Judgment:
S.B. Mhase, J.
1. Rule, with the consent of the parties made returnable forthwith and heard.
2. The petitioner has approached this Court under Article 226 of the Constitution of India challenging the Order passed by the Collector, District Raigad, who is the respondent No. 2 herein. On 19th June, 2009, whereby purporting to act under Section 57 of the Maharashtra (Municipal Councils), (Nagar Panchayats) And Industrial Townships Act, 1965 (Hereinafter referred to as the 'said Act' ). He has appointed one Mr. P.C. Sakpal, Tahsildar, Murud, District Raigad to hold the charge of the President of Murud Nagar Parishad in addition to the charge which he is holding as Tahsildar. The President of Murud Nagar Parishad was elected for a period of two and half years and the said period was coming to an end on 19th June, 2009. The post of the President of the said Municipal Council was reserved for Scheduled Tribe. A person, who was elected as President of the said Municipal Council till 19th June, 2009, was from the Open Category. However, after a period of two and half years, the said President's seat was reserved for Scheduled Tribe. It is to be noted that simultaneously there was an election of the Vice President. Therefore, the process of the election of the Vice President of the said Municipal Council started on 15th June, 2009. Two nominations were received for the post of the Vice President of the said Municipal Council. There was also simultaneous election process for the post of the President and thus, on 19th June, 2009, there was Vice President of the said Municipal Council, who could look after the affairs of the said Municipal Council in the absence of the President.
3. Insofar as the process of the President's post is concerned, it appears that in the said election no councillor has filled nomination form belonging to the Scheduled Tribe since there is no Scheduled Tribe candidate elected in the said Municipal Council. Therefore, the Collector has come forward and in exercise of the powers under Section 57 of the Maharashtra (Municipal Councils), (Nagar Panchayats) And Industrial Townships Act, 1965 has passed the impugned Order appointing the Tahsildar to look after the functions of the President. We have perused Section 57 of the Maharashtra (Municipal Councils), (Nagar Panchayats) And Industrial Township Act, 1965 which reads thus:
57. President or Vice- President to hand over charge.-(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 his 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 comply with such direction, 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 with both. Sub-section (2) is relevant for our consideration where it has been stated that where the President resigns his office or is removed from his office or ceases to be President for any reason other than election of a new President he shall hand over charge of his office to any officer appointed in this behalf. This Section will be applicable in the circumstances where there is an incumbent in the office of the President and the President resigns his office or is removed from office or ceases to be President but in case of a vacancy on account of elections Sub-section (2) is not applicable and thereby the Collector or his nominee cannot enter into the office of the President. It will also be useful to refer to Sections 59 and 60 which read thus:
59. Functions of Vice- President .-(1) It shall be the duty of the Vice President of a Council
(a) in the absence of the President and unless prevented by reasonable cause, to preside at the meetings of the Council;
(b) 1(***)
(c) to exercise such of the powers and perform such of the duties of the President as the President may from time to time depute to him;
(d) during the absence of the President to exercise the powers and to perform the duties of the President.
(2) The Vice-President shall be ex-officio Chairman of such one of the Subject Committees, if any, as the Council may determine....
60. Simultaneous vacancy in the offices of President and Vice-President.- In the event of the offices of the President and the Vice-President becoming vacant simultaneously due to any reason, the Chief Officer shall report to the Collector, and pending the election of a new President, the powers and duties, of the President shall be exercised and performed by the Collector or such other officer as the Collector may appoint in this behalf except that he shall have no right to vote. Any officer appointed by the Collector shall receive such remuneration from the municipal funds as the Collector may determine..
A reading of Section 59 discloses that it shall be the duty of the Vice-President of a council in the absence of the President and unless prevented by reasonable cause, to preside at the meetings of the Council and to exercise such of the powers and perform such of the duties of the President.
4. Section 60 contemplates a simultaneous vacancy in the office of the President and Vice- President, but in the present case there was no simultaneous vacancy. On the contrary, both the elections were held simultaneously and even though there was no nomination filed for the post of President. However, election to the post of Vice- President was held and the Vice-President was elected and therefore, at the time of passing the impugned Order the Vice-President was in office, who could have held the post of President having regard to Section 59 of the said Act. Looked at from any angle the Collector could not have passed the impugned Order under Section 57 of the Maharashtra (Municipal Councils), (Nagar Panchayats) And Industrial Townships Act, 1965. In our view, Section 57 is not attracted at all in the facts and circumstances of the present case.
5. What is important to be noted is that the situation which we are considering in the instant Writ Petition has not been left out by the legislature in a vacuum. The legislature has taken into consideration the situation where as a result of the reservation of the post of President for a specified reserved category a candidate may not be available, and therefore while framing the Rules, titled as the Maharashtra Municipal Councils And Nagar Panchayats (President Election) Rules, 1981 the said contingency has been taken into account. Rule 2-C is relevant for the said purpose which reads thus:
2-C. Tenure of reservation of office of President of Municipal Council.-The office of the President in a Municipal Council or a Nagar Panchayat, as the case may be, reserved for the Scheduled Castes, the Scheduled Tribe or the category of Backward Class of Citizens or women, shall continue to be reserved for the full term of one year for the same category for which it has been reserved : Provided that in the Municipal Council or the Nagar Panchayat, as the case may be, in which one Councillor is available from a particular category and the office of the President is also reserved for the same category, in the event of casual vacancy in the office of the President for whatever reason, it shall be allotted by draw of lots to any of the categories for which the office of President may be reserved under Section 51-IA of the Act. The same process shall be applied in case where no Councillor belonging to a particular category for which the office has been reserved has filed the nomination.
Provided further that, in a case where the office of the President is reserved for women belonging to the Scheduled Castes, or the Scheduled Tribes or as the case may be, for the category of Backward Class of Citizens, in the event of casual vacancy in the office of the President and there being no other women councillor belonging to the said Castes or the Tribes or the category of the Backward Class of Citizens available for whatever reasons then the office of the President, for the remainder of the term, shall be treated as (i) if originally reserved for women belonging to the Scheduled Castes, then for the Scheduled Castes,
(ii) if originally reserved for women belonging to the Scheduled Tribes, then for the Scheduled Tribes and (iii) if originally reserved for the women belonging to the Backward Class of Citizens then for the Backward Class of Citizens)....
The proviso of Rule 2-C is relevant in the facts and circumstances of the case and the said Rule provides that whenever for any reason the President cannot be elected from the Category for which the seat has been reserved, then it shall be alloted by drawing of lots to any of the categories for which the office of the President may be reserved under Section 51-IA of the Act. The same process shall be applied in case where no councillor belonging to a particular category for which the office has been reserved has filed the nomination. Therefore, having found that no nomination form from the Scheduled Tribe councillor has been received for the election of the President and in view of the fact that there is no councillor elected from the Scheduled Tribe category then the Collector was under obligation to follow the procedure stated in Rule 2-C referred to above, instead of that the Collector high handedly usurped the powers ignoring the provisions of law and appointed the Tahsildar, Murud, District Raigad from his Department to hold post of the President. The said appointment was on account of the total misreading of the provisions of law and ignoring the relevant provisions of law which are required to be followed in the fact situation as prevailing. In our view, in the light of the statutory provisions the impugned Order is illegal and therefore, unsustainable. We, therefore, direct the Collector to follow the procedure as laid down in the Maharashtra Municipal Councils And Nagar Panchayats (President Election) Rules, 1981 and to carry out the process of the election of the President of the said Municipal Council. Till the President is elected by the process as contemplated under law, the petitioner shall hold the office as per Section 59 and discharge the functions of the office of the President. The process of election of the President shall be completed by the respondents within a period of six weeks as per the suggestion given by the learned Assistant Government Pleader for respondent Nos. 2 & 3.
6. At the end of the completion of the dictation of the Order one Mr. Prakash Bapu Sarpatil, claiming to be Ex-councillor of the said Municipal Council submitted that he wants to interfere in the matter. In our view, he has no locus in the matter. His intervention is, therefore, rejected.
7. The above Writ Petition is allowed by making the Rule absolute to the aforesaid extent.