Anil Kumar Biswas vs The Deputy Commissioner and Others

Deka, J.—This is an application under Article 226 of the Constitution of India for. an appropriate writ to be issued on the Deputy Commissioner, Cachar--setting aside his order dated 8-1-53 and calling upon him to fix a date for the first meeting of the Silchar Municipal Board of the members returned in the last general election held within the said Municipality. The Rule was opposed on behalf of the Deputy Commissioner, Cachar alone.

The admitted facts are that on 10-11-52 the last general election contemplated u/s 17 of the Assam Municipal Act, took place in the Silchar Municipality--and twenty members were returned whose names were duly notified by Mr. J.K. Datta, the then Deputy Commissioner, Cachar, by notification No. 2766/XXII, 12/G, dated 11-11-52 in the Assam Gazette of 19-11-52. The State Government thereafter nominated five members to the Municipal Board whose names were also published in Assam Gazette of 10-12-52. The Deputy Commissioner, Mr. Datta published the following notification in the Assam Gazette of 24-12-52,''Notification No. XXIII, 12/3691 G, announcing the date of the first meeting of the newly constituted Board and served a copy of the said notification on the members of the Municipality returned in the last general election.

Silchar, the 17th December, 1952. No. XXIII-12/3691-G. --It is hereby notified that the first meeting of the Silchar Municipal Board after the General election held in November, 1952, shall be held on 10th January 1953 (Saturday) at 11 A.M. (I.S.T.) in the Municipal Board''s office, Silchar.

On or about the 8th January 1953, the Deputy Commissioner, Cachar caused to be served on the members of the Municipality a fresh order purported to be passed by him, the validity of which has been the subject-matter of this proceeding. The order ran as follows:

Read the petition dated 5-11-53 filed by Shri Dhirendra Nath Dutta & eight other rate-payers of the Silchar Municipality who have filed appeals against election of certain members in some Wards of the Silchar Municipal Board.

It appears that some of the Appellants, in case their appeals are allowed by the Appellate Court may be deprived of taking part in the election of the Chairman if the first meeting of the Board be held on 10-1-53 as notified and that the cases filed by them are likely to be disposed of shortly.

It is therefore ordered that the first meeting of the Silchar Municipal Board to be held on 10-1-53 as notified in the Assam Gazette dated 24-12-52 under this office Notification No. XXIII-12/3691G dated 17-12-52 is postponed under Rule (1)(a) of the fourth Schedule at page 132 of the Assam Municipal Manual as amended to date till the disposal of the above mentioned cases.

Inform the Chairman and all members of the Silchar Municipal Board accordingly.

Sd/- J.K. Dutta Deputy Commissioner, Cachar. 8-1-53

It is admitted that there are some election petitions pending--but nobody knows when they are going to be disposed of.

The contention on behalf of the Petitioner, who is one of the Members returned in the last general election, is that the order of postponement of the first meeting of the Board for an in-definite period of time or till the disposal of the election cases is an order not contemplated in Rule (1) proviso (a) of the Fourth Schedule to the Assam Municipal Act and as such the order is without jurisdiction or it may be even said that the learned Deputy Commissioner failed to exercise the jurisdiction vested in him under the aforesaid Rule. Malice in feat has also been ascribed to the learned Deputy Commissioner apart from the malice in law.

For the purpose of adjudicating the validity of this contention, let us consider the provisions of Rule (1) of the Fourth Schedule, Assam Municipal Act which runs as follows:

(1) The first meeting of a Municipal Board after a general election shall be held on such date as the Deputy Commissioner may fix:

Provided that

(a) Whenever he considers necessary, he may vary the original or any subsequent date so fixed; and

(b) the date fixed for the meeting shall be notified in the official gazette at least 15 clear days before the meeting.

From the above rule, it is clear that the Deputy Commissioner is authorised to fix. the date for the first meeting of the Municipal Board after a general election and when he considers necessary, he may vary the original or any subsequent date so fixed and the date fixed for the meeting, as a result of such varying or otherwise has to be notified in the official Gazette at least fifteen clear days before the meeting. The provisos (a) and (b) to the Rule taken together imply that after the alteration of the original or subsequent date, another date has to be fixed for the first meeting of the Board; therefore an indefinite postponement till an uncertain date is not what seems to be contemplated in the Rule (1) or the provisos thereto. This intention of the Act becomes further clear on a reference to Sections 13F and 13H of the Act. Section 13H goes to the length of saying that no Court shall grant an injunction--

(i) to postpone an election, or

(ii) to prohibit a person, declared to have been duly elected under this Act, from taking part in the proceedings of a Municipal Board of which he has been elected a member, or

(iii) to prohibit the members formally elected or appointed to a Municipal Board from entering upon their duties.

The learned Deputy Commissioner by the impugned order practically denied the urgency of the sitting of the Board and prevented the members from entering upon their duties. He therefore, acted in contravention of the provisions of the Act by postponement of the sitting of the Board to an uncertain future date. Mr. Ghose to my mind, is correct in contending that Section 13F becomes meaningless if the meeting of the Board has to be postponed till the election suits or disputes are over. There may be an election dispute even over a bye-election in the Municipality and if the functioning of the entire Board has to be postponed at the option of the Deputy Commissioner till the dispute over the election is settled by a competent Court,--the purpose of the Municipal Act itself may be set at naught. I quite appreciate his contention that the Rule 1(a) of the Fourth Schedule is meant only to cover some unforeseen difficulties, or to tide over some unexpected exigencies of time.

The learned Junior Government Advocate on the other hand contended that the Municipal Board was functioning with the old members and there was no consequent loss to the ratepayers even if the new members could not function. In that case, the general election had no meaning if the old set of members were to continue in office.

The next contention on behalf of the opposite party No. 1 was that the order passed by the Deputy Commissioner, Cachar was purely an administrative order and the High Court could not interfere with such an order in a proceeding under Article 226. It has been held in a series of cases that the High Court has power to interfere even with an administrative order in exercise of its powers under Article 226 if the said order be passed without or in excess of his jurisdiction by a public officer or there is malice in fact or law.

Mr. Goswami contended that the Assam Municipal Act gave the Deputy Commissioner sufficiently wide scope to exercise his discretion in the matter of fixing a date for the first meeting of the Board and such discretion was not fettered by any provision of the Act. It is evident that the Deputy Commissioner fixed the date for the first meeting for 10-1-53 even after knowing that there were certain election petitions pending, and he gives no reason for changing his mind on 8-1-53 and passing, the impugned order. The Assam Municipal, Act undoubtedly gives him a discretion to vary the date for the meeting when considered necessary but not to obliterate or drop it or postpone the meeting sine die to suit certain purpose for which there is no legal sanction.

We get some assistance on this point from the decision of the Pepsu High Court reported in--''Kartar Singh v. State of Patiala & East Punjab States Union'' AIR 1951 Pepsu 141(A), where an unfinished polling in a Municipal election was postponed by the election officer till an uncertain date. There is a decision of the Calcutta High Court, though by a single Bench, reported in--''Gayadinram v. A.D. Khan'' 55 Cal WN 667(B), where Bose J. held that if people who have to exercise a public duty, while exercising discretion take into account, matters which the Court considers not to be proper for guidance of their discretion, then in the eye of law they have not exercised their discretion. In his words an arbitrary and capricious exercise of discretion, would be no exercise at all.

After considering the report submitted by the present Deputy Commissioner, and hearing the learned Advocates for both parties, we are satisfied that the Deputy Commissioner, Cachar passed the order dated 8-1-53 in excess of his jurisdiction and, not by proper exercise of such discretion as vested in him by law. Mr. J.K. Datta obviously failed to appreciate the purpose of the Municipal Act and the scope of the discretion left to him under Rule 1(a). There might or might not have been malice in fact but there was evidently malice in law and the Deputy Commissioner''s order of 8-1-53 has to be set aside which we do accordingly. We further direct that a date has to be fixed by the Deputy Commissioner for the first meeting of the Board as soon as practicable after the receipt of this order.

The Rule is therefore made absolute and the Opposite Party No. 1 to pay the Petitioner cost. Hearing fee is fixed at Rs. 50/-. Records to go down immediately.

Ram Labhaya, Ag. C. J.

I agree to the order proposed by my learned brother. The facts are fully stated in his judgment. The Deputy Commissioner has to fix the date for the first meeting of the Municipal Board after a. General Election has been held. He is also authorised, when he considers necessary, to vary the date originally fixed or even the date that he may fix subsequently.

The first question is, whether the postponement of the case till the happening at a contingency--In this case the final disposal of pending election petitions--is really a variation of the date to a subsequent date as is contemplated by Proviso (a) to Rule 1 of the Fourth Schedule to the Assam Municipal Act. What seems to have been contemplated is that the date originally fixed or even fixed subsequently may be altered. The implication: is that another date should be fixed at the time of this variation. Circumstances may compel such a variation. It may become impossible by reason of the exigencies of official business to hold a meeting on a particular date. A variation of the date is permitted in these circumstances and is within the competence of the Deputy Commissioner. But the postponement of the first meeting till the happening of a contingency which, involves putting off the meeting for an indefinite period as has been done in this case, does not appear to have been contemplated by proviso (a) to the rule in question. The failure to fix another date is no less than postponement for an indefinite period. The requirement of the rule is that the date may be altered, not that the date fixed be cancelled and the first meeting be delayed till a defeated candidate obtains a decision on his petition.

Again variation of the date--assuming'' that the postponement in this case amounts to a variation--can be made only when the Deputy Commissioner considers such variation necessary. The implication of the word ''necessary'' used in the rule is that there should be some difficulty in holding the meeting. Where the general election has been held and there is no other difficulty in holding the meeting, it may not be said that there is any necessity or need for variation. A postponement may be necessary where the 1st meeting cannot be validly convened. No extraneous purpose should influence the decision as to variation. Where any extraneous purpose prompts or influences the decision, the exercise of the jurisdiction vested under the rule would be mala fide, in the legal sense of the expression. It may be regarded as abuse of the jurisdiction vested in the Deputy Commissioner, or a colourable exercise of it.

The Deputy Commissioner has distinctly stated in his order the reason which has induced him to pass the impugned order. He thought that he was justified in postponing the first meeting till the disposal of the election petitions in order to enable candidates who may possibly be successful in their petitions, to be present at the meeting. This cannot be regarded as a necessity which may justify a variation of the date originally fixed. It would be wholly outside the scope of the rule. We do not know whether the petitions would succeed or not; we do not know when they may be finally disposed of. The rules undoubtedly contemplate the convening of the 1st meeting after the elections are held, without waiting for disposal of election petitions. This is clear from the language of Section 13F of the Assam Municipal Act. It validates all acts done during the period that a displaced person has been participating in Municipal administration. The implication is clear. By their filing election petitions, defeated candidates cannot prevent the new Committee from functioning.

An election petition may not be disposed of for a whole year or even a longer period. The old Committee would. go on functioning if the 1st meeting of the new Committee is not held. The Legislature obviously did not have that intention. It cannot be said that postponement was necessary within the meaning of the Rule under which the Deputy Commissioner has acted. He has gone beyond the limits of his authority and has contravened the spirit if this Rule. The postponement is for a purpose which the Municipal Act, by necessary implication does not recognise. It is a postponement expressly for the purpose of enabling some one to attend the meeting who may never acquire the right to attend it. By no stretch of imagination it can be regarded as a necessity contemplated by the proviso to Rule 1. The exercise of jurisdiction in this case, there-fore, is both arbitrary and colourable--more an abuse than its legitimate use--and even though the order is administrative, as held by my learned brother it is liable to be quashed.