Dismissed

Sau.Madhuri Nilkanth Phalak v. the State of Maharashtra and Others

Bombay HC19 Jun 2009WP/3368/2009

Case brief

AI extract

What is this about?

The High Court dismissed writ petitions challenging the election programme and tenure of the President of Bhusawal Municipal Council. The Court held that the President's term is strictly five years co-terminus with the Council, commencing from the first meeting, with no extension for court-caused delays.

What did the court decide?

Petitions dismissed as sans merit; tenure of petitioner cannot be extended; election programme held valid.

Sau.Madhuri Nilkanth Phalak Vs the State of… — Pension and Retirement Benefits | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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 WRIT PETITION NO.3368 OF 2009

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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

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..PETITIONER

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VERSUS

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1. The State of Maharashtra Through the Urban Development Department, Mantralaya, Mumbai -32

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2. The Collector, Jalgaon, District Jalgaon

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3. The State Election Commission, Through the Election Commissioner Maharashtra State, Mumbai 32

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4. The Bhusawal Municipal Council, Through its Chief Officer, Bhusawal, District Jalgaon

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5. Rekha Santosh Chaudhari, Age : 38 years, Occ.Social Service, R/o Shanimandir Ward, Bhusawal, Dist. Jalgaon . .RESPONDENTS

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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.

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WITH WRIT PETITION NO.3544 OF 2009

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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

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VERSUS

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1. The State of Maharashtra Through the Urban Development Department, Mantralaya, Mumbai -32

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2. The Collector, Jalgaon, District Jalgaon

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3. The State Election Commission, Through the Election Commissioner Maharashtra State, Mumbai 32

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4. The Bhusawal Municipal Council, Through its Chief Officer, Bhusawal, District Jalgaon

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5. Rekha Santosh Chaudhari, Age : 28 years, Occ.Social Service, R/o Shanimandir Ward, Bhusawal, Tq. Bhusawal Dist. Jalgaon ..RESPONDENTS

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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).

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 CORAM : P.V. HARDAS AND
 R.K. DESHPANDE, JJ.

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 DATE : 19 June, 2009

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ORAL JUDGMENT (PER R.K. DESHPANDE, J.)

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Rule. Rule returnable forthwith. With the
consent of learned Counsel for the parties both these
petitions are heard finally at the stage of admission.

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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

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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

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Petition No.3544 of 2009 the petitioner has prayed for
quashing the election programme declared by the

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respondent no.2 on 18.6.2009 in respect of the post of
President of Bhusawal Municipal Council.

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3.The facts as are necessary for the decision of
these petitions may briefly be stated thus :-

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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

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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.

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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

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sought for declaration of the election programme
declared by respondent no.2 on 18.6.2009 as illegal
and for quashing the same.

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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

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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

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the term of the Council expires.

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6. Mr. R.N. Dhorde learned counsel for the

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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.

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7.In order to appreciate the rival submissions of
the parties, review of the provisions of the Act need

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to be taken. Section 40 of the said Act which deals
with the duration of the Council is reproduced
below :-

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"[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.

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(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."

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Bare perusal of the aforesaid provision would

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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

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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.

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8.Section 41 of the said Act deals with the term of
office of the Councillors and the same being relevant
is reproduced below.

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"[41. Termofofficeof
Councillors.- (1) The term of office of
the Councillors shall be co-terminus
with the duration of the Council.

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(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
onlysuchresignationshallbe
effective."

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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

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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.

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9.Section 47 of the Act deals with the vacating of
all offices by the Councillor and the same is

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reproduced below.

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"47.Councillor to vacate all offices if
he ceases to be Councillor.-A person
who ceases to be a Councillor for any
reason whatsoever shallipso facto
vacate all the offices held by him by
virtue of his being a Councillor."

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Bare perusal of Section 47 shows that it mandates

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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.

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10.Thus, entire scheme of sections 40, 41 and 47
leaves no manner of doubt that upon completion of the

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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.

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11.Sub-section (7) of section 2 of the said Act
defines the word "Councillor" as under :-

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"(7)"Councillor" means a person
duly elected as a member of the Council,
and includes the nominated Councillor,
who shall not have the right,-

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(i)to vote at any meeting of the
Council and Committees of the Council;
and

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(ii)to get elected as a President
of the Council of the Chairperson of any
of the Committees of the Council."

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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.

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"[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
electedCouncillorsfromamongst
themselves."

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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.

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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.

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“[52. Term of Office of President –
The term of office of the President
shall be of two and half years :

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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

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(Second Amendment) Act, 2006, (Mah.
XLVIII of 2006) and their term shall be
co-terminus with the term of their
respective Councils.]”

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14.Section 57 of the Act relied upon by the
petitioner is reproduced below.

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"[57. (1) On the election of a new
President, the retiring President shall
hand over charge of his office to the
new President.

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(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.

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(3)EveryVice-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.

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(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.

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(5)If any President or Vice-
President to whom a direction has been
issued under sub-section (4) does not

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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.]

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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.

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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

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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.

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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.

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“[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 :

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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

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Conduct of Elections of Municipal
Corporations Act, 2001, and their shall
be co-terminus with the term of their
respective Councils.] “

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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

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provisions of the Act.

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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.

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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.

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 [ R.K. DESHPANDE, J. ] [ P.V.HARDAS, J.]

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ssc/wp3368.09

Sau.Madhuri Nilkanth Phalak v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Sau.Madhuri Nilkanth Phalak v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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