LAKSHYADHAR CHOWDHURY Vs. P.H. TRIVEDI AND ANR.

JUDGEMENT

(1.) IN this civil rule it is prayed that the notice dated 7 -9 -63 issued by the Deputy Commissioner, Gauhati under Rule 1(b) of the Second Schedule of the Assam Municipal Act, 1956 (Act 15 of 1957) (hereinafter called 'the Act') fixing the 4th October, 1963 for the holding of a meeting of the Gauhati Municipal Board for the election of a Chairman in a vacancy that has arisen on account of the resignation of Sri Satish Chandra Kakati, Ex -Chairman, is invalid and should be quashed.

(2.) IT will be convenient to refer to the relevant provisions of the Act. Relevant portions of Section 33 of the Act run as follows:

(3.) RELIANCE is placed on Section 41 containing the clause subject to the provisions of Sections 33 and 36. From this it is contended by Mr. Pathak, the learned Senior Government Advocate that whenever a meeting for the election of the Chairman or the Vice -Chairman is to be held, it should be held subject to Section 33, which, according to him, implied that the procedural provision contained in Section 33 should all be followed. In other words, his contention is that the meeting at which such an election is to be held, has to be couvened (sic) Deputy Commissioner in accordance with Section 33(2) of the Act. We are unable to agree with this submission. The use of the clause 'subject to the provisions of Sections 33 and 36 in our opinion, only means that whenever there is any conflict between the produce indicated to be followed in Section 41 and that in Sections 33 and 36, the latter sections should prevail but in the absence of any such conflict the normal Procedure envisaged in Section 41 has got to be followed. The mere use of the expression 'subject to the provisions of Sections and 36, does not, in our opinion amount to making Section 41 in this case subject to Sections 33 and 36, so as to read the part of Section 41.