PHANINDRA NATH LAHIRI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE petitioners, who are four in number, claim to be rate payers of Serampore Municipality. The petitioner No. 1, claims to have his permanent residential house within the limits of the municipality but says that he resides, for the present, at Kanpur, in Uttar Pradesh. The petitioner No. 2 carries on business within the municipality, but does not ordinarily reside there. Petitioners Nos. 3 and 4 have their house properties within the limits of the municipality but they reside at Calcutta. Their names, it is alleged, used to appear in the electoral roll for election of commissioners of the municipality but was omitted there from in the general election of the municipality, held on February 23, 1964.

(2.) THE petitioners say that their names were omitted by operation of certain amendments introduced in sub-sections (2) and (3) of section 23 of the Bengal Municipal Act, 1932, which according to them, was un-constitutional. They also feel aggrieved by a notification dated August 26, 1962, made under section 20 of the Bengal Municipal Act, 1932; by which the municipality was divided into 28 wards representing a single member constituency each. The said notification is quoted below:-"no 1486m-26th August, 1962-In exercise of the power conferred by section 20 of the Bengal Municipal Act, 1932 (Bengal Act. XV of 1932) delegated to the Commissioner of Divisions under Government notification No. 4394m;,dated the 18th May, 1956, I hereby determine, after considering the views of the Commissioners of the serampore Municipality at a meeting, that the Serampore Municipality in the district of Hooghly shall, for the purpose of election of commissioners, be: divided into 28 "wards, each representing a single member constituency. The description of the boundary of: each ward is given below: -The petitioners say that as far back as the year 1958 the State Governments had decided to fix the number of commissioners of a municipality on population basis. The said decision (Annexure E to the petition)is quoted below: -"the undersigned is directed to invite a reference to the Government orders on the above subject noted in the margin, copies of which are enclosed for ready reference. In the said Government orders, the main criterion laid down for determining the number of Commissioners of a municipality, was the voting strength, which is, however, a variable factor and changes at the time of each general election. As a result, proposals are received for altering the number of commissioner on the basis of the voting strength shortly before a general election and difficulties often arise in holding the election on the due date in cases where such proposals are found to deserve consideration.

(3.) IN the opinion of Government there should not be toe frequent changes in the number of commissioners of a municipality and the number once fixed should remain constant far a period of at least 10 years. In their view, population, according to the last census, offers a more constant and satisfactory criterion for fixing the number of commissioners. After due consideration and with a view to avoiding too great an increase in the number of commissioners of municipalities, which is not always conducive to their-efficient functioning, government have decided that the number of commissioners to which a municipality is entitled should first, be calculated on the basis of its population as per the last census according to the following scale and it should then be considered whether any variation of that number should be made having regard to the other factors mentioned in clause (i) of sub-section (1) of section C of the Bengal Municipal Act, 1932. . It is requested that proposal for alteration of the number of commissioners of municipality may in future be examined in the light of the principle indicated above and submitted to government at least six months before the date on which their general election is due''. The petitioners allege that the Serampore Municipality, having a population of about 91,500, should not have been allotted more than 23 commissioners, in violation of the Government decision.