Commr. Gaya Municipality v. State Of Bihar — 1975 DIGILAW 68 (PAT)

Judgment BIRENDRA PRASAD SINHA, J. 1. This application under Articles 226 and 227 of the Constitution of India is by the Commissioners of Gaya Municipality through the Chairman. Shri Narmadeshwar Prasad Singh and four others, who are Commissioners of the said Municipality. It is directed against an order dated 18-12-1974, contained in Annexure 5 staying the operation of the resolution of the Municipal Board dated 25-11-1974. The petitioners have prayed for an issue of writ of certiorari quashing the stay order dated 18-12-1974 at Annexure 5 and for a writ of mandamus restraining respondent No. 4. Shri Kanhaiya Lal Chaurasia, from continuing as the Ward Commissioner of the Gaya Municipality. 2. The short facts leading to this application are as follows: The election of the Gaya Municipality was held in July, 1972 after a long spell of supersession of the Municipality, 32 Ward Commissioners including the petitioners and respondent No. 4. Shri Kanhaiya Lal Chaurasia were elected. Two more Ward Commissioners were co-opted by the elected Commissioners. Respondent No. 4, Shri Chaurasia was elected as the President of the Municipality. It is stated that Shri Chaurasiya tendered his resignation from the office of Ward Commissioner in his letter dated 26-8-1974, addressed to the Chairman of the Municipality. After some time, he sent another letter dated 30th August, 1974 to the Chairman withdrawing the resignation. The letter of resignation of respondent No. 4 was put up for consideration of the Commissioners in accordance with Sec.33 (3) of the Bihar and Orissa Municipal Act on 25-11-1974 and the same was accepted by a resolution passed at the said meeting. The copy of the said resolution has been given at Annexure 1. It is further stated that Shri Chaurasiya filed two petitions dated 5-12-1974 and 13-12-1974 before the District Magistrate, Gaya praying for stay of the operation of the aforesaid resolution of the Municipality. On 19th December, 1974, the petitioners also filed a rejoinder to the aforesaid petitions of Shri Chaurasiya. During the pendency of the aforesaid petitions before the District Magistrate, Shri Chaurasiya, respondent No. 4 met respondent No. 3. Shri Ramashray Prasad Singh, Minister of Urban Development Department. Government of Bihar, and filed a petition before him for staying the aforesaid resolution of the Municipality dated 25-11-1974. During the pendency of the aforesaid petitions before the District Magistrate, Shri Chaurasiya, respondent No. 4 met respondent No. 3. Shri Ramashray Prasad Singh, Minister of Urban Development Department. Government of Bihar, and filed a petition before him for staying the aforesaid resolution of the Municipality dated 25-11-1974. It is upon this application that, according to the Commissioners, respondent No. 3 illegally and arbitrarily passed an order staving the execution of above-mentioned resolution dated 25-11-1974. This order as aforesaid, was communicated by Annexure 5. 3. This application was admitted on 7th January, 1975 and while it was pending, the State Government issued a notice asking the Commissioners of Gaya Municipality to show cause as to why the Municipality should not be superseded. The said notice was also challenged by one of the Commissioners of the Municipality in C. W. J. C. No. 189 of 1975. The present application was heard along with C. W. J. C. No. 189 of 1975 in which a separate judgment has been passed. 4. A common counter-affidavit has been filed by respondent No. 3, Shri Ramashrav Prasad Singh in both these applications, wherein he has refuted the allegations of mala fide and has asserted that all the steps taken by him were taken objectively and upon a consideration of the facts and circumstances which came to his notice. Another common counter-affidavit was filed on behalf of respondent No. 1, the State of Bihar in which the order, contained in Annexure 5, has been supported. Respondent No. 4. Shri Kanhaiva Lal Chaurasiya has also filed a separate counter-affidavit stating, inter alia, that his resignation was conditional and the order passed by respondent No. 3 staying the illegal resolution of the Municipality was correct. 5. Mr. Basudeva Prasad, learned counsel appearing on behalf of the petitioners, has made the following submissions :- (i) There is no power in respondent No. 3 to stay the operation of the resolution of the Municipality under Sec.383 of the Act. It can be done only by the District Magistrate for preventing breach of the peace. The State Government may set aside the resolution but cannot suspend its operation. (ii) The order of the State Government staying the resolution of the Municipality dated 25-11-1974 is mala fide. 6. It can be done only by the District Magistrate for preventing breach of the peace. The State Government may set aside the resolution but cannot suspend its operation. (ii) The order of the State Government staying the resolution of the Municipality dated 25-11-1974 is mala fide. 6. In this connection, learned counsel has drawn our attention to Sec.383 of the Bihar and Orissa Municipal Act, 1922, which is set out hereunder :- "Power to suspend action under Act,- (1) The District Magistrate may, by order in writing suspend within the limits of the district the execution of any resolution or order of the Commissioners of any municipality, or prohibit the dome within those limits of any act which to about to he done, or is being done, in pursuance of or under cover of, this Act, if, in his opinion, the execution of the resolution or order, or the doing of the act, is likely to lead to a serious breach of the peace or to cause serious injury to the public, or to any class or body of persons. (2) When the District Magistrate makes any order under this section, he shall forthwith forward a copy thereof, with a statement of his reasons for make may thereupon rescind the order or direct that it shall continue in force with of without modification permanently or for such period as it thinks fit. (3) The State Government may set aside any resolution or order of the Commissioners of any municipality, if in its opinion the resolution or order is in excess of the powers conferred by law." 6A. Learned counsel has submitted that the power to suspend any action of the Municipality is in the District Magistrate, if in his opinion, the execution of the resolution or order is likely to lead to a serious breach of the peace or to cause serious injury to the public or to any class or body or persons. According to him, the State Government under subsection (3) of Sec.383 may set aside any resolution or order of the Commissioners of any Municipality, if in its opinion the resolution or order is in excess of the power conferred by law. According to him, the State Government under subsection (3) of Sec.383 may set aside any resolution or order of the Commissioners of any Municipality, if in its opinion the resolution or order is in excess of the power conferred by law. The power of stay, according to learned counsel has to be specifically stated in the statute and since it has not been specifically stated in sub-section (3) of Sec.383, the State Government cannot suspend the resolution or order of the Municipalty. 7. At the very outset I must, say that this submission has been made only to be rejected. 8. It will be seen that when the District Magistrate makes any order under Sec.383 of the Act, he has to immediately forward a copy thereof with a statement of his reasons for making it, to the State Government and the State Government may thereupon rescind the said order or direct that it continues in force with or without modification permanently or for such period as it thinks fit. As such even the power of the District Magistrate to suspend any resolution or order of the Municipality is only subject to the control if the State Government. Under sub-section (3), the State Government has the power to set aside any resolution or order of the Commissioners of the Municipalily if in its opinion the resolution or order is in excess of the power conferred by law. If the State Government has the power to set aside any resolution or order, it must have the power also to suspend the execution of the said order. Where such a power is vested in an authority, the power to pass interim order of stay during the pendency of the proceeding for setting aside that order must be held to be implicit in the very exercise of that power. If the District Magistrates power of stay is subject to approval of the State Government it will be idle to contend that the State Government has no such power. The power vests in the State Government with certain purpose, namely, to prohibit the Muncipalitly from functioning in a manner which may he prejudicial or detrimental to the interest of the rate payers. The power vests in the State Government with certain purpose, namely, to prohibit the Muncipalitly from functioning in a manner which may he prejudicial or detrimental to the interest of the rate payers. If it is held that the State Government has no power to suspend an order or resolution of the Municipality although it has the power to set it aside, a very anomalous and dangerous situation may arise. The purpose for which a resolution or order is ultimately to be set aside may be frustrated if a minimum action is not taken suspending the operation of the said order or resolution. It will surely depend upon the facts and circumstances of each case but it has to be held that the power of suspending a resolution or order of the Municipality is implied in Sec.383 of the Act. 9. In Assistant Collector. C. E. V/s. N. T. Co. of India Ltd., ( AIR 1972 SC 2563 ) it was held that "it is well established rule of construction that a power to do something essential for the proper and effectual performance of the work which the statute has in contemplation may be implied. Also see Craies on Statute Law (fifth Edition) page 105." In I.-T. Officer V/s. Mohd. Kunhi, ( AIR 1969 SC 430 ) it was held as follows :- ............"It is a firmly established rule that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective (Sutherland : Statutory Construction. Third Edition, Articles 5401 and 5402). The powers which have been conferred by Sec. 254 oh the Appellate Tribunal with widest possible amplitude must carry with them by necessary implication all powers and duties incidental and necessary to make the exercise of those powers fully effective." In Domats Civil Law Cushings Edition, Vol. 1 at page 88 it has been stated : "It is the duty of the Judges to apply the laws not only to what appears to be regulated by their express dispositions but to all the cases where a just application of them may be made, and which appear to be comprehended either within the consequences that may be gather from from it." Reference may also be made to to Maxwell on Interpretation of Statutes. It contains a statement that "where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution." 10. It must, therefore, be held that the order of the State Government conveyed in their letter dated 18th December, 1974 is not an order in excess of the jurisdiction conferred upon them under Sec.383 (3) of the Act and must be held to be legal. 11. Now I advert to the next question regarding mala fide. It has been submitted that the letter of resignation of Shri Chaurasiya was voluntary and unconditional. It has been mentioned in paragraph 5 of the writ application that the said resignation letter was removed from the office of the Municipality in connivance with the Executive Officer who was made respondent No. 6 to the writ application and according to the petitioners under whose official custody the entire records used to remain. It may be stated here that at the time of hearing, the name of respondent No. 6, Shri Madan Mohan Prasad was deleted because notices could not be served upon him and the case was not becoming ready for hearing. As such the Executive Officer, Shri Madan Mohan Prasad, is no more a party to this application and, therefore, the question whether the letter was in his custody and was removed by him has remained unanswered and could not be answered. According to the petitioners, the gist of the resignation letter, which was recorded in the records in the usual course was as follows :- A copy of the said letter has, however, been filed by respondent No. 4 Shri Kanhaiya Lal Chaurasiya, which is Annexure 1 to his counter-affidavit. It is also Annexure a to the counter-affidavit filed on behalf of respondent No. 1. The English version of this reads as follows :- Annexure A From Kanhaiya Lall Chaurasiya, Ward Commissioner and President, Gaya Municipality, Gaya. To The Chairman, Gaya Municipality, Gaya. Subject :- Resignation from the post of Commissioner. Sir, With regard to the above subject. I have to say that it has come to my knowledge that my colleague Shri Santoshi Lal Bajaj has also tendered his resignation from the post of Commissioner. Therefore. I tender my resignation from the said Post. To The Chairman, Gaya Municipality, Gaya. Subject :- Resignation from the post of Commissioner. Sir, With regard to the above subject. I have to say that it has come to my knowledge that my colleague Shri Santoshi Lal Bajaj has also tendered his resignation from the post of Commissioner. Therefore. I tender my resignation from the said Post. If this is a fact, my resignation may be accepted and if not, the same may not be considered. Yours faithfully, Sd. Kanhaiya Lal Chaurasiya, 26-8-74. It has been stated in paragraph 4 of the States counter-affidavit that a Special Meeting of the Commissioners of Gaya Municipality was called under the direction of the Chairman of Gaya Municipality on 25-11-1974. On the said date the two rival groups of the Commissioners of of the Municipality held two separate parallel meetings in the same hall at the same time and hour. One group purported to have passed a resolution not accepting the resignation and the other group purported to have accepted the resignation. The two groups entered their respective resolutions in separate proceeding books maintained by them. Copies of the minutes of the two meetings were annexed to the report of the District Magistrate contained in Annexure B. In his separate counter-affidavit, Shri Chaurasiya has stated that his resignation was conditional. It was stated that he had come to know that one Santoshi Lal Bajaj had resigned from the post of Commissioner and if it was true then his resignation might be accepted but if it was not true then it should not be accepted. On 6-12-1974, Shri Chaurasiya appears to have filed a Petition before respondent No. 3. Minister for Urban Development. Government of Bihar (vide Annexure 4). In this petition, he has stated that the Special Meeting scheduled to be held on 25-11-1974 was conducted in a very tense situation. The Chairman and his supporters left the meeting hall after creating some disturbance taking away the relevant files and registers. On 28-11-1974, copy of the proceedings of a meeting said to have been held under the Presidentship of Shri P. N. Tiwary, one of the Commissioners, was circulated by the Chairman showing that the resignation of Shri Chaurasiya had been accepted in a parallel meeting. On 28-11-1974, copy of the proceedings of a meeting said to have been held under the Presidentship of Shri P. N. Tiwary, one of the Commissioners, was circulated by the Chairman showing that the resignation of Shri Chaurasiya had been accepted in a parallel meeting. It was further stated in the said petition that any meeting said to have been held under the presidentship of Shri P. N. Tiwary could not be valid. The Government pleader of Gaya had also given an opinion against the holding of such meeting. In this connection, learned Advocate General has drawn our attention to Annexure B which is a report from the District Magistrate dated 7th December, 1974. In paragraph 3 of the said report the circumstances in which the Special Meeting was held has been stated. Learned Advocate General contended that this report was received by the Government on 9th December, 1974. In paragraph 2 of his counter-affidavit, respondent No. 3 has stated that whatever steps were taken by him in regard to the affairs of the Municipality, were taken on consideration of the reports placed before him. In view of the aforesaid petition of Shri Chaurasiya, respondent No. 3 had to take some immediate and remedial action in the interest of the Municipality. It was clear that all was not well in the Municipality and the rival groups were fighting amongst themselves. 12 It has been alleged in the writ application that the order staying the operation of the resolution was passed with mala fide intention to prevent the Chairman and the Ward Commissioners from discharging their lawful duties. It was clear that all was not well in the Municipality and the rival groups were fighting amongst themselves. 12 It has been alleged in the writ application that the order staying the operation of the resolution was passed with mala fide intention to prevent the Chairman and the Ward Commissioners from discharging their lawful duties. It has been further alleged that respondent No. 3 was displeased with and biased against the Chairman of the Municipality due to various reasons namely, that respondent No. 3, who was a candidate from Kurtha Assembly Constituency, was opposed by one Shri Jagdeo Prasad during the last election in which the Chairman had worked against respondent No. 3; that Shri Jagdeo Prasad was killed in a Police firing in 1974 and it was suspected that respondent No. 3 was instrumental in his killing and the Chairman had strongly pleaded for an impartial probe and punishment of the persons responsible for killing of Shri Prasad; that Mahesh Prasad Singh, the younger brother of the Chairman had worked against respondent No. 3 in his election to the All India Congress Committee; that respondent No. 3 with a view to make the office of Mukhiya of Maur Gram Panchayat, which was held by Mahesh Prasad Singh, the younger brother of the Chairman, de facto, got declared Barbigha Notified Area Committee consisting of village Maur. All these allegations of personal bias have been strongly refuted by respondent No. 3 in his counter-affidavit. Respondent No. 3 has categorically stated that the Chairman. Shri Narmadeahwar Prasad Singh was not even a voter in the Gurtha Assembly Constituency and respondent No. 3 was not aware of his having worked against him in the election. He has further stated that it was only a matter of imagination of petitioner Narmadeshwar Prasad Singh that respondent No. 3 was instrumental in killing of late Sri Jagdeo Prasad. Shri Narmadeahwar Prasad Singh was not even a voter in the Gurtha Assembly Constituency and respondent No. 3 was not aware of his having worked against him in the election. He has further stated that it was only a matter of imagination of petitioner Narmadeshwar Prasad Singh that respondent No. 3 was instrumental in killing of late Sri Jagdeo Prasad. The fact was that the decision to set up a Commission of Inquiry with a retired High Court Judge has been unanimously taken by the Government in which respondent No. 3 was a Minister About the allegation regarding Mahesh Prasad Singh, the younger brother of the Chairman having worked against respondent No. 3, it has been stated that respondent No. 3 even did not know the said Mahesh Prasad Singh and the proposal to constitute Barbigha Notified Area Committee had been really taken much before respondent No. 3 became the Minester, in-charge of Local Self Government. 13. In view of the facts and circumstances stated above, it has to be held that the charge of mala fide levelled against respondent No. 3 has really no basis. The allegations, as they are appear to be wild and must, therefore, be rejected. 14. Having considered the facts and circumstances of this case and the submissions made on behalf of the parties. I hold that the order contained in Annexure 5 is neither without jurisdiction nor prompted by any extraneous considerations. In the result, this application is dismissed, but in the circumstances of the case there will be no order as to costs. B.D.SINGH, J. 15 I agree.