Saroj Kumar Kar vs State of West Bengal

D. Basu, J.—This Rule is directed against the order (annex. A to the petition) passed by the Government of West Bengal on June 13, 1966, in exercise of its powers under the proviso to Sub-section (2) of Section 61 of the Bengal Municipal Act, 1932 (hereinafter referred to as ''the Act''), removing the Petitioner from the office of vice-chairman of the South Dum Dum Municipality. At a special meeting of the Commissioners of the Municipality held on November 12, 1965, a resolution was passed by a vote of 11 out of the 18 commissioners of the Municipality to remove the Petitioner from the office of vice-chairman, but since this number was less than two-thirds of the total number of commissioners of the Municipality, it was submitted for the orders of the State Government under the proviso to Section 61(2) of the Act. As stated before, by the impugned order, the State Government gave its sanction to the removal on June 13, 1966. The Petitioner came to Court on June 22, 1966 and obtained this Rule and also an interim injunction against electing another person as vice-chairman in place of the Petitioner eventually the election was allowed to be held, but the opposite party have been restrained from taking any further steps in pursuance of that election, pending disposal of this Rule. Separate affidavits-in-opposition have been filed on behalf of (a) opposite parties Nos. 6 to 15, who are some of the commissioners of the Municipality; (b) opposite party No. 5, the chairman of the Municipality; (c) opposite parties Nos. 1-2, i.e., the State of West Bengal.

The first point urged on behalf of the Petitioner can be disposed of at once. It is urged that the order of the State Government is vitiated by reason of a contravention of the principle of natural justice inasmuch as the Petitioner was not heard before the impugned order was made. This contention can be upheld only if a quasi-judicial obligation can be inferred from the provisions of the proviso inasmuch as no such duty is imposed by it expressly. Section 61(2) says:

(2) An elected chairman or vice-chairman may at any time he removed from his office by a resolution of the commissioners carried in this behalf by the votes of not less than two-thirds of the total number of commissioners holding office for the time being at a meeting specially convened for the purpose and according to the procedure laid down in Sub-section (3).

Provided that if the number of commissioners who have given their votes in favour of such resolution is less than two-thirds of the total number of commissioners holding office for the time being but more than half the number of such commissioners the State Government may by order remove the chairman or the vice-chairman, as the case may be, from his office.

If one compares this with the provisions of Sub-section (3) of Section 62 it becomes evident at once that the Legislature did not intend that the person concerned should be given an opportunity to be heard in the case governed by the proviso to Section 61(2), for if it did so intend it would have provided it expressly as in Sub-section (3) of Section 62 which says:

Before removing a commissioner under Sub-section (1) or Sub-section (2) the State Government shall allow, the commissioner concerned an opportunity of being heard.

The distinction made by the Legislature in the two cases is based on obvious reasons. u/s 62(1) a commissioner may be removed by the State Government only on the charge of misconduct supported by a resolution of the commissioners passed at a special meeting Sub-section (2) of Section 62 empowers the State Government to remove a commissioner even without such resolution of the body of commissioners in case any of the contingencies mentioned in Clauses (a) to (f) take place. These contingencies are all objective facts, e.g. whether the commissioner in question is a defaulter in payment of rates and taxes or he has been declared an insolvent, (a) In a case governed either by Sub-section (1) or Sub-section (2) of Section 62, thus, there is an objective allegation against the commissioner in question, which it is possible for him to rebut by producing evidence or otherwise that he was either not guilty of the misconduct alleged or that any of the contingencies specified by the Legislature did not exist in fact, (b) u/s 61, on the other hand, there is no such allegation of misconduct or any other objective state of affairs. It is to be noted that a chairman or a vice-chairman holds his office upon the vote of the commissioners given at a meeting held for that purpose u/s 48. The Legislature, therefore, provides in Section 61(2) that the chairman or the vice-chairman so elected can be removed without any other formality of a two-thirds or more of the number of commissioners of the municipality express their want of confidence by passing a vote for his removal, irrespective of any allegation of misconduct or the like. The proviso to Sub-section (2) deals with the contingency when such adverse vote is less than two-thirds but more than half of the total number of commissioners of the municipality. It is in this case that the matter has to be presented before the State Government and the vice-chairman cannot be removed unless the State Government so orders. The specification of a two-thirds majority is not fixed by the Legislature arbitrarily but is founded on a consideration of prudence that if two-thirds or more of the number of commissioners is hostile to a chairman or vice-chairman it would not, in any case, be possible for him to carry on the functions of his office. Whenever, therefore, the number of members adverse to the chairman or vice-chairman exceeds this specified majority, the chairman or vice-chairman must vacate his office without more. In other words, the power of a two-thirds majority of the commissioners to remove the holder of such office is absolute. But when the number is short of the statutory minimum of two-thirds, the question of removal is left to the discretion of the State Government. The State Government will apparently have to exercise the discretion with regard to the proportion of members for and against the chairman or vice-chairman. Supposing only one more than a half of the members are against the chairman or vice-chairman, the State Government may ordinarily refuse to exercise its discretion if, according to its assessment, it might be possible for the chairman or vice-chairman to carry on his functions by winning over one or two members to his side, who might for the time being have expressed an adverse opinion against him or by taking advantage of the casual absence of one or two members from the meetings. On the other hand, if the number of members voting against the vice-chairman is just short of the two-thirds majority by one or two the State Government may have to remove the vice-chairman, if it finds that it would not be possible for the vice-chairman to overcome such an adverse situation. The exercise of the discretionary power of the Government under the provision thus would depend upon the subjective assessment of the situation by the Government.

It has been laid down in a number of cases in England and in India that the question of hearing the party to be affected arises only where there is some allegation or imputation against him or some objective criterion which has to be investigated before exercise of the statutory power so that it is possible for the party to be effected to lay his case relating to these objective considerations and if necessary to adduce evidence on his behalf or to rebut the evidence adduced by the other party in relation to the objective considerations or criteria. Where there is no such objective criterion and the matter is governed purely by subjective considerations or expediency no purpose would be served by giving the party to be effected an opportunity for a hearing vide Halsbury, 3rd ed., vol. III, p. 56; Dalbir Singh and Others Vs. The State of Punjab, , Radeshyam Khare and Another Vs. The State of Madhya Pradesh and Others, and Sadhu Singh Vs. Delhi Administration, .

In the instant case as stated already there was no allegation against the Petitioner and therefore, nothing for the Petitioner to controvert. A quasi-judicial obligation cannot, in such circumstances, be deducted by implication.

It is true that in certain cases it has been observed that even an administrative authority must observe the ordinary rules of ''fair play''. If this means that every administrative authority would have the quasi-judicial obligation of hearing the party to be affected, it would be unmeaning to propound the doctrine of ''quasi-judicial obligation''. The doctrine of fair play is, in my opinion, nothing but a restatement of the acknowledged proposition that every statutory power must be exercised reasonably and bona fide and without a foreclosed mind of. Franklin v. Minister of Town Planning (1947) 2 A.E.R. 289 (296-7) H.L. In this case, there is no allegation or proof that the State Government in removing the Petitioner was actuated by mala fides or any ulterior or extraneous considerations. Of course, the degree of fairness to be expected from an administrative authority might vary with the nature of the function or the rights to be affected. But in the case before me, the right asserted by the Petitioner is neither a fundamental nor a civil right, but is a creature of the statute and must, therefore, abide by the terms of that statute. This plea is, accordingly, rejected.

For that the next point urged on behalf of the Petitioner is that the proviso to Section 61(2), ex-facie, offends against Article 14 of the Constitution inasmuch as while, in similar circumstances, Section 62(3) requires an opportunity of being heard to be offered to the person to be affected, no such requirement is laid down in the proviso to 51(2). Of the various decisions cited by Mr. Mukherjee in support of this contention, I shall take up Ram Dial and Others Vs. The State of Punjab, , which may be said to have the nearest in kinship to the case before me. In my opinion, however, that decision is distinguishable for the following reasons: In Ram Dial and Others Vs. The State of Punjab, it was held by the majority that the two provisions on Sections 14(e) and 16 of the Punjab Municipalities Act, 1911, operated in the same field and might be used, alternatively, against the same person and in similar circumstances, at the uncharted discretion of the Executive; but that while the proviso to Section 16(1) required an opportunity to be given to the member concerned to tender his explanation, no such opportunity was required to be given u/s 14. Both Sections 14(e) and 16(1) empowered the State Government to remove members of the municipal committee and thus dealt with the same subject. While the power u/s 14(e) was to be exercised, for any reason which it may deem to affect the public interest, Section 16(1), in its various clauses, enumerated certain particular reasons or grounds for exercise of the power of removal under that section; but their Lordships held that the expression ''public interest completely covered the particular reasons enumerated in Section 16(1). In the result, the powers conferred by both the provisions could be exercised in the same situation''; hence since the one was more drastic than the other, the former was obviously discriminatory and was, therefore, struck down under Article 14.

The two relevant provisions of the Act before me, however, did not operate in the same field or in the same situation. Firstly, Section 16 deals with the removal of the chairman or vice-chairman, while Section 62 provides for the removal of the commissioners. Secondly, while Section 62 can be used only on the allegation of misconduct or any of the specified causes, there is no reference to any such cause in Section 61. The reasons is that the status of the vice-chairman or chairman differs from that of commissioners. The latter are elected by the rate-payers u/s 24 of the Act, but the chairman or vice-chairman differs from that of commissioners. The latter are elected by the rate-payers u/s 24 of the Act; but the chairman or vice-chairman holds, their offices by the votes of their colleagues, the commissioners under Sections 45 and 48, so that if the prescribed majority of the commissioners withhold their support, the chairman or vice-chairman loses his right to hold the office, irrespective of any allegation having been levelled against him. The two provisions in Sections 61 and 62, thus, operate against different persons and in different situations, so that Article 14 can have no application. This plea, therefore, fails.

It is next contended on behalf of the Petitioner that the proviso to Section 61(2) is either discriminatory or vitiated by an excessive delegation by the Legislature in so far as it confers uncharted power upon the State Government. It has been laid down by the Supreme Court in Matajog v. Bhari (1935) 2 S.C.R. 925 (932) that the conferment of a discretionary power upon an administrative authority is not necessarily discriminatory, nor is an abuse of power to be assumed where the discretion is vested in a superior authority, such as the Government itself. See also Ram Krishna Dalmia Vs. Shri Justice S.R. Tendolkar and Others, . The real test to be applied where the complaint of uncanalised power is raised is whether the Legislature has, in fact, laid down the policy to be followed or the standard to be applied by the Executive in exercising the discretionary power. But the stringent view taken in the earlier cases in finding out the policy behind an enactment has been relaxed in later cases to hold that the policy may be found out from the very preamble of the statute: Sardar Inder Singh Vs. The State of Rajasthan, , Pannalal Binjraj Vs. Union of india (UOI), , P.J. Irani Vs. The State of Madras, and the provisions of the statute read as whole in N.T.F. Mills v. 2nd Punjab Tribunal AIR 1957 S.C. 329 (336), Gopal Narain Vs. State of Uttar Pradesh and Another, and The State of Uttar Pradesh Vs. Kaushaliya and Others, .

It has been rightly contended by Mr. Dutt on behalf of the Respondents that the preamble and the other provisions of the Act before me make it clear that the object or policy behind the Act is the proper administration of the affairs of the Municipality. The powers of the municipal authority under the Act, is vested by Section 15 in the commissioners, elected by the rate-payers, who are a body corporate. But since it, is not convenient for such a large body to exercise administrative powers, Section 45 provides for the election of a chairman by and from amongst the commissioners themselves and the chairman is, by Section 51, empowered to exercise all the powers vested by the Act in the commissioners (subject to the limitations laid down in that section). In the absence on account of temporary disability or the like of the chairman, there must be somebody to take up tin functions of the chairman and that is the vice-chairman, elected similarly by the commissioners (Sections 48, 54). Broadly speaking, the normal tenure of a chairman or vice-chairman, u/s 56, is conterminous with the terms of office of the commissioners, namely 4 years. But since it would be impossible for a chairman or vice-chairman to carry on his statutory functions, as aforesaid, without the support of the majority of the commissioners who voted him to power and who are empowered by the proviso to Section 510 to override any act of the chairman or vice-chairman, Section 61 provides for the removal of a chairman or vice-chairman, at any time earlier than the normal term of 4 years.

Sub-Section (1) of Section 61 empowers the State Government to remove a chairman who may have been appointed by the Government u/s 46, upon the failure of the commissioners to elect a chairman. Though this sub-section has not been in question in the Instant case, it may be seen that this sub-section confers the widest power upon the Government without any limitations or indication whatever. The reason is plain. Local Government is a responsibility of the provincial or State Government arid that is why supervisory arid controlling power has been vested in the State Government by various provisions of the Act, e.g., Sections 122K, 122L, 145, 146, 543A, 545A, 549, 550, 552. 553. Hence the removal of a person appointed by the Government has been vested in the absolute discretion of the Government, to be exercised either to make room for an elected, person as soon as he is available or a better appointee and in every, case, the State Government, in the exercise of this discretionary power, shall be guided by the obvious consideration of a better municipal administration for which the statute has been enacted

Coming now to Sub-section (2) of Section 61, it provides for the removal of a chairman or vice-chairman by the vote of the commissioners themselves. Under the main part of Section 61(2) no discretionary power has been vested in the State Government because it is unnecessary where the verdict of the commissioners is clear enough to be beyond any doubt or uncertainty, namely, where the removal is sought for by an overwhelming majority of two-thirds of the members or more.

The proviso deals with the case where the vote for removal is carried by less than two-thirds of the number of commissioners, (a) The act takes no cognizance of a vote of removal passed by less than one-half of the total membership of commissioners, even though it may have been carried by more than one-half of the members present at the particular meeting. The reason is obvious, namely, that though a bare majority of members present and voting at a meeting may not like the chairman or vice-chairman, as the case may be, he may have the support of more than half of the total number of commissioners holding office for the time being. The law does not, therefore, take cognizance of temporary landslides, (b) The scope for the exercise of a discretionary power arises in cases where the vote for removal is carried by any number of members ranging between more than one-half but less than two-third of the total body of commissioners. In this area, the question of assessment of the practical situation arises, with a view to ascertaining whether it might be possible for the chairman or vice-chairman in question to carry on his functions with the support of a working majority. The immediate standard for the exercise of the discretionary power by the State Government in any such cases is afforded by the precise number of members who have voted for the resolution of removal and the overall standard is the interests of the municipal administration, which the State Government cannot afford to be brought to a standstill. In such cases, as has been pointed out in a number of cases, the vesting, of the discretionary power per se cannot be challenged as either discriminatory or as constituting an unconstitutional delegation, but the exercise of the discretion in any particular case may be challenged as mala fide, if the exercise of the power is arbitrary or governed by extraneous considerations. As I have said before, there is no allegation or proof of any such abuse of power on the part of State Government, in the instant case. The contention must, therefore, be rejected.

All the points taken on behalf of the Petitioner having failed, this Rule is discharged, but I would not make any order as to costs. Interim orders are vacated, accordingly.