Karnataka High Court
V. Subba Reddy vs State Of Karnataka on 14 September, 1988
Equivalent citations: ILR1989KAR101
ORDER Chandrakantaraj Urs, J.
1. In these petitions, the petitioners who were Councillors of the concerned Town Municipal Council have assailed the legality and validity of the exclusion of their Town Municipal Councils from the purview of the Notification dated 30-7-1988 issued by the respondent State of Karnataka in purported exercise of its power under Section 18 of the Karnataka Municipalities Act, 1964 (the Act for short) and the orders passed under Sub-section 1 of Section 315 of the Act appointing Administrators to the Town Municipal Councils in question on the same day which are produced as annexures to the petitions. The Town Municipal Council involved in W.P. 11357/1988 is Chintamani. In the other petitions Hassan, Koppal and Ranebennur Town Municipal Councils are the affected Municipalities.
2. The brief facts which are not in dispute are as follows:
The terms of Office of the Municipal Councils in all these cases expired sometime at the beginning of the latter half of the year 1987. But, term of Office of the Municipal Councillors was extended upto 31-12-1987. Thereafter, by further notifications the term of Office was extended upto 30-6-1988 in the first instance and thereafter upto 31-7-1988. Just before the expiry of 31-7-1988 the orders appointing Administrators in respect of the Municipalities in question have been passed without extending the term of Office of the Councillors. The prayer in all the Writ Petitions is to quash the orders appointing the Administrator to these Municipalities as well as for a Writ of Mandamus directing the State Government to include the names of these Municipalities in the list appended to the notification dated 30-7-1988 issued by the State Government in exercise of its power under Section 18 of the Act extending the term of Office or the Municipal Councillors of several Municipal Councils in the State of Karnataka upto 31-12-1988. There are some infirmities in the prayer in some of the petitions to which this Court need not pay serious attention having regard to the public interest raised in these Writ Petitions.
3. In W.P. 11357/1988 Rule was issued on 4-8-1988 and emergent notices were made returnable in 7 days. As the respondents had not entered appearance learned Government Pleader was directed to take notice. Subsequently, learned Advocate General appeared in the case and has filed statement of objections. That particular petition was heard on 1-9-1988 and as directed by this Court an additional statement of objection was filed giving further particulars called for by the Court.
4. The State Government has filed statement of objections as well as additional statement of objections and relevant facts therein will be referred to in the course of this order later.
5. In the other Writ Petitions emergent notice regarding rule and interim relief was directed and all of them are clubbed together and heard in view of the urgency of the matter.
6. The main arguments advanced for the petitioners is that the Notification dated 30-7-1988 extending the term of Office of many cf the Municipal Councils except a few among which the petitioners' Municipalities are some, has been done with political motive and in order to see that the people who do not share political views of the Government whether belonging to the same political party or another and they have been deprived of the benefit of extension of term of Municipal Councillors in those Municipalities violating the fundamental right of the Councillors under Article 14 of the Constitution. It is urged that the power not exercised by the Government in respect of these Municipalities to extend the term of the Office of the Councillors would amount to hostile discrimination and the power not so exercised is malafide.
7. In the statement of objection filed, the State has taken the stand that whatever may be the circumstances when earlier extensions were made in exercise of the power of the State Government under Section 18 of the Act the impugned Notification of 30-7-1988 extending the term of several Municipal Councils except those of Chintamani, Kolar, Koppal, Raichur, Ranebennur, Hassan and Savanur the term was extended for the reasons stated in the notification itself and the Municipal Councils of the afore mentioned Towns were excluded on account of a policy decision taken by the Government at the Cabinet level that the said Municipal Councils were under notice of supersession and proceedings under Section 316 of the Act had been instituted and therefore they were treated separately as a class by themselves. The respondents denied the allegations of malafide, legal or otherwise.
8. In view of the assertions made in regard to the commencement of proceedings under Section 316 of the Act against the above named Town Municipals this Court called for additional statement of objections and information in respect of the commencement of the proceedings; the state at which the proceedings were when the Notification dated 30-7-1988 was issued. Accordingly, the Government has furnished the information in the additional statement of objections.
9. It is seen that in the case of Chintamani the term expired originally on 8-8-1987. In the case of Kolar 10-6-1987, in the case of Koppal 17-8-1987, in the case of Raichur 24-8-1987, in the case of Ranebennur 24-7-1987 and in the case of Savanur 24-7-1987 and in the case of Hassan on 10-8-1987. Subsequently, as already noticed the term was extended upto 31-12-1987, then again upto 30-6-1988 and then once again upto 31-7-1988. However, there is a clear admission that show cause notice was issued in the case of Town Municipal Council, Chintamani on 5-8-1987. In the case of Kolar on 29-7-1988, in the case of Koppal it was issued on 11-4-1988 as also in the case of Raichur, in the case of Ranebennur it was issued on 23-5-1988, in the case of Savanur show cause notice was issued on 17-10-1987 and in respect of Hassan on 19-2-1988. In otherwise, in the case of all the Municipal Councils mentioned show cause notices were issued either just prior to the expiry of the term of Office of the Councillors in 1987 or just one day as in the case of Kolar before the issue of the impugned notification extending the Office of the Town Municipal or other Municipal Councils in the State.
10. The learned Advocate General, Mr. R. Narasimha Murthy appearing for the State has contended that the decision taken by the Cabinet not to extend the term of Office of the Councillors Municipalities whose Councillors are before the Court was not the decision taken individually but the decision taken in exercise of the legitimate power conferred on the Government by Section 18. In view of this decision if some Municipalities are affected it cannot be held to be perse discriminatory. It is further contended by the State that as held by this Court, there is no legal right vested in the Councillors for extension of the term of Office when it expires and it is left to the discretion of the Government to extend or not to extend and when such discretionary power is exercised it cannot be said that petitioners are entitled to the extension. It is further contended that the Court cannot compel the Government to exercise the discretionary power vested in it under Section 18 in a particular manner and as such no mandamus may be issued. It is also contended that in the absence of a legal right for extension whatever is given under Section 18 of the Act is only a concession and as such that concession may be with-held by the Government in its discretion.
11. For the petitioners it is contended that such decisions are not tenable and that exclusion was perse hostile discrimination in violation of equality guaranteed under Article 14 of the Constitution and exercise of power so as to exclude the petitioners Municipalities was exercise of power with legal malafides and for a purpose other than for which the power is entrusted to the State Government.
12. The learned Advocate General relied upon the decision of the Supreme Court in the case of CHINGLEPET BOTTLERS v. MAJESTIC BOTTLING COMPANY . In the said decision the Supreme Court considered the correctness or otherwise of the validity of the direction issued by the Court compelling the Commi-ssioner of excise in Tamil Nadu to grant the licence under the relevant rules namely Arrack Manufacturing Rules, 1981. It was held in that case that a Writ of Mandamus may not issue to compel the Commissioner to issue licences as such licences could be issued only in the discretion of the Officer authorised to issue them. The learned Advocate General, elaborating that aspect highlighted by the Supreme Court in the said decision contended that when there is no legal right, question of seeking a mandamus or a direction in the nature of mandamus would not arise.
13. The first argument is founded on the language of Section 18 of the Act, which is as follows:
"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;
(b) appointed under Section 12 shall be one year or till a Councillor is elected in the vacancy, whichever is earlier.
(1A) The term of Office of Councillors elected at a general election or appointed under Section 12 shall commence on the date of publication of their names under Section 20 or immediately after the expiry of the term of Office of the outgoing Councillors, whichever is later. Where the names are so published on more than one date the date by which the names of not less than two thirds of the total number of Councillors has been published shall be deemed to be the date of the publication of names for the purpose of this sub-section.
(2) The term of Office of a Councillor elected 3(***) to fill a casual vacancy shall continue so long only as the Councillor in whose place he is ejected 3(***) would have been entitled to hold Office if the vacancy had not occurred.
(3) The date from which the term of Office of not less than two-thirds of the total number of Councillors commences under this Section shall for purpose of this Act be deemed to be the date from which a Municipal Council is duly constituted, and the Municipal Council so constituted shall be competent to exercise the powers and perform the functions of the Municipal Council."
He therefore contends that the Government does no more than extend the term, individually or otherwise, of Office of the Councillors and it has the power to pick and choose to extend the concession and it cannot be tied down to any particular manner in which the discretion to extend or not to extend should be exercised.
14. It is true the provision extracted above confers power on the Government to extend the term of Office in its discretion and therefore it is not a right conferred upon the Councillors. But all discretionary powers must be exercised bonafide and for the purpose for which the power is entrusted. If the purpose for which the power is entrusted is abused or otherwise used for the purpose other than for which it is entrusted, it will be malafide exercise of power.
15. Similarly the other decisions relied upon by the learned Advocate General namely, the case of RAJALAKSHMIAH v. STATE OF MYSORE AIR 1967 SC 993 does not assist the case of respondent-State. In that case Supreme Court held that a mandamus does not lie in discretionary matters-Grievance of petitioners that they were discriminated against when concession was shown to junior Officers in matters of promotion by a Government order, that concession could not be claimed as a matter of right and a Writ of Mandamus could not be issued commanding an authority to show indulgence. The facts of that case were such that some employees who were junior to the petitioners had been promoted and long after such promotions petitions were filed challenging the concession given to the junior Officers. It was in that context that the Supreme Court observed as stated above. Having regard to the later decisions of the Supreme Court, the ruling in Rajalakshmaiah's case cannot be said to be binding any longer. As held by the Supreme Court in the case of the COMPTROLLER AND AUDITOR GENERAL OF INDIA v. K.S. JAGAN-NATHAN the High Courts exercising their jurisdiction under Article 226 have power to issue a Writ in the nature of Mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion malafide or on irrelevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing for which such discretion has been conferred. The above mentioned decision in Jagannathan's case is by a Bench of three Judges and therefore has greater binding force than the decision in the case of Chingleput Bottlers v. Majestic Bottling Company. Similar ruling was handed down as far back as in the year 1964 by a Constitution Bench as to what constitutes legal malafide (See PRATAP SINGH v. STATE OF PUNJAB . Following the said decision a learned Single Judge of this Court in the case of JAGADISH PAUL v. STATE OF KARNATAKA AIR 19929 Karnataka 4 held that an action of the Government even though within its power, if actuated by mala fides, established either by direct or circumstantial evidence, was liable to be struck down under Article 226 of the Constitution. He further held that in examining the plea of mala fides, the Court must necessarily have regard to the object of the statute conferring power and should examine whether the power conferred has been exercised for the purposes and the object of the statute or for any other purpose.
Subsequently, in the case of the STATE OF PUNJAB AND ANR. v. GURUDIAL SINGH AND ORS. the Supreme Court ruled as follows:
"The question then, is what is malafides in the jurisprudence of power? Legal malice is gibberish unless juristic clarify keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power - sometimes called colourable exercise or fraud on power and often times overlaps motives, passions and satisfactions - is the attainment of ends beyond the sanctioned purposes of power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted goaded by extraneous considerations, good or bad, but Irrelevant to the entrustment."
17. From the above it is clear as to what constitutes legal malafides. It is clear that power under Section 18 of the Act is an entrustment to further the objects of the Act by extending the terms of Office of Councillors when it becomes necessary.
18. The Government, must exercise the power in order to achieve the object for which the power is entrusted and not for any other purpose and on extraneous consideration.
19. In order to understand this aspect better it is necessary to examine the scheme of the Act with reference to power of extending the term of the Council, with reference to the specific arguments addressed by the learned Advocate General. Section 18 of the Act reads as follows:-
"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 twentyfour months;
(b) appointed under Section 12 shall be one year or till a Councillor is elected in the vacancy, whichever is earlier.
(1A) The term of Office of Councillors elected at a general election or appointed under Section 12 shall commence on the date of publication of their names under Section 20 or immediately after the expiry of the term of Office of the outgoing Councillors, whichever is later. Where the names are so published on more than one date the date by which the names of not less than two thirds of the total number of Councillors has been published shall be deemed to be the date of the publication of names for the purpose of this sub-section.
(2) The term of Office of a Councillor elected (***) to till a casual vacancy shall continue so long only as the Councillor in whose place he is elected (***) would have been entitled to hold Office if the vacancy had not occurred.
(3) The date from which the term of Office of not less than two-thirds of the total number of Councillors commences under this Section shall for purposes of this Act be deemed to be the date from which a Municipal Council is duly constituted, and the Municipal Council so constituted shall be competent to exercise the powers and perform the functions of the Municipal Council."
I have already in another case held while construing the above provision that the Section does not confer any legal right on the Councillors, but it is a power conferred on the State in its discretion to extend or not to extend the term generally or in particular cases.
20. Section 315 of the Act reads as follows:-
"Power to appoint administrator in certain cases. -
(1) Whenever --
(a) any general election to a Municipal Council under this Act or any proceedings consequent thereon have been stayed by an order of a competent Court or Authority, or
(b) the election of all the Councillors or more than two-thirds of the whole member of Councillors of the Municipal Council has been declared by a competent Court or Authority to be void, or
(c) the term or the extended term of Office of the Councillors of the Municipal Council has expired and the new Municipal Council has not been constituted in accordance with the provisions of this Act, or
(d) all the Councillors or more than two-thirds of the whole number of Councillors of the Municipal Council have resigned, the State Government shall by notification in the Official Gazette, appoint an administrator for such period as may be specified in the notification and may, by like notification, curtail or extend (either prospectively or retrospectively) the period of such appointment.
(2) Notwithstanding anything contained in this Act, on the appointment of an administrator under Sub-section (1), during the period of such appointment, the said Municipal Council and committees thereof and (the President and vice-President) charged with carrying out the provisions of this Act, or any other law, shall cease to exercise any powers and perform and discharge any duties or functions conferred or imposed on them by or under this Act or any other law and all such powers shall be exercised and all such duties and functions shall be performed and discharged by the administrator.
(3) The State Government may, if it thinks fit, appoint an advisory Council to advise and assist the administrator appointed under Sub-section (1) in the exercise of the powers and the performance and discharge of the duties and functions conferred or imposed on him under this Act or any other law. The members of the Advisory Council shall hold Office during the pleasure of the State Government."
Clause (c) above clearly provides for the appointment of an administrator when the term has come to an end. In other words, there is no extension of the term of the Councillors generally or in particular cases on the appointment of an administrator in place of Municipal Councillors. It becomes imperative, so that the administration is carried on in accordance with the provisions of the Act. There cannot be any vacuum created by the expiry of the term of the Office of the Councillors. In that sense Section 315 is an enabling provision to ensure continuity in the administration of the Municipal affairs of the town.
21. On the other hand Section 316 is the specific power conferred on the Government to bring to book erring Municipal Councillors and also set right any maladministration in the Municipality. Section 316 of the Act reads as follows:-
"Power of Government to supersede a Municipal Council in certain circumstances -
(1) If, in the opinion of Government any Municipal Council is not competent to perform, or persistently makes default in the performance of the duties imposed on it or undertaken by it by or under this Act, or any other law, or exceeds or abuses its power or refuses to carry out the directions given to it under the provisions of this Act or any other law (or is functioning in a manner prejudicial to the Municipality) the Government may, by an order published, together with a statement of the reasons therefor, in the Official Gazette, declare the Municipal Council to be incompetent or in default, or to have exceeded or abused its powers, as the case may be, and may supersede it for such period (not exceeding one year) as may be specified in the order:
Provided that before making an order of supersession as aforesaid reasonable opportunity shall be given to, the Municipal Council to show cause why such order should not be made.
Provided further that for reasons to be recorded in writing the Government may extend the period of supersession by a further period not exceeding six months:
Provided also that the Government may continue the supersession for any period beyond one year and six months if, in its opinion for reasons beyond its control which shall be recorded in writing, it is necessary so to do.
(2) When the Municipal Council is superseded by an order under Sub-section (1) the following consequences shall ensue:-
(i) all the Councillors of the Municipal Council shall, on such date as may be specified in the order vacate their Office as such Councillors without prejudice to their eligibility for election under Sub-section (A);
(ii) during the period of supersession of the Municipal Council, all powers and duties conferred and imposed on the Municipal Council by or under this Act or any other law shall be exercised and performed by such Officer as the Government may from time to time appoint in that behalf;
(iii) all property vested in the Municipal Council shall, until it is reconstituted, vest in the Government.
(3) If, after enquiry made, the Government so directs, then notwithstanding the term of the Councillors of the superseded Municipal Council, the period of supersession with all the consequences aforesaid shall from time to time, be continued (either prospectively or retrospectively) by an order published as aforesaid until such date as may be fixed by the Government for reconstitution of the Municipal Council.
(4) After the Municipal Council is superseded it shall be re-constituted by the election or appointment of Councillors under, the provisions of this Act and the rules made thereunder applicable thereto--
(i) if no direction has been made under Sub-section (3) before the expiration of the period specified in the order of supersession under Sub-section (1), and
(ii) if a direction has been made under Sub-section (3) before such date as is fixed under that sub-section for the reconstitution of the Municipal Council.
(5) An order of supersession of a Municipal Council under Sub-section (1) and an order under Sub-section (3) together with a statement of the reasons therefor shall be laid before both Houses of the State Legislature as soon as may be after it is made."
The provision is clear enough to indicate that the power exercised is quasi-judicial in as much as the affected Municipal Council is bound to be heard after specific charges are levelled against it in regard to any act of mis-management or persistent default. If this is brone in mind, then, on the undisputed facts, the following will emerge:
(1) The power of the Government under Section 18 of the Act is executive powers to be exercised for the specific purpose of extending the term of Office of the Councillors and it does not confer any legal right on the Councillors to claim right of extension as a matter of Course.
(2) Power under Section 315 of the Act conferred on the Government to appoint an administrator is again an executive power enabling the Government in several of given situations to provide continuity of administration by appointment of administrator and one such situation being the expiry of the term of the Councillors.
(3) Section 316 of the Act on the other hand gives power to Government to supersede a Municipal Council and set right by the appointment of an administrator for the specified period for any act of mis-management or persistent default.
22. In this position, it is well nigh impossible to accept the argument of the Advocate General that the decision taken by the Cabinet not to extend the term of some of the Municipalities was a decision taken normally but as a policy decision classifying Municipalities of the State into those where the term of the Councillors had nearly expired by efflux of time though extended earlier for specified periods and. Municipalities against whom either proceedings were pending under Section 316 or where orders had already been made superseding the Municipal Councils. In other words the argument (sic) itself. If there is an order of supersession, then it 'follows ipso facto that administrator has to be appointed not by virtue of the policy of an earlier decision but by the act of supersession. On the other hand, if proceedings initiated under Section 316 were pending, then, those proceedings would find, no culmination in the manner provided under Section 316 if power vested in the Government under Section 18 of the Act is made use of to bring to an end such proceedings merely on the basis of classification made by the Government.
23. The fact, the Cabinet takes the decision does not make it legal if ft is otherwise unlawful and is violative of the rights of the affected Councillors under the Constitution. In this context it will be useful at this stage to see how the order extending the term of some 147 Municipal Councils of the State have been published. The order is dated 30-7-1988 and is as follows GOVERNMENT OF KARNATAKA No. HUD 46 TML 87.
Karnataka Government, Secretariat, Multi-Storeyed Building, Bangalore, Dated, 30th July, 1988.
NOTIFICATION Whereas the extended term of Office of the Councillors of City Municipal Councils and Town Municipal Councils in the State mentioned in the Annexure to this Notification is due to expire on 31-7-1988.
And whereas the elections to the said City Municipal Councils and Town Municipal Councils cannot be held immediately after the expiry of the said term for the reason that the work relating to the revision of the Additional Voters list is expected to be completed by the end of October 1988, and thereafter sufficient time is required for conducting elections.
Now, therefore, in exercise of the power conferred by Section 18 of the Karnataka Municipalities Act, 1964 (Karnataka Act, 22 of 1964) the Government of Karnataka hereby extends the term of the Offices of the Councillors of the City Municipal Councils and Town Municipal Councils mentioned in Annexure 'A' till 31-12-1988.
By Order and in the name of the Governor of Karnataka, Sd/- Under Secretary to Government, Housing and Urban Development Department."
24. The reason given makes it manifestly clear that the power was exercised in order to enable continuation of the Municipal Councillors in Office, because the extended term had come to an end and election could not be held for the reasons stated before it came to an end. If power exercised for specific purpose mentioned in the case of majority of the Municipalities barring those with some of which we are concerned (the Municipal Councils of the petitioners in these petitions) it is clear that the failure to extend the term was on extraneous consideration unconnected with the non-preparation of the electrol rolls in time to hold the elections. The Cabinet decision, therefore, by excluding the seven as classified without any rationale having reasonable nexus to such classification or the object to be achieved namely the postponement of elections and holding of the elections at a later date by continuing in Office the Councillors for the period permissible under law is an illegal classification.
25. It is in this context that the ruling of the Supreme Court in the case of The State of Punjab v. Gurdial Singh and Ors. assumes significance. There has been an abuse of power conferred to achieve something other than the object which was intended apart from treating similarly placed dis-similarly. The extension of term of Office is for the purpose of postponement of elections. The above reason is clearly expressed in the notification issued under Section 18 of the Act. No reason is given for exclusion, in the Notification, of some of the Municipalities. This discrimination is writ-large. Indeed one need not countenance at all allegations made by the petitioners in these petitions in regard to malafides for the simple reason that no person is named except in one case and he is not made a party by which it could be said any individual was connected with the act of malafides.
26. Learned Single Judge of this Court in Jagadish Patil v. The State of Karnataka and Ors. correctly held that legal malafides may be inferred if attending circumstances together as a whole lead to such an inference. We only have to see that despite charges having been initiated and proceedings commenced for supersession in terms of Section 316 of the Act, the term came to be extended between 1-1-1988 and 30-6-1988 and again between 1-7-1988 and 30-7-1988, At that point of time or during that period, the Government did not attach any importance to the classification they later made for purpose of extending the term of those Municipalities which were not under threat of supersession. It is only when the notification impugned was ripe the idea of classification has emerged. Therefore, having regard to the sequence of events, it may be safely inferred that the Government wanted to do one of the two things or both of them. That is, they wanted to end the term of the Municipal Councillors with whom we are concerned without having the need to pass an order of supersession, if the explanation offered were not accepted by the Government or the Government wanted to avoid passing an order as the explanations would have been tenable and therefore Government would be unable to exercise its power under Section 316 of the Act.
27. It was next argued by the learned Advocate General that nexus the classification must have with respect to reason given by the Government is in respect of term but hot to the power exercised under Section 18. That is exactly what this Court has pointed out. The classification must be related to the reasons which compelled exercise of power under Section 18 of the Act which is the postponement of the election in the circumstances stated. If the classification has no nexus to that reason then there is discrimination as held by this Court in the case of A.V. MUNISWAMY v. STATE OF KARNATAKA . ILR 1985 KAR 2409
28. The facts in that case were these:
The term of Office of Agricultural Produce Marketing Committees of three adjoining Taluks of Kolar District expired on the same day; the Chief Marketing Officer made a common report in case of all the three APMCs regarding extension. The Government however extended term of Office of only one without passing any order regarding the two other APMCs. Order was challenged on ground of hostile discrimination. In that circumstance, this Court ruled as follows:-
"The State Government when it chooses to exercise its power under Section 38(1) of the Act, in favour of only one of the APMCs., in a case where on a common report made by the Chief Marketing Officer, the case of all the three APMCs cannot at all be differentiated; the exercise of power in favour of one of three APMCs only, will not be justified as there are no distinguishing features and such exercise of power results in subjecting the members of the other two APMCs to hostile discrimination, though it is open to the Government not to extend the term of Office of the Members of the APMC and simply keep quiet."
In other words Government exercised its power for a specified reason in respect of the Municipal Councillors in the State. That power may be exercised uniformly. If extensions are to be denied to some, then they must be founded on reasonable classification. If there is no reasonable classification like for instance where the electoral rolls are ready and elections may be held without extending the time further, or where for any reason unconnected with mal-administration the continuation of the Municipal Councillors becomes unnecessary such as illustrated in the provisions contained in Section 315 of the Act, for instance, the elections of the Municipal Councillors have been set aside affecting the Constitution of the Council or where members have resigned enblock reducing the Constitution to less than the minimum provided for under the Act etc. This Court also need not over look the fact that in the case of Chintamani Town Municipal Council and that of Raichur, proceedings initiated under Section 316 had come to be stayed by this Court. The legal effect was no proceedings as such were operative. If that circumstance is taken into account, it is possible to construe the act of the Government that despite the knowledge of the stay which is apparent from the perusal of the records produced by the learned Advocate General the Government chose to circumvent the stay order granted by this Court by the method of elimination or exclusion from the general power exercised under Section 18 of the Act. It should not be lightly countenanced by this Court.
29. For all the above reasons the argument advanced by the respondent - State cannot be accepted. The petitioners should succeed.
30. Petitions are allowed. Rule is made absolute, where rule is issued. Where only notice regarding rule was issued. Rule will issue and be made absolute. Rule will accordingly be issued in the following terms:- This Court is fully aware as a rule it will not issue a Writ of Mandamus to compel an authority including the Government to perform what is a discretionary act, but as already pointed out earlier, Supreme Court has not uniformly applied the principle, having regard to the facts of each case. We are in the middle of September, 1988. The term is extended now upto 30th December 1988 in respect of all Municipalities that are mentioned in the schedule to the impugned order (147 of them). If only a direction is given to consider the inclusion of these Municipalities also, it will only cause delay. Therefore, having regard to- the special circumstances prevailing on the facts of these cases, this Court must direct the Government to forthwith include the names of the Municipalities which were excluded on the ground of supersession proceedings pending within a week from the date of receipt of this order.
31. In so far as orders appointing administrators are concerned, in respect of Municipal Councils whose term has expired, they are quashed and the administrators shall hand over charge to the Municipal Councils, as soon as the first direction is complied with by the State.