MOULAVI ASIMUDDIN AHMED Vs. MDMAIZUDDIN KHAN

JUDGEMENT

(1.) This is an appeal arising out of certain proceedings connected with the reconstitution of a Union Board at village Itail in the Jamalpur Sub-division of the district of Mymensingh. The appellants are four out of nine defendants against whom the suit had been instituted. Under Sub-section (1) of Section 6, Bengal Village Self. Government Act (Bengal Act 5 of 1919) the number of members of this Union Board had been fixed at nine, and by an order in writing under Sub-section (3) of the section, the Provincial Government had directed that one-third of this number should be appointed by the District Magistrate, leaving the remaining six seats to be filled up by election. The last general election took place on 12 January 1940, and defendants 4 to 9 were the persons returned at this election. Thereafter, the District Magistrate proceeded to appoint the three members required to complete the constitution of the board, namely, the two plaintiffs and defendant 3. In due course, under Rule 28 of the rules framed by the Provincial Government in this behalf under Clause (a) and (b) of Sub- section (2) of Section 101 of the Act, he caused a notification dated 12 April 1940, to be published in the Calcutta Gazette on 18 April following, containing the names of all the members, both elected and appointed. Following this publication, the District Magistrate also took the further step, under Rule 29, of directing the Sub-divisional Officer to issue an order on the Circle Officer to convene a meeting of the members for the purpose of electing a President from among them.

(2.) It appears, however, that before this meeting could be held, the District Magistrate thought it fit to issue a fresh notification revoking the appointment he had previously made of plaintiffs 1 and 2, and appointing two other persons in their places, namely, defendants 1 and 2. This notification was dated 22 May, 1940, and was published in the Calcutta Gazette on the 30 of that month. So far as defendant 3 was concerned, his appointment was left undisturbed. It is the propriety of this cancellation of the plaintiffs appointment that is challenged in this suit. No reasons were assigned by the District Magistrate for the action he took, and the plaintiffs petitioned the Local Government for the reversal of the order. Pending the consideration of their representation, the Local Government adjourned the meeting for election of the President. Without however waiting for the ultimate decision of the Local Government, the plaintiffs commenced the present suit on 24 September 1940, in which they asked for a declaration that they had been validly appointed by the first notification of 12 April 1940, and that the cancellation of their appointment and the consequent appointment of defendants 1 and 2 were illegal and ultra vires. The District Magistrate was not made a party to the suit, but the plaintiffs prayed for a permanent injunction against defendants 1 and 2 restraining them from functioning as members of the Union Board, and they also sought to restrain the other defendants from attending or taking part in any meeting for the election of the President. Pending the hearing of the suit, the plaintiffs applied for a temporary injunction, and this was granted. But before the injunction matter was finally disposed of, the District Magistrate issued yet another notification dated 23 December 1940 which was gazetted on 2 January, 1941, making a further change in the personnel of the appointed members. By this notification, he purported to cancel the appointment of defendant 2 on the ground that it was illegal, and restored the original appointment of plaintiff 2 in his place. No change was made regarding defendants 1 and 3.

(3.) The District Magistrate thereafter made a fresh order under Rule 29 for the election of the President, and acting under the directions of the Sub-Divisional Officer in this behalf, the Circle Officer issued a notice on 19 January 1941 calling a meeting for the purpose on the 30th. The fact of the temporary injunction which the Court had issued was brought to the notice of the District Magistrate : but he did not stay his hands, and the Circle Officer actually held the meeting on the date notified. Among others, defendants 1, 8, 4, 5 and 9 attended this meeting, and defendant 1 was elected the President. Thereupon the plaintiffs moved the Court for taking proceedings in contempt against the said defendants, and the learned Munsif found all of them guilty, and committed them to civil gaol for a term of six weeks. The order was upheld in appeal, but the appellate Court reduced the period of imprisonment to one week. It is against this order that the defendants have obtained Rule No. 990 of 1941, which was heard along with the appeal. Both the Courts below decreed the suit. They took the view that in the absence of any express provision in the statute the District Magistrate, having made an appointment under Section 6(3), Bengal Village Self. Government Act, and published the name of the appointed member in the Calcutta Gazette as such, had no authority to cancel such appointment. Once an appointment had been made and notified, it could be cancelled only in the manner laid down in Section 12 of the Act, that is to say, by the District Board alone and on the conditions specified therein. In this view of the matter, the Courts gave the plaintiffs the declaration they had asked for, and also granted a perpetual injunction against the defendants. Hence the present appeal by four of the defendants as stated above.