IN RE: MOHIT SENGUPTA AND ORS. Vs. STATE

JUDGEMENT

(1.) The petitioners who are some of the elected Commissioners of Raigunj Municipality, District -West Dinajpur, moved the present Writ application against the resolution, dated 10th March, 1988 adopted by the Board of Commissioners of the said Municipality electing Shri Hari Narayan Roy as Chairman of the Municipality during the absence of the original Chairman, Shri Mukul Bikash Sen.

(2.) It is submitted by Mr. Basu, learned Advocate appearing on behalf of the petitioners that Mukul Bikash Sen was duly elected as Chairman of the said Municipality by the Commissioners of the said Municipality as per the provisions of Sec. 45 of the Bengal Municipal Act, 1932 and the Vice -Chairman of the said Municipality was also duly elected by the Commissioners in terms of Sec. 48 of the said Act and the tenure of the offices of the Chairman and "Vice Chairman will be for 4 years from the date of their respective election as per the provisions of Sec. 56 of the said Act. Mr. Basu then refers to the provisions of Sec. 55 of the said Act and submits that the Commissioners of the Municipality at a meeting may grant leave of absence to their Chairman or "Vice Chairman for any period not exceeding three months in any one year and if the Chairman is absent from his duties during any one year for more than the three months allowable by way of leave under sub -section (1) of the said Sec. 55, he shall be declared by the State Government to have vacated his office unless such absence is sanctioned by the Commissioners at a meeting for reasons to be recorded in writing. Mr. Basu then refers to the provisions of Sec. 54 of the said Act and submits that the "Vice Chairman shall during, the vacancy in the office of the Chairman or the incapacity or temporary absence of the Chairman, perform any duty and, when occasion arises, exercise any power of the Chairman. Lastly, Mr. Basu refers to the provisions of subsection (2) of Sec. 58 of the said Act and contends that if any Commissioner, Chairman or "Vice Chairman by reason of his death, resignation or removal or by reason of his seat becoming vacant under the provisions of Sec. 55 or Sec. 57 of the said Act is unable to complete his full term of office or if a Chairman or "Vice Chairman is granted leave under Sec. 55 of the said Act, the vacancy so caused shall be filled up by appointment or election as the case may be, by another person and Mr. Basu submits that during the leave granted to the Chairman by the Commissioners, the Commissioners cannot appoint a person as an ad hoc Chairman by -passing the "Vice Chairman thereby making the said Sec. 54 nugatory and as such the resolutions adopted at the impugned meeting are wholly illegal and should be quashed. Mr. Basu refers also to the Memo. No. J -042/3 -81, dated March 11, 1988 - addressed to the Director of Local Bodies, Government of West Bengal, by the Deputy Director of Local Bodies, Jalpaiguri Division wherein the said Deputy Director had said inter alia that the whole development electing a chairman during the absence of the regular/original Chairman seemed to be completely paradoxical and not in confirmity with the relevant provisions of the Bengal Municipal Act.

(3.) Mr. Banerjee, learned Advocate appearing on behalf of the Raigunj Municipality, however, submits that under the provisions of sub -section (2) of Sec. 58 of the Bengal Municpal Act, the Commissioners of a Municipality have the power to elect or appoint any person from amongst them as a Chairman to act as such even during the leave granted to the Chairman inspite of the fact that there is a vice -Chairman and when legislature has conferred such special power upon the Commissioners it can not be said that such provision of law has made the provisions of Sec. 54 of the Act nugatory or that the said special power is in conflict with the powers of the vice -Chairman as given to him under Sec. 54.