SURESWAR DUTTA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In this case the petitioner No.1 is a resident of Howrah Municipality and is a tax payer of the said Municipality and the petitioner No.2 is a lawyer paying professional licence fee to the Municipality of Howrah. The petitioners challenge a notification dated the 28th February, 1978. The said notification states, interalia, as follows: ?Whereas the terms of office of the Commissioners of the Howrah Municipality under sub sectioin (5) of section 56 of the Bengal Municipal Act, 1932 (Ben. Act XIV of 1932), has expred; And where as the State Government is of opinion that there is no likelihood of a new body of Commissioners being formed within a reasonable time to take over municipal administration; And whereas the Governor thinks it fit so to do in public interest; Now, therefore, in exercise of the power conferred by section 56A of the Bengal Municipal Act, 1932 (Ben. Act XV of 1932), the Governor is pleased hereby to appoint to Committee consisting of the following members, being persons not subject to any of the disqualifications mentioned in section 22 the said Committee shall for all purpose be deemed to be the Commissioner of the said Howrah Municipality and they shall take charge of the administration of the said Howrah Municipality and act in accordance with the provisions of the said Act and the Rules and the By-laws made thereunder:-?

(2.) Thereafter the notification gives the names of the members of the committee. It is not necessary for me to set out the said names. The said members have been made respondents to this Rule Nisi. It appears that the last general election of the Councilors of the Howrah Municipality was held on the 21st May, 1967 under the provisions of the Howrah Municipality Act, 1965. The petitioner No.1 claims that he was elected as one of the Councilors of the Municipality. But the said Municipality could not be constituted in view of an interim order passed by this Hon'ble Court in Writ Petition No. CR 548(W)/558(W) of 1967. However, the said Act was ultimately repealed and the election of the Councilors became automatically infructuous. Thereafter, the State Government on the 12th July, 1967 published a notification under section 67A of the Bengal Municipal Act, 1932 appointing an Executive Officer for running the administration of the Municipality. The said Executive Officer is still continuing. After repeal of the Act of 1965 as mentioned hereinbefore and the disposal of the Writ application, according to the petitioners, the respondent authorities did not take any steps either for any election or for constitution of the body of the Commissioners as provided under the Act. On the other hand, by notifications from time to time issued the State Government has extended the life of the body of the Commissioners who were elected as early as in 1961 under the previous Act. It is the case of the petitioners that after the change of the government in the State of West Bengal, the left front government in exercise of its powers under section 56A of the Act by a notification appointed an Advisory Committee consisting of 16 members. The said notification however, was later on withdrawn. In the mean time there was a Writ Petition filed in this Court challenging the said appointment. Thereafter on the 28th February, 1978 the impugned notification was issued by the Secretary to the Government of West Bengal appointing a Committee of the Municipality of Howrah consisting of 30 members in exercise of the powers under section 56A of the Bengal Municipal Act, 1932. The said appointment was made, according to the notification, in public interest as there was no likelihood of a new body of commissioners being formed within a reasonable time to take over the municipal administration. I have set out the notification before. The petitioners state that all the 16 members of the Advisory Committee who were earlier appointed by the notification dated the 30th August, 1977 which was later on revoked, have been included in the new committee. It is further the allegation of the petitioners that the new committee had been appointed mainly from the members or supporters of the constituents of the ruling left front except one person. The petitioners allege that the said committee consists of 16 members belonging to CPM, 6 from the Forward Block, 4 from the RCPI, 2 from the RSP and one from the Forward Block (Marxist) and one independent member. The petitioner's allegation is that the said notification has been issued in excess of the powers under section 56A of the Bengal Municipal Act, 1932 and further, the composition of the said notification indicates that the said notification was a malafide exercise of powers. In order to appreciate these two contentions it would be relevant to refer to the provisions of section 56A of the Act, which is as follows:- ?56A. Appointment of Committee in case of delay in forming new body of Commissioners by reason of order of Court or for other reason. (1) Where after the expiry of the term of office of the Commissioners of a municipality under sub-section (1) or sub-section (5) of section 56, the State Government is of opinion that by reason of the order of a Court or for any other reason, there is no likelihood of a new body of Commissioners being formed within a reasonable time to take over municipal administration, the State Government may, if it thinks fit so to do in the public interest, by order, appoint a Committee consisting of the same number of members as the Commissioners of the municipality to take charge of the administration of the affairs of the municipality in accordance with the provisions of this Act and the rules and the by-laws made thereunder?.

(3.) On behalf of the petitioners learned Advocate contended that 'any other reason' mentioned in the said section must be reasons analogous to or akin to the reason in the nature of the 'order of a Court' and there being no such reason, the appointment of the said Advisory Committee was illegal and bad. It is further the case of the petitioners that in view of one of the reasons which authorizes the State Government to appoint an Advisory Committee being the order of a Court, the other reasons must be of the same nature, that is to say, reasons emanating from sources outside the government. The reason why this contention was urged is that in opposition to this Rule Nisi on behalf of the State Government one Sri Pranab Kumar Das Gupta in his affidavit affirmed on the 4th August, 1978, has stated, inter alia, as follows:- ?As a matter of policy, the State Government decided to restore the Municipal Commissioners of Howrah along with the Municipal Commissioners of other municipalities which were under supersession or in respect of which an Executive Officer under section 67A was appointed, to their position. The Chairman of the Howrah Municipality was requested to take over charge of the municipal administration of Howrah, but he did not take over charge from the Executive Officer. The term of office of the Commissioners of the Howrah Municipality expired long ago and there was no likelihood of a new body of Commissioners being formed within a reasonable time because of certain reasons. The State Government have been thinking of lowering the age of voters from 21 to 18 and by recent Ordinance has done it. Secondly, Government has been thinking of extensively amending the B.M.Act, 1932 and an amending Bill is likely to be introduced in the coming session of the Legislature. Thirdly, a proposal has come to Government for constituting a municipal Corporation for Howrah. The Government is actively considering this question. The State Government is also seriously considering making alterations of the area of operation of the municipality due to increase in population in surrounding areas and also due to exclusion of areas within Bally Municipality from the area of operation of Howrah Municipality.?