CASES REFERRED: 1. 1966 (2) Mys. L.J 236 - Seetharama v. Election Officer (Foll)

Mr. H.K Vasudeva Reddy for Appellants

Mr. Chandrashekharaiah, Govt. Advocate for R-1

Mr. K. Subba Rao for R-3 & 4

The Judgment of the Court was delivered by

Shivashankar Bhat, J.:— Writ Appeal is by respondents 3 to 4 in the Writ Petition filed by H. Abdul Rahim and H.H Devaraj. They challenged the State Government's notification dated 22-8-1987 purportedly exercised under Section 42(12) of the Karnataka Municipalities Act, 1964 (‘the Act’ for short), appointing the appellants to perform all the duties and exercise all the powers of President and Vice-President of City Municipal Council, Hassan, respectively till 31-12-1987 (This period is stated to have been, now extended till the end of August, 1988). The Writ Petitioners also sought a direction to respondents 1 and 2 to hold the elections to elect President and Vice-President, under the relevant provisions of the Act and the Rules. The Writ Petition was allowed by the learned Single Judge. Hence this appeal.

2. The relevant facts, stated in the order of the learned Single Judge may be repeated once again, since they represent the undisputed facts:

“The 1st petitioner is the Municipal Councillor of Hassan City Municipal Council. The 2nd petitioner is also the Municipal Councillor of the very same Council and both of them were elected as Municipal Councillors in the general elections held to the City Municipal Council, Hassan, during the month of July 1983. Their term of office commenced on 10-8-1983 and in terms of Section 18 of the Karnataka Municipalities Act, 1964 (in short the Act), the term of the Councillors elected at a general election was for a period of 4 years. However, proviso to sub-section (I) of Section 18 of the Act provides that the Government may by notification for reasons to be specified therein could extend either prospectively or retrospectively the term of office of such Councillors by such period not exceeding 24 months. It is not in dispute that the term of office of the petitioners as also of other Councillors expired on 10-8-1987 but the State Government in exercise of its power under Section 18 of the Act had extended their term up to 31-12-1987. Respondents-3 and 4 were elected as President and Vice-President of the aforesaid Municipal Council on 8-9-1987 and their term of office was for a period of two years as could be seen from Annexure-B filed in the Writ Petition which is a Government Order dated 12-3-1983. By that Government Order in pursuance of the proviso to sub-section (II) of Section 42 of the Act, the term of office of the President and Vice-President of the Hassan City Municipal Council was limited to two years and elections to the said office should have been held at the end of two years. So in terms of this Government Order which applied to respondents 3 and 4, their term of office came to an end as noticed earlier on 7-9-1987 and there should have been a fresh election to the elective posts of President and Vice-President after their term came to an end. However, the State Government under Annexure-C dated 22-8-1987 issued a notification in exercise of the power under sub-section (12) of Section 42 of the Act appointing respondents 3 and 4 as President and Vice-President of the Municipal Council till 31-12-1987. It is this notification of the Government that is challenged by the petitioners.”

3. The appellants, contended that, when the term of office of the councillors is extended under the proviso to Section 18(1)(a) of the Act, the City Municipal Council constituted by the said councillors will be a new Municipal Council comprised of the councillors got appointed by virtue of the notification extending their term. Therefore, Government has the power to appoint the President and Vice-President of such a Municipal Council, comprising of the “appointed councillors.” It was argued that, there was no specific provision under the Act, providing for the election of President and Vice-President in such a situation. When the term of the elected councillors expires at the expiry of 4 years as per Section 18(1)(a), the offices of the President and Vice-President also become vacant. The vacancies thus caused are to be filled up by the State Government, by making the appointments under Section 42(12). This contention did not find acceptance by the learned Single Judge, who held that, Section 42(12) was inapplicable to the case and the vacancies are to be filled up only by election from amongst the councillors under Section 42(12) of the Act read with proviso to Section 42(11). The same contentions are repeated in appeal.

4. Section 17 provides for the general election of councillors. Section 18 prescribes the term of office of councillors, of which Section 18(1)(a) which is relevant reads thus:—

“18. Term of office of Councillors -

(1) The term of a Councillor,—

(a) elected at a general election shall be four years:

Provided that the Government may, by notification, for reasons to be specified therein, extend, either prospectively or retrospectively the term of office of such Councillors by such period or periods as it deems fit; so however, that the total period so extended shall not exceed twenty four months:”

Section 42 governs the offices of President and Vice-President. Some of the relevant provisions of Section 42 are extracted below:

“42. President and Vice-President - (1) for every Municipal Council, there shall be a President and a Vice-President.

(2) The President and the Vice-President shall be elected by the Councillors from among themselves.

(3) xxxx(omitted)

(4) If any Municipal Council fails to elect a President or Vice-President within such reasonable time as may be specified in a notice issued by the Commissioner in this behalf, the President or Vice-President, as the case may be, may be appointed by the Government:

Provided that the persons so appointed shall hold office for a period not exceeding six months before the expiry of which period fresh elections for the said offices are held.”

(5) and (6) xxxx(omitted)

(7) Leave under sub-section (6) shall not be granted for a period exceeding six months. Whenever leave is granted to a President and the office of the Vice-President is vacant, the vacancy in the office of the President shall be filled up by election by the Municipal Council from among the Councillors within such period and in such manner as may be prescribed. If the Municipal Council fails to elect the President, the Government may fill up the vacancy by appointment. When leave is granted to a Vice-President or when the Vice-President is acting for the President, the vacancy in the office of the Vice-President may be filled up by election of some other Councillor thereto.

(8), (9) & (10) xxxx(omitted)

(11) The term of office of every President and of every Vice-President shall, save us provided in this Act, cease on the expiry of the term of office as. Councillor:

Provided that the Government may, with the consent of the Municipal Council concerned, direct that their term be limited to two years and that elections therefore be held every second years:

Provided further xxxx(omitted)

(12) In the event of the non-acceptance of office, death, resignation or removal from office of a President or Vice-President or of his election being void, or of his becoming incapable of acting in such office or having ceased to be a Councillor, previous to the expiry of his term of office as President or Vice-President, the vacancy shall be filled up by appointment or election as the case may be, in accordance with the provisions of the foregoing sub-sections. When any vacancy not otherwise provided for occurs the Government may appoint any Councillor to perform all the duties and exercise all the powers of a President or Vice-President during such vacancy.

(13) and (14) xxx(omitted).”

5. It is undisputed that the Municipal Council is democratically set up, to function as the local Government. The scheme of the Act is to achieve this object. The elected councillors who constitute the Municipal Council are to elect their President and Vice-President as stated in Section 42(2). Section 42(4) empowers the Government to appoint the President and Vice-President for a limited period only until the democratic duty of the councillors to elect them is discharged. Similar is the effect of Section 42(7), wherein also, whenever a leave is granted to a President and the office of Vice-President is vacant, the vacancy in the office of President (even if it is for a short duration) has to be filled up by election by the councillors. Here too, the Government has a limited power to make the appointment, only, when, the councillors fail to elect the President. Section 42(9) provides for the removal of President and Vice-President on a no confidence resolution passed by a majority of not less than two-thirds of the total number of councillors at a special general meeting convened for the purpose, subject to certain limitations. Section 42(10) empowers the Government to remove a President or a Vice-President for misconduct etc. Section 42(11) declares that the term of office of a President or Vice-President ceases on the expiry of the term of office as councillor. The first proviso thereto empowers the Government to limit the term to two years and the said provision directs, the holding of the election, in such a case, for the office of President and Vice-President every second year.

6. Sri Vasudeva Reddy, learned Counsel for the appellants, contended that the life of the elected council expired at the end of 4 years, as stated in Section 18(1)(a). When the State Government extended the term of the councillors by resort to the proviso to Section 18(1)(a), it is actually appointing those persons as councillors for such period or periods, as the Government deems fit. Since the councillors function as such, after the expiry of the original period of 4 years, by virtue of the Governmental notification, they are to be treated as “appointee councillors” and not as the “elected councillors”. Therefore, the Government having validly chosen to appoint the councillors who constitute the Municipal Council, has also the power to make the appointments to the office of President and Vice-President. The learned Counsel tried to substantiate his contention by resorting to Section 42(11) to point out that, the elected President and Vice-President cease to be so on the expiry of the term of offices as councillors. The office as “elected councillor” having expired, it should follow, according to the learned Counsel, that, the term of the elected President also should cease; thereafter entire sphere is for the appointing authority (the Government) to operate. Sri Vasudeva Reddy, further, contended that, on the expiry of the term of office as councillor, the offices of President and Vice-President having become vacant, the law is silent otherwise as to what happens and therefore the only provision that governs the situation is the last sentence in Section 42(12). It is not possible to accept this contention.

7. When the term of the councillors cease under Section 18(1)(a), normally, fresh election should be held as per Section 17. But the law has empowered the Government to ‘extend’ the term. When the term is accordingly extended, the same councillors continue to function as councillors during the extended period. The Government is not empowered to appoint third persons as councillors during the extended period. When the term gets extended, in reality, original councillors continue to function as effectively as before. They do not cease to be the “elected councillors.” The effect of a notification under proviso to Section 18(1)(a), is to statutorily extend the term beyond 4 years. For all practical purposes, the notification has the force of amending the period of “4 years” stated in Section 18(1)(a).

8. The power conferred under the proviso to Section 18(1)(a) is a legislative device well accepted, to effectuate the purpose of a legislation under the circumstances which may not be foreseen at the time of enacting the law. It may be impracticable, or inexpedient to hold the general election or the exigencies of public interest may warrant, the continuation of the existing councillors and the postponement of a general election. The period of 4 years prescribed under Section 18(1)(a) may require extension by providing an element of elasticity to the statute and that is achieved by its proviso. Therefore, it is not possible to accept the contention of the learned Counsel for the appellants that, on the issuance of a notification extending the term of office under the proviso to (Section 18(1)(a), the councillors cease to be “elected members.” It is to be held that they continue to be the elected councillors with an extended term of office.

9. It is an undisputed fact, that there is a direction of the Government under proviso to Section 42(11) limiting the terms of office of President and Vice-President to 2 years. Therefore, it is mandatory that there should be an election to elect the President/Vice-President every 2 years. The terms of the appellants as per their election held on 8-9-1985 to the office of President and Vice-President expired on 8-9-1987. Consequently, by virtue of the proviso to Section 42(11), fresh elections should have been held thereafter, since the Municipal Council constituted by the elected councillors continued to function thereafter also.

10. Sri Vasudeva Reddy's contention is that, on 8-9-1987, vacancies occurred in the office of President and Vice-President, on the expiry of the terms. There is no other provision to fill up the vacancies, except Section 42(12). Therefore, exercise of the power of the Government under Section 42(12) was valid, whereunder appellants were appointed. This contention overlooks the mandatory language of the proviso to Section 42(11), which directs the holding of elections to elect the President and Vice-President every second year. Section 142(12) does not override, or control this proviso. Further, the scheme of Section 42 would show that, Government's power to appoint a President or Vice-President is very much limited, to be exercised as a stopgap measure. Government can intervene only when the councillors fail to discharge their duty to elect a President or Vice-President, as is clear from Section 42(4), (5) and (7). Power to make the appointment is an exception. The normal rule is to have an elective President and an elective Vice-President. To a situation that has arisen here. Proviso to Section 42(11) gets attracted. Such an inference, does not look illogical in any manner. If so, the last sentence in Section 42(12) will not be attracted; the said provision in Section 42(12) is attracted only when “any vacancy not otherwise provided for occurs…”

(underlining is ours)

11. Since the legislature cannot foresee all future situations, obviously, a provision is made to provide for a vacancy not provided for under the Act.

12. Our conclusion, also gets support from the decision of a Division Bench of this Court in G. Seetharama Reddy v. The Election Officer, Bellary ratio of which can be stated thus, in the language of the head-note therein;

“When a provision of law lays down that the term of office of the President or Vice-President shall not be co-extensive with the life of the Municipal Council as such and the law provides for annual election of the President or Vice-President, the mere fact that the term of the Council is extended will not extend the term of office of the President or Vice-President.”

13. In the said case, the notification issued similar to the one under proviso to Section 42(11) limited the term of office of a President and Vice-President for one year. Government also thereafter extended the term of office of councillors. Question was whether during this extended period, the President and Vice-President are to be elected, when the term of one year fixed for the elected President and Vice-President expired. The Court held that the councillors are entitled to elect new President and Vice-President.

14. For the reasons stated above, we concur with the order of the learned single Judge and accordingly this Writ Appeal is dismissed. There will be no order as to costs in this Writ Appeal.

15. By virtue of the interim order, holding of the election in question was stayed. Consequently, it is necessary to issue a fresh direction. Accordingly we direct the Election Officer/Deputy Commissioner, appointed under the Act to hold the election of the President and Vice-President of the City Municipal Council, Hassan, within a period of two weeks from the date of receipt of this order in accordance with law.