- (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. The learned Subordinate Judge by his judgment dated 18-11-1953 allowed the appeal. The judgment and decree of the learned Munsif was set aside and it was declared that the rights of the plaintiffs and the pro forma defendants Nos. 4 and 5 were not affected by the order of supersession on 26-7-1952. A permanent injunction was issued against the State of West Bengal, the District Magistrate and the Administrator restraining them from notifying any date for electing 12 fresh members for all the five Wards of the Municipality. They were further restrained from holding election of 12 members on 27-12-1953 as notified. A mandatory injunction was issued on the principal defendants to hold an election under Section 26 of the Bengal Municipal Act for filling up the four remaining seats. It was further ordered that the names of the plaintiffs and the pro forma defendants were to be published under Section 50 of the Act. It appears that no appeal has been preferred against this Judgment and decree of the learned Subordinate Judge. The District Magistrate has now notified that the election under Section 26 of the remaining four seats will be held on 27-2-1954.
(3.) The petitioner herein is a rate-payer of the Municipality entitled to vote in the election. He was not a party to the Title Suit No. 44 of 1953. He has made this application under Article 226 of the Constitution stating that a partial election under Section 26 of the Act is no longer permissible but there should be a fresh general election of all the five Wards and 12 seats. Originally only the Administrator of the Municipality and the District Magistrate had been made a party. Now, however, the eight elected Commissioners have upon their own application been added as parties to this application and the petitioner has also added the State of West Bengal as a party. The question that is agitated herein and which I shall have to decide is as to whether it is permissible to hold a restricted election under Section 23 of the remaining four seats or it is incumbent upon the Government, if it chooses to proceed under Section 554 (2) (ii), to hold a fresh general election of all the five Wards and 12 seats. That has been the substantial question which was decided in the suit both by the learned Munsif and the Subordinate Judge. The learned Munsif pointed out that upon the order of supersession having been made, the rights of the elected Commissioners (parties to the title suit) had been wiped out and that Section 554 required a fresh general election and not a mutilated one under Section 26. He proceeded to point out that the Legislature used the words 'fresh general election' as well as provided for "re-constitution of the Commissioners of the Municipality" in clear and unambiguous . terms so that it would be doing violence to the language to hold that a fresh general election is not going to be held but a mutilated election. The learned Subordinate Judge however disagreed with this finding. The reasoning given by the learned Subordinate Judge is somewhat difficult to follow. The relevant part of the judgment on this particular point is as follows: "It was argued by the learned lawyer for the appellants that Clause (ii) in its proper context provides for two circumstances, viz., when there are sitting Commissioners only and no subsequent election has been held as in the present case where there are some non-sitting members;, and also where there are both sitting and non-sitting Commissioners like the plaintiffs and pro forma defendants 4 and 5 of this suit. He argued that in case where there is no non-sitting Commissioners a general election may be held for all the Commissioners, but whereas in the present case there are also non-sitting Commissioners an election under Section 26 can be held for the remaining 4 seats after the order of supersession terminates. He contended that word 'and' should be read in a disjunctive manner, and the use of the words 'under Section 26' at the end of this clause would indicate the intention of the legislature. I may mention here that in the previous Act these words 'under Section 26' were not there. The learned lawyer for the respondents, on the other hand, contended that the words 'fresh general election' would indicate the intention of the legislature. I have given the matter anxious consideration. In my opinion the interpretation of the learned lawyer for the appellants should be accepted in this particular case.";