Municipal Council, Kota and another vs State of Madhya Pradesh and others

P.V. Dixit, C.J.

This order will also govern the disposal of Misc. Petitions Nos. 548 and 591 of 1964.

The common question raised in these three petitions is as regards the legality of notices issued u/s 328 of the Madhya Pradesh Municipalities Act, 1961 (hereinafter referred to as the Act), to the Petitioners to show cause by furnishing their explanation against dissolution and supersession.

The Municipal Council of Kota, Petitioner in Miscellaneous Petition No. 303 of 1964, and the Municipal Council of Betul, Petitioner in Miscellaneous Petition No. 591 of 1964, have been served with notices u/s 328(1) of the Act calling upon them to show cause why they should not be dissolved. The third Petitioner, namely, Municipal Council, Itarsi, has been served with a notice u/s 328(3) asking it to show cause why it should not be superseded. All the Petitioners pray for the issue of writs of certiorari for quashing the notices issued to them.

All the three Municipal Councils were constituted under the Central Provinces and Berar Municipalities Act, 1922, which was repealed by Section 2(1) of the Act of 1961. By virtue of Sub-section (2)(i) of Section 2 of the Act these bodies are deemed to have been constituted under the Act of 1961. By Section 2(2)(ii) it is provided that the Municipal Committees, Councils and Boards deemed to have been constituted under the Act shall continue to function until the expiry of their respective terms under the repealed Act applicable to them before the commencement of the Act of 1961. Proviso (b) to Sub-Section 2(ii) lays down that the term of the deemed Municipal Committees, Councils and Boards shall, notwithstanding the expiration of their terms, be deemed to extend to and expire with, the day immediately, preceding the date appointed under Sub-section (2) of Section 55 for the first meeting of the Councils constituted under the Act for the first time in their respective places.

Section 328(1) which gives to the State Government the power to dissolve a Council is as follows:

328 (1) If at any time upon representation made or otherwise it appears to the State Government that-

(a) the Council is not competent to perform, or persistently makes default in the performance of the duties imposed on it by or under this Act or any other law for the time being in force, or exceeds or abuses its powers or fails to carry out any order passed by the State Government under this Act;

(b) the President of the Council or any of its Committees is not competent to perform, or persistently makes default in the performance of the duties imposed on him or it by or under this Act or any other law for the time being in force, or exceeds or abuses his or its powers or fails to carry out any order passed by the State Government under this Act and the Council has failed or neglected to take action against the President or the Committee; the State Government may, by an order stating the reasons therefor published in the Gazette, dissolve such Council and may order a fresh election to take place.

Sub-section (3) of Section 328 enables the State Government to supersede a Council instead of dissolving it and says, inter alia, that the State Government may, by an order, stating the reasons for taking such action, published in the Gazette, supersede the Council for a period to be specified in the order. Subsection (4) requires that no order of dissolution or supersession shall be passed until reasonable opportunity has been given to the Council to furnish an explanation. Sub-section (5) enables the State Government to extend the period of supersession originally specified. Then the proviso to Sub-section (5) lays down that "the total period of supersession under Sub-sections (2) and (3) together with its extension under this Sub-section shall not exceed two years or the unexpired term of the Council, whichever is less.

It was argued by Shri Dharmadhikari, learned councel appearing for the Petitioners, that the notices issued to the Petitioners were invalid as Section 328 applied only to Municipal Councils constituted by or under the Act of 1961 and was not applicable to a Municipal Committee or body constituted under any repealed Act or continued by virtue of Section 2(2)(ii) of the Act. It was said that the defination of "Council" given in Section 3 (8) of the Act meant only a Council constituted u/s 18 of the Act and not a deemed Council; and further that as a deemed Council functioned under the repealed Act under which it was constituted it could not be regarded as a Council performing the duties imposed on it by or under the Act of 1961 so as to attract Clause (a) of Section 328 (1).

We are unable to accede to these contentions. Section 3 (8) defines "Council" as "Municipal Council constituted by or under the Act". u/s 2 (2) (i) all Municipal Committees, Municipal Councils, Municipal Boards etc., constituted under any repealed Act are "deemed to have been respectively constituted" under the Act of 1961. Thus, the deemed bodies, though they are not really bodies constituted under the Act, have been fictionally treated as bodies constituted under the Act. The Municipal Committees, Councils, Boards etc., constituted under the repealed Acts have been thus constituted by the Act of 1961 and treated as fictionally constituted under the Act. There is nothing in the definition of "Council" given in Section 3 (8) to exclude from its purview such fictional bodies. If the expression "Council" as used in Section 328 is understood in the sense given to it by the definition, as it must be, then it is clear that Section 328 applies both to Municipal Councils constituted under the Act and to those fictionally constituted by Section 2(2)(i) of the Act. It is true that, as provided by Section 2(2)(ii), these fictional bodies continue to function under the repealed Act applicable to them before the commencement of the Act of 1961. But that does not make any difference to the applicability of Clause (a) of Section 328 to them. That clause speaks of the incompetency or default of the Municipal Council "in the performance of the duties imposed on it" by or under the Act of 1961 or any other law for the time being in force." The functions which these bodies continue to perform under the repealed Act are clearly those which are imposed on them by Section 2(2)(ii) of the Act of 1961 which enjoins that they shall continue to function under the repealed Act. So far as the performance of the functions by these bodies are concerned, the repealed Act is still in force. Therefore, the functions which the deemed bodies perform under the repealed Act are functions and duties imposed on them by the Act of 1961 as well as by a Law for the time being in force in regard to performance of those functions. In our opinion, there is no substance in the contention advanced on behalf of the Petitioners that the operation of Section 328 is confined only to Councils constituted u/s 18 of the Act.

The further argument that was put forward by Learned Counsel in relation to supersession notice given to the Municipal Council, Itarsi, was that under the proviso to Sub-section (5) of Section 328 the total period of supersession could not exceed two years or the unexpired term of the Council whichever was less; that as the term of the deemed Municipal Council under proviso (b) of Section 2 (2) (ii) was not determinate but an indeterminate one depending on the date fixed u/s 55(2) for the first meeting of the Council constituted under the Act, there could not be any "unexpired term" of the deemed superseded Council and, therefore, the proviso to Sub-section (5) was unworkable in the case of a deemed Council; and that consequently Sub-section (3) of Section 328 could not be invoked for superseding a deemed Council.

This contention is not sound. It is true that for a deemed Council there is no fixed term. Its term extends to, and expires with, the date immediately preceding the date appointed u/s 55(2) for the first meeting of the Council constituted under the Act. But when such a body is superseded, it has to be restored before a new Council under the Act of 1961 can function in its place, and when that has to be done, there would necessarily be an unexpired term of the Council, to wit, the term from the date of its supersession to the date of the meeting u/s 55(2). In the case of deemed Councils the effect of the proviso is that this un expired term must be longer than the period of supersession, which must not in any case exceed two years, and for this it is necessary that the deemed superseded body must be restored before a new Council can function. It is only if this happens, then alone the unexpired term of the Council would exceed the period of supersession. The contention that the provisions with regard to supersession cannot be resorted to in the case of deemed Councils cannot, therefore, be accepted.

Shri Dharmadhikari referred us to Hariharprasad v. State of M.P. 1957 MPLJ 719 and to the decision of this Court in Gram Panchayat, Chincholi, etc. and Anr. v. The State of M.P. and another MP No. 317 of 1964 decided on 30th Sept 1964. Both these decisions have no bearing whatsoever on the matter before us and are of no assistance to the applicants.

For these reasons, our conclusion is that the notices issued u/s 328 of the Act to the three Municipal Councils are valid. The result is that all these applications are dismissed with costs. Counsel''s fee in each case i.e. fixed at KB. 1G0. The outstanding amount of the security deposit, after deduction of costs, shall be refunded to the Petitioners in each case.