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HIGH COURT OF CALCUTTA
DAS GUPTA, P. N. MUKHERJEE
AJIT KUMAR SEN - Appellant
Versus
STATE OF WEST BENGAL - Respondent
A. F. O. O. 42 Of 1952
Decided On : MARCH 26, 1952
CALCUTTA MUNICIPAL ACT - SECTION 45(3) - DIRECTORY AND NOT MANDATORY - SUBSTANTIAL COMPLIANCE SUFFICIENT - NOTIFICATION FIXING DATE OF ELECTION - VALID.
Fact of the Case:
The appellants, duly recorded voters for the Calcutta Corporation election, challenged the validity of a notification issued by the Government of West Bengal fixing the date of the election on the ground that it was not published in the Official Gazette not less than two months before the date of the election as required by Section 45(3) of the Calcutta Municipal Act, 1923.
Finding of the Court:
The Court held that the provision in Section 45(3) of the Calcutta Municipal Act, 1923, requiring publication of the notification fixing the date of election not less than two months before the date fixed for the election is directory and not mandatory. Substantial compliance with the provision is sufficient.
Issues: 1. Whether the provision in Section 45(3) of the Calcutta Municipal Act, 1923, requiring publication of the notification fixing the date of election not less than two months before the date fixed for the election is mandatory or directory? 2. Whether there was substantial compliance with the provision in the present case?
Ratio Decidendi: 1. The Court applied the following principles to determine whether a statutory provision is mandatory or directory: - The scope and object of the enactment - Considerations of justice and balance of convenience - The nature of the particular provision, whether it affects the performance of a public duty or relates to a right, privilege, or power The Court found that the provision in Section 45(3) is directory because: - The purpose of the Calcutta Municipal Act is to ensure the proper functioning of the Corporation, and holding the provision to be mandatory would defeat this purpose by invalidating the election. - Invalidating the election would cause serious inconvenience to the electorate and the candidates, who have no control over the actions of the State Government. - The provision imposes a public duty on the State Government to fix the date of the election, and the conditions prescribed in Section 45(3) are intended to ensure the proper performance of this duty. 2. The Court found that there was substantial compliance with the provision in the present case because the notification was published in the Official Gazette more than six weeks before the date of the election.
Final Decision: The Court dismissed the appeal and upheld the validity of the notification fixing the date of the election.
( 1 ) THIS appeal is by two unsuccessful applicants for writs of Mandamus and Prohibition. Their purpose in asking the Court to issue these writs was to ensure that the general election of the Calcutta Corporation which has been fixed to be held on 27-3-1952, should not be held on that date and further that the election should be held on some other date to be fixed by the Government of West Bengal in accordance with law.
( 2 ) THE Corporation of Calcutta as constituted under the Calcutta Municipal Act of 1923 was superseded by an order passed under the Corporation of Calcutta (Temporary Supersession) Act of 1948 (which will be referred to hereafter for convenience as the Supersession Act), which Act was originally in force up to 31-3-1949, but by subsequest extensions is now in force up to 31-3-1952. Fresh orders superseding the Corporation of Calcutta were passed from time to time, as a result of which the Corporation of Calcutta remain superseded up to 31-3-1952. Two of the main consequences which follow on such an order being made under Section 3 are, as laid down in Section 4 of the Supersession Act, that"all the Councillors and Aldermen constituting the Corporation, all the members constituting the Committees thereof and the Mayor and Deputy Mayor of the Corporation shall, as from the date of supersession, vacate their offices as such Councillors, Aldermen, members of the Committees and Mayor and Deputy Mayor; and all the powers, duties and functions which may under the provisions of the Act or any rule or bye-law made thereunder or of any other law for the time being in force, be exercised and performed by the Corporation or any Committee thereof or by the Mayor or Deputy Mayor or by Councillors or Aldermen shall, during the period of supersession, be exercised and performed by such person (to be called the Administrative Officer) as may be appointed by the Provincial Government in that behalf. "sub-section 2 of Section 4, Supersession Act, lays down what is to happen on the expiration of the period of supersession. These provisions are in these words :" (2) (a) Before the expiration of the period of supersession, there shall be a fresh general election of Councillors and a fresh election of Aldermen in conformity with the provisions of the "act and the persons who vacated their offices under Clause (a) of Sub-section (1) shall not be deemed disqualifies for such elections. (b) On the expiration of the period of supersession, the Corporation shall be reconstituted on the results of the elections referred to in Clause (a) in accordance with the provisions of the Act. "
( 3 ) FOR the purpose of holding a fresh general election as required under Sub-section (2) (a) of the Supersession Act the Government of West Bengal issued on 10-1-1952, a notification in these words:"in exercise of the power conferred by Sub-sections 2 and 3 of Section 45 of the Calcutta Municipal Act, 1923, (Bengal Act III of 1923), the Governor is pleased to fix the following dates for the next Municipal General Elections under the said Act in the Constituencies noted below : (1) Tuesday, the 18th March, 1952 --Constituencies 1-37. (2) Wednesday, the 19th March, 1952 --Constituencies Nos. 38-75. "on 11-2-1952, the Government of West Bengal issued a further notification in these words :"in exercise of the powers conferred by Sub-sections 2 and 3 of Section 45 of the Calcutta Municipal Act, 1923 (Bengal Act III of 1923) the Governor is pleased to make the following amendments in notification No. M. IE-29/51 dated the 7th January, 1952, published at page 64 of Part I of the Calcutta Gazette of the 10th January, 1952, fixing the dates for the next Municipal General Election under the said Act in the different constituencies, namely, amendments in the said notification : (a) for the word "dates" substitute the word "date", and (b) for the words, figures, letters and brackets : (1) Tuesday, the 18th March 1952. . . Constituencies Nos, 1-37, (2
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