GEORGE C KAPPEN Vs. GOVT OF KERALA
HIGH COURT OF KERALA
GOVERNMENT OF KERALA
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(1.)The eleven petitioners were members of the Municipal Council of Palai of which the total membership is twenty. They were elected for a five year term expiring on 31st January 1993. But it was extended by a notification Ext. P1 dated 28th January 1993 for a further period of six months with effect from 1st February 1993. It was a general notification issued under the proviso to S.8(1) of the Kerala Municipalities Act 1960 (14 of 1961) extending the term of office of the elected Councillors of all the Municipalities in the State for a further period of six months from 1st February 1993. Similar notification was issued in relation to Councillors of Municipal Corporations as well as seen from Ext. P1.
(2.)Section 8 of the Act deals with the term of Councillors, and filling up of scats. Sub-s.(1) which is relevant provides that the term of office of Councillors shall, save as otherwise expressly provided, be five years commencing from such date as the Government may, by notification in the Gazette appoint. This section was amended by Ordinance I of 1993 by adding a proviso to the effect that Government may, by notification in the Gazette, extend or reduce the said term by such period as may be specified in the notification. Similar provision was made in the Municipal Corporations Act also. It was in exercise of the powers so conferred by the proviso that the term of office of the Municipal Councillors of all the Municipalities in the State was extended by Ext. P1 for a period of six months.
(3.)While the petitioners were thus functioning during their extended tenure. Government issued a notification Ext. P2 on 24th February 1993 again in exercise of the powers conferred on them under the proviso to sub-s.(1) to S.8, reducing the term of office of the elected Councillors of the Palai Municipality by a period of five months and seven days, with effect from 25th February 1993. The Municipal Councillors of Palai had therefore to vacate their office pursuant to Ext. P2. The reason for this notification is mentioned in the explanatory note as follows: -
"Now, it has been brought to the notice of the Government that the Municipal Council, Palai is acting in violation of the provisions of the Kerala Municipalities Act and in utter disregard and defiance of the instructions issued by the Government and the Director of Municipal Administration. The Council as per its resolution No. 6 dated the 3rd February 1993 decided to set aside the proceedings initiated by the Municipal Commissioner against a building constructed in violation of the Rules and the Government Orders, and to assess that building for property tax. As per resolution Nos. 1 and 2 dated the 17th February, 1993 the Council decided to discard the instructions issued by the Government and the Director of Municipal Administration with regard to the preparation of Municipal budget. It has also been brought to the notice of the Government that pandemonium prevailed in the Council meetings held on 3rd February 1993 and 15th February 1993 and that the Council meeting on 17th February 1993 was held with the help of the police. The Standing Committee of the Council is also not functioning properly. In these circumstance, Government have decided that the term of office of the elected Councillors of the Palai Municipality may be reduced to the extent necessary, so that the term may be allowed to expire on the 24th day of February, 1993."
Petitioners have challenged Ext. P2 notification as ultra vires the powers of Government.
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