ORDER
D.P.S. Chouhan, J.
1. The petitioner, by means of this petition, has approached this Court seeking relief for quashing the order dated 17/18-3-99 (Annexure P-7 to the petition) and for restoration of the earlier order dated 17-9-98 (Annexure P-2 to the petition) and a further direction for holding of the election of the President of Nagar Panchayat, Sakti as per provision of law.
2. There has been casual vacancy in the office of President of Nagar Panchayat, Sakti and the State Government exercising power under Sub-section (2) of Section 37 of the M.P. Municipalities Act, 1961 (for brevity, hereinafter referred to as ‘the Act’) nominated the petitioner to exercise all the powers and duties of the President of Nagar Panchayat, Sakti vide order dated 17-9-98. Subsequently the State Govt. passed another order on 17/18-3-99, which is Annexure P-7 to the petition, recalling the order dated 17-9-98 and nominating Shri Sanjay Kumar Agrawal (respondent No. 5) for exercising all the powers and duties of the President in exercise of powers under Sub-section (2) of Section 37 of the Act.
3. Heard the learned counsel for the petitioner, Shri Vishnu Koshta, Learned counsel for the petitioner made three-fold submissions. Firstly, that the petitioner has been nominated under Sub-section (2) of Section 37 of the Act and he has been removed on the basis of some complaint without affording any opportunity of being heard and as such the order suffers from infirmity. Secondly, the petitioner became President of Nagar Panchayat, Sakti and the provision of removal as provided under Section 41-A of the Act had to be followed. Non-following of the procedure makes the impugned order procedurally ultra vires, and thirdly, that under Section 37 of the Act, the State Government has no power to remove the Councillor, who has been nominated to discharge the powers and functions of the President who has to continue till the regular election is held.
4. Heard the learned State Counsel Shri Narendra Chouhan. He submitted that none of the submissions as advanced by the learned counsel for the petitioner have any substance. So far as first submission is concerned, he invited the attention of the Court to Section 37 of the Act. Section 37 of the Act is as extracted below :–
“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 the 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.”
Learned counsel submitted that Section 37 of the Act does not speak for nomination as President. It speaks that the Councillor nominated by the State Government shall perform all the powers and duties of the President. This argument has got substance. The legislature never wanted to create a fiction that the person so nominated shall be deemed to be the President as the law has provided that the President shall be the elected person. The provision is by way of stop gap arrangement and for that purpose, the State Government has been authorised to nominate one of the Councillors to discharge the powers and duties of the President. The first submission, as made by the learned counsel for the petitioner, is sans substance and deserves to be rejected.
The second submission was that the State Govt. after nominating the elected Councillor to perform the powers and duties of the President under Section 37 (2) of the Act has no authority under the law to remove such nominated Councillor and to nominate another person. Learned State Counsel submitted that this argument is fallacious. He submitted that firstly the law has not provided that the senior most Councillor would be nominated by the State Government to perform the powers and duties of the President. If the legislature would have provided like this, then, this submission, as advanced by the learned counsel for the petitioner, could have substance. He further submitted that so far as the power of removal is concerned, that power is carried with the power of appointment i.e., nomination and for that purpose he placed reliance on the provisions under the M.P. General Clauses Act. Unless the law has laid down some rider or guidelines, as such, the senior most Councillor would be nominated, or a lady Councillor would be nominated or a Councillor belonging to Scheduled Castes or Scheduled Tribes would be nominated, the position is that the law has given discretion to the State government to nominate any person out of elected Councillors. In view of this, the second submission deserves to be rejected.
The third submission is that for the removal of the President from the office procedure laid down under Section 41-A of the Act should have been followed. Non-following of the procedure has made the procedure procedurally ultra vires. Learned State Counsel pointed out that Section 41-A of the Act is attracted in the case of the elected President and he submitted that in the present case, the petitioner is neither appointed nor nominated as President, but only by virtue of law was allowed to perform the powers and duties of the President and, therefore, provision of Section 41-A of the Act would not be attracted in the case like the present one.
5. No other submission was advanced.
6. In view of above, the writ petition is sans merit and is rejected.