Asfak Mohammad Vs. State of M.P. and ors.

Asfak Mohammad vs State of M.P. and ors.

Disposition Petition dismissed Court Madhya Pradesh Decided Dec 09, 1999

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Citation: sooperkanoon.com/508558
Court: Madhya Pradesh High Court
Judge: Dipak Misra, J.
Decided On: Dec 09, 1999
Case Number: Writ Petition No. 1953/99
Subject: Election
Disposition: Petition dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 147; [A.K. Patnaik, CJ, S.S. Jha & A.M. Sapre, JJ] Liability of Insurer - Third party insurance Held, The insured who is a party to the insurance is not a third party for the purpose of Chapter XI of the Act, particularly Section 147 thereof. Thus, any person ot...

Key legal issue: Election
Outcome / disposition: Petition dismissed
Acts & sections: Constitution of India - Article 226; Madhya Pradesh Municipalities Act, 1961 - Sections 29B, 37, 37(2), 41A and 51(1); Madhya Pradesh Municipalities (Amendment) Act, 1998 - Sections 52

Parties & Advocates

Appellant / Petitioner

Asfak Mohammad

Advocate Jaya Laxmi lyer, Adv.

Respondent

State of M.P. and ors.

Advocate V.K. Shukla, Govt. Adv.

Legal References

Acts: Constitution of India - Article 226; Madhya Pradesh Municipalities Act, 1961 - Sections 29B, 37, 37(2), 41A and 51(1); Madhya Pradesh Municipalities (Amendment) Act, 1998 - Sections 52
Reported In: 2000(2)MPHT80

Excerpt

.....the insurer under the provisions of section 147 of the act or under the terms and conditions of the policy of insurance. hence, the mere fact that a passenger is a third party would not fasten liability on the insurer unless such liability arises under section 147 of the act or under the terms and conditions of the insurance policy. an employee is a third party inasmuch as he is not a party to the insurance policy. but merely because an employee is a third party, the insurance company would not be liable to compensate in case such employee suffers bodily injury or dies in an accident in which the motor vehicle is involved unless section 147 of the act fixes such liability on the insured or unless the terms and conditions of the contract of insurance fixes liability on the insurer. section 147 (1)(b) of the act provides that in order to comply with the requirements of chapter xi of the act, a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against the liabilities mentioned in clauses (i) and (ii) thereunder. even if an employee is a passenger or a person travelling in a motor vehicle which is insured as per the requirements of sub-section (1) of section 147 of the act, the insurer will not be liable to cover any liability in respect of death or bodily injury of such employee unless such employee falls in one of the categories mentioned in sub-clauses (a), (b) and (c)of clause (i) of the proviso to sub-section (1)of section 147 of the act and further in cases where such employees fall under categories mentioned in sub-clauses (a), (b) and (c) of clause (i) of the proviso to sub-section (1`) of section 147 of the act, the insurer is liable only for the liability under the workmens compensation act, 1923. [national insurance co. ltd. v sarvanlal, 2004 (4) mpht 404 (d.b) overruled]. sections 147 & 96 & m.p. m.v. rules, 1994, rule 97; [a.k. patnaik, cj, s.s. jha &..........the aforesaid provision it is quite manifest that a casual vacancy has to be filled up by nominated councillor belonging to the reserved category, if the office of the president is reserved under section 29-b of the act. miss lyer has referred to section 52. section 52 before amendment read as under:'52. functions of vice-president :-- it shall be the duty of the vice-president of the council--(a) in the absence of the president and unless prevented by reasonable cause, the preside, at the meetings of the council and he shall when so presiding exercise the same authority as is vested in the president under clause (a) of sub-section (1) of section 51;(b) to exercise such of the powers and perform such of the duties of president as the president may, from time to time, delegate to him; and(c) pending the election of a president, or during the absence of the president to exercise the powers and perform the duties of the president.'by act no. 20 of 1998 clause (c) of section 52 was deleted and the following provision was substituted:'during the absence of the president other than casual vacancy to exercise the powers and perform the duties of the president.'in view of the amended provision it is luminiously clear that the vice-president can function only during the absence of the president but cannot claim any right to function when a casual vacancy occurs. casual vacancy, as has already been indicated, has been defined under section 37 of the act. thus, the petitioner who was the vice-president of the municipal council cannot claim as a matter of right to function as the president.6. the next aspect which requires to be considered is the nomination of respondent no. 3. it is not disputed that the respondent no. 3 belongs to reserved category. the office of the president of municipal council, sehore was reserved under section 29-b of the act. hence, the said post was to be filled up in accordance with the proviso to sub-section (2) of section 37 of the act. till the.....

Full Judgment

ORDER

Dipak Misra, J.

1. Invoking the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India the petitioner has prayed for issue of a writ in the nature of certiorari for quashment of the impugned Order dated 24-04-99 contained in Annexure P-2 whereby the respondent No. 3 has been nominated as the President of Municipal Council, Sehore by the State Government.

2. The facts as have been uncurtained are that the respondent No. 3 and one Jaspal Singh Arora contested the election for the post of President of the Municipal Council and in the said election Jaspal Singh Arora was elected. His election was challenged in the writ petition forming the subject-matter of W.P. No. 1553/96 but the same was dismissed on the ground that the election could be assailed by way of an election dispute. After the dismissal of the writ petition Jaspal Singh Arora continued as the President of the Municipal Council but, eventually, was removed by the State Government under Section 41-A of the Madhya Pradesh Municipalities Act, 1961 (hereinafter referred to as 'the Act') by Order dated 26-2-99. After the removal of the President the petitioner who was Vice-President of the Municipal Council took over the charge. While he was in charge, the State Government by impunged Order dated 24-4-99 in exercise of power under Section 37 (2) nominated the respondent No. 3 as the President of the Council. According to the writ petitioner the nomination of the respondent No. 3 is illegal and contrary to the mandate of the statute. It is also averred in the writ petition that while passing the said Order of nomination the relevant provisions of the statute have not been kept in view.

3. A return has been filed by the respondents contending, inter alia, that the petitioner has no right to be nominated as per the provisions of the statute and he was only eligible to continue till the nomination took effect. It is putforth that the petitioner has referred to unamended provisions of the statute and claimed a right, and therefore, the writ petition is sans merit. It is also setforth that the petitioner is a member of general category, and hence, he is not entitled to be nominated as per the proviso to Section 37 (2) of the Act as the office of the President of Municipal Council, Sehore belong to the reserved category.

4. I have heard Miss Jaya Laxmi lyer, learned counsel for the petitioner and Mr. V.K. Shukla, Government Advocate for the respondent.

5. To appreciate the rival submissions raised at the Bar it is apposite to refer to Section 37 of the Act which reads as under:--

'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 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.'

On a bare reading of the aforesaid provision it is quite manifest that a casual vacancy has to be filled up by nominated councillor belonging to the reserved category, if the office of the President is reserved under Section 29-B of the Act. Miss lyer has referred to Section 52. Section 52 before amendment read as under:

'52. Functions of Vice-President :-- It shall be the duty of the Vice-President of the Council--

(a) in the absence of the President and unless prevented by reasonable cause, the preside, at the meetings of the Council and he shall when so presiding exercise the same authority as is vested in the President under Clause (a) of Sub-section (1) of Section 51;

(b) to exercise such of the powers and perform such of the duties of President as the President may, from time to time, delegate to him; and

(c) pending the election of a President, or during the absence of the President to exercise the powers and perform the duties of the President.'

By Act No. 20 of 1998 Clause (c) of Section 52 was deleted and the following provision was substituted:

'During the absence of the President other than casual vacancy to exercise the powers and perform the duties of the President.'

In view of the amended provision it is luminiously clear that the Vice-President can function only during the absence of the President but cannot claim any right to function when a casual vacancy occurs. Casual vacancy, as has already been indicated, has been defined under Section 37 of the Act. Thus, the petitioner who was the Vice-President of the Municipal Council cannot claim as a matter of right to function as the President.

6. The next aspect which requires to be considered is the nomination of respondent No. 3. It is not disputed that the respondent No. 3 belongs to reserved category. The Office of the President of Municipal Council, Sehore was reserved under Section 29-B of the Act. Hence, the said post was to be filled up in accordance with the proviso to Sub-section (2) of Section 37 of the Act. Till the nomination came into existence, the Vice-President was functioning as the in-charge of the post of the President and this was purely by way of interim arrangement. The person who is functioning under an interim arrangement cannot claim for such continuance unless there is such a postulate in law. In the case at hand, as has been analysed, the petitioner had no right to continue and none of the provisions of the statute render any assistance to him.

7. Resultantly, the writ petition, being devoid of merit, stands dismissed. However, there shall be no Order as to costs.

Same Court & Year Madhya Pradesh · 1999 Same Parties Asfak Mohammad vs State of M.P. and ors. Same Subject Election Same Judge Dipak Misra, J. Acts & Sections Constitution of India - Article 226; Madhya Pradesh Municipal...

Election