RAJENDRA PRASAD GUPTA Vs. STATE OF BIHAR

JUDGEMENT

(1.) This writ application under Articles 226 and 227 of the Constitution has been filed by the four petitioners who claim themselves to be the voters of Kishanganj Municipality.

(2.) Kishanganj Municipality was constituted before the Bihar and Orissa Municipal Act, 1922 (hereinafter to be called "the Act"), came into force. After the Act came into force, the Kishanganj Municipality was constituted in accordance with the provisions of the Act. By Notification No. 963/L. S.G. dated the 1st of February, 1964, the State Government, in exercise of the powers conferred by Sub-section (1) of Section 13 of the Act and in supersession of the previous notifications on the subject, fixed the total number of commissioners of the Kishanganj Municipality at 40 out of whom 32 were to be elected in the prescribed manner and 8 were to be appointed by the State Government under Section 14 (1) of the Act. A copy of the said notification has been made Annexure '1' to the writ application. The State Government in exercise of the powers conferred under Section 18 (2) of the Act divided the area comprised within the local limits of the municipality into 32 wards by a notification dated the 8th of February, 1964. Fresh election of the municipality was held on the 10th of September, 1972. On the 31st of December. 1972, the Governor of Bihar promulgated an ordinance called the Bihar Municipality (Fourth Amendment) Ordinance 1972 (Ordinance No. 175 of 1972). By that ordinance new sections were substituted in place of Sections 13, 14, 20, 29, 30, 31, 32, 33 and 35. As provided under the old Section 13 (2), the total number of Commissioners in a Municipality could not be less than 10 and more than 40. As provided in Sub-section (3) of Section 13, the number of commissioners to be elected could not be less than four-fifths of the total number of commissioners The amended Section 13 (1) provides that the State Government shall by a notification in the Official Gazette fix the number of Municipal Commissioners to be elected in the prescribed manner which shall not be less than 10 and more than 36. Sub-section (2) of new Section 13 provides that besides the total number of Municipal Commissioners fixed under Sub-section (1), one-fifth thereof, subject to the maximum of 4, shall be co-opted by the elected members from the following categories provided that no such person has already been elected, namely (1) women, (2) scheduled castes, (3) scheduled tribes in such municipalities where, according to the last published census report, the population of such tribes exceeds five per cent. of the total population; and (4) Backward Classes. In the new Section 20, provision has been made for co-option of the Municipal Commissioners and the election of the Chairman. As provided in Sub-section (1) of that section, the District Magistrate or any other officer, not below the rank of a Deputy Magistrate, duly authorised by the District Magistrate in that behalf is required to call the first meeting of the elected Commissioners at a place and time fixed by him within 10 days from the date of the publication of the results of the election of Municipal Commissioners for the purpose of co-option of the Commissioners as provided under Section 13 (2). The old Section 14 (1) of the Act provided for appointment of Commissioners by the State Government and Section 14 (2) provided that the names of the commissioners elected and appointed shall be published in the Official Gazette. Since the new Section 13 (2) already made provision with regard to the co-option of the commissioners instead of appointment, the old Section 14 (1) was, in effect, obliterated from the statute book and the new Section 14 merely laid down that the names of the Municipal Commissioners elected or co-opted under Sub-section (1) or (2) of Section 13 shall be published in the Official Gazette. Section 10 of the Ordinance contains the saving clause. As provided under Section 10 (1), notwithstanding anything contained in the Ordinance, the election of Chairman, vice-chairman, President and Municipal Commissioners held prior to the promulgation of the Ordinance shall not be held to be illegal. Sub-section (2) of Section 10 provides that for the purpose of Section 20 of the Act, the periods prescribed for the purpose of electing the Chairman, Vice-Chairman, President and co-option of the Municipal Commissioners shall be reckoned to commence (or computed) from the date of the promulgation of the ordinance, provided that the period for the first election or co-option after the promulgation of the ordinance may be extended by the State Government by such time as it thinks proper. It appears that, in view of the promulgation of the ordinance, the State Government issued a circular letter, dated the 23rd of January, 1973, a copy whereof has been made Annexure '2' to the writ application, to all the District Magistrates. In that circular letter, the decision of the Government that the system of co-option would be adopted in place of nomination even in such municipalities where the election of commissioners had been held prior to the promulgation of the ordinance was conveyed. The 20th of February, 1973, was fixed by the Government as the date from which the period contemplated under the new Section 20 was to be computed. On the 8th of April, 1973, the Governor of Bihar promulgated Ordinance No. 40 of 1973 incorporating almost the same provisions as those of the first ordinance with the necessary modification in the repeal and saving clause in view of the previous Ordinance No. 175 of 1972. It appears that the third Ordinance No. 99 of 1973, incorporating exactly the same provisions as in the first and second Ordinances with concomitant modifications in the saving clause was promulgated by the Governor. The District Magistrate, Purnea, purporting to exercise power under Sections 4 (1) and 4 (3) of the third ordinance regarding the holding of the meeting for the purpose of co-option delegated his power to Sri N.K. Sharma, Sub-Divisional Officer. A copy of the order of the District Magistrate Purnea, dated the 20th of October. 1973 has been made Annexure '3' to the writ application. Thereafter, the Sub-divisional Officer issued a notice to all the elected Municipal Commissioners informing them that the meeting would be held on the 13th of November, 1973, for co-opting two commissioners as provided in new Section 13 (2). A copy of that notice has been made Annexure '4' to the writ application. The petitioners in this writ application have challenged the validity of the directions, delegation and the notice as contained in Annexures '2', '3' and '4' respectively.

(3.) It may be stated at the outset that Mr. Basudeva Prasad, learned Counsel appearing for the petitioners, did not advance any argument with regard to the validity of any of the ordinances promulgated by the Governor, although in the writ application the validity of the ordinances has been challenged on certain grounds. The learned Counsel, however, raised two contentions. In the first place he submitted that there being no fresh notification under the new Sub-section (1) of Section 13 fixing the total number of commissioners to be elected, no steps for co-option, as provided under the new Sub-section (2) of Section 13, can be validly taken. Secondly, he urged that the constitution of Municipal Boards must be in accordance with the notification (Annexure 1) which does not provide for co-option but for the appointment of commissioners by the State Government.