Shyam Sunder Ram vs State of Bihar and Others

In this writ petition a prayer has been made for of an appropriate writ in the nature of certiorari for quashing the notification of the State Government, Department of Urban Development, dated 25.3.1998, as contained in Annexure-5 whereby the old elected body of Giridih Municipality in the year 1989 was allowed to function and the previous decision dated 23.6.1995 regarding dissolution of the Municipal Board was cancelled. The facts of the case are not in dispute. The general election of Giridih Municipality as per the provisions of the unamended Act, 1922 was conducted on 22.1.1989 and the election of the Chairman thereof was held on 15.5.1989 in the first general meeting of the Board of the Municipality. Admittedly the term of five years of the elected body was complete on 30.5.1994 and the grace period of six months as provided under the old Act had also expired on 30.11.1994. Therefore, the State Government in exercise of its power conferred u/s 29 of the unamended Act, by the notification dated 23.6.1995 dissolved the Municipal Board and by another notification dated 30.6.1995 appointed Special Officer to carry out the business of the Municipality until afresh election in terms of the amended Municipal laws. The notification regarding appointment of was later superseded by another notification dated 19.9.1996 Mangal Singh was appointed as a special Officer. Copies of the abovementioned notifications are Annexures 1, 2 and 3 to the writ petition.

Later, the notification 23.6.1995 regarding dissolution Municipal Board was challenged by one Raj Kishore Ram before this Court CWJC No. 2389 of 1996(R). It was allegged although the Municipal Board had completed the term of five years 30.5.1994, but by virtue of the impugned dissolution of the Board, the elected members were not allowed to and grace period of six months from the date of its expiry and, therefore, the at dissolution was arbitrary and wholly without jurisdiction. Apart from the aforesaid a reference was also made to a decision of this Court in the case of Satish Kumar Singh Vs. The State of Bihar and Others, that before dissolution of a Municipal Board as would appear from Section 385 of the ammended Act they were entitled for an opportunity of hearing before recording any order for dissolution. Hence the impugned dissolution without extending any opportunity of hearing to the members of the dissolved Board was illegal and arbitrary. The court taking into consideration the above circumstances by the order dated quashed the notification. The respondent State thus has come forward with the impugned notification dated whereby the dissolved Municipal Board was again revived.

Before coming to the rival contentions of the parties, it would be proper to notice that from the materials on record as well as the counter affidavits filed on behalf of the State including that of the Special Officer of the Municipality, admittedly the election of Giridih Municipality was conducted on 31.5.1989 and the erm of five years had expired on 30.5 1994. This has also been brought on record that the Municipal Board had also availed the grace period of six months which in fact expired on 30.11.1994. The notification, whereby the State Government had dissolved the Municipal Board was issued on 23.6.1995. But as would appear from the order passed in CWJC No.2389 of 1996 R an impression was given to the Court that the Municipal Board was not allowed to avail the grace period of six months and, therefore, the impugned order of dissolution was arbitrary and without jurisdiction. In fact, from the facts narrated above, it would appear that much before the Government''s decision regarding dissection of the Municipal Board, dated 23.6.1995 the Municipal Board had already availed and completed the grace period of six months as on 30.11.1994.

In the background of the facts noticed above, in my view, the members of the Municipal Board were not entitled for any notice as required u/s 385 of the unamended Act, 1922. Because, opportunity of hearing was required provided a decision for dissolution was contemplated before expiry of the term of the Municipality. Therefore, in my view, the ratio of the case reported in Satish Kumar Singh Vs. The State of Bihar and Others, is not applicable to the facts of the present case.

Apart from what has been his cussed above, it would be apt to notice that with effect from 1st June, 1993, the 74th Constitutional amendment came into effect and the provisions relating to constitution of Municipalities in the State were incorporated in Part IX A of the Constitution. in terms of Articles 243Q and 243ZF of the Constitutional amendment, the State Government was required to amend its respective laws in tune with the Constitutional amendment within a period of one year. The State of Bihar also having regard to the command of the amended provisions of the Constitution, amended the Bihar & Orissa Municipal Act, 1922.

It would appear from Article 243Q that every State shall constitute a Municipal council for smaller urban area and a Municipal Corporation for a larger urban area. Article 243U contemplates that every municipality until dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and "no longer". However, the proviso contemplates that if a Municipality is to be dissolved for any reason prior to its term, reasonable opportunity is to be given before such dissolution.

Section 29 of the amended Act, as it now stands, is in conformity with the provisions prescribed under Article 243U of the Constitution to show that term of a municipality shall be five years and no longer.

Mr. Sinha, Senior counsel for the petitioner assailed the impugned notification whereby the elected body of the municipality has been given a new life as being illegal and without jurisdiction. He contended that the Municipal board had already completed its term of five years on 30.5.1994 as also the grace period of six months on 30.11.1994, the outgoing elected body cannot be allowed to function any further. Learned counsel also referred to the amended provisions of Section 29 as well as Section 390C which provides automatic cessation of the term of the municipality after expiry of the period of five years. In support of his submission, learned counsel also placed reliance on two decisions of this Court in the case of Bibhash Chandra Choudhary & Ors. vs. State of Bihar & Ors., 1995(1) PUR 228 and Bratendra Prasad Singh vs. The State of Bihar, 1996 (2) PLJR 443.

Learned counsel for the State while drawing our attention to the submissions made in the counter affidavit submitted that the decision of the dissolution of the Municipal Board was taken on 23.6.1995 because the term of the municipality had already expired. But since the said notification was quashed by this court, the Government had no option but to issue a fresh notification for revival of the outgoing committee.

The question, therefore, arises for consideration is whether the Giridih Municipality which had already completed its term of five years on 30.5.1994 as also the grace period of six months on 30.11.1994 can be allowed to continue to function by taking aid to the second proviso to Section 390C of the amended Act.

Mr. Debi Prasad, Senior counsel appearing for the contesting respondents firstly contended that the petitioner had no locus standi to file this writ application, because even if the outgoing Municipal Board is revived, he is not to be prejudiced in any manner. He further contended that although the provisions of this Act as they now stand, contemplate automatic cessation of the terms of the office of the elected Chairman/Commissioners but in fact the second proviso to to Section 390C provides continuance Municipality and Notified Area Commitees, if any, on the date of commencement of the Ordinance there reason of this amended Municipality or Notified Area Commitee which had been validly constated the old Act shall be allowed to function till constitution and the first meeting of the Municipality. This was done with a view that there may not be any void. Reference in this regard was also made to the decisions of this Court in the Bibhash Chandra Choudhary & Others vs. State of Bihar & Ors 1995 (1) PLJR 228, (supra), Bratendra Prasard (sic) vs. The State of Bihar, 1996 (2) PLJR 443 (supra) and yet another decision in the same volume at page 445 to the of Nand Kishore Singh vs. The State of Bihar & Ors.

In my view, as would appear from the provisions of Article 243U of the Constitution or Section 29 of the Amended Act, every municipality until sooner dissolved under any law for the time being in force, shall continue for a term of five years from the date of its first meeting and no longer. Article 243F contemplates continuance of the law of municipality in existence immedietely before the commencement of the Constitution 74th Amendment. From a close reading of this provision, it world that outer limit of one year was fixed to bring necessary amendment in any provision of law relating to municipality force in a particular State consistent with the provisions contained for tha said period. In other words, any thing inconsistent with the provisions of this part may continue to be in force until amended or repealed by a competent legislature or till expiry of one year from the date of such commitment whichever is earlier.

The 74th Amendment of the Constitution came into force with effect from 1.6.1993 and accordingly extensive amendments were also made in the Bihar & Orissa Municipal Act, 1992 by the Ordinance/Act 1994/95 with effect from 30.5.1994. As per Section 29 of the Amended Act, which was drawn in line of Article 243 of the Constitution, the term of the elected body was fixed five years and not beyond that. The second proviso to Section 390C was inserted under the Act with effect from 30.5.1995 by Bihar Act 2 of 1995.

There is no doubt as would appear from the decisions of this Court referred to above, that to obviate the void created by Section 390C, the second proviso was brought into effect for the continuance of the municipalities or notified committees term of which had not expired until the fresh election under the new laws. But the question whether after expiry of the outer limit of the period of one year as fixed under Article 243ZF from the date the 74th Constitutional Amendment i.e. 1.6.1993, the State legislatures had the competence to insert the second proviso to Section 390C to allow the elected or nominated members of the Municipalities ad hoc committees to continue to function till the constitution and of the first meeting of the elected Commissioners of the Municipalities under the amended Act were neither raised nor considered. Therefore, now what will be the duration of such municipality has been specifically stipulated under Article 243U, which permits the municipality to continue for five years trios the date appointed in its first meeting. Therefore, in any view, since this municipality had already completed its term of five years as on 30.5.1994 as also the grace period of six months on 30.11.1994, it will have no jurisdiction to continue further. That apart, as would appear from the unreported orders passed in LPA 1257 of 1997 disposed of on 16.1.1996 and LPA 1190 of 1997 disposed of on 11(sic) 1998 as well as a decision of the learner. Single Judge in CWJC No.664 of 1997, by virtue of the amendment dated 1.5.1993 the provisions of Article 243U have been incorporated in the Constitution as a result of which the period of duration of municipal committee or notified area committee is five years and no longer. Therefore, in view of the words "no longer" used under Article 243U, the second proviso to section 390 does not survive.

In the result, therefore, taking into consideration the facts of the case from both the angles, as noticed above, I am constrained to hold that the impugned notification of the Government for revival of the outgoing body is wholly illegal and without jurisdiction. Hence the same is hereby quashed.