Patna High Court
Laxmi Narain Sah And Ors. vs State Of Bihar And Anr. on 2 August, 1971
Equivalent citations: AIR1972PAT176, AIR 1972 PATNA 176
ORDER
1. This writ application has been filed by eight petitioners under Articles 226 and 227 of the Constitution of India, making a number of prayers in paragraph 28 of the application. We will refer to the prayers after giving the relevant facts on which the writ application is based. It is stated that the Government of Bihar had issued a notification dated 18th December 1970 under the order of the Government of Bihar duly authenticated by Sri E. G. Roy, Under Secretary to the Government, appointing the petitioners as nominated members of Katihar Municipality in exercise of the power contained in Section 14 (1) of the Bihar and Orissa Municipal Act. 1922. A copy of this document has been given In Annexure 1, and it appears that the notification is without any number or date. The number and date is of the Memo, the Memo no. being 8700 dated 18th December 1970, and it appears that copies of it were sent to different authorities, including the officers of Katihar Municipality for necessary action.
It is stated that a copy of the Government order was sent to the petitioners by the Chairman of Katihar Municipality by a Memo dated 28th December 1970 a copy of which has been annexed as Annexure 2. It Ss stated that the Chairman fixed 5th January 1971 as the date for holding a meeting of the Commissioners. The election of the members of the Municipality, which had to be completed, had taken place on 23rd May 1970, and the results had been announced immediately thereafter. The names of the elected commissioners had been published in the Bihar Gazette on 18th November 1970. It is stated that while the commissioners of the Municipality were preparing to hold a meeting for the election of the Chairman, a communication was sent by the Sub-divisional officer, Katihar on the 4th January 1971, stating that a telephonic message had been received from the Under-Secretary, Government of Bihar, L. S. G. Department, to the following effect:
"Nomination of eight municipal commissioners has not been notified in the official Gazette. The order of Nomination has been withdrawn by the Government and as such no election of Chairman of the Board should take place."
This is the impugned order, and the prayer of the petitioners is for a declaration that the withdrawal of the nomination of the Municipal Commissioners was illegal and that the State Government may be directed to publish the names of the nominated commissioners in accordance with law. Learned Counsel for the petitioners has referred to Section 14 of the Bihar and Orissa Municipal Act, 1922, and has urged that after the Municipal Commissioners had been nominated or really, appointed under Section 13 (1) (c) read with Section 14 (1) the names of these commissioners must be published in the official gazette under Section 14 (2) and that the purported withdrawal by the Government mentioned in Annexure 4 cannot be supported under the law. In a counter-affidavit filed on behalf of respondents 1 and 2 i. e. the State of Bihar and the Secretary to Government, Local Self Government Department, Bihar, this matter has been clarified in paragraph 12-It is stated therein that the telephonic information to this Sub-Divisional Officer, Katihar, was to the effect that the government had stayed the nomination, as the notification had not then been published in the Gazette, and the information was confirmed by the telegram to the District Magistrate, Purnea and the Sub-Divisional Officer, Katihar, to the following effect:
"Reference Government Notification regarding Nomination of Katihar Municipality (STOP) Notification not published in Bihar Gazette (STOP) election of Chairman be stayed till further orders (Stop)."
According to this counter-affidavit, the sub-divisional officer of Katihar misunderstood the telephonic message sent to him and understood the message as withdrawal of the nominations by the Government, It is stated in the counter-affidavit that up to now no order of withdrawal or recall of the nomination or appointment under Section 13 (1) (c) read with Section 14 (1) has been made. The reasons for the stay of further proceedings in the matter have been given In some detail in this counter-affidavit. The substance appears to be, that, the matter is still receiving consideration of the State Government. In that view of the matter, the question of law urged by the learned counsel for the petitioners on the interpretation of Section 14 (1) and (2) of the Municipal Act does not arise. It may be taken on the counter-affidavit that the nomination or appointment of the petitioners made earlier has not been withdrawn.
On the 24th March 1971, this matter had been referred to by this court and, after referring to paragraph 12 of the counter-affidavit, it was stated that the writ application should be adjourned for some time, so that the question of nomination of the petitioners as Municipal Commissioners may be finally considered by the State Government as they proposed to do. A copy of this order was directed to be supplied to Shri Shreenath Singh appearing for the contesting respondents. The case was listed again on the 5th of July, and at the request of Shri Shreenath Singh, appearing for the State of Bihar at this stage, the case was adjourned for two weeks to take necessary instructions. At that time Shri Singh had drawn our attention to Bihar Ordinance No. 59 of 1971 which, it is now stated, has lapsed. In these circumstances, the learned counsel for the petitioners has argued that the respondents may now be ordered to notify the nomination or appointment of these petitioners made under Section 14 (1).
2. Having heard learned counsel for the parties, we are satisfied that this is a fit case in which this particular prayer should be granted. The petitioners had been nominated or appointed under Section 14 (1) on or about the 18th December 1970 and up to this day their appointments have neither been cancelled, nor recalled, nor withdrawn. Sufficient opportunity has been availed of by the respondents for doing the needful thereafter, including following the provision of Section 14 (2) of the Municipal Act. The provision of Section 14 (2) not having beer complied with up to now, a writ of mandamus must issue to the respondents to publish the names of the petitioners in the Official Gazette forthwith. The writ application is, therefore, allowed to the extent mentioned above. In the circumstances, however the parties will bear their own costs of this court.