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Sailendra Nath Bhowmik and ors. Vs. the State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberAppeal from Original Order No. 426 of 1972
Judge
Reported inAIR1974Cal363,78CWN686
ActsBengal Municipal Act, 1932 - Sections 67A, 67A(3) and 553; ;Constitution of India - Article 14
AppellantSailendra Nath Bhowmik and ors.
RespondentThe State of West Bengal and ors.
Appellant AdvocateNaranarayan Gupta and ;Indrajit Sen, Advs.
Respondent AdvocateP.K. Sen Gupta and ;Paritosh Kumar Mukharjee, Advs.
DispositionAppeal allowed
Cases ReferredRam Dial v. State of Punjab
Excerpt:
- .....notwithstanding anything contained in section 66 or section 67, if in the opinion of the state government the affairs of a municipality--(a) are not properly managed or(b) cannot, for failure of a genera! election or for any other reason, whatsoever, be managed in accordance with law.and if in its opinion it is desirable in the public interest so to do, it may, by notification, declare that the municipality 'shall have an executive officer for such period as may be specified in the notification :provided that the state government may, if it thinks fit, by notification extend such period from time to time. (2) an executive officer referred to in sub-section (1) shall be appointed by the state government and shall be paid out of the municipal fund such salary and allowances as.....
Judgment:

Gupta, J.

1. This is an appeal from a judgment of Sabyasachi Mukharji, J. by which he discharged the Rule nisi issued on an application under Article 226 of the Constitution. The application was made by the Commissioners of the Ranigunj Municipality seeking to have a notification issued by the Government of West Bengal in exercise of the powers conferred by Section 67-A of the Bengal Municipal Act 1932 rescinded by a Writ of Mandamus or any other appropriate Writ. The instant appeal has been preferred by the Commissioners of the said Municipality questioning the correctness of the order dismissing the Writ petition.

2. The appellants were elected as commissioners of the Ranigunj Municipality in May, 1967. At a meeting held sometime in June, 1967 the Commissioners elected the office bearers of the Municipality and the first and the second appellant were respectively elected the Chairman and the Vice-Chairman of the Municipality. The appellants' term of office as Commissioners and office bearers was to expire on June 29, 1971 but by a notification dated March 19, 1971 it was extended till December 31, 1971. By the impugned notification No. 3871/MIM-48/71, dated August 16, 1971 the Governor, in exercise of the powers conferred by Section 67-A of the Bengal Municipal Act 1932, was pleased to declare that the Ranigunj Municipality 'shall have an Executive Officer for the period of one year with effect from the date on which the Executive Officer may assume charge of his office' and to confer on the said Executive Officer 'all the powers of the Chairman and the Commissioners under the said Act, whether excrcisable at a meeting or otherwise.' One Amulya Kumar Roy, Special Officer grade II under the Local Self Government Department, was appointed the Executive Officer by the said notification. It appears from the notification that the powers conferred by the said Section 67-A were invoked as the Government was of opinion that the affairs of the Ranigunj Municipality were not properly managed and the Government considered it desirable in the public interest to declare that the said municipality should have an Executive Officer.

3. It appears from the supplementary affidavit filed before us on behalf of the appellants, affirmed on August 25, 1972 by appellant No. 7. a Commissioner of the Municipality, that the term of office of the Commissioners of Ranigunj Municipality was extended upto June 29, 1973 and the tenure of the Executive Officer was also extended for the said period.

4. Section 67-A of the Bengal Municipal Act 1932 is in these terms:--

'(1) Notwithstanding anything contained in Section 66 or Section 67, if in the opinion of the State Government the affairs of a municipality--

(a) are not properly managed or

(b) cannot, for failure of a genera! election or for any other reason, whatsoever, be managed in accordance with law.

and if in its opinion it is desirable in the public interest so to do, it may, by notification, declare that the municipality 'shall have an Executive Officer for such period as may be specified in the notification :

Provided that the State Government may, if it thinks fit, by notification extend such period from time to time. (2) An Executive Officer referred to in Sub-section (1) shall be appointed by the State Government and shall be paid out of the Municipal Fund such salary and allowances as may from time to time be fixed by the State Government. .

(3) The Executive Officer of a municipality, appointed under this section, shall exercise such powers of the Chairman or of the Commissioners whether at a meeting or otherwise as may be conferred on him by notification by the State Government and on such notification such powers shall cease to be ex-erasable by the Chairman or by the Commissioner, as the case may be.

(4) The State Government may at any time suspend, remove, dismiss or otherwise punish an Executive Officer appointed under this section.'

5. Before Mukharji, J. the aforesaid notification was assailed on several grounds. It was contended that Sub-section (3) of Section 67-A which lays dawn that the Executive Officer shall exercise 'such powers' of the Chairman or of the Commissioners as may be conferred on him by notification does not permit the Executive Officer to exercise all the powers of the Chairman and the Commissioners. 'Such powers', it was argued, implied only certain specified powers. According to the petitioners the impugned notification which conferred on the Executive Officer all the powers of the Chairman and the Commissioner was therefore illegal. It was further contended that Section 67-A was ultra vires being violarive of Article 14 of the Constitution, Referring to Section 553 of the Bengal Municipal Act, 1932 it was argued that the provisions of Section 67-A were more onerous than the provisions of Section 553 and the absence of any guiding principle for invoking the powers conferred by Section 67-A resits in giving discriminatory and arbitrary powers to the State Government. Another contention raised was that the Commissioners of the municipality should have been given an opportunity to show cause against the appointment of an Executive Officer under Section 67-A. The notification appointing the Executive Officer was also challenged as mala fide. Mukharji, J. held against the petitioners on all these points. It is not necessary to refer to certain other contentions raised before Mukharji, J. but not pressed in appeal before us.

6. We propose to consider first the question whether Sub-section (3) of Section 67-A permits the State Government to confer on the executive Officer appointed under this section all the powers of the Chairman and the Commissioners of the municipality. The answer to the question depends on the true meaning of the expression 'such powers' occurring in Sub-section (3). It appears that an Executive Officer may be appointed under different sections and the extent of his powers depends on the provision of the Act under which he is appointed. Section 66 (1) authorises the Commissioners to determine what officers and what servants of the Commissioners are necessary for the municipality. Sub-section (2) of Section 66 confers on the Chairman the power to appoint such persons as he may think fit and to remove such persons and to appoint others in their place. The 'officers' that may be appointed under Section 66 seems to include an Executive Officer as would appear from Sub-section (3) of the section which provider that the creation of and nomination to or suspersion, removal or dismissal from the post of Executive Officer shall be subject to confirmation by the State Government. Section 67 (1) provides that notwithstanding anything contained in Section 66, the State Government may, after consulting the Commissioners, if it thinks necessary so to do in the public interest require the Commissioners of any municipality to appoint within a specified time certain officers including an Executive Officer. If the Commissioners fail to appoint any such officer within the time fixed by the State Government, under Sub-section (4) of Section 67 the State Government can make the appointment. It appears from Sub-section (2) of Section 51 that the Commissioners of a municipality may delegate to an Executive Officer appointed under Section 66 or under Sub-section (1) or Sub-section (4) of Section 67 'all or any of the powers of the Commissioners' and, if required by the State Government to do so, shall delegate to him 'such powers'' of the Commissioners as the State Government may direct; Sub-section (2) provides further that upon such delegation the Commissioners shall cease to exercise the powers so delegated to the Executive Officer.

7. Section 67-A was inserted in the Act by Section 18 of the Bengal Municipal (Amendment) Act, 1955 (West Bengal Act XXVII of 1955). Certain changes with retrospective effect were made in the section by the Bengal Municipal (Second Amendment) Act, 1961 (West Bengal Act XVIII of 1961) but it is not necessary for the present purpose to refer in detail to these amendments. Under Section 67-A which I have set out above, notwithstanding anything contained in Section 66 or under Section 67 the State Government may by notification declare that the municipality shall have an Executive Officer if in the opinion of the State Government the affairs of a municipality -- (a) are not properly managed, or (b) cannot, for failure of a general election or for any other reason, whatsoever, be managed in accordance with law and, further, if in its opinion it is desirable in the public interest so to do.

8. Section 68 (1) states that the 'Executive Officer shall be the principal Executive Officer of the Commissioners and all other officers and servants of the Commissioners shall be subordinate to him, and defines his powers as follows:--

'He shall have the same right of being present at a meeting of the Commissioners or of any standing or special committee, and of taking part in the discussions thereat as if he were a Commissioner or a member of such committee and with the consent of the Chairman or the President of the meeting, as the case may be, he may at any time make a statement or explanation of facts, but he shall not vote upon, or make, any proposition at such meeting.'

9. Sub-section (2) of Section 68 provides that subject to the provisions of Sub-section (2) of Section 51 and Sub-section (3) of Section 67A the Executive Officer shall act 'in respect of all other matters' under the direction of the Chairman through whom he shall be responsible to the Commissioners.

10. From the scheme of the sections summarized above it appears that an Executive Officer may be appointed by the Chairman of the municipality under Section 66, or by the Commissioners of the municipality on being requited to do so under Section 67 (1), or by the State Government under Section 67 (4) where the Commissioners default in making the appointment on being required by the State Government to do so. Section 68 (1) provides that the Executive Officer appointed under any of these provisions, shall be the principal Executive Officer of the Commissioners. Section 51 (2) lays down that the Commissioners may delegate to an Executive Officer appointed under Section 66 or Sub-section (1) or Sub-section (4) of Section 67 all or any of the powers of the Commissioners and if required by the State Government to do so they shall delegate to an Executive Officer so appointed such powers of the Commissioners as the State Government may direct and that the Commissioners shall cease to exercise the powers delegated to the Executive Officer. In this context it may be possible to argue that the words 'such powers' which the Commissioners have to delegate to the Executive Officer on being required by the State Government mean all or any of the powers of the Commissioners referred to earlier in Section 51 (2). It is clear however that an Executive Officer appointed under Section 66 or under Sub-section (1) or Sub-section (4) of Section 67 can exercise all or any of the powers of the Commissioners only when the Commissioner delegates such powers to the Executive Officer whether of their own accord or on being required by the State Government to do so. Even if the Commissioners delegate all their powers to the Executive Officer and cease to exercise the powers delegated. It docs not mean that the Commissioners become functus officio. As provided in Section 68 (1) the Executive Officer remains the principal executive officer of the commissioners and as such responsible to them. The Commissioners of course cease to exercise the powers delegated to the Executive Officer but do not denude themselves of all authority. From Sub-section (3) of Section 66 and Sub-section (3) and Sub-section (5) of Section 67, it appears that the Commissioners have the power to suspend, remove or dismiss from office an Executive Officer appointed under Section 66 or Section 67 though such suspension, removal or dismissal is subject to confirmation by the State Government.

11. An Executive Officer appointed under Section 67-A occupies altogether a different position. He is appointed by the State Government and the powers be exercises are powers of the Chairman or of the Commissioners not delegated to him by the Commissioners but conferred on him by notification by the State Government. As Sub-section (4) or Section 67-A provides it is only the State Government that can suspend, remove, dismiss or otherwise punish an Executive Officer appointed under this section. An Executive Officer appointed under Section 67-A really replaces the Chairman or the Commissioners in respect of the powers which he exercises. The provisions of Sub-section (1) of Section 68 do not seem to apply to an Executive Officer appointed under Section 67-A. The only powers that an Executive Officer so appointed enjoys are the powers conferred on him by the State Government and these are the powers of the Chairman or of the Commissioners. Apart from this he does not appear to have any other power or duty. Such an Executive Officer can hardly be called the principle executive Officer of the Commissioners. Sub-section (2) of Section 68 which provides that 'subject to provisions of subsection (2) of Section 51 and Sub-section (3) of Section 67-A the Executive Officer shall act in respect of all other matters tinder the direction of the Chairman through whom he shall be responsible to the Commissioners' also seems to support this position. Besides the powers conferred on him under Section 67-A (3), there is no other matter in respect of which an Executive Officer appointed under Section 67-A (2) can possibly act and as such no question tan arise of his acting in respect of 'other matters' under the direction of the Chairman.

12. Under Sub-section (3) of Section 67-A an Executive Officer appointed under Sub-section (2) of the section exercises 'such powers' of the Chairman or of the Commissioners as may be conferred on him by the State Government. It is to be noted that unlike Sub-section (2) of Section 51, Sub-section (3) of Section 67-A does not use the expression 'all or any of the powers'. As pointed out above the words 'such powers' occurring also in Section 51 (2) are preceded by the expression 'all or any of the powers', and in that context it may be possible to argue, though it is not necessary for us to decide the point here that the words 'such powers' imply all or any of the powers. Bereft of that context could the same words occurring in Section 67A (3) also imply all or any of the powers of the Chairman or of the Commissioners? In our opinion it is not possible to construe the expression 'such powers' in Section 67A (3) to imply all powers of the Chairman or of the Commissioners. If the legislature intended the expression 'such powers' to include ail powers of the Chairman and the Commissioners, then an Executive Officer on whom the State Government has conferred 'all powers' under Section 67A (3) would displace the Chairman and the Commissioners altogether, The Commissioners have no control over the Executive Officer appointed under Section 67A (2) in respect of the powers that he exercises and if all powers of the Chairman and the Commissioners are conferred on the Executive Officer they will cense to function altogether. This would be virtual supersession of the Commissioners. We do not think that the legislature enacted Section 67A with the object of making the Commissioner wholly ineffective, which they would be if all their powers were conferred on the Executive Officer. In any event the language of Sub-section (3) of Section 67A does not suggest that the only possible construction of the words 'such powers' occurring therein is to read them to mean all or any of the powers of the Chairman or of the Commissioner. In our opinion the words 'such powers' in Section 67A (3) mean not all but certain specified powers of the Chairman or of the Commissioners which the State Government may confer on the Executive Officer by notification.

13. If the expression 'such powers' in Section 67A (3) is taken to include all powers of the Chairman and the Commissioners, then the provisions of Section 67A and Section 553 of the Bengal Municipal Act, 1932 would seem to operate at least partly on the same field. Section 553 which deals with the power of the State Government to superset the commissioners reads :--

'(1) If, in the opinion of the State Government, the Commissioners have shown their incompetency to perform, or have persistently made default in the performance of the duties imposed on them by or under this Act or by any other law, or have exceeded or abused their powers, the State Government may, by an order published with the reasons for making it in the official gazette, declare such Commissioners to be incompetent, or in default, or to have exceeded or abused their powers, as the case may be, and supersede them for a period to be specified in the order could provide that except in case of misappropriation of municipal funds or persistent default in the performance of duties by the Commissioners the State Government shall not ordinarily exercise power under this section until action has been taken under Section 552.

(2) The State Government may, if it considers it necessary sc to do, by order extend or modify the period of supersession'.

Section 552 to which Section 553 refers runs as follows:

'If, in the opinion of the State Government, the Commissioners have shown their incompetency to perform or have persistently made default in the performance of the duties imposed on them by or under this Act or by any other law, or have exceeded or abased their powers, the State Government may, by an order published, with the reasons for making it, in the official gazette, direct that a fresh general election shall be held immediately of persons to be commissioners; and from the date on which the results of such new election and appointment of commissioners under Section 26 (if any) are published in accordance with the provision of Section 50 the former commissioners shall, unless they are re-elected or re-appointed for the purpose of Section 26, vacate their offices'.

This section has a proviso which is not relevant for the present purpose. It appears that the provisions of both Section 67A and Section 553 are available to ensure proper and lawful management of the affairs of a municipality. Section 553 can be invoked if in the opinion of the State Government the Commissioners have shown their incompetency to perform their duties or have persistently made default in the performance of such duties or have exceeded or abused their powers. Section 67A seems to be wider in scope than Section 553 but where the affairs of a municipality are not managed properly of in accordance with law, the reason may be the incompetency of the Commissioners or persistent default on the part of the Commissioners in the performance of their duties. The result of appointing an Executive Officer under Section 67A with 'all powers' is supersession of the commissioners for all practical purposes. Of course the consequence of supersession under Section 553 differs on certain points from that which follows the appointment of an Executive Officer under Section 67A but what is relevant to note in this context is that the appointment of an Executive Officer with all powers denudes the Commissioners of all their functions which virtually amounts to their supersession. Therefore, in the game situation, namely, where the affairs of a municipality are not being managed properly or in accordance with law for the reasons stated in Section 553, two courses will be open to the State Government, to proceed either under Section 67A or under Section 553. Section 553 requires the State Government to record the reasons for making an order under that section. As the State Government is required to record reasons in support of the opinion formed by the Government, it is also open to the persons affected by tie order made under Section 553 to dispute the validity of the reasons and the legality of the order Even under Section 552 the Government has to state the reasons for proceeding under that section. Though Section 553 does not expressly say so, it is obvious that an order under tin's section is made in public interest. The State Government is not however required to record reasons for proceeding under Section 67A and the opinion of the State Government is final as to whether the affairs of a municipality arc managed properly or in accordance with law. Clearly therefore, the provisions of Section 67A are more onerous, and in similar situations the State Government may cheese and discriminate in proceeding against the Commissioners of a particular municipality under Section 67A and the Commissioners of any other municipality under Section 533. Construed this way Section 67A would be violative of Article 14 of the Constitution and therefore invalid to the extent it overlaps the provisions of Section 553.

14. The appellants' contention on this point finds support from the decision of the Supreme Court in Ram Dial v. State of Punjab : [1965]2SCR858 . In this case the Supreme Court was considering the provision of the Punjab Municipalities Act (3 of 1911). Under Section 14 (e) of that Act the State Government may at any time for any reason which it may deem to affect the public interest, by notification direct that the seat of any specified member shall be vacated on a given date. There is no provision for giving notice to a member against whom action is taken under Section 14 (e) and he is not entitled to any hearing before action is taken against him. Section 16 of that Act is another provision which gives power to the State Government to remove any member of a municipal committee. The proviso to Section 16 (1) requires a hearing before the State Government takes action under Section 16 (1). The Supreme Court held that 'the provision contained in Section 14 (e) as compared to the provision in Section 16 (1) is more drastic and arbitrary and denies the member concerned an opportunity of being heard as provided in Section 16 (1) by the proviso thereof' and that consequently 'this part of Section 14 (e) is discriminatory and must be struck down as unconstitutional under Article 14 of the Constitution'. In the case before us, as already pointed out Section 553 requires reasons to be stated for making an order under that section but there is no such provision in Section 67A. If the words 'such powers' occurring in Section 67A (3) implied all powers of the Chairman and the Commissioners, then the section would be ultra vires being repugnant to Article 14 of the Constitution. We are unable to agree with the learned Judge of the trial court that the 'occasions' for the 'user of power' of Section 67A and Section 553 are entirely different and the two sections were meant to be utilised in two different contingencies.

15. It was further contended on behalf of the appellants that the Commissioners of the municipality were entitled to a notice before steps were taken under Section 67A. This it was argued, was a requirement of the principal of natural justice. On a reading of the provisions of Section 67A it appears that the State Government has been given the power to act under this Section once it has formed an opinion that circumstances exist for the appointment of an executive officer. This is an opinion which does not have to be justified by stating reasons. It seems therefore that the section by necessary implication excludes the rule of natural justice requiring notice to be given to the persons affected.

16. The impugned notification was also assailed as mala fide. The petitioners' case on this point is made in paragraph 5 of the Writ petition. It is alleged that the Sub-Divisional Officer, Asansol, respondent No. 8 herein, happened to be 'a strong supporter of a particular political party which is inimical to the political party or the ideology to or in which the petitioners belong or believe' and as such he was personally interested in bringing about the order contained in the impugned notification dated August 16, 1971. This allegation is denied in the affidavit-in-opposition filed on behalf of the respondents. Neither the petition nor the petitioners' affidavit-in-reply discloses any facts to support the allegation. In the absence of necessary particulars it is not possible to hold that the notification was 'brought about' by respondent No. 8 out of grudge against the petitioners.

17. As we have held that the words 'such powers' in Section 67A (3) mean certain specified powers of the Chairman or of the Commissioners, the impugned notification conferring on the Executive Officer all the powers of the Chairman and the Commissioners cannot be sustained. The appeal is accordingly allowed and the judgment and order of the trial court are set aside. Let a Writ in the nature of mandamus issue asking respondent Nos. 1 and 2 to revoke the notification dated August 16, 1971, numbered 3871/MIM/48/71. There will be no order as to costs.

Deb, J.

18. I agree.


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