CHAUTHMAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution of India.

(2.) A Municipal Board at Nawa, District Nagaur, existed when the Rajasthan Town Municipalities Act, 1951 (Act No. XXIII of 1951) came into force on 22nd December 1951, By notification No. F. 1 (c) (5)/l. S. G/51-1 dated 5th March 1952 published in Rajasthan Rajpatra of 29th March 1952, the Government dissolved the Municipal Board, Nawa, and appointed an ad hoc Committee consisting of five persons who are respondents Nos. 2 to 6 in this case. The petitioner was a member of the Municipal Board before its dissolution and he has challenged the validity of the Government order dissolving the Municipal Board of Nawa as also the appointment of the Ad hoc Committee.

(3.) LEARNED counsel for the petitioner contended that the Rajasthan Town Municipalities Act, 1951, did not repeal the law under which the Municipal Board of Nawa was constituted. This law was stated to be the Marwar District Municipal Boards (Constitution) Act, 1949. The argument was that under Section 2 of the Rajasthan Town Municipalities Act, the laws and enactments repealed by the Act were mentioned in the first schedule to that Act, but the Marwar District Municipal Boards (Constitution) Act, 1949 was not included in that list. This is so. But the Marwar District Municipal Boards (Constitution) Act only provided for constitution of municipal boards in district towns. It did not provide for term of office of the members or the functions to be exercised by the boards when constituted. It appears that the Marwar District Municipal Boards (Constitution) Act was a step towards the framing of a comprehensive legislation in respect of the district towns municipal boards but the attempt remained abortive owing to integration of the covenanting State of Marwar in the United State of Rajasthan six weeks later. The substantive law empowering the municipal boards of towns to function in Marwar was the Marwar Town Areas Regulation 1924 but the provisions of the Regulation were to be made applicable to any town by a notification by the Darbar to that effect. It was conceded by learned counsel appearing for both parties that no such notification had been issued and therefore the Mar-war Town Areas Regulation 1924 was not applicable to the Municipal Board of Nawa. LEARNED counsel for the parties were unable to say under what authority of law the Municipal Board of Nawa had been functioning. LEARNED counsel for the petitioner at one stage stated that the Municipal Board of Nawa perhaps, as in other towns, had been functioning and exercising powers on the analogy of the Jodhpur Municipal Act, 1943. That Act applied to the city of Jodhpur or such adjoining areas as may be declared to be included in the Municipality and could not authorise the constitution or functioning of the municipal boards in towns other than Jodhpur. In the preamble to the Marwar District Municipal Boards (Constitution) Act the purpose of the legislation is stated to be that it was expedient to provide for the constitution, in place of the existing municipal boards in the district towns, of municipal boards elected on a ward-wise basis. The preamble seems to indicate that there were municipal boards in District towns functioning from before and constituted in a particular" manner, but that manner was desired to be changed on the lines provided for in the Marwar District Municipal Boards (Constitution) Act, 1949. If any presumption is to be made as to the law under which the Nawa Board had been functioning, the Marwar Town Areas Regulation would be appropriate and it may be assumed that the notification referred to in Sub-section (3) of Section 2 of that Regulation had been made. In that case, there can be no difficulty in holding that the said Marwar Town Areas Regulation had been repealed by the Rajasthan Town Municipalities Act, 1951 as the said Regulation is mentioned in the first schedule in the list of laws repealed by this Act. The other alternative to the aforesaid presumption would be that the Municipal Board had been functioning under some executive order of the Government of Jodhpur which is now untraceable and the exact scope of that order and the powers, functions and duties of the municipal board of Nawa cannot be discovered. If that be so, such an executive order would occupy the status of law in Marwar under which the Municipal Board of Nawa came to be constituted and had been functioning. Such an undiscovered law would also be deemed to have been repealed by the Rajasthan Town Municipalities Act 1951 as would follow from a consideration of some of the provisions of that Act. Under Sub-section (2) of Section 1, the Rajasthan Town Municipalities Act is to extend to the whole of Rajasthan. Under Sub-section 8 of Section 4, 'municipal board' has been defined to mean the board of a town municipality. Under Sub-section 9, 'municipality' has been defined to be any local area which is at present a town municipality and any local area which may hereafter be constituted or declared as a town municipality under Section 5, if such municipality has not ceased to be a town municipality. Under Sub-section 3 of Section 5, certain duties are imposed on the municipal board of every town municipality already existing and of every town municipal board newly constituted under the Act. Under Section 8 every municipal board is declared to be a body corporate by the name of the municipal board of the place by reference to which the municipality is known and to have perpetual succession and a common seal. Section 21 declares that the municipal government of a municipality vested in the municipal board except in certain cases provided for in the Act. Section 23 declares the functions of the chairman. Chapter III relates to conduct of business of the municipal board. Chapter Iv authorises the municipal board to make rules and by-laws for various matters mentioned in the chapter. Chapter V relates to municipal property and fund. Chapter VI describes the primary and secondary functions of the municipal board, chapter VII relates to the power of imposing taxes, chapter VIII to recovery of municipal claims, chapter IX to municipal powers and offences, chapter X to prosecutions, suits and powers of police, chapter XI to municipal accounts and administration reports, and chapter XII to control of municipal boards. The last chapter XIIi relates to the appointment and powers of executive officers and other staff.