P.K. Goswami, C.J. - (1.) RANGIYA had been in enjoyment of the status of a small town under the Municipal Act for several years. On 20th December, 1969, the State Government constituted the Rangiya Municipality in the said notified area with effect from 21st December, 1969, and included it in the First Schedule to the Assam Municipal Act, 1956 (Assam Act No. XV of 1957) (briefly 'the Act'), under sub -section (1) of Section 33 thereof. By another notification of the same date, the Governor of Assam determined the total number of Commissioners to be ten, including two appointed Commissioners, the remaining to be elected. By yet another notification of the same date, the Governor, under Section 24 of the Act, ordered that all the Commissioners of the Rangiya Municipality shall be appointed by the Government and thereupon appointed ten Commissioners including the petitioner and the 4th respondent with effect from 21st December, 1969 "until the general election is held". By yet another notification of the same date, the Governor appointed the petitioner as Chairman of the Rangiya Municipal Board with effect from 21st December, 1969, (F. N.). The petitioner assumed charge of the Chairman and continued, when on 19th April, 1971 the Governor removed him from the chairmanship under sub -section (I) of Section 28 of the Act with effect from the date of the receipt of that order by him. The said order of the Governor, marked as Annexure 'D' to the petition, shows that a copy of the same was sent to the Deputy Commissioner, Kamrup, "with reference to his telegram 1/83CA dated 16 -2 -71", amongst others.
(2.) IN sequence, therefore, we may set out the contents of the telegram of 16th February, 1971, which is filed as Annexure 'B' to the counter -affidavit submitted by the Secretary to the Government of Assam, Municipal Administration, on behalf of the first three respondents: Secretary Municipal Administration Shillong 1/83CA (.) Preliminary enquiry into affairs of Rangiya Municipality reveals that nominated Chairman Nikunja Choudhury has defalcated large sums of money from said Municipal fund and has committed serious irregularities (.) Suggest his immediate removal from office Chairman and instead Vice Chairman Devendra Kalita appointed to run Municipal affairs till formal election takes place (.) Intend arresting Nikunja Choudhury and accountant under Section 409, Indian Penal Code on formal complaint by Board Members and lodge criminal proceedings (.) Wire approval (.) Kindly arrange immediate Audit accounts Rangiya Municipality. DEPCOM It also appears from Annexure 'A' dated 14th December, 1970 to the aforesaid counter -affidavit that six members of the Municipal Board (briefly 'the Board') including the Vice -Chairman and the 4th respondent wrote to the Government making certain allegations against the petitioner. It would be appropriate to quote the letter in extenso: "We the following Commissioners of the Rangiya Municipal Board, appointed by the Government beg to place before you the following facts with prayer to take action thereon. Sri Nikunja Chaudhury was appointed as Chairman by the Government with (sic) 9 other Commissioners were also appointed in the Ad Hoc Committee of the Rangiya Municipal Board. After his appointment as Chairman the laid Sri Nikunja Chaudhury indulged in activities to suit his personal end ignoring the interest of the Board. Major illegal practices, arc not absent during the tenure of his service as Chairman. His activities caused us to loss (sic) faith or confidence on him. Out of the said 10 Commissioners (including the Chairman himself) we the six Commissioners have completely lost faith on him and we have now decided not to support him in any way. We have grounds to feel that his continuance in the post of Chairman would be detrimental to the interest of the Board. In view of the above we shall be obliged if you please take action under Section 28 of the Assam Municipal Act, 1956 and remove him from the post of Chairman, Rangiya Municipal Board with immediate effect". This letter was copied to the Deputy Commissioner, the Commissioner and to the Minister -in -charge of Municipal Administration. The petitioner also wrote to the Deputy Commissioner on 17th February, 1971 (Annexure 'C' to the petition) complaining against the 4th respondent, who was the outgoing Chairman, that "that Rs. 18,810.41 which had been collected as tax by the then Rangiya Town Committee during the year 1969 -70 was not entered in the Cash Book of the Town Committee." He requested "to appoint an auditor to audit the account for the year 1969 -70" and "to make necessary arrangements to recover the said amount." This letter was also copied to the Secretary, Municipal Administration, Shillong, amongst others. The petitioner also stated that "the audit report would reveal which is submitted very recently that on which way the matters are moving and for whose interest."
(3.) TO complete the narration, we may also quote paragraph 5 of the aforesaid counter -affidavit of the Government: "That as regards the statements made in paragraph 10 of the petition, I beg to state that the petitioner who was appointed as the Chairman of the Municipal Board was removed under Section 28 (1) of the Assam Municipal Act, as it was considered necessary for the best interest of the Municipality for smooth and efficient running of the affairs of the Board. It came to the notice of the Government that under the Chairmanship of the petitioner, the Board was not smoothly running in view of the fact that six out of the 10 (ten) Commissioners of the Board lost their confidence on the Chairman as well as reported defalcation of Board's huge money by him. As it was found by the Government that it may not be possible for the petitioner to run the administration efficiently and smoothly as majority of the Commissioners have lost faith on him, the Government had to take action under Section 28 (1) of the Assam Municipal Act. A copy of the petition submitted by the Commissioners and a copy of Deputy Commissioner's telegram are annexed herewith as Annexure SA' and Annexure B' respectively". As will appear from the above paragraph, the reply is with reference to paragraph 10 of the petitioner's affidavit wherein it is stated "In this notice no reason has been shown and no ground has been given about the cause of his removal from the Chairmanship of the Municipality";