1955-CALWN-58-443 , 1955-AIR (CAL)-0-83 , 1955 (TLS)512372

HIGH COURT OF CALCUTTA

Coram : Sinha

Civil Rule 153  Of  1954

(FEBRUARY 26, 1954)

PROVAT CHANDRA SIRCAR VS. R. C. SEN, ADMINISTRATOR OF THE BUDGE BUDGE MUNICIPALITY

( 1 ) THE facts in this case are as follows:

( 2 ) THE Budge Budge Municipality consists of five wards. It began to function with 10 Commissioners on and from 4-2-1948 for a term of 4 years. As the term of 4 years for which the Commissioners were to function was about to expire, it was directed that a fresh election of the Commissioners of the Municipality (12 seats) would be held on 8-3-1952. I am informed that about 37 nominations were filed of which only 8 were found valid. The result was that these 8 candidates were returned unopposed under Rule 22 (2) of the Election Rules. On 1-4-1952, it was notified under Section 26, Bengal Municipal Act (hereinafter called the Act) that the election of the remaining 4 members would be held on 31-5-1952. In the first week of April, 1952, eight out of the ten members of the old Municipality which was then functioning resigned, and these eight members ceased to attend any further meetings or to take any interest in the affairs of the Municipality. One of the remaining two was the Chairman and it appears that the remaining member also ceased to take any interest in the affairs of the Municipality. On 1-4-1952, the District Magistrate, 24-Parganas, issued a notice, fixing 31-5-1952 as the date for election for filling up the remaining 4 seats. On 28-4-1952, two ratepayers of the Municipality (Pannalal Mondal and another) moved this Court under Article 226 of the Constitution for the issue of an appropriate Writ to the effect that the election of the four remaining members could not be held on the basis of the then existing electoral roll and that a revision of the electoral roll was necessary. This Rule was made absolute on 22-7-1952. On 24-7-1952, the State Government under Section 553 of the Act, made an order superseding the Municipality on the ground of incompetency of the Com- missioners, and an Administrator was appointed to take charge of the affairs of the Municipality. This order was published in the official Gazette on 29-7-1952. Thereafter, one Surendra Nath Mondal made an application to this Court under Article 226 of the Constitution complaining that the order of supersession was incompetent. That Rule" was heard by Bose J. , on 2-12-1952 and the Rule was discharged. This was upheld by the Court of Appeal by its order dated 24-6-1953. The eight persons who were previously elected as aforesaid had neither taken oath, nor were their names notified and nothing further could be done because the Municipality had been superseded. The order of supersession, appears to have been extended from time to time and upto 31-3-1954. The State decided to reconstitute the Commissioners of the Municipality under Section 554 (2) (ii) of the Act. Accordingly some time in June 1953, the District Magistrate of 24-Parganas at Alipore, fixed the holding of the general election of all the Wards on 27-12-1953. Thereupon, 6 out of the 8 Commissioners who had been elected on 26-2-1952 brought a Title Suit No. 44 of 1953 in the third Court of the Munsif at Alipore, impleading therein the State of West Bengal, the District Magistrate, 24-Parganas, and the Administrator of the Budge Budge Municipality, for a declaration that as 8 Commissioners have already been validly elected on 26-2-1952, only the four remaining seats were to be 'filled up by election. The remaining two Commissioners who had been elected were made pro forma defendants. The learned Munsif dismissed the suit holding that the general election which had to be held under the provisions of Section 554 (2) (ii) was to be entirely a fresh general election and not a mutilated election under Section 26. There was an appeal against the judgment of the Munsif before the fourth Additional Subordinate Judge of Alipore. Th