WP (C) No. 486 of 2009. Case: Bimalendu Roy and Ors. Vs State of Assam and Ors., [Alongwith WP (C) Nos. 613, 744, 805, 828, 1046, 1047, 1376, 1386, 1451, 1460 and 1544 of 2009]. Guwahati High Court
| Case Number | WP (C) No. 486 of 2009 |
| Counsel | For Appellant: A.M. Mazumdar, Sr. Adv., Manindra Singha, Gauri Sinha, M. Bora, Advs., N.C. Das, P.C. Deka, M. Devi, A.M. Buzarbaruah, Advs., B.K. Mahajan, A. Choudhury, N.J. Das, Advs., N. Haque, Adv., B. Ahmed, Adv., K. Uddin and H.I. Choudhury, Advs., R. Deuri, N.M. Deka, Advs., S.K. Deori, Adv., S. Sarma, Adv., M. Singha, G. Singha, D.P. ... |
| Judges | J. Chelameswar, C.J. and B.P. Katakey, J. |
| Issue | Assam Municipal Act, 1956 - Sections 3(1), 3(5), 10, 11, 26, 26(1), 26(5), 293, 298 and 299; Constitution of India - Articles 40, 83, 172, 168, 243, 243B, 243E, 243K, 243P, 243Q, 243Q, 243R, 243U, 243U(1) 243U(3), 243ZA and 324; Constitution (Seventy Fourth Amendment) Act, 1992; Indian Penal Code - Section 21 |
| Citation | (2010) 6 GLR 388, 2009 (2) GLD 526 (NULL) |
| Judgement Date | May 29, 2009 |
| Court | Guwahati High Court |
Judgment:
J. Chelameswar, C.J.
1. These writ petitions being relate to the election to the Urban Local Bodies in the State of Assam under the provisions of the Assam Municipal Act, 1956 (in short 1956 Act), as amended to bring in conformity with the Constitution (Seventy Fourth Amendment) Act, 1992 and relating to the appointment of persons authorized by the State Government to perform powers and duties which under the said Act maybe exercised and/or performed by the Board, by invoking the powers conferred under Section 26(5) read with Section 299 of the said Act, on the expiration of the tenure of the elected body or authorizing another person to discharge such powers and duties by replacing the person already authorized, all the writ petitions are taken up for hearing and disposal together.
2. Writ Petition (Civil) Nos. 486/09, 744/09, 805/09, 1046/09, 1047/09, 1376/09, 1451/09, 1460/09 and 1544/09 are filed by the writ petitioners, apart from challenging the constitutional validity of Sub-section (5) of Section 26 of 1956 Act, also challenging various notifications issued by the authority authorizing persons (respondents) to discharge the powers and duties of the Board, after the completion of the tenure of the elected body, of whom they were either elected 'Ward Commissioners' or 'Chairpersons' and also have prayed for holding of the election as required under the Constitution as well as the 1956 Act, except in WP (C) No. 1460/09 where the person who has been authorized, was not an elected member of the earlier elected body. In WP (C) Nos. 613/09 and 1386/09 the writ petitioners have not challenged the constitutional validity of Sub-section (5) of Section 26 of the 1956, Act, but have challenged the notifications issued by the competent authority authorizing the Chairman and the Ward Commissioner, respectively, of the earlier elected body of two Urban Local Bodies, though they ceased to be the Ward Commissioners on expiry of their tenure. In WP (C) No. 828 of 2009 a challenge has been made to the notification dated 2nd February, 2009 issued by the authority authorizing the Deputy Director, Town and Country Planning, Tezpur to discharge the powers and duties of Tezpur Municipal Board in addition to his own duties by cancelling the authorization made in favour of the writ petitioner for discharge of such duties vide order dated 22nd January 2009.
3. The brief facts relevant for the purpose of the present batch of writ petitions are that as the duration of the elected Urban Local Bodies concerned in all the writ petitions, except the WP (C) No. 1460/09, were coming to an end between 3rd February to 23rd February, 2009 the Director of Municipal Administration on 22nd January, 2009 issued a communication to the Commissioner and Secretary to the Government of Assam, Urban Development Department, to make alternative and temporary arrangement, as provided under Section 299 of the 1956 Act and till the election to those bodies are held in accordance with the provisions of the said Act, to manage the affairs of such Urban Local Bodies, whose tenure automatically comes to an end on expiration of 5 (five) years from the date fixed for holding the first meeting of the newly constituted body after a general election. The Government of Assam in Urban Development Department in view of the said communication as well in view of the fact that the tenure of the elected Commissioners have expired on expiration of the 5 (five) years from the date appointed for first meeting of such bodies, authorized, the private respondents in the writ petitions to discharge the powers and duties of the Board, in exercise of the power conferred under Sub-section (5) of Section 26 of 1956 Act read with Section 299(b) of the said Act, on the ground that the election to those bodies cannot be held. In WP (C) No. 1460 of 2009 the general election to elect the Ward Commissioners was last held on 16.6.1997 and 14.8.1997 was the date appointed for its first meeting of the Board. The term of the elected body expired on 14.8.2002 having completed the 5 (five) years tenure. No general election as required under the provisions of the Constitution as well as the 1956 Act, however, has been held thereafter and the Government of Assam in Urban Development Department authorized different persons to discharge the powers and duties of the Board thereafter by issuing different notifications, the last being dated 2.3.2009 authorizing the private respondent, a member of the general public, to discharge the powers and duties of Bangaigaon Municipal Board by cancelling the earlier notification dated 26.7.2006 whereby and where under the Assistant Director, Town and Country Planning, Bangaigaon was conferred with such power.
4. The provisions of Sub-section (5) of Section 26 of 1956 Act has been challenged and sought to be declared unconstitutional on the ground of it being contrary to the provisions of Article 243-U(3) of the Constitution of India, which requires holding of general election to the Urban Local Bodies before expiry of the tenure of the earlier elected body, as according to the petitioners Section 26(5) of the 1956 Act has given the authority the power to do, what the Constitution has forbidden. The authorization of the private respondents to discharge the powers and duties of the Board, after the tenure of the elected bodies expire, where they were Commissioners, has been challenged on two counts, (i) that the respondent authority has in spite of expiration of the tenure of the elected bodies by virtue of the provisions contained in Article 243-U and Section 26(1) of 1956 Act, has allowed such Commissioners to discharge powers and duties of the Board thereby doing something indirectly which cannot be done directly and (ii) that under Section 299 of 1956 Act the Government can authorize only Government officials to discharge the powers and duties of the Board, after its dissolution.
5. We have heard the learned Counsel appearing for the writ petitioners, the learned Advocate General, Assam appearing on behalf of the State respondents and the learned Counsel appearing on behalf of the private respondents, namely, persons have been authorized by the State of Assam to discharge the powers and duties of the Board after its dissolution.
6. The learned Counsel for the petitioners questioning the constitutional validity of Sub-section (5) of Section 26 of 1956 Act has submitted that Chapter IX-A which has been brought into the Constitution by the Constitution (Seventy Fourth Amendment) Act, 1992 (in short, Seventy Fourth Amendment), with the object of holding timely election to the Urban Local Bodies and Article 243-U(1) having mandated that unless sooner dissolved under any law for the time being in force, every Municipality shall continue for 5 (five) years from the date appointed for its first meeting and no longer, as well as Clause 3 of the said Article having mandated that an election to constitute a Municipality shall have to be completed before expiry of its duration specified in Clause (1), and the scheme of Chapter IX-A of the Constitution being not to allow an elected body to continue beyond the period of 5 (five) years, so that the Urban Local Bodies can be managed by the elected body only, any provision made in the local Acts, namely, 1956 Act, relating to the election to constitute a Municipality must conform to such constitutional requirement and the State Act cannot have a provision which has the effect of not holding the election before expiration of the duration of an elected body as required under Article 243-U of the Constitution. According to the learned Counsel since Sub-section (5) of Section 26 of 1956 Act provides for authorizing any person to discharge the powers and duties of the Municipality after the tenure of the elected body comes to an end, which has been effect of postponing the election to an indefinite period of time as desired by the Government, the same is contrary to the constitutional provisions enshrined in Article 243-U of the Constitution of India.
7. According to the learned Counsel since Constitution mandates holding the election before expiry of the tenure of the elected body and the scheme of Chapter IX-A of the Constitution requires management of the affairs of Urban Local Bodies by the elected body only, the State Election Commission in consultation with the State Government is under constitutional obligations to hold the election in proper time so that only elected bodies can manage the affairs of such Urban Local Bodies. No provision, therefore, can be made in the Municipal Act, after the Seventy Fourth Amendment of the Constitution, which has the effect of not holding the election in due time as required under the Constitution, submits the learned Counsel. It has further been submitted that the State Government under the provisions of the Constitution is duty bound to do whatever is required to be done so that the State Election Commission, who has been entrusted with the responsibility of holding the general election of the Urban Local Bodies, held such election in time. It has further been submitted that non-holding of the election before expiration of the tenure of the elected body of Urban Local Bodies and not providing the requisite fund by the State, in fact, amounts to failure on the part of the State Election Commission and the State Government to discharge their constitutional obligations.
8. Challenging the notifications issued by the Government of Assam in Urban Development Department authorizing the private respondents to discharge the powers and duties of the Board, after expiration of the tenure of the elected body, it has been submitted by the learned Counsel for the petitioners that even assuming that the provisions of Sub-section (5) of Section 26 of the 1956 Act is not ultra vires the provisions of the Constitution, Section 299 which comes into play because of the...
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