(1.) THE petitioner in this writ petition dated February 4, 2008 is seeking orders : (i) quashing the order of the State Government dated January 21, 2008 made under Section 442 of the West Bengal Municipal Act, 1993 that the vice-chairman of Darjeeling municipality shall convene meeting of the board of councilors of the municipality within one month for electing a new chairman; and (ii) directingthe respondents to hold election for the purpose of filling the three casual vacancies for councilors in the municipality before holding any meeting for electing new chairman.
(2.) THE relevant facts are these. The thirty-fifth and thirty-sixth respondents were councilors of the municipality and they resigned on June 15, 2007. The existing chairman of the municipality, also an elected councilor, died on January 1, 2008. The new chairman was to be elected in terms of the provisions in Section 17 (3) of the West Bengal Municipal Act, 1993. Section 17 (3) provides that in the case of any casual vacancy in the office of the chairman caused by death, resignation, removal or otherwise, the board of councilors shall, in accordance with such procedure as may be prescribed, elect one of the councilors to fill up the vacancy. The procedure for election of chairman in terms of Section 17 (3) has been prescribed by the West Bengal Municipalities (Procedure and Conduct of business) Rules, 1995. The provisions in Rule 6 (1) (a) of those rules are relevant for the present purpose, and they provide that in the case of any vacancy caused by death of the chairman, within seven days or as soon thereafter as may be but not later than fifteen days after the death of the elected chairman, the vice-chairman shall convene a meeting of the board of councilors exclusively for the purpose of election of the chairman. In the present case the vice-chairman convened the meeting that was to be held on January 14, 2008. The meeting could not be held, because on that day the political party to which the petitioner belongs organized an agitation. The political agitation organized by that party continued till January 18, 2008. Under the circumstances, the vice-chairman adjourned the meeting to a future date until restoration of normalcy, as will appear from his memo dated January 14/21, 2008. In such situation the State Government issued the order dated January 21, 2008.
(3.) THE order was issued in exercise of power conferred on the State government by the West Bengal Municipal Act, 1993, Section 442 that says that if any difficulty arises in giving effect to the provisions of the Act, the state Government may, as occasion may require, by order, not inconsistent with the provisions of the Act, do or cause to be done anything which may be necessary for removing the difficulty. The State Government has exercised the power on the ground that the provisions in Rule 6 of the West bengal Municipalities (Procedure and Conduct of Business) Rules, 1995 are silent about the actions to be taken if the meeting cannot be held within the prescribed time limit of fifteen days after the death of the chairman, and that this was causing difficulty in giving effect to the provisions of Section 17 (3) for the purpose of election of new chairman of the municipality. On such ground and in order to remove the said difficulty, the State Government exercised its power available under Section 442 and directed the vice-chairman of the municipality to convene the meeting of the board of councilors within one month from January 21, 2008 for electing the new chairman.