SM RANU SENGUPTA Vs. STATE

JUDGEMENT

(1.) The petitioners in the instant writ petition are Midwives working in the Howrah Municipality. An order of transfer of the petitioners to different wards of the Howrah Municipality was passed by the President of the Howrah Municipality on June 3, 1980 and in the instant writ petition, the legality and validity of the said order of transfer has been challenged by the petitioners on the allegation that the constitution of a committee to administer the affairs of the Howrah Municipality under Section 56A of the Bengal Municipal Act was illegal and void and as such the members of the said illegal committee had no jurisdiction to assume their offices and discharge their duties and functions as members of the said committee. Consequently, the order of transfer passed by the President of the said Committee was illegal and void. It appears that the Howrah Municipality was governed under the provisions of the Bengal Municipal Act, 1932. A new Act, namely, Howrah Municipal Act, 1965 was enacted by the State Legislature making the Howrah Municipality a Corporation and elections were held in respect of the said Howrah Municipality since converted to a Corporation sometime in May, 1967. But the Corporation could not be constituted because the said Howrah Municipal Act was challenged before this Court in a writ proceeding whereupon a Rule being Civil Rule No. 548 (W) of 1967 was issued by this Court and an interim order was also passed by this Court. It appears that Howrah Municipal Act, 1965 was thereafter repealed and in the year 1974, electoral rolls of the Municipality had also been prepared. As the State Government contemplated for an establishment of a Municipal Corporation for the city of Howrah and adjoining areas, a comprehensive bill, namely, the Howrah Municipal Corporation Bill, was drafted by the Legislative Department of the State. A draft bill for the amendment of the Bengal Municipal Act was also taken. Simultaneously a draft bill for amending Calcutta Municipal Act was also made. It appears that the Bengal Municipalities Amendment Bill was passed by the West Bengal Legislative Assembly and the assent of the said Bill was given by the President of India on 1st Jan., 1981 and the new Act has now come into force. Under the provisions of the said amended Act, elections in 87 Municipalities out of 93 Municipalities in the State of West Bengal have already been held. As the earlier election of the Howrah Municipality was abortive, the State Government in order to run the administration of the Howrah Municipality appointed an Executive Officer under Section 67A of the Bengal Municipal Act sometime in the middle of 1967 and such appointment was extended from time to time. It is the case of the State Government in the instant Rule that as it was contemplated to introduce a comprehensive bill relating to the Howrah Municipality, no election could be held in respect of the Howrah Municipality before the proposed bill was enacted and the assent of the President was received. But in 1977, the State Government thought it desirable that instead of administering the Municipality with the help of an Executive Officer, an Advisory Committee should be appointed and according to the State Government, such Advisory Committee was constituted under Notification dated 30th Aug., 1977. It appears that the Constitution of the Advisory Committee was challenged and the State Government rescinded the said Notification appointing an Advisory Committee. Thereafter, with a view to have popular voice in the civic administration, pending regular election, the State Government issued notification dated 28th Feb., 1978 appointing a committee of 30 members under the provision of Section 56A of the Bengal Municipal Act, 1932. It appears that one Sri Sureswar Dutta challenged the validity of the said notification appointing a committee of 30 members in the Constitutional Writ Jurisdiction of this Court in Matter No. 336 of 1978. The said Rule was disposed of on 30th Jan., 1979 and the decision of the said case has since been reported in (1979) 1 Cal LJ 565. It appears that no appeal was preferred against the said judgment but the time to hold election as contained in the operative part of the said judgment was extended from time to time by the trial Court. Ultimately an appeal was preferred against the order extending the period to hold election up to 31st Jan., 1981 and the Court of Appeal held that after the disposal of the Rule the trial Court had no jurisdiction to extend the period as referred to in the operative part of the judgment. It appears that the previous committee appointed under Section 56A of the Bengal Municipal Act was cancelled and by Notification dated 1st Aug., 1980 another committee under Section 56A was constituted and it may be noted in this connection that in the subsequent committee under the said notification dated 1st Aug., 1980 most of the members of the previous committee were included.

(2.) The petitioners in the instant Rule contend that the impugned order of transfer is unreasonable, mala fide and capricious and as such even on merits, the said order of transfers cannot be sustained in law. The petitioners also contend that as the constitution of the committee under Section 56A was illegal and without jurisdiction the said committee had no authority to assume the office and administer the affairs of the Howrah Municipality. Accordingly, the order of transfer passed by the President of the said Committee is per se illegal and void. The petitioners have therefore also prayed for a writ in the nature of quo warranto directing the respondents Nos. 3 to 32, namely, the members of the Committee appointed under Section 56A in Aug., 1980 to vacate ,the office and not to hold the office and administer the affairs of the Howrah Municipality.

(3.) Mr. Chakraborti, the learned counsel appearing for the petitioners, has contended that Section 56A of the Bengal Municipal Act is ultra vires the Constitution and also the Bengal Municipal Act. It is contended that the provision of Section 56A is a colourable piece of legislation attempted to achieve something indirectly which it cannot achieve directly. It is also contended that the provision of Section 56A is arbitrary as no guideline has been laid down either for ascertaining the reasons for the constitution of a Committee or the selection or choice of the members of the committee by nomination. The learned counsel has also contended that the provision of Section 56A is liable to be struck down because no time limit has been fixed for the tenure of the Committee to be appointed under Section 56A. As a result, the ratepayers of the Municipality may be perpetually denied of their right to vote and elect their own representatives for the administration of the Municipality. Mr. Chakraborti has further submitted that provision of Section 56A of the Bengal Municipal Act is a direct negation of the principles of the parent Act, namely, the Bengal Municipal Act and It destroys the integral scheme enshrined in the main Act. It is also contended that the provision of Section 56A has created a double standard for the administration of the Municipality one by the elected representatives for a limited period and another by the nominated members under Section 56A for an indefinite period. He also submits that Section 56A suffers from the vices of excessive delegation of unguided, uncontrolled and uncanalised power to the executive which enables the executive Government to abdicate its basic statutory duty contrary to the other provisions of the Bengal Municipal Act. It is also contended in this connection that the Legislature itself cannot abdicate its constitutional responsibility by conferring an unguided power on the executive. Mr. Chakraborti has also submitted that the Notification appointing a committee under Section 56A is bad because the selection of the members of the committee has been made with no intelligible differentia, thereby offending Article 14 of the Constitution. Mr. Chakraborti has submitted that under the provisions of the Bengal Municipal Act the tenure of the Commissioners of the Municipality is fixed by the provision of the Statute, but the period of tenure of the Committee to be appointed under Section 56A has not been fixed and the State Government, if it so desires, can go on extending the period of tenure of the committee thereby depriving the ratepayers to hold the election and select their representatives for administering the affairs of the Municipality. It has also been contended by Mr. Chakraborti that about the selection of the members of the committee there is no guideline and the State Government has been given an absolutely free hand in selecting the members of the Committee according to its own choice. Such unguided and uncanalised power given to the Executive must be held to be bad on the vice of excessive delegation. Mr. Chakraborti has submitted that unfortunately since 1967, the popular representatives elected by the ratepayers of the Municipality could not hold their office and administer the affairs of the Municipality. The State Government appointed executive Officers under Section 67A of the Bengal Municipal Act and got the Municipality administered by such executive officers from time to time. He submits that simply because the State Government felt that a more comprehensive Act relating to the affairs of the Howrah Municipality should be passed by the State Legislature and simply because such a bill was introduced in the Legislative anvil, there was no reason to hold back the election of the Municipality on the basis of the existing Act and the appointment of the Committee under Section 56A on the plea that the election of the Municipality could not have been held is devoid of any substance. As such, even assuming that the provision of Section 56A is not ultra vires, there was no reasonable ground for appointment of the Committee under Section 56A and the purported notification appointing a committee under Section 56A must be held to be a colourable exercise of power. Mr. Chakraborti has submitted that in the writ proceeding initiated at the instance of Sri Sureswar Dutta as referred to hereinbefore, this Court specifically observed that within a specified time the election of the Municipality must be held and the committee should not be allowed to function beyond the prescribed period. The State Government in order to circumvent the said direction given by this Court again appointed a Committee under Section 56A on 1st Aug., 1980 by cancelling the previous committee. Although the previous committee was cancelled and a new committee was sought to be set up by notification dated 1st Aug., 1'980, in reality, the State Government retained the same old committee because excepting about 4 members, all the members of the previous committee were included in the new committee. Such action on the part of the State Government, according to Mr. Chakraborti, is nothing but fraud on the statute and a glaring example of colourable exercise of power,