BRATENDRA PRASAD SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal is directed against the order dated 4.9.95 by which the learned Single Judge has rejected the petition filed by the appellant herein in a disposed of case, C.W.J.C. No. 5656 of 1993, seeking directions to allow the Ad hoc Committee constituted by the State Government in terms of the proviso to sub-section (2) of Section 29 of the Bihar Municipal Act, 1922, as it then stood prior to amendments carried out in the Act in the 1994/95, to function till regular elections are held for Barhaiya Municipality. Earlier on 17.3.1994 the learned Judge has disposed of the writ petition with direction to conclude the election process latest by 30.6.94. It was observed in that connection that if the election is not held within the said period, the present Committee shall stand automatically superseded on 30.6.94 and the Anchal Adhikari, Barhaiya, shall assume jurisdiction as Special Officer and discharge the functions, as he was doing by virtue of the interim order dated 14.9.93. It appears that thereafter in view of the order passed in C.W.J.C. No. 6793 of 1992 the learned Judge extended the period upto 30.6.93 because similar orders had been passed in respect of other municipalities. The petition filed by the appellant for allowing the ad hoc Committee to continue as aforesaid has been rejected in view of the orders passed by the learned Judge in batch of cases, C.W.J.C. No. 8394 of 1994 and analogous cases, disposed of on 1.8.95.

(2.) In support of the appeal, Mr. Ganesh Prasad Singh, learned counsel for the appellant, stated that the Ad hoc Committee in question had been constituted in terms of the proviso to subsection (2) of Section 29 of the Act as it then stood prior to which several amendments were carried out in the Act by Bihar Ordinance No. 13 ot 1994, which was later substituted by Bihar Act 2 of 1995. He referred to the second proviso to Section 390-C as inserted by the said amendment in the Amendment Act and submitted that continuance of the Ad hoc Committee was saved by the said provisions. He, accordingly, contended that Ad hoc Committee, which should be deemed to be "validly constituted Committee" within meaning of the said proviso should be allowed to continue to function till the constitution and first meeting of the municipality. Section 390C read as hereunder:-

(3.) It would appear that extensive amendments were made in the Bihar Municipal Act, 1922 by the aforesaid Ordinance/Act in 1994/95 in consonance with the provisions of Part IX A of the Constitution. The provisions of the Act as they now stand, contemplate automatic cessation of the term of office of the elected Chairman, Commissioners etc., unlike the provisions as stood prior to amendments which permitted extension of the period and making Ad hoc arrangement at the whim of the Government in power. What the saving clause under Section 390-C says is the continuance of the Municipalities and Notified Area Committees on the date of commencement of the Ordinance (which came into effect 9n 30.5.94). The words "this Act" occurring in the second proviso of Section 390-C refers to the Amendment Act and not the Parent Act. By reason of the amended provisions the Municipality/ Notified Area Committee, which has been validly constituted under the provisions or the Bihar Municipal Act, 1922 would have statutorily come to an end on coming the Ordinance inforce on 30.5.95, has created a void. It was to obviate that situation that Saving clause stands inserted to provide that such Municipality/Notified Area Committee shall continue to function till the Constitution and the first meeting of the Committee. The Ad hoc Committee constituted in terms of the first proviso to sub-section (2) of Section 29 of the Parent Act cannot be treated at par with duly constituted Municipality/ Notified Area Committee. If the framers of the Act intended to confer continuance of status on the Ad hoc Committee as well they would have included the same in the proviso apart from the Municipality and Notified Area Committee as already mentioned therein. In support of the view that we have taken, we may refer to the order of the learned Single Judge in C.W.J.C. No. 8602 of 1995 disposed of on 27.3.96.