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Bhanu Dutta and ors. Vs. the State and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 558 (W) of 1967
Judge
Reported inAIR1970Cal127,74CWN384
ActsBengal Municipal Act, 1932 - Sections 6, 6(1) and 7; ;Howrah Municipal Act, 1965 - Section 8; ;Code of Civil Procedure (CPC) , 1908
AppellantBhanu Dutta and ors.
RespondentThe State and ors.
Appellant AdvocateNani Coomar Chakraborty and ;Madhusudan Banerjee, Advs.;S.K. Roy Choudhury, Adv.
Respondent AdvocateAmar Prasad Chakraborty, Adv. for other Respondents, ;S.K. Acharya, Adv. General and ;Paritosh Mukherjee, Adv. for State
Excerpt:
- .....the said election on may 21, 1967.2. the petitioners are citizens of what previously was known as bally municipality. the areas within the bally municipality were included in the area of howrah municipality and the two areas together have been incorporated in the municipal corporation of howrah, by the howrah municipal act, 1965.3. the petitioners took various points in this application. mr. nani coomar chakraborty learned advocate appearing for the petitioners, however, pressed only one point, to which i shall presently refer although he did not rive up the other contentions raised by him in this matter.4. the point pressed by mr. chakraborty was that the state government did not issue the notification contemplated by section 6(1)(b) of the bengal municipal act, 1932. under this.....
Judgment:
ORDER

B.C. Mitra, J.

1. In this application the petitioners asked for appropriate writs directing the respondents to cancel, withdraw, rescind or set aside the finally published electoral rolls for the election of the Corporation of Howrah held on May 21, 1967 and also for a Writ of Prohibition prohibiting the respondents from holding the said election on May 21, 1967.

2. The petitioners are citizens of what previously was known as Bally Municipality. The areas within the Bally Municipality were included in the area of Howrah Municipality and the two areas together have been incorporated in the Municipal Corporation of Howrah, by the Howrah Municipal Act, 1965.

3. The petitioners took various points in this application. Mr. Nani Coomar Chakraborty learned Advocate appearing for the petitioners, however, pressed only one point, to which I shall presently refer although he did not Rive up the other contentions raised by him in this matter.

4. The point pressed by Mr. Chakraborty was that the State Government did not issue the notification contemplated by Section 6(1)(b) of the Bengal Municipal Act, 1932. Under this provision 'the State Government may, by notification and by such other means as it may determine, declare its intention', amongst others to withdraw any. Municipality from the operation of the Bengal Municipal Act, 1932. It was submitted that the Bally Municipality was a statutory body under the said Act, and therefore, if it was intended that this statutory body was to be withdrawn from the operation of the Bengal Municipal Act, the State Government should have declared its intention by a notification and by other means. No such notification, it was argued, was published by the State Government, and therefore, the Bally Municipality as a Statutory Body under the said Act could not be deprived of its statutory character. The Statute had prescribed a manner and a mode by which a Municipality, it was argued, could be withdrawn from the operation of the Act; and if it was intended that the Act should no more apply to the Bally Municipality, the requirement of the Act for withdrawal of the Municipality from the operation of the Act should have been complied with. In this case, that was not done, but the areas comprised in the Bally Municipality have been included by the Howrah Municipal Act, 1965, into a Municipal Corporation known as the Municipal Corporation of Howrah. It was argued that no doubt that the legislature had the power to include two different areas into one Municipal Corporation, but if one of the two areas was included within a Municipality, before inclusion of the two different areas into one Municipal Corporation, a notification under Section 6(1)(b) of the Bengal Municipal Act must be published.

5. The learned Advocate General appearing on behalf of the respondent no. 1 in this Rule and also in C. R. 682 (w)/67 and C. R. 794 (w)/67 which were taken up for hearing together, submitted that under Section 8 of the Howrah Municipal Act, 1965, 'all laws relating to matters provided for in this Act, and in force in Howrah, immediately before the date of the commencement of the corresponding provisions of this Act read with the Calcutta Act shall, on and from that date, stand repealed'. It was argued that having regard to this provision under Section 8 of the Howrah Municipal Act, it was not necessary for the State Government to comply with Section 6 (1) (b) of the Bengal Municipal Act, 1932. It was next contended that under the Bengal Municipal Act, the State Government in issuing the notification exercised a delegated authority and acted as a delegate of the legislature; but since the legislature itself had decided by the Howrah Municipal Act to amalgamate the area of the Bally Municipality with the areas of Howrah Municipality and to incorporate the two areas together into one Municipal Corporation, the exercise of superior power by the State Legislature overrides the statutory requirements relating to issue of notification by the Executive Authority under Section 6(1)(b) of the Bengal Municipal Act, 1932.

6. In my view, however, the contention raised by the learned Advocate for the petitioners appears to be sound and must prevail. Both the Bengal Municipal Act and the Howrah Municipal Act are enactments of the same legislature, which undoubtedly is competent to legislate on the subjects included in the two enactments. The provision in one statute cannot be ignored in order to give effect to the provision In the other. Section 6 of the Bengal Municipal Act requires the State Government to issue a notification if it wants to do any of the various things set out in Sub-section (1) of the said section. The matter, however, does not stand there. Section 7 gives to any inhabitant of the town or local area, or any rate payer of the Municipality or Municipalities in respect of which a notification has been published under Section 6, a right to file an objection within three months from the date of publication of the notification, and the State Government is required to take such objection into consideration. The provisions requiring the State Government to take the objection into consideration are mandatory in nature. If any inhabitant of the town or local area or any rate payer of the Municipality has been given a statutory right to file objection and the mandate of the legislature is that the State Government should consider such objection, it cannot, in my view, be said that this mandate of the legislature can be ignored or over-looked because the Howrah Municipal Act has included the areas which were previously within the Bally Municipality and the Howrah Municipality into one area and incorporated this area into Howrah Municipal Corporation. It is true that under the Howrah Municipal Act no provision has been made with regard to the notification required to be published under Section 6 of the Bengal Municipal Act, but that omission in the latter statute does not make a provision in Sections 6 and 7 of the earlier statute, namely, the Bengal Municipal Act, ineffective and inoperative. The provisions in Sections 6 and 7 of the Bengal Municipal Act have created rights and imposed obligations which are mandatory in nature and it cannot be said that these provisions can be ignored, overlooked or not complied with because in the latter Act, the legislature has chosen to incorporate two different areas of the Municipalities into one Municipal Corporation.

7. The doctrine of implied repeal in the rule of construction of statutory provisions which are repugnant to each other cannot be invoked in construing the provisions of the Bengal Municipal Act and the Howrah Municipal Act, as there is no repugnancy in the provisions of the two statutes. Section 6(1)(b) of the Bengal Municipal Act requires the State Government to publish a notification declaring its intention to withdraw a Municipality from the operation of the Bengal Municipal Act. Section 7 of the same Act confers upon various classes of persons a right to file objections and imposes an obligation upon the State Government to consider such objections. These provisions are not inconsistent with any of the provisions in the Howrah Municipality Act But even the doctrine of implied repeal does not allow the revocation or alteration of a statute by construction when the words may be capable of proper operation without it, (see Maxwell 9th Ed. p. 163). It is only where the coexistence of two sets of provisions in two statutes would be destructive of the object for which the latter was passed that the earlier would stand repealed by the latter, (see Maxwell 9th Ed. p. 171). But in this case the provisions in the Bengal Municipal Act regarding publication of the notification under Section 6(1) and the filing of objections under Section 7 is not destructive of the purpose of the latter Act namely the Howrah Municipal Act, which is the creation of a Municipal Corporation of Howrah, including therein the areas previously included in what were known as the Municipality of Howrah and the Municipality of Bally. I set out below the statement of the law on the doctrine of implied repeal in Craies on Statute Law 5th Ed. p. 338:

'Before coming to the conclusion that there is a repeal by implication the Court must be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together before they can, from the language of the later, imply the repeal of an express prior enactment i.e. the repeal must, if not express, flow from necessary implication.'

8. In this case, in my view, there Is no inconsistency or repugnancy at all. All that has happened is a failure or omission on the part of the State Government to issue the notification prescribed by Section 6(1) of the Bengal Municipal Act, in consequence whereof the inhabitants and rate payers of the Bally Municipality have been deprived of the statutory right to file their objections. It is therefore clear to me that there is no repugnancy or inconsistency between the provisions of the two statutes.

9. Regarding the contentions raised on behalf of the respondents that by reason of the opeartion of Section 8 of the Howrah Municipal Act all laws, applicable to what was previously known as 'the Howrah Municipality and the Bally Municipality' stand repealed, I must at once point out that what was repealed was 'all laws relating to matters provided for in this Act'. That being so, if there were any laws which were in force in the two Municipalities of Howrah and Bally covering subjects which were covered by the Howrah Municipal Act, then such laws as were in force in the Municipalities of Howrah and Bally should stand repealed. It is to be noted that in the Howrah Municipal Act there is no provision similar to matters dealt with in Section 6 of the Bengal Municipal Act. Section 6 of that Act is in Part II Chapter II which is headed 'The creation of Municipalities'. There is no corresponding subject dealt with in the Howrah Municipal Act, and therefore, Section 8 of the Howrah Municipal Act cannot have the effect of repealing Section 6 of the Bengal Municipal Act.

10. It was next contended on behalf of the respondents that under Section 6 (1)(b) of the Bengal Municipal Act 'the State Government may, by notification and by such other means as it may determine' declare its intention to do any of the Acts specified thereunder. With regard to this provision, it was argued in the first place that it was in the discretion of the State Government to publish a notification and it was not mandatory that such notification should be published by the State Government. The word 'may' it was submitted, made it plain that the State Government was not bound to issue a notification. I cannot accept this contention. The scheme of the sections in Chapter II and Part II of the Bengal Municipal Act make it abundantly clear that the word 'may' is not only directory but mandatory in nature and if the State Government wants to do any of the things set out in Section 6 (1)(b) of the Act a notification as mentioned above must be published.

11. It was next argued that the declaration of intention of State Government may be either by notification or by such other 'means' as it may determine. It was submitted that the enactment of the Howrah Municipal Act by the State legislature was a 'means' of declaration of intention of the State Government, and therefore, publication of notification was not necessary. This contention also must be rejected because Section 6(1) requires that the State Government may by a notification 'and' by such other means as it may determine, do any of the acts specified thereunder. A notification therefore must be published as prescribed by the section, and in addition to the notification the State Government may adopt other means for declaring its intention.

12. In my view it was not competent for the State Government to withdraw the areas from what was previously known as the Bally Municipality without first publishing the necessary notification under Section 6(1)(b) of the Act, and to include such areas into areas previously known as the Howrah Municipality even though the latter Act, namely the Howrah Municipal Act, has authorised the inclusion of areas in what was previously known as the Bally Municipality within the Howrah Municipal Corporation. This position becomes clear on a reference to 'The Chundernagore Municipal Act, 1955.' In Schedule I to the said Act are set out the modifications of the Bengal Municipal Act, and by Clause (4) of the schedule Sections 6 to 14 of the Bengal Municipal Act have been directed to be omitted.

13. Again in Section 594 of the Calcutta Municipal Act, 1951, it is provided that the State Government may by notification in the official Gazette declare that the area comprised within the Municipality of Tollygunge shall be included within Calcutta and shall be administered under the Calcutta Municipal Act. In Clause (a) of Section 595 of the said Act it is provided that the Bengal Municipal Act 1932 shall be deemed to be repealed, in the areas comprised within the Municipality of Tollygunge upon publication of the notification under Section 594. These provisions in the Chundernagore Municipal Act and the Calcutta Municipal Act make it clear that the requirements of notification under Section 6(1)(b) of the Bengal Municipal Act are to be complied with before any area included within the Municipality is withdrawn and incorporated in another Municipality or in a Municipal Corporation.

14. The learned Advocate General appearing for the State of West Bengal submitted further that since the legislature which is competent to enact the Howrah Municipal Act has provided for inclusion of the Bally Municipality into the area now included in the Howrah Municipal Corporation, such inclusion cannot be challenged merely because of non-compliance with the requirements of Section 6(1)(b) of the Bengal Municipal Act. In my view, however, in the absence of any provisions in the Howrah Municipal Act to that effect, before the Bally Municipality can be withdrawn from the operation of the Bengal Municipal Act a notification under Section 6(1)(b) declaring the State Government's intention to withdraw the Municipality from the operation of the Act has to be published. There is nothing in the Howrah Municipal Act which dispenses with the compliance with the provisions of Bengal Municipal Act and unless there is clear statutory provision dispensing with the fulfilment of the compliance with the requirements of the Statute, it is not open to a party to contend that the State Government is at liberty to dispense with the compliance with the provisions of the Statute.

15. For the reasons mentioned above, this Rule is made absolute. There will be no order for costs.

16. As prayed for by the learned Advocate-General let there be stay of the operation of the order passed to-day for six weeks from date.


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