1. This is an appln. under Art. 226 of the Const. Ind. for order on the opposite party No. 2, the Addl. Dist. Mag. of 24-Parganas, to show cause why certain orders made by him in relation to the affairs of the Budge Budge Municipality on 9-2-1951 & 16-2-1951, should not be set aside or cancelled & as to why the opposite party No. 1 should not be restrained from functioning as Chairman of the Municipality.
2. The facts are shortly as follows : The petns. are the seven Comrs. of the Budge Budge Municipality. Resp. l was the Chairman of the Comrs. of the Municipality since 4-2-1949. It is alleged that 8 Comrs. out of the total number of 10 Comrs. of the Municipality lost confidence in the Chairman & on 8-9-1950, a requisition signed by 7 Comrs. was served on the Chairman for convening a special meeting for considering a proposal for removal of the Chairman from office. It is further alleged that the Chairman did not take steps to convene the meeting within 15 days of the service of the requisition as required Under Section 78(2), Bengal Municipal Act & he has managed to gain over one of the requisitionist Comrs. Thereupon 6 of the requisitionist Comrs. issued a notice for convening a special meeting for removal of the Chairman on 16-1-1951, fixing 27th January as the date for such meeting. On 27-1-1951, a meeting was held by 7 (seven) Commrs. & a resolution was passed removing the Chairman from office. Thereafter towing to the obstructive attitude taken up by the opposite party No. 1 in refusing to vacate his office & to desist from functioning as such Chairman, petnr. 2, who was the Vice-Chairman at the time, applied to the S. D. O. under Section 144, Cr. P. C. on 29-1-1951, on the ground that there was an apprehension of the breach of peace. On 1-2-1951, the Vice-Chairman, who is petnr. 2, issued a notice of election of a new Chairman Under Section 45 (2), Bengal Municipal Act, fixing 12-2-1951 as the date for holding the meeting for such election. It appears that thereafter on 2-2-1951, the parties met the Addl. Dist. Mag. & had certain discussion with him about the matter. The Addl. Dist. Mag. directed an enquiry. An enquiry was made & a report was submitted by the S.D.O. On 7-2-1951, the Addl. Dist. Mag. passed an order holding that the requisition was not received by the Chairman either officially or formally. On 9-2-1951, he passed an order Under Section 548 (2), Bengal Municipal Act, suspending the resolution which was purported to have been passed by the Comrs. on 27-2-1951, & he directed the petnr. 2 not to hold any meeting on 12-2-1951. On the same day i.e., on 9-2-1951, the Comrs. of the Municipality represented by the Vice Chairman instituted a suit being Title Suit No. 31 of 1951 in the Ct. of the Third Munsif of Alipore for a declaration that the resolution passed in the special meeting on 27-1-1951, was a valid, legal & binding resolution & for a declaration that the deft, was no longer the Chairman in office & that they also obtained an interim injunction on that day restraining the deft, from interfering with the works of the Municipality & to show cause within 7 days. On 12-2-1951, a meeting was however held by the Comrs. pursuant to the notice served on 1-2-1951 & the petnr. l was elected the Chairman. On 13-2-1951, the Govt. was informed about the election & the proceedings started Under Section 144, Cr. P. C. were withdrawn by petnr. 2 on that day. Thereafter on 14-2-1951, the interim injunction was modified by the Munsif on 16 2-1951, the Addl. Dist. Mag., who is the opposite party 2, issued a warning notice to the Comrs. for flouting his order Under Section 548 (2). On 19-2-1951, the petnrs. applied to this Ct. for the issue of a rule nisi & such rule was issued on that date.
3. It appears that on 14-3-1951, the suit filed in the Alipore Ct. was withdrawn. Mr. S.C. Jana appearing for the petnr. has contended that the resolution removing the opposite party No. 2 was a valid resolution & that opposite party No. l has no right to be in office or to function as the Chairman of the Municipality. He has also contended that the orders of the opposite party No. 2 Under Section 548 are not warranted by the terms of the section & are in excess of the power conferred upon him, under the Act. With regard to the first contention, it may be pointed out, that the copies of the records of the Municipal Office produced show that the requisition signed by 7 Comrs. Addressed to the Chairman & dated 8-9-1950, was left with the record-keeper of the Municipal Office who made over the same to the Vice-Chair man who, as I have already pointed out, is one of the requisitionists; but it is alleged that the same was never received back in the office & so it was not placed before the Chairman, the opposite party No. 1. (After discussing the evidence, the judgment proceeded). I hold that the requisition dated 8-9-1950, was duly served on the opposite party No. 1 & the subsequent steps & proceedings taken by the Comrs. for convening the meeting on 27-1-1951, were properly taken & the resolution passed on 27-1-1951, was validly passed & is a good & effective resolution.
4. With regard to the second contention of Mr. Jana that the orders of opposite party No. 2 were invalid Orders, the facts on record show that the petnr. No. 2 himself apprehended a breach of the peace after the passing of the resolution for removal of the Chairman. So on 29-1-1951, he applied to the S. d. o. Under Section 144, Cr. P. C. The petnr. No. 1 also had some such apprehension & he also applied to the Officer-in-Charge of the Budge Budge Police Station on 31-1-1951. The opposite party No. 2 directed an enquiry & he was also satisfied upon such an enquiry that there was a likelihood of the breach of the peace. He also came to the conclusion upon the facts placed before him that the resolution of 27-1-1951, was not a valid resolution. Upon both these grounds he passed an order Under Section 548 (2) suspending the execution of the resolution & directed the Comrs. not to hold the meeting on 16-2-1951. It is submitted by Mr. Jana that the Dist. Mag. can interfere Under Section 548 (2) only when the resolution is one in excess of the powers of the Comrs. but if it is valid & good resolution then he cannot interfere. I am unable to accept this contention. It appears to me that the Section contemplates several alternative contingencies on the happening of which the Comr. of the Division or the Dist. Mag. is entitled to interfere under this Section. One of such contingencies is the likelihood of the serious breach of the peace Mr. Purnendu Sekhar Basu appearing for the opposite party No. l had contended that even when the resolution is a valid resolution, the Dist. Mag. can interfere under this Section if he is of opinion that the execution of the resolution is likely to lead to a breach of the peace. I am of the view that this contention of Mr. Basu is sound. As soon as the Dist. Mag. comes to the conclusion that there is a possibility of there being a breach of the peace upon steps being taken to execute the resolution, he at once becomes vested with jurisdiction to act under this Section. In my view the order of opposite party No. 2 cannot be assailed on the ground that he has acted without jurisdiction or in excess of the powers vested in him under the Act.
5. The order of opposite party No. 2 suspending the resolution being a valid one & the resolution having been suspended, the opposite party No. 2 cannot be restrained from functioning as Chairman. Another point was raised by Mr. Jana on behalf of the petnrs. & that is, that Section 548 (2) gives power only to the Dist. Mag. to act Under Section 548 (2), & not to the Addl. Dist. Mag. who has purported to act under the Section in this case & he challenges the order suspending the resolution as bad on that ground. Mr. Sen appearing on behalf of opposite party No. 2 has drawn my attention to Section 10 (l), Cr. P. C. which says that an Addl. Dist. Mag. shall have the same powers as that of a Dist. Mag. & can exercise all or any of the powers of the Dist. Mag. under this Code as the Provincial Govt. may direct. No notfn. of the Provincial Govt. has been produced or forthcoming in this case. It may be noted however that this ground is not specifically or clearly taken in the petn. & the opposite party No. 2 is therefore not in a position to produce any such notfn. even if there has been any. But the orders passed by the Addl. Dist. Mag., the copies of which have been annexed to the affidavits filed in the present proceedings, clearly show that this particular order received confirmation & approval of the Dist. Mag. as appears from the endorsement to that effect made at the foot of the order & the Seal of the Dist. Mag. affixed thereon. Under these circumstances this contention of Mr. Jana appears to me to be without substance & has to be rejected.
6. In the result, the petn. fails & the Rule must be discharged. I make no order as to costs.