SURENDRA NATH Vs. S M MURSHED

JUDGEMENT

(1.) This is an appeal from the judgment of Bose J. dated the 2nd December, 1952.

(2.) The appeal arises out of an application under Article 226 of the Constitution for the issue of an appropriate writ or order directing the respondent not to give effect to the order of supersession of the Budge Budge Municipality.

(3.) The facts which have been found by Bose J. may be set forth as follows. The Budge Budge Municipality began to function with ten Commissioners on and from the 4th of February, 1948 for a term of four years. On the 17th of February, 1951 the appellant was elected the Chairman of the Municipality under section 45 of the Bengal Municipal Act. On the 23rd of August, 1951 the State Government confirmed the appointment of the appellant as Chairman under section 46 of the Bengal Municipal Act. As the term of four years for which the Commissioners were to function, was about to expire it was directed that a fresh election of the Commissioners of the Budge Budge Municipality numbering twelve would be held on the 8th of March, 1952. It appears, however, that only eight nomi- nation papers for eight different constituencies of the said Municipality were filed. No nomination papers were filed in respect of the remaining four constituencies. The result was that the eight nomination papers which were filed were found on scrutiny to be correct and eight Commissioners were elected and a declaration under rule 22(2) of the Election Rules was duly made. On the 1st of April, 1952 it was notified that the election of the remaining four members would be held on the 31st of May, 1952. In the first week of April, 1952, the eight out of the ten members of the old Municipality which was then functioning resigned and thereafter these eight members ceased to attend meetings of the Municipality or to take any interest in the affairs of the Municipality. Out of the two remaining members one was the appellant, the Chairman of the Municipality. The remaining one did not also take any interest in the affairs of the Municipality and did not attend any of its meetings thereafter. The-resignations of. 5 out of 8 members who had submitted their resignations were accepted by the Chairman in a meeting which was attended by himself alone. On the 24th of April, 1952 the. appellant was directed by the State Government to carry on the routine administration of the Municipality. The appellant was also directed by the District Magistrate to have the cheques drawn by the appellant countersigned by him. As I have already stated, the date for the election of the remaining four members had been fixed for the 31st of May, 1952. Meanwhile, on the 28th of April, 1952 two persons, namely Pannalal Mondal and another moved this court under Article 226 of the Constitution for the issue of an appropriate writ to the effect that the election of the four remaining members could not be held on the basis of the existing electoral roll and that a revision of the electoral roll was necessary. An interim injunction was granted holding up the election. This Rule was made absolute on the 22nd of July, 1952. On the 3rd of June, 1952 the appellant moved this court under Article 226 of the Constitution and obtained a Rule challenging the order of the District Magistrate that the cheque drawn by the appellant should be countersigned by the District Magistrate. This Rule, we are told, is still pending disposal. On the 24th of July, 1952 a resolution under section 553 of the Bengal Municipal Act declaring that the Commissioners of the Budge Budge Municipality were incompetent and that they were superseded was duly published. On the 29th of July, 1952 respondent No. 2, who was appointed to act as administrator, took charge of the affairs of the Budge Budge Municipality. Thereafter this Rule was obtained by the appellant. The Rule was ultimately discharged by Bose J. on the 2nd of December, 1952. The appellant has accordingly preferred this appeal.