GOBINDA BAKSHI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS Rule under Article 226 (1) of the Constitution was obtained by the residents and rate-payers of the Budge Municipality for a writ of mandamus on the respondents directing them to cancel, rescind or withdraw or forbear from giving effect to the resolutions passed by the Commissioners of the Municipality passed during the period from 5. 5. 71 to 11. 5. 71 in connection with various municipal affairs. The Rule is also for a writ in the nature of quo warranto calling upon the respondents nos. 5 to 19 to produce before this Court their legal power and authority under which they had been acting or holding the office as Municipal Commissioners of the said Municipality. The petitioners' case in brief is that the term of the Commissioners expired on May 3, 1969. Thereafter by a notification dated 13. 12. 68 the term was extended upto 31. 12. 70. It appears that by a further notification dated 31. 12. 70 the term was extended upto 3rd May, 1971 both days inclusive. The petitioners' further case is that the Commissioners can hold office, after the expiration of the statutory period of four years, only for a further period of two years in the aggregate as provided in section 56 (5) of the Bengal Municipal Act, 1932. Thereafter there was no further notification by the State of West Bengal under section 56a of the Bengal Municipal Act, forming a committee to take charge of the administration. It was accordingly contended that in the eye of law there was no body of Commissioners in the Municipality. But notwithstanding the same, the respondent No. 5 has been discharging his duties purporting to act as the Chairman of the Municipality and has given notice of series of special meetings of the Commissioners of the Municipality and it appears in pursuance thereof that several meetings have been held and resolutions passed by respondents Nos. 5 to 19 as such Commissioners. The copies of the resolutions are marked Annexure 'c' and 'd' to the petition. The petitioners contended that the respondents are holding office without any authority of law and the 8tate Government is also not taking any steps for holding the election. In the circumstances, the petitioners moved this Court in Constitutional Writ Jurisdiction and prayed for appropriate writs as mentioned above on the respondents.

(2.) THIS application was opposed by the respondent State of West Bengal and its officials respondents Nos. 2 to 3 as also respondents Nos. 4 and 5 who have entered appearance in this Rule. On behalf of the State of West Bengal an affidavit has been filed to say that the Commissioners exist even after 3rd May, 1971 by virtue of the provisions of section 24b read with section 56 (2) of the Bengal Municipal Act. An affidavit-in-opposition was filed on behalf of respondent No. 5 who also relied on the provisions of section 24b (3) and it was stated that the present body of Commissioners was continuing in office by virtue of the aforesaid provisions. It was further stated that there was a notification issued by the State of West Bengal on June 8, 1971 fixing the date of the next general election of the Commissioners on December 19, 1971. There is an additional affidavit on behalf of the respondent No. 5 stating that by another notification dated June 17, 1971 the State of West Bengal had appointed one Sri B. J. Majumdar, W. B. J. C. S. , Magistrate, First Class, Alipore, as the Executive Officer of the said Municipality in addition to his own duties. It is staled that against this notification a Rule was obtained in this Court being C. R. No. 1853 (W) of 1971 and an interim order was passed in that Rule. It is stated by Mr. Hari Narayan Das, learned Advocate for the State that there is an interim order in that Rule whereby the Commissioners have been granted leave to continue in office, but they have not been allowed to discharge any municipal function without the leave of the Court and the municipal functions are being discharged at the moment by the said Executive Officer. An affidavit-in-reply has been filed by the petitioners reiterating their contention as made in the petition.

(3.) MR. Sankar Prasad Pal, learned advocate for the petitioners has firstly contended that the Municipal Commissioners have ceased to hold office after the expiry of the extended term of two years following the statutory period of four years. According to Mr. Pal the provisions of section 56 (1) and 56 (5) are mandatory and sub-section (5) allows a maximum period of two years in aggregate beyond the term of four years provided in sub-section (1) (a ). As we have already seen, even the said extended term of two years expired on May 3, 1971, and on the expiry of that date the Commissioners cannot hold office as such Commissioners in law and accordingly all their acts are without any legal basis. It was further contended by Mr. Pal that there was no further notification after May 3, 1971 and in view of section 56a the Commissioners cannot hold office as Commissioners after the expiry of the said period. Further, section 24b (2) has to be read with sub-sections (1) and (5) of section 56 of the Act so that in any event the Commissioners are not entitled to hold any office after May 3, 1971.