BENOY KUMAR SEN Vs. SATYANANDA BHATTACHARYA

JUDGEMENT

(1.) THIS appeal is against a judgment of P. B. Mukharji, J. , by which he ordered the issue of a writ of quo warrantor against the appellant Benoy Kumar Sen, who had been holding the office of the Commissioner of the Corporation of Calcutta under the Calcutta Municipal. Act and also a writ of mandamus; directing the State of West Bengal to remove this appellant from his office as Commissioner. These writs were issued on the application of the respondent, Satyananda Bhattacharjee, a rate-payer of the Calcutta Corporation. It may be mentioned that the application under Article 226 of the Constitution, as originally framed, asked for only a writ of quo warrantor against the appellant, Benoy Kumar Sen, and at that stage the State of West Bengal and the Corporation of Calcutta were not made parties to the application. The original application was, however, amended on the 15th May, 1958 and the State of West Bengal and the Corporation of Calcutta were brought on the record as parties and on the basis of certain new averments made as regards a resolution for the removal of the appellant from his office as Commissioner alleged to have been taken by the Corporation under the provisions of Section 1913 of the Calcutta Municipal Act, 1951, a prayer was added for the issue of a writ of mandamus, calling upon the State of West Bengal to remove the appellant from his office as Commissioner. The application was opposed by this appellant as well as the State of West Bengal and the Corporation of Calcutta. The present appeal is by Benoy Kumar Sen alone. The State of West Bengal has, however, supported the appellant before us and has continued before us its opposition to the issue of the above writs. The Corporation of Calcutta which opposed the application for the issue of writs in the Court below and indeed denied the averment of the respondent, Satyananda Bhattacharjee, as regards the invalidity of the renewal of (the appellant's appointment, has changed position and has, in this court, tried to support the respondent, Satyananda Bhattacharjee. The questions on which the appeal has to be decided are, however, pure questions of law, so that the rather inexplicable change of attitude by the Corporation of Calcutta does not really concern us.

(2.) THE facts which are material to the consideration of the question whether the judge has acted rightly in issuing the writ of quo warrantor, are not in dispute. The appellant, Benoy Kumar Sen, was appointed as the first Commissioner under the provisions of section 19 of the Calcutta Municipal Act. This appointment was for a term of five years with effect from the first day of May, 1952. Thus without renewal the appellant would have ceased to be entitled to hold the office from the 1st of May, 1957. The Legislature, however, when legislating that every commissioner shall be appointed for a term of five years, thought fit to add a proviso, the exact words of which it is necessary to set out, as much will depend on the proper interpretation and application of the prescriptions in this proviso. The proviso is in these words :-

(3.) THE Government of West Bengal in its anxiety that there should not be any vacancy in the office of the Commissioner who, it has to be remembered, is one of the authorities of the municipality and has to discharge certain functions which cannot be discharged by any other authority, wrote as early as the 27th June, 1956, enquiring of the Corporation if the Corporation wished for renewal of the Commissioner's term and asked for a reply by the 30th November, 1956. On the 30th November, 1956 the Corporation postponed consideration of the matter and thereafter wrote to the Government asking for extension of the time to communicate its decision in the matter. The Government replied on the 3rd December, 1956, extending the time for reply till the 18th December. On the 14th of December, 1956, the Corporation took up this question of renewal of the applicant's appointment for a further period of five years and passed a resolution in the following words:-