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PATNA HIGH COURT
K.B.N.Singh, Shambhu Prasad Singh, Hari Lal Agrawal, Medini Prasad Singh and P.S.Sahay JJ.
Krishna Prasad Singh
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 403 of 1978 ; 480 of 1978 ; 491 of 1978 ; 503 of 1978 ; 504 of 1978 ; 506 of 1978 ; 513 of 1978 ; 516 of 1978 ; 518 of 1978 ; 540 of 1978 ; 570 of 1978 ; 593 of 1978 ;
Decided On : APRIL 21, 1978
Bihar Municipal (Amendment) Ordinance, 1978, Sec. 4 - Constitution of India, Sch. VII Entry 5 - Provision of Sec. 4 have been made to remove lacuna existing in the Parent Act and also to rationalise the constitution of the Notified Area Committees membership - Section 4 is not a colourable exercise of legislative power and is within legislative ambit. (Para 13)
Bihar & Orissa Municipal Act, Sec. 29 - Bihar Municipal (Amendment) Ordinance, Sec. 4 - Constitution of India, Art 14 - State has power to appoint members of Notified Area Committee by notification and appoint some other persons by another notification - Members so appointed have no vested right - Section 29 is subject to other provisions of the Act and can be validly terminated by a valid piece of legislation - Article 14 prohibits denial of equality before law and denial of equal - protection of law i.e. equality amongst equals - meaning between persons similarly placed or situated - petitioners and those who may be appointed in future do not belong to one class as Section 29 of the Municipal Act apply to the tenure of Commissioners of a Municipality not to members of Notified Area Committees - Section 29 has been applied by a notification which can be withdrawn by the State Government any moment and different tenure may be applied to the future incumbents - There is no singling out or segregation of any group, the whole lot has to go, hence no discrimination inters. (Para 17)
One provision of a Statute cannot be ultra vires another provision of the same - Statute -only harmonious construction be given to its provisions so as to give effect to the legislative intent expressed in its apparently conflicting provisions - Question of repugnancy arises where harmonious construction cannot be given by resolving the absolute contradictions where the earlier will be deemed to be impliedly repealed -Section 29 it subject to other provisions of the Act which is a general provision whereas Section 4 is special and the latter will prevail. (Para 20)
Bihar Municipal (Amendment) Ordinance, Sec. 4 - Representation of the People Act, Sec. 27 (2) (d) - Constitution of India, Art 14 - Right to be elected or right to elect being statutory right can be taken by a Statute - The right to be an elector is dependent on being member of local authorities - There is no repugnancy between Section 4 of the Ordinance and Section 27 of the Representation of the People Act nor it alters schedule IV of the Representation of the People Act nor affects the manner of election. (Paras 22 & 23)
Per S.P. Singh, J.
Section 3 of the Ordinance provides for constitution of Notified Area Committees on rational basis - Such constitution is possible only when all the sitting members cease to be members - Such provision is within, legislative competence of the State - A legislation cannot be challenged on the ground of malafide and such Section 4 of the Ordinance cannot be declared ultra vires. (Para 29)
Per H.L. Agrawal, J.
Section 4 of the Ordinance has been inserted with a view to have within its mischief the existing Notified Area Committees and hence it was not necessary to amend section 29 of the Municipal Act. (Para 34)
K.B.N.SINGH, J.
1. The petitioners in the twelve writ applications have challenged the vires of the Bihar Municipal (Amendment) Ordinance, 1978 (hereinafter to be referred to as "the Ordinance"), and, with consent of the parties, they have been heard together and are being disposed of by this common order. The main attack is on S. 4 of the said Ordinance, by virtue of which, on promulgation of the Ordinance on the 16th February, 1978, the members and office bearers of all the Notified Area Committees, including the petitioners, ceased to hold their respective offices.
2. The petitioners in all these writ applications are members and office bearers of twelve Notified Area Committees, namely, (1) Futwah, (2) Kasha, (3) Masaurhi, (4) Janakpur, (5) Dumra, (6) Behea, (7) Narkatiaganj, (8) Rajgir, (9) Mahnar, (10), Dalsingsarai, (11) Hussainibad and (12) Hilsa. The Notified Area Committees were established for the aforesaid places by notifications issued from time to time under S. 388 of the Bihar and Orissa Municipal Act (hereinafter referred to as "the Act") by the State Government. Some of them are old ones having been established as early as in 1937, such as, Dumra Notified Area Committee, while others are of comparatively recent origin. It is not necessary to state the details as to their establishment and constitution as given in the respective writ applications. Suffice it to refer, briefly, to the facts of the first case, namely. C. W. J. C No. 403 of 1978, which relates to Futwah Notified Area Committee, to bring home the questions raised in all these writ applications, inasmuch as the petitioners in all these writ applications were nominated as members or Commissioners of their respective Notified Area Committees more or less during the said period (late 1973 to early 1977) and the petitioners have not run out the tenure of five years to which they claim to be entitled by virtue of S. 29 of the Act, which the petitioners allege has been arbitrarily terminated and cut short by 2 to 3 years by the Ordinance. The Ordinance has also put a restriction on the number of members that could be appointed in a Notified Area Committee on the basis of population between 10,000 and 20,000, which ordinarily used to be 40 in the case of each Notified Area Committee, thus reducing the number of membership of a Notified Area Committee.
3. The petitioners grievance in C. W. J. C. No. 403 Of 1978 as also in other writ applications is that the election of the members of the Bihar Legislative Council, representing the local bodies, is due to be held in April 1978 and the petitioners being members of the Notified Area Committee are voters of the Electoral College of the Bihar Legislative Council representing the local authorities constituency a right of which they have been arbitrarily deprived by mala fide and colourable exercise of power under the Ordinance. The petitioners have filed a copy of the Ordinance as Annexure "2". A copy of the Gazette Notification dated the 21st March, 1968, constituting Futwah Notified Area Committee under S. 388 of the Act and also applying, under S. 389 (a), certain provisions of the Act has been filed as Annexure 3. In all the writ applications the parties have proceeded on the footing that in the case of other Notified Area Committees also those very provisions of the Act, or at any rate, those relevant for our consideration, have been made applicable. By a supplementary affidavit the petitioners (of C. W. J. C. No. 403 of 1978) have alleged that the Ordinance was issued with ulterior motive to remove the petitioners and other members of the Notified Area Committee who were appointed by the previous Government in power, namely, the Congress Government. The "mala fide in law is further envisaged in the conduct" of the Government of Janta Party headed by Sri Karpoori Thakur on the eve of the election of the members of the Bihar Legislative Council representing the local bodies by introducing a law in the
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