The executive's residuary authority to take action in extraordinary situations is important, as long as such actions are justiciable and adhere to the constitutional spirit.

JUDGMENT

Sanjib Banerjee, J. - This matter is born out of the situation brought about by the pandemic and the claustrophobic protocol woven around it. The propriety of an executive action that the State says it has been constrained to take in the polluted and suspicious atmosphere of Covid-19 has been called into question. Of course, there was a political colour to both the petitions at the time of their institution. Mercifully, however, the arguments have been of the highest order and upon maintaining a degree of etiquette and camaraderie only rarely seen in involved physical hearings, far less on the virtual platform.

2. The substance of the challenge in both sets of petitions is to an executive notification issued by the State in the name of the Governor, constituting a board of administrators with a chairperson to supervise and oversee the functioning of the Kolkata Municipal Corporation upon the councillors'' tenure expiring by the efflux of time and the State Election Commission, for valid reasons, being unable to conduct elections for a new set of councillors to be brought in. The notification is long and runs into several pages. It refers to the authority of the State in its executive functioning to act in terms of Section 634 of the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as the said Act), the executive authority of the State to act in a situation without a parallel in history and to myriad other perceived sources of authority for exercise of such power, inter alia, under the Epidemic Diseases Act, 1897 and the Disaster Management Act of 2005. The impugned notification of May 6, 2020 refers to the measures adopted thereunder to be in public interest for "containing infections and taking measures to combat COVID-19" and "to facilitate seamless transition with a continuity in administration" of the services rendered by the Corporation. In substance, a board of administrators has been constituted with a chairperson. The board comprises members who were a part of the outgoing Mayor-in-Council and the chairperson is the outgoing Mayor.

3. To be fair to the petitioners, they do not question the need for appropriate measures to be taken by the State in the wake of the pandemic and the impossibility of conducting any elections in the present circumstances. However, the petitioners question the propriety of the executive action and insist that if the elections of councillors could not be conducted for any genuine reason, appropriate steps ought to have been taken by the State legislature - and not the executive - to remedy the situation and provide for the functioning of the Corporation. The petitioners do not question the need to have the Corporation function in full throttle since it is the Corporation which has to be at the vanguard in tackling the spread of the pandemic, securing hygiene, providing appropriate sanitation and incidental activities to confront and contain the menace that is the dreaded disease. The petitioners primarily question the roadmap adopted by the State and maintain that if all councillors and the Mayorin-Council lost their authority to act as such by efflux of time, the State, through an executive fiat, could not have done indirectly that which is prohibited from being done directly.

4. The several aspects of the petitioners'' challenge to the impugned notification may be summarised. According to the petitioners, the Constitution does not provide for any executive authority to be exercised in such a situation, particularly when the functioning of the Corporation is governed by a statute. The petitioners submit that when there is a law covering the field, no recourse may be taken to any executive action to do what is not mandated by the statute; and, in an extraordinary situation, only the deemed legislative mode of bringing in an ordinance could have been adopted, to take care of the difficulty that may have arisen. The petitioners suggest that there can be no executive actio