MANZOOR AHMAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) The nine petitioners have come up under Articles 226 and 227 of the Constitution of India with a prayer for quashing Annexure 1 to the main petition and Annexures 5 and 6 to the petition under Section 151 of the Code of Civil Procedure filed by the petitioners subsequently. Their further prayes is for the issuance of a writ of mandamus restraining the State of Bihar (respondent No. 1) and the Secretary to the Government of Bihar in the Department of Local-self Government (respondent No. 2) from enforcing either of the three annexures mentioned above.

(2.) According to the petitioners, the facts relevant for challenging the aforesaid annexures are as follows. The petitioners are the permanent residents of Nawadah town. The State Government by a notification bearing No. 8727 L. S. G. dated the 6th August, 1967, had constituted a Notified Area Committee for the town of Nawadah in exercise of its powers under the Bihar and Orissa Municipal Act, 1922 (hereinafter referred to as 'the Act'). Subsequently, by notification No. 5778 L.S.G., dated the 7th June, 1972, in exercise of the powers vested in the State Government under Section 390-A of the Act, the aforesaid Notified Area Committee was converted into a Municipality with effect from the 9th June, 1972. By the same notification, the State Government also appointed an Administrator for the purpose of running the administration of the Nawada Municipal Board, and one Shri Shyam Behari Prasad, Executive 'Officer, was appointed as the Administrator. Again, by ,a fresh order dated the 27th December. 1972, the State Government under partial modification of the earlier notification of the 7th June, 1972 appointed an ad hoc committee for the Nawada Municipal Board consisting of a Chairman, a Vice-Chairman and 18 other members. This notification of the State Government dated the 27th December, 1972, has been marked as Annexure I to the main writ petition. The further relevant facts which have been stated in a subsequent application under Section 151 of the Code of Civil Procedure filed by the petitioners are to the effect that after the writ application was admitted by this Court, a series of subsequent events had taken place, to wit, on the 17th February, 1973, the State Government sent an intimation to the office of the Nawadah Municipality that the Government had been pleased to pass an order in exercise of the powers conferred under Section 390-A of the Act to appoint an Advisory Committee for the Nawadah Municipality consisting of the members mentioned in the Government order. It has been further alleged that all the members of the erstwhile ad hoc committee had been nominated .as members of the aforesaid Advisory Committee. A true copy of this Government order has been marked as Annexure 4 to the application under Section 151 of the Code. Subsequently, the State Government passed an order dated the 7th March, 1973, whereby it again cancelled the earlier order of formation of the Advisory Committee for Nawadah Municipality as contained in Annexure 4 and also passed an order whereby the Administrator of the Nawadah Municipality was designated as the Executive Officer of the Municipal Board, and the Advisory Committee was re-designated as ad hoc committee after cancelling the order incorporated in Annexure 4. Copies of the Government orders regarding the cancellation of the Advisory Committee and the appointment of the Executive Officer have been marked as Annexures 5 and 6 respectively. On these facts, the petitioners challenge the validity and legality of Annexures 1, 5 and 6 on a number of grounds.

(3.) Mr. Shyama Prasad Mukherjee, learned counsel for the petitioners, at the outset raised three points in support of this application, namely, (1) that the State Government had no authority in law to constitute an ad hoc committee under the provisions of the Act. (2) that the State Government had committed a fraud on its powers by frequently changing its orders to favour a certain set of individuals who have all been said to be the members of the Ruling Party, namely, Ruling Congress Party, and (3) that it was a clear case of mala fide on the part of the State Government as the dominant intention in issuing successive and contradictory orders and notifications was not to promote the civic amenities for the purpose of which the Act had been enacted but merely in order to oblige the favourites of the Ruling Congress Party. It was further urged that the impugned orders were arbitrary, capricious and unreasonable. In course of argument, however, learned counsel sought for a permission in writing to urge additional grounds in, support of this application. The fresh grounds sought to be urged, for which permission was granted and no objection was raised on behalf of the respondents, were to the effect that Section 390-A of the Act was ultra vires and unconstitutional due to excessive delegation of power and that the impugned Section did not contain any guideline and had clothed the State Government with a blanket and an uncontrolled power to apply the provision of law recklessly. To sum up the different points urged by learned counsel, enumerated above, broadly classified, fall only under three heads, viz., (1) that there was no express power conferred by the Act on the State Government to appoint an ad hoc committee after conversion of a notified area committee into a municipal board, (21 that assuming that such a power could be called from the r>provisions of Section 390-A of the Act, that must be struck down as ultra vires and unconstitutional on account of excessive delegation leading to the arbitrary and uncanalised exercise of power according to the whims of the Government, and (3) that, in any event, the orders were vitiated by mala fide and unreasonableness.