The Mahnar Notified Area Committee and Others vs The State of Bihar

N.L. Untwalia, J.—This is a typical case, perhaps out of many, which has come to our notice demonstrating as to how chaotic conditions are created in the affairs of the State by frequent change of Government. I shall proceed to state the facts of the ease to justify this observation of mine. The Mahnar Notified Area Committee, petitioner no. 1, and four others, who claim to be the members of that Committee, have obtained a rule in this case against the State of Bihar to show cause as to why the Government Notification dated the 10th of May, 1968, a copy of which is Annexure ''5'' to the writ application, be not declare constitutional, ultra vires, void, illegal and inoperative and why a writ in the nature of mandamus be not issued restraining the respondent from putting the impugned notification into effect and from interfering with the functioning of the Mahnar Notified Area Committee, as constituted by the Government notifications dated 13th of March, 1968, copies of which are Annexures ''2'' and ''3'' to the application. Mr. Basudeva Prasad, learned counsel for the petitioners, has appeared in support of the rule, and learned standing counsel has shown cause on behalf of the respondent.

The petitioners'' case in the writ application is that on the 25th October, 1967, there was a publication in the Bihar Gazette (Extraordinary) of a notification dated the 20th October, 1967, publishing the order of the Governor of Bihar proposing to issue, in exercise of the powers conferred by Sub-section (1) of Section 388 of the Bihar and Orissa Municipal Act, 1922 (Act 7 of 1922), hereinafter called the ''Municipal Act'', an order for the purpose of constituting the area of the Mahnar Union Board as a Notified Area. Eventually on the 13th March, 1968, the Notified Area was specified u/s 388 (1) of the Municipal Act and also was constituted a Committee for the Mahnar Notified Area. On the 27th of March, 1968, the first meeting of the Notified Area Committee was held presided over by its Chairman, the Sub-divisional Officer of Hajipur. In that meeting the budget for the Notified Area for the year 1968-69 was passed and some other business was also transacted. It is stated in the petition that on the 18th March, 1968, the Government headed by Sri B.P. Mandal was voted out of power on account of a vote of no-confidence passed against the Mandal Ministry, and shortly thereafter in the month of March, 1968, a new Government headed by Sri Bhola Paswan Shastri was sworn in.

The case of the petitioners further is that for political reasons and in order to victimise the members of the Notified Area Committee, majority of whom were supporters of the Mandal Government which had been toppled down, the Shastri Government published a notification in the Bihar Gazette (Extraordinary) dated the 10th May, 1968, purporting to rescind Notifications Nos. 1735/LSG and 1737, LSG dated the 13th March, 1968. By the impugned notification dated the 10th May, 1968, the facilities and the advantages of a Municipality were endeavoured to be denied to the Notified Area in question, where the petitioners live, and the entire area has been sought to be deprived of the benefits of a Municipal administration. The impugned notification is attacked on several grounds: the relevant ones will be discussed hereinafter.

A counter-affidavit was filed on behalf of the State of Bihar on the 15th of July, 1968, which affidavit had been sworn also on that date by Quamruzzaman, an assistant in the L.S.G. Department of the Government of Bihar. In Paragraph 3 of this counter-affidavit, it was stated that after the notification of the 20th October, 1967, which was a notification proposing the constitution of the Notified Area, final notifications nos. 286/LSG and 288/LSG, both dated 16.1.1968, constituting the Mahnar Notified Area and nominating various members of the Committee were issued. Copies of such notifications were marked Annexures ''A'' and ''B'' to the counter-affidavit. In the next paragraph, which again due to inadvertence bore duplicate no. 3, it is stated that in support of the fact of publications of the two notifications aforesaid, a copy of the letter from the Superintendent, Government Printing Press, dated 10.7.1968 was being filed as Annexure ''C''. The two notifications, duly published, were not legally cancelled by any notification of the Government. Hence the issuance and publication of the two subsequent notifications dated 13.3.1968 were not legal as the members of the Committee constituted earlier in January 1968, could not be removed and the creation of the Notified Area Committee could not be cancelled legally. In the sixth paragraph of the counter-affidavit, it is stated that the impugned notification, a copy of which is Annexure ''5'' to the writ application, rescinding the notifications dated 13.3.1968, was legally issued as the notifications dated 13.3.1986 had no legal existence and were illegal.

When the alleged issuance and publication and publication of January notification were brought to the notice of the petitioners by the counter-affidavit, on their behalf an affidavit was sworn on the 20th July, 1968, a copy of which was served upon the State counsel on the 21st July, 1968, although the affidavit in reply was actually filed in our Court yesterday at the commencement of the hearing of the case. It is necessary to quote Paragraph 3 of this affidavit in reply:

That the statement in Paragraph 3 of the counter-affidavit under reply that notification 286 L.S.G. dated 16.1.1968 and notification 288 L.S.G. dated 16.1.1968 constituting the Mahnar Notified Area Committee and nominating various members of the Committee are false. The notifications as Annexures A and B of the counter-affidavit under reply were never published in the Bihar Gazette. It may be mentioned here that the Government file concerned will show that the Under Secretary to the Government of Bihar in the Local Self Government Department intimated the Gulzarbagh Government Printing Press, vide his letter no. 278 dated the 31st January, 1968, that the printing and publication of the Notification for constitution of the Mahnar Notified Area Committee should be stopped. The Government, by their no. 920 dated the 7th February, 1968, intimated to the local authorities (The District Magistrate, Muzaffarpur and the S.D.O., Hajipur) that the Notified Area Committee proposed by the aforesaid United Front Government was not to come into existence since the same had not been notified by publication.

A true copy of the Government letter no. 920 dated 7.2.1968 is annexed herewith as Annexure ''6''.

The letter of the Superintendent of the Government Printing Press, a copy of which was annexed to the counter-affidavit, was attacked as containing a false statement regarding publication of the January notifications and then it was asserted that a number of members of the Bihar Legislative Assembly had been contacted and enquiries had been made from them about the publication of the January notifications in the Bihar Gazette. Their reply was that copies of such notifications were never received by them.

A supplementary counter-affidavit was filed by the respondent sworn by the said assistant who had sworn the earlier affidavit. This affidavit was sworn on 23.7.1968 and was filed on 24.7.1968 to the affidavit in reply sworn on behalf of the petitioners on the 20th of July, 1968, a copy of which, stated earlier, was served on the State counsel on 21.7.1968. I would do better to quote Paragraphs 5 and 6 of this supplementary affidavit, which deal with the statements in Paragraph 3 of the affidavit in reply. The said two paragraphs read thus:

That the letter no. 278 L.S.G. dated 31.1.1968 mentioned in Paragraph 3 of the supplementary affidavit of the petitioner does not nullify the publication already made on 20.1.1968.

That the letter no. 920 dated 7.2.1968 was obviously under some mistaken notion that the two notifications of January, 1968 were not published.

It is not necessary to refer to the further affidavit in reply which has been put forward by the petitioners stating that the Superintendents of the Printing Division, Government Press at Gulzarbagh, and the Publication Division are different, and the letter dated 10.7.1968 was issued by the Superintendent of the Printing Division.

In order to appreciate how comparatively a less important affair of the State has moved like a game of chess, two more facts which were stated at the Bar during the course of the argument and about which there cannot be any question, as they are so widely known public facts, should be mentioned here and they are these: That after the last general election, the Government of Bihar was headed by Sri Mahamaya Prasad Sinha, the Chief Minister, as the leader of the first United Front Party. This Government was voted out of power on the 25th of January, 1968, and shortly thereafter the Government was formed with Sri B.P. Mandal as the Chief Minister. As already stated, the Mandal Government was voted out of power on the 18th March, 1968, and in the month of March, 1968, a Government headed by Sri Bhola Paswan Shastri, leader of the second United Front Party, came into power, which was voted out of power on the 25th of June, 1968, resulting thereafter in bringing the State of Bihar under the President''s rule.

Judged in the light of the facts stated before in this judgment, it is to be pointed out that Notification No. 286 L.S.G. dated 16.1.1968 defining the limits of the Mahnar Notified Area and Notification No. 288 L.S.G. dated 16.1.1968 constituting the Mahnar Notified Area Committee under Clause (c) of Section 389 of the Municipal Act, were printed in the Bihar Gazette (Extraordinary) dated the 20th January, 1968, copies of which notifications were Annexures ''A'' and ''B'' to the counter-affidavit filed on behalf of the State, and the original printed copies of the Bihar Gazette aforesaid along with the original letter dated 10.7.1968 of the Superintendent of the Printing Division of the Government Printing Press were produced before us during the course of the hearing of the case. But unless otherwise directed, it is a matter of common experience, as was also stated by the learned standing counsel and the learned counsel for the petitioners, that publication of the Gazette, in the sense of circulating the printed copies to the subscribers or to persons who are entitled to get such publication, or exposing them for sell, ordinarily and generally, takes about a fortnight''s time from the date of printing. What, therefore, seems to have happened in this case is that before printed copies of the January notifications were published in the sense just indicated, the Under Secretary to the Government of Bihar in the Local Self Department intimated to the Gulzarbagh Government Printing Press by his letter no. 278 dated 31st January, 1968, that the publication of the notification for constitution of the Mahnar Notified Area Committee should be stopped, as stated in Paragraph 3 of the affidavit in reply, a fact which is not controverted in Paragraph 5 of the supplementary counter-affidavit filed on behalf of the State. It seems that the publication of the notification was stopped after the fall of the first United Front Party Government and coming into power of the Mandal ministry. Since, however, by that time the publication had not been done, it was stopped. And that is the reason that several members of the Legislative Assembly, as stated on behalf of the petitioners, did not get copies of the impugned notifications printed in the Bihar Gazette (Extraordinary) dated the 20th of January, 1968. It is not stated on behalf of the respondent in any two of the affidavits that any subscriber or institution had received such copies of the Gazette (Extraordinary) dated the 20th of January, 1968. During the course of the hearing of this case yesterday, we suddenly called for the file from the High Court office containing all issues of the Bihar Gazette (Extraordinary) published in January, 1968, and surprisingly enough we found that even the High Court office file did not contain any copy of the two notifications printed in the Bihar Gazette (Extraordinary) on the 20th of January, 1968. Furthermore, Sri R.G. Roy, the Under Secretary, under whose signature the January notifications had been issued, wrote a letter dated 7.2.1968 to the Sub-divisional Officer, Hajipur, a copy of which letter is Annexure ''6'' to the affidavit in reply, intimating to him that no further step should be taken on the basis of the said notifications as they had not been published in the Gazette. Had it not been a fact then the same Under Secretary could not have said so in his letter to the Sub-divisional Officer, Hajipur, and it could not be said so in letter no. 278 dated the 31st January, 1968 sent to the Gulzarbagh Government Printing Press. The Superintendent of the Publication Division must have then informed the Under Secretary that the publication had already been made and there was no question of stopping the publication. We do not hear any such thing from the respondent, nor any such letter contradicting the statement of the Under Secretary, either in his letter dated the 31st January, 1968, or in the letter dated the 7th of February, 1968, written to the Sub-divisional Officer, Hajipur, has been produced before us. It is to be further noted that it is not the case of the respondent that in pursuance of the notifications issued in January, 1968, any Notified Area Committee started functioning in the area. As a matter of fact, the claim of the petitioners that they started functioning in pursuance, of the notifications dated the 13th March, 1968, is nowhere refuted by the respondent. Taking into consideration all the facts stated above, I have unhesitatingly come to the conclusion that the January notifications although they were printed in the Bihar Gazette (Extraordinary) on the 20th of January, 1968, were not published and were not brought in circulation or to the knowledge of the public. Persons in-charge of the L.S.G. Department in the Government headed by Sri B.P. Mandal were able to nip in the bud the January notifications and issued other notifications in March, 1968. It is, therefore, clear that after the fall of the Mandal Government, persons incharge of the L.S.G. Department in the Shastri Government endeavoured to do away with the Committee which had started functioning on the basis of the March notifications by rescinding them by the impugned notification issued in May, 1968, and thereby they made an attempt to revive the appointment of the Committee constituted by the January notifications, which notifications were not allowed to be published at all. That is how, during the course of about four months, with the change of Government, as I have stated above, a comparatively less important affair moved like the game of chess and tried to bring about a chaotic condition in the affairs of the State. Nonetheless, it is for us to decide as to which notification is valid, or has validly come into force and which notification remained ineffective or is invalid in the eye of law.

8A. Sections 388 and 389 of the Municipal Act read as follows:

388(1). The State Government may by notification declare that it is necessary to make administrative provision for all or any of the purposes of this Act in any area specified in the notification, other than a municipality or a cantonment.

(2) An area in respect of which such a notification has issued is hereinafter called a notified area.

The State Government may by notification--

(a) apply or adapt to a notified area or to any part of a notified area any provision of this Act which may be applied to a municipality, or any rule or by-law in force or which can be made in any municipality under this or any other Act.

(b) impose a notified area or in any part of a notified area any tax which could be imposed by the Commissioners if the notified area were a municipality; and

(c) appoint or make rules for appointment or election of a committee to carry out the purpose of this Act in the notified area.

Under Section 4(36) of the Bihar and Orissa General Clauses Act, 1917, hereinafter called the General Clauses Act, "notification" shall mean a notification in the Official Gazette, that is to say, a notification u/s 388(1) of the Municipal Act would mean a notification in the Official Gazette. Similarly, under Clause (c) of Section 389 of the Municipal Act, the State Government by a notification in the Official Gazette can do either of the two things provided in the said clause, namely, to appoint a committee to carry out the purposes of the Municipal Act in the Notified Area or make rules for appointment or election of a committee for the said purpose. Section 28 of the General Clauses Act says:

Where in any Bihar and Orissa Act or Bihar Act or in any rule made under any such Act, it is directed that any order, notification or other matter shall be notified, or published, such notification or publication shall, unless the Act otherwise, provides be deemed to be duly made if it is published in the Official Gazette.

Reading all the provisions aforesaid together and as a matter of construction, it has got to be held that the notification in the Official Gazette cannot mean printing in the Official Gazette only. It must mean its publication in the sense of notifying it to be public by sending copies of it to the various subscribers or to the persons or institutions who are entitled to get such copies or by exposing it for sale to the general public. Mere printing the notification in the Official Gazette and keeping it in the almirahs of the Government Printing Press or the Secretariat cannot mean a notification in the Official Gazette within the meaning of Section 4(36) of the General Clauses Act read with Section 28 of that Act. It must mean publication in the Official Gazette. That being so, it is manifest that the January notifications, which according to my unhesitating view were merely printed in the Official Gazette, but were not published, cannot be said to have, in the eye of law, constituted a Notified Area or appointed a Committee for the purpose of the Municipal Act in that area. The said notifications were not allowed to be published by the successor Government, which, however, succeeded in constituting a Notified Area and appointing another Committee for the purpose of their administration by issuance and publication of the two notifications dated the 13th of March, 1968. Those notifications, which were undoubtedly printed and published in the Bihar Gazette and which led to the functioning of the Committee appointed by the Government, validly came into force and in the eye of law brought into existence the Notified Area as also the Committee appointed by the State Government. The second successor Government could not nullify the effect of the notifications issued and published in March, 1968 by a notification of the kind issued on the 10th of May, 1968 and published in the Bihar Gazette on the 11th of May, 1968. In the eye of law, the exercise of power by the notification dated the 10th of May, 1968, is a colourable exercise of such power or the power has been exercised mala-fide with the object of bringing into existence the Notified Area and its Committee as constituted and appointed by the January notifications, which in the eye of law remained ineffective and inoperative. Merely by cancelling the March notifications, it was not open to the Government functioning in May, 1968, to bring into existence the Notified Area and the Committee which were not allowed to come into existence by its predecessor Government. It may be stated here that the action of those who were in power in the Mandal ministry of stopping the publication of the January notifications was not attacked as suffering from an infirmity of any kind to induce us to take the view that as a matter of law the January notifications had become operative and effective.

Before I conclude my judgment, I may indicate a point which was argued by Mr. Basudeva Prasad to attack the validity of the impugned notification dated the 10th of May, 1968. Learned counsel submitted that the provisions of Section 385 of the Municipal Act had been made applicable to the Notified Area under Clause (a) of Section 389 of that Act by the March notifications and the notification dated the 10th of May, 1968, amounted to supersession of the Committee of the Notified Area within the meaning of Section 385 of the Municipal Act. Since the impugned notification, even on its face, does not fulfil the requirement of Section 385 of the Municipal Act, counsel submitted, it is invalid. I am, however, inclined to think that Section 385 of the Municipal Act could be taken recourse to and will apply only when the Committee for the Notified Area is appointed or elected under the rules made by the State Government in accordance with the second part of Clause (c) of Section 389 of the Municipal Act, and not otherwise. If the power is exercised by the State Government by appointing the Committee under the first part of Clause (c) of Section 389, they have power u/s 24 of the General Clauses Act to add to, amend, vary or rescind the notification issued under the first part of Clause (c) of Section 389 appointing a Committee for the Notified Area. Mr. Basudeva Prasad drew our attention to the decision of the Andhra Pradesh High Court in the case of (1) V. Ramachandra Reddy and Another Vs. State of Andhra Pradesh and Others, in support of his first submission made with reference to Section 385 of the Municipal Act and to a Bench decision of this Court, to which I was a party, in the case of (2) Bhola Pd. Singh Vs. Prof. U.A. Goswami and Others, in support of his submission that the State Government cannot rescind a notification appointing a Committee u/s 389 of the Municipal Act in exercise of their power u/s 24 of the General Clauses Act. I may only state that the decision of the Andhra Pradesh High Court does not militate against the view which I have expressed with reference to Section 385 of the Municipal Act vis-a-vis the appointment or election of a Notified Area Committee under the rules made by the State Government and their power, if any, remaining intact u/s 24 of the General Clauses Act in case of appointment of a Committee under first part of Clause (c) of Section 389 of the Municipal Act. Even the Patha decision in Bhola Prasad Singh''s case is distinguishable in the matter of interpretation of Section 24 of the General Clauses Act. It has been said at page 445 in that case that the power to make or issue orders, spoken of in Section 24 of the General Clauses Act, is of a legislative nature, and not of a judicial nature, as the order passed in that case was. The notifications or orders made or issued in exercise of the power u/s 24 of the General Clauses Act are of a kind of subordinate legislation conferred by the Act and I am inclined to think that the power of the State Government u/s 389 of the Municipal Act is not a purely power, but executive is in the nature of a legislative power or the power of a kind of subordinate legislation. I may, however, add that it is not necessary for me to express any final or concluded opinion in respect of the submissions made by Mr. Basudeva Prasad. For the purpose of this case, it is obvious that the impugned notification dated the 10th of May, 1968, has got to be knocked down as invalid, even assuming that it has been issued in exercise of the governmental power u/s 24 of the General Clauses Act, and that for the reasons already stated. In the result, the application is allowed. The notification of the State Government dated the 10th of May, 1968, a copy of which is Annexure ''5'' to the writ application, is quashed as being invalid and a writ in the nature of mandamus will issue against the state Government commanding it not to give effect to the said notification.

I will make no order as to costs.

Wasiuddin, J.

I agree.