petition No.4329 of 2007 and the Supreme Court granted stay on 9.3.2007 to the order of the Division Bench of this Court dated 22.12.2006. Accordingly the petitioner took charge of the post of the President of the Bhusawal Municipal Council on 10.3.2007. According to the petitioner the term of the petitioner as the President commenced from the said date. The point, therefore, which is raised in the said petition is that the term of the post of President of the Municipal Council being for 2-1/2 years, it has to be counted from 10.3.2007 and the elections which are declared now cut short the term of the President and, therefore, the declaration of the election programme is bad in law. 4. In Writ Petition No.3544 of 2009 a similar challenge is raised in respect of the term of the President vis-a-vis the date of commencement of the term of President. The petitioner, therefore, has 6 sought for declaration of the election programme declared by respondent no.2 on 18.6.2009 as illegal and for quashing the same. 5. Mr. V.J. Dixit, the learned counsel appearing for the petitioner has urged before us that as per Section 52 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act 1965 (hereinafter referred to as "the said Act), the term of the President of the Municipal Council is two and half years duration which has to be counted from the date on which the President assumes the charge. Further, relying upon the provisions of Section 57(1) of the said Act, he urged that it is only upon the eventuality of the resignation or the removal of the President from his office that his tenure of two and half years can be curtailed. Relying upon the amended provisions of Section 52 of the said Act, the learned Senior Council contended that provisions regarding the term of the President being in co-terminus with the term of the Council, has been done away with which makes the intention of the legislature evident that at any rate the term of the President cannot be curtailed although 7 the term of the Council expires. 6. Mr. R.N. Dhorde learned counsel for the respondents and the learned Assistant Government Pleader appearing for the other respondents have relied upon the provisions of Section 40 and 41 of the said Act to urge that the term of the President i.e. two and half years + two and half years is co-terminus with the term of the Council regardless of the date of commencement of the term of the President. By relying upon the provisions of section 47 of the said Act, it is urged that the President of the Municipal Council being also the Councillor shall cease to hold the office and vacate it, upon the expiry of the term of five years which commences from the holding of the first meeting, as in this case was held on 26.12.2007. According to the learned counsel appearing for the respondents, the term of two and half years of the petitioner as a President of the Municipal Council has to be counted from 26.12.2007 which came to an end on 28.6.2009. 7. In order to appreciate the rival submissions of the parties, review of the provisions of the Act need 8 to be taken. Section 40 of the said Act which deals with the duration of the Council is reproduced below :- "[40. Duration of Council.- (1) Every Council, unless sooner dissolved, shall continue for a period of five years from the date appointed for its first meeting and no longer. (2) A Council constituted upon the dissolution of a Council before the expiratio of its duration shall continue only for the remainder of the period for which the dissolved council would have continued under sub-section (1), had it not been so dissolved." Bare perusal of the aforesaid provision would reveal that the term of the Council fixed, is of five years, and it is the date of holding of the first meeting of the Council after elections are held, is the date of commencement of five years term of the Council. The said provision further creates a prohibition, to count any other date, than the date of holding of first meeting of the Council and this is apparent from the term "no longer" used at the end of section 40(1) of the said Act. Such a construction also gets support from the provisions of sub-section (2) of Section 40 which provides that a Council, constituted upon the dissolution of the Council before the expiration of its duration, shall continue only for the remainder period 9 for which, the dissolved Council would have continued under sub-section (1), had it not been so dissolved. Thus, the construction of section 40 of the said Act reproduced above, leaves no manner of doubt that the term of five years of the Council commences from the date of holding of the first meeting only and the injunction is that, the said date can not be postponed beyond the date of the holding of the first meeting of the Council. 8. Section 41 of the said Act deals with the term of office of the Councillors and the same being relevant is reproduced below. "[41. Term of office of Councillors.- (1) The term of office of the Councillors shall be co-terminus with the duration of the Council. (2) A Councillor may resign his office unconditionally at any time by notice in writing in his hand addressed to the Collector and delivered in person and signed before the Collector and then only such resignation shall be effective." Bare perusal of the aforesaid provision makes it apparent that the term of the office of the Councillor elected has to be in co-terminus with the duration of 10 the Council which is prescribed under section 40 i.e. of five years from the date appointed for holding of the first meeting. Thus, the term of the Councillor which is also of five years, which commences from the date of holding of the first meeting of the Council and the injunction that the said date cannot in any event be longer than the date of the first meeting of the Council, also operates. 9. Section 47 of the Act deals with the vacating of all offices by the Councillor and the same is reproduced below. "47. Councillor to vacate all offices if he ceases to be Councillor.- A person who ceases to be a Councillor for any reason whatsoever shall ipso facto vacate all the offices held by him by virtue of his being a Councillor." Bare perusal of Section 47 shows that it mandates that a person who ceases to be a Councillor for any reason whatsoever shall ipso facto vacate all his offices held by him by virtue of his being a Councillor. 10. Thus, entire scheme of sections 40, 41 and 47 leaves no manner of doubt that upon completion of the 11 term of five years counted from the date of holding of the first meeting, the Councillor has to vacate all the offices held by him by virtue of his being a Councillor and such term can in no event be longer than five years. 11. Sub-section (7) of section 2 of the said Act defines the word "Councillor" as under :- "(7) "Councillor" means a person duly elected as a member of the Council, and includes the nominated Councillor, who shall not have the right,- (i) to vote at any meeting of the Council and Committees of the Council; and (ii) to get elected as a President of the Council of the Chairperson of any of the Committees of the Council." 12. Section 51 of the said Act deals with the election of the President and the provision of sub-section (1) of section 51, being relevant is reproduced below. "[51. Election of President.- (1) Subject to the provisions of Section 51(1-A) every Council shall have a President who shall be elected by the elected Councillors from amongst themselves." 12 From the aforesaid definition of a Councillor, it is apparent that only a person duly elected as a member of the Council, has a right to get elected as the President of the Council and the nominated Councillor is not eligible, either to get elected or to become a President of the Council. Bare perusal of the provision of section 51 above, makes it clear that the President of the Municipal Council has to be a person who shall be elected by the elected Councillors from amongst themselves. Thus, the President of the Municipal Council has to be necessarily a elected Councillor and if he is not the elected Councillor, then he is ineligible to get himself elected as President, in terms of sub-section (1) of section 52 of the said Act. 13. Now we turn to the provisions of section 52 which has been relied by the learned Senior Counsel Shri. V.J. Dixit and the same is reproduced below. “[52. Term of Office of President – The term of office of the President shall be of two and half years : Provided that, nothing in this section shall apply to the Presidents who are holding the office of Presidents on the date of coming into force of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships 13 (Second Amendment) Act, 2006, (Mah. XLVIII of 2006) and their term shall be co-terminus with the term of their respective Councils.]” 14. Section 57 of the Act relied upon by the petitioner is reproduced below. "[57. (1) On the election of a new President, the retiring President shall hand over charge of his office to the new President. (2) Every President, who resigns his office or is removed from office or ceases to be President for any reason other than election of a new President, shall hand over charge of his office to the Collector or any officer appointed by the Collector in this behalf. (3) Every Vice-President, who ceases to be Vice-President for any reason, shall hand over charge of his office to the President, and if the office of the President is vacant, to the Collector or any officer appointed by the Collector in this behalf. (4) If any President or Vice- President refuses to hand over charge of his office as required under sub-section (1), (2) or (3), the Collector may, by order in writing, direct him to hand over charge of his office and all papers and property of the Council, if any, in his possession as such President or Vice-President, to the person specified in sub-section (1), (2) or (3) as the case may be, and such President or Vice- President shall forthwith comply with such direction. (5) If any President or Vice- President to whom a direction has been issued under sub-section (4) does not 14 comply with such directions, he shall on conviction, be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to two thousand rupees, or both.] Bare perusal of aforesaid provisions show that in the five years duration of the Council, there has to be an election, to elect new President after expiry of the initial term of two and half years. Upon election of new President, the retiring President has to hand over the charge of his office, to the new President. 15. Thus, in our view the entire scheme of the relevant provisions of the Act which are reproduced above, makes it clear that the duration of the Council is of five years only and it commences from the date appointed for holding of its first meeting. Similarly, the term of the office of the Councillor, also commences from the date appointed for holding of the first meeting of the Council, so as to bring it, in co-terminus with the duration of the Council. The Act prohibits, counting a date longer than the date appointed for holding first meeting, to count the five years duration of the Council, as well of the Councillors. Upon expiry of the five years term so commenced, the Councillor ceases to be a Councillor and 15 ipso facto vacates all the offices including that of the President, held by him by virtue of being a Councillor. It is the only "elected Councillor", who has right to get elected as the President of the Municipal Council. Thus, President of the Municipal, being none other than a elected Councillor, it will be ridiculous to hold that even if he ceases to be Councillor, continues to hold the post of President, beyond the period of five years, by counting the date of his taking over the charge of the office of the President, as the date of commencement of his term. 16. It will be significant to note at this stage the unamended provisions of Section 52, existing prior to coming into force of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township (Second Amendment) Act 2006 with effect from 29.12.2006, which is reproduced below. “[52. Term of office of President : The term of office of the President shall be of five years & shall be co-terminus with the term of the Council : Provided that, nothing in this section shall apply to the Presidents who are holding the office of the Presidents, on the date of coming into force of the Maharashtra Municipal Corporations and Municipal Councils (Amendment) and Temporary provision for 16 Conduct of Elections of Municipal Corporations Act, 2001, and their shall be co-terminus with the term of their respective Councils.] “ Thus, prior to aforesaid amendment, which was brought into force on 29.12.2006, the term of the office of the President was of five years duration and the same was in co-terminus with the term of the Council. By way of an amendment, the five years term only of the President, is divided in two parts of two and half years each, within a complete term of Council as well of the Councillor, which remains of total five years. As a result, the President elected initially for two and half years, is to be treated as retiring President in terms of Section 57 and upon expiry of his term, which starts from the date of commencement of the term of Council as well of the Councillor, he has to hand over charge of his post, to the President who shall be elected for the next term of two and half years. Consequently, the same analogy as to the date of commencement of the term of Council, shall apply to the initial term of two and half years of the President and counting of any date, other than the date appointed for holding of the meeting of the Council, is prohibited. This is in our view, the harmonious construction of the 17 provisions of the Act. 17. Thus, in view of the aforesaid position, the term of the Council in the present case, had commenced from the date appointed for holding of the first meeting of the Council which was, 26th of December, 2006. The petitioner was elected as a President of the Municipal Council in the said meeting. His tenure of two and half years came to an end on 28.6.2009. The term of the office of the President of the Municipal Council held by the petitioner, cannot be extended beyond 28.6.2009 on the ground that he was prevented from taking charge of the post from 26.12.2006 to 10.3.2007, because of the stay granted by the Principal Bench of this Court at Mumbai. The legislature has not made any such provision in the Act, for extension of the duration of the Council, the Councillor or the President of the Municipal Council, on the ground that the Councillor or the President could not take charge of the office, by reason of the interim orders passed by the Court. Hence,the petitioner cannot take advantage of interim order, to get his tenure extended. 18 18. In view of above, we do not find any substance in the contentions advanced by the learned counsel for the petitioner in both the writ petitions. The petitions are sans merit. The same are, therefore, dismissed. Rule stands discharged with no order as to costs. [ R.K. DESHPANDE, J. ] [ P.V.HARDAS, J.] ssc/wp3368.09