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1969 DIGILAW 32 (GAU)

Saroj Chanda v. Union of India

1969-07-18

R.S.BINDRA

body1969
In this writ petition filed un­der Article 226 of the Constitution of India by Saroj Chanda, a Municipal Voter, the reliefs prayed for are for quashing certain orders made by the Chief Com­missioner of Tripura respecting the Muni­cipal Commissioners of Tripura Munici­pality, for issuing a direction to the Dis-rict Magistrate, Agartala, and the Execu­tive Officer of Agartala Municipality not to act upon the impugned orders passed by the Chief Commissioner and for a writ in the nature of mandamus directing all the respondents, who are, besides the three respondents mentioned already, Union of India and Union Territory of Tripura, that they proceed in accordance with the provisions of law in the matter of holding elections of the Commissioners for the Agartala Municipality. 2. The facts bearing on the writ peti­tion can be summarised in a few words. General election of Commissioners for the Municipality of Agartala was held on 5th of November, 1951, under the provisions of the Tripura State Municipal Act of 1349 T. E. (hereinafter referred to as the Tripura Act) when 18 Commissioners were elected and took office in course of time. As many as 16 of them resigned en bloc on 24-4-1955 and the other 2 had resigned a few days before that date. The Admi­nistrator of the Union Territory, in conse­quence, assumed charge of the munici­pality on 24-4-1955. On the next day, 25-4-1955. the Admi­nistrator passed an order under Section 292 of the Tripura Act superseding all the 18 Commissioners for a period of one year. The supersession order was repeated each year for a period of one year under Section 292 of the Tripura Act until the Bengal Municipal Act of 1932 (hereinafter called the Bengal Act) was enforced in this Territory with effect from 15-8-1961, when the supersession orders were passed, as before, each year for a period of one year under Section 553 of the Bengal Act. The last of such orders was passed on 23-4-1969. The petitioner contends that all the supersession orders right from the first one dated 25-4-1955 and ending with the last dated 23-4-1969 are bad in law and so have to be quashed. 3. Accepting, without conceding, that the orders passed under the Tripura Act were bad in law, they are, in my opinion, beyond challenge because they were not assailed within the period of 6 years pres­cribed by Art. 120 of Limitation Act 1908. 3. Accepting, without conceding, that the orders passed under the Tripura Act were bad in law, they are, in my opinion, beyond challenge because they were not assailed within the period of 6 years pres­cribed by Art. 120 of Limitation Act 1908. Shri Majumar, the learned Advo­cate representing the petitioner, was un­able to satisfy me that the orders which had not been challenged within the statu­tory period of limitation by normal pres­cribed procedure can be challenged by writ petition under Article 226 even after the expiry of that period. He cited the authority reported in Rajinder Parshad v. Punjab State, AIR 1966 Punj 185 (FB) in support of the contention that the period of limitation has no relevancy to writ petitions filed under Article 226. I have examined the report carefully but have not been able to find any support there­from for the proposition that writs can be filed irrespective of the period which has run out since the cause of action arose. The High Court, in the reported case, discussed only the question of delay in filing the writ petition and not the pre­cise question of limitation which governs the writ petitions. Delay respecting writ petitions can be of two varieties: (i) delay which falls short of the period of limita­tion prescribed for challenging the right infringed in the ordinary courts by the normal procedure, and (ii) delay which goes beyond such prescribed period of limitation. In the Punjab case the delay that was under discussion fell under the first category. Therefore, that authority is unavailing to the petitioner for getting over the hurdle of limitation. In my opinion, the outside limit within which an aggrieved party can come to the High Court by way of writ is the period pres­cribed by law for seeking the relief in question by the normal remedies from the tribunals including the Courts. The con­tention of Shri Majumdar that an aggriev­ed party can come to the High Court in writ irrespective of the period that may have run out from the date the cause of action arose would make Section 3 and other provisions of the Limitation Act otiose. This view gathers support from the au­thority reported in State of Madhya Pra­desh v. Bhailal Bhai. This view gathers support from the au­thority reported in State of Madhya Pra­desh v. Bhailal Bhai. AIR 1964 SC 1006 where it was held that the provisions of the Limitation Act do not as such apply to the granting of relief under Art. 226 but the maximum period fixed by the Legis­lature as the time within which the relief by a suit in a civil court must be sought may ordinarily be taken to be a reason­able standard by which delay in seeking remedy under Art. 226 can be measured. The Court may consider the delay unrea­sonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost al­ways be proper for the Court to hold that it is unreasonable. In the light of these observations it is not open to the petitioner to challenge the orders issued by the Chief Commissioner under the Tripura Act, he having assailed them after the normal period in which he could have challenged them in the civil court had run out. 4. It is common ground between the parties that the term of a Commissioner elected under the Tripura Act was 4 years. Therefore, after 4 years from the date the 18 Commissioners took office, speaking prima facie, they ceased to be Commis­sioners of the Municipality. As such, even if the orders superseding the Commis­sioners are vacated the Commissioners may not be able to hold office. However, I restrain myself from examining this issue more deeply since I do not mean to rest this judgment on the finding that the office held by the 18 Commissioners can­not be resuscitated, 5. The orders of supersession under the Bengal Act were made in terms of Sec­tion 553. That section authorises the Chief Commissioner to supersede the Com­missioners if, in his opinion the latter have shown their incompetency to perform or have persistently made default in the per­formance of the duties imposed on them by or under the Bengal Act or by any other law or have exceeded or abused their powers. The first order passed under this section is dated 13-4-62. The first order passed under this section is dated 13-4-62. In my opi­nion, that order can also not be challeng­ed in a Civil Court as it is barred by limitation and so the prayer for quashing the same has to be negatived on the ground of delay. Consequences of super­session are outlined in S. 554 of the Ben­gal Act. According to sub-section (2) thereof, on the expiry of the period of supersession the State Government is left with only three alternatives, namely, (i)to extend the period of supersession, (ii) to reconstitute the Commissioners by a fresh general election, and (iii) to recon­stitute the Commissioners by appointment for such period as it may consider neces­sary. In face of this statutory provision, the quashing of the orders passed sub­sequent to the one dated 13-4-62 would not yield any practical dividend because the old Commissioners cannot be now brought back into office. The only alternative as envisaged by sub-section (2) of Section 554 can be that of holding the general election. 6. Writ petitions in the nature of man­damus and certiorari, it is well settled, can be lodged only by an aggrieved party. I am not satisfied that Saroj Chanda, the petitioner, is an aggrieved party for claim­ing the relief that the orders of superses­sion should be quashed. The really ag­grieved parties respecting that relief are the Municipal Commissioners. Therefore, Saroj Chanda cannot claim the relief that the supersession orders should be vacated. However. I agree that he is an aggrieved party respecting the prayer made for holding general election to the Municipa­lity. But Section 24(1) of the Bengal Act, in my opinion stands in the way of this Court in granting that prayer. Section 24(1) of the Bengal Act provides that the first general election of the Commissioners of a Municipality under its provisions shall be held at such time as the State Govern­ment may prescribe. Since any election held hereafter shall be the first general election under the provisions of the Ben­gal Act, the Court cannot force the State Government to hold the election on any particular date. It is for the reason that fixation of the date of the first general election under the Bengal Act is left to the discretion of the State Government and not to that of this Court. The Govern­ment has the statutory right to fix such date for the general election as suits its convenience. It is for the reason that fixation of the date of the first general election under the Bengal Act is left to the discretion of the State Government and not to that of this Court. The Govern­ment has the statutory right to fix such date for the general election as suits its convenience. While sitting in Writ Court I would be going beyond my jurisdiction if I were to force the hands of the Gov­ernment to hold the election by a specifi­ed date. 7. For the reasons stated above, I hold that none of the prayers made by Saroj Chanda can be granted by the Court. Therefore, I reject the petition in limine. 8. Before parting with the case. I deem it right to mention here that Shri Majumder was highly critical of the attitude of the State Government for non-holding of general election for the Agartala Munici­pality. He stated further that the denial of Municipal franchise to the citizens of the town of Agartala offends against the spirit if not the letter of the Bengal Act. I subscribe to these sentiments and feelings of Shri Majumder and hope that the State Government shall take early steps for removing the legitimate grievances of the citizens. Petition dismissed.