KHET LAKHANI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an application by Khet alias K. G. Lakhani under Article 226 of the Constitution of India praying that a writ in the nature of quo warranto, or such other order as may be appropriate, be issued against the Rajasthan State and 13 others, calling upon them to show cause by what authority opposite parties Nos. 2 to 14 claim to act as convenor and members of an ad hoc committee exercising the powers of president and members respectively of the Municipal Board, Jodhpur, and forbidding them from so acting, if they are unable to show such authority.

(2.) THE facts, which have led to this application, may be briefly narrated. THEre is a Municipal Board established for the City of Jodhpur under the Jodhpur Municipal Act, 1943. This Municipal Board has been constituted under sec. 7 of the Act of 1943 as a body corporate having perpetual succession and a common seal and the power of acquiring, holding and transferring property movable or immovable and of contracting. THE Board was in existence up to the 13th of May, 1950. On that date an order was passed under sec. 9, sub-sec. (2) of the Act of 1943, which was published in the Rajasthan Gazette of the 20th of May, 1950, in the following terms: - "in pursuance of sub-sec. (2) of sec. 9 of the Jodhpur Municipal Act, 1943, it is hereby notified for general information that the Government have been pleased to terminate the term of the office of the present members of the Jodhpur Municipality with effect from the date of the publication of this notification in the Rajasthan Raj-Patra. It is further notified for general information that Government have been pleased to direct that fresh elections for the re-constitution of the Jodhpur Municipal Board be held within three months and that during this period the collector Jodhpur, be appointed as Administrator of the Municipal Board, Jodhpur,under sec. 232 of the Jodhpur Municipal Act, 1943, for the execution of the duties of the said Board. "

(3.) WE may finally consider the argument that has been put forward in paragraph of the additional statement in the written statement filed en behalf of the State. It is said that "where no express provision to meet such a contingency is provided, the Rajasthan Government, which is responsible for the local government administration can, irrespective of the provision of the Jodhpur Municipal Act, set up any machinery for the purpose of carrying on the administration of the Jodhpur Municipality. WE are of opinion that this argument cannot be accepted. When there is a statute of 234 sections providing for all kinds of contingencies, we cannot presume that there is any residuary power left in the Government to act beyond the provisions of the statute. That would, in our opinion, be a negation of the rule of law, and would arm Government with powers which would be above the law, when, therefore, an elaborate law exists, as in this case, the action of the Government must be justified within the four corners of that law. If it cannot be so justified, the action must be held to be ultra-vires. WE may point out in this connection that in the Punjab and the U. P. Municipal Acts, there are provisions to provide for all contingencies, and if the Jodhpur Municipal Act does not have similar provisions, the fault lies which those who framed the Act. For example, sec. 13 of the Punjab Municipal Act provides in sub-sec. (3) that "notwithstanding" anything contained in sub-sec. (2) or in any rules made by the local Government thereunder, an outgoing member shall, unless the Local Government otherwise directs, continue in office until the date fixed for the meeting at which his successor is required to take the oath of allegiance. " Further, sec. 30 of the U. P. Municipalities Act gives power to the Provincial Government to dissolve or supersede a board. Sec. 31 provides for consequences of supersession. Sec. 31 A provides for consequences of dissolution. There it is provided that on dissolution the President of the Board shall continue. This has been provided so that executive work of the Board may be carried on. It is also provided that elections shall be held and nominations and co-options made of members or the President, as the case may be, on a date which shall be a date prior to the date of dissolution. In the U. P. , therefore, the Jaw itself provides that the dissolution will not come into effect till the new members have been elected or nominated or co-opted. The Jodhpur Municipal Act is silent on these points; but even so, if the orders had been passed carefully, a date of termination under sec. 9 (2) could have been so fixed that the elections were held before that date. The interregnum, therefore, that has occured is due, in this case, to Government's own act. Section 232 or any other provision of the Jodhpur Municipal Act cannot, in the circumstances of the present case, be availed of by the State to create any authority to carry on the administration of the Municipal Board, and only such action can be carried on as may be done by the officers or officials of the Board under the powers vested in them by the statute. WE may point out that though the order, which is being directly challanged, is the order of the 21 st June, 1951, the consequence of our decision with respect to that order also hits the order of the 13th of May, 1950, and the last order of the 26th of July, 1951. If the Government have not the power to appoint an ad hoc Committee under sec. 232, as we are satisfied, they cannot have the power to appoint the Collector as the Administrator under that section.