1. This is an application under Art. 226 of the Constitution of India for a writ in the nature of mandamus or in the nature of quo warranto or for such further or other order as to this Court may seem fit and proper.
2. A Rule nisi was issued by Mr. Justice B.K Guha on the 10th October, 1950, and the matter has now come up before me for the hearing of that Rule. The facts are that in February, 1950, eleven out of the 17 elected Commissioners of the Bally Municipality including the Petitioner made a representation to the Secretary, Department of Local Self-Government, West Bengal, making serious allegations against the Opposite Party, the Chairman of the Municipality, in relation to the management of the affairs of the Municipality. In the enquiry started by the Government as a result of such representation the majority of the charges brought against the Opposite Party were proved and the Government was of the opinion that the only course left was to remove the Opposite Party from the office of Chairman.
3. One of the Commissioners having left for Pakistan, the Government announced his removal from office on the 14th July, 1950, and declared his seat as vacant.
4. At a special meeting convened upon the requisition of the said eleven Commissioners to consider a resolution for removal of the Opposite Party from the office of the Chairman eleven Commissioners voted for the resolution, three voted against and two were absent. The meeting was held on the 2nd September, 1950.
5. The Opposite Party has challenged the validity of the resolution as according to him the resolution was not passed by a majority of two-thirds as required under sec. 61 (2) of the Bengal Municipal Act, 1932.
6. Under sec. 15 (1) of the Bengal Municipal Act (Act XV of 1932) the then Provincial Government specified that the body of Commissioners should consist of twenty two Commissioners.
7. By virtue of sec. 16 of the Bengal Municipal Act seventeen Commissioners, of the Municipality were to be elected and five Commissioners were to be appointed by the Provincial Government.
8. This sec. 16 was amended by the Bengal Municipal (West Bengal) Amendment Act (Act XI of 1947) which came into force on the 5th January, 1948, and provided as follows:—
“The Commissioners of the Municipality shall be deemed to be constituted of the elected Commissioners only.”
9. In the amending Act there is also the following provision:—
10. Sec. 13 (d)—
“The number of Commissioners of the Municipality shall be deemed to be the total number of elected seats on the Municipality as fixed by the existing orders of the Provincial Government until the number is altered by the Provincial Government.”
11. Sec. 61 (2) of the Bengal Municipal Act, 1932, provides as follows:—
“An elected Chairman and a Vice-Chairman may at any time be removed from his office by a resolution of the Commissioners,, in favour of which not less than two-thirds of the whole number of the Commissioners have given their votes at a meeting specially convened for the purpose.”
12. The contention of Mr. Sen, the senior Government pleader, who appears for the Opposite Party is that the “whole number” in sec. 61 (2) means the total number of elected seats on the Municipality as fixed by the orders of the Government. In other words the “whole number of the Commissioners” of the Bally Municipality is 17.
13. Two-thirds of this number is 11-⅓ and as only 11 Commissioners, that is, less than two-thirds of the whole number of Commissioners, voted for the resolution the resolution was ineffective and so the Opposite Party is still functioning and is entitled to function as Chairman of the Municipality.
14. Mr. H.N Sanyal, the learned Counsel appearing for the Petitioner, contends that sec. 61 (2) has to be read with sec. 3 (53) of the Act.
15. Sec. 3 (53) is as follows:—
“The Commissioners” means the persons for the time being appointed or elected to conduct the affairs of any Municipality under the Act.”
16. According to Mr. Sanyal the “whole number” in sec. 62 (2) means the number of Commissioners who were functioning at the material time as Commissioners and who were capable of voting and were entitled to receive notices about any meeting to be convened. Mr. Sanyal's contention is that the “whole number” was at the material time 16 as one Commissioner had ceased to function and his seat was declared vacant.
17. It is true that the expression “for the time being” means “at the present time” but it is a well-known rule of interpretation that this expression has to be construed with reference to the context in which it occurs.
18. The real question is what is the true construction of sec. 61 (2). The words “the Commissioners” occurring in sec. 61 (2) have to be interpreted with reference to the context in which they occur. It is clear that “whole number” in sec. 61 (2) means the total number. Sec. 13 (d) of the Amending Act states in clear and unambiguous language that the expression “number of Commissioners of the Municipality” means the total number of elected seats on the Municipality. In the case of Bally Municipality the Government has only declared one seat as vacant. In other words, the seat has not been done away with but it still exists and Mr. Sen has stated before me that this seat is intended to be filled up in the near future.
19. Mr. Sanyal's argument lays stress on the words “the Commissioners” in sec. 61 (2) but completely ignores the words “whole number” in that section. When words are introduced in the vocabulary of a Statute they are so introduced with a purpose. It is a well-known proposition that words are not used in a Statute without a meaning and effect must be given to all the words used, for the Legislature is deemed not to waste its words or say anything in vain.
20. I have no hesitation in holding that the words “whole number of the Commissioners” in sec. 61 (2) has reference to the total number of elected seats in the Municipality and such number in the Bally Municipality is and was at all material times 17.
21. The next question is whether the voting by 11 Commissioners was sufficient compliance with the requirements of sec. 61 (2). In my view the answer must be in the negative. The section requires that not less than two-thirds of the whole number of the Commissioners must vote before a Chairman or a Vice-Chairman can be removed. The section is mandatory. The number of votes must rot be less than two-thirds in any event but it may be more. Two-thirds of 17 is 11-⅓. Mr. Sanyal's argument is that the fraction should be ignored and the next whole number below it should be accepted as the number. Mr. Sanyal argues that as compliance is impossible in the nature of things and fraction of a person capable of voting is an impossibility the compliance should be dispensed with. In my view, however, the requirement of two-thirds majority in sec. 61 (2) is a condition precedent which must be fulfilled before the Commissioners can derive power or jurisdiction to remove a Chairman or a Vice-Chairman from office. I am clearly of opinion that voting by 11 Commissioners was not a sufficient compliance with the section, and the resolution for removal of the Opposite Party was ineffective and must be deemed to have been lost.
22. Mr. Sen has also contended before me that this application under Art. 226 of the Constitution is not maintainable as it was open to the Petitioner to have recourse to an ordinary suit for declaration that the Opposite Party was no longer in his office of Chairman and was not entitled to function as such and also for injunction restraining him from functioning as such. He submits that when there is another adequate and specific remedy Court will not issue writs in the nature of mandamus nor make any order or give any direction under Art, 226 of the Constitution.
23. It is an elementary principle that recourse ought not to be allowed to an extraordinary remedy when it is not really needed, and a mandamus will never be granted to enforce the general law of the land which may be enforced by action. See Kesho Prasad Singh v. Board of Revenue(1).
24. In the case of In re: Nathan(2) the Court of Appeal in England has also affirmed the proposition stated above. At page 471 (1884) 12 Q.B.D 461, Brett, M.R, observed as follows:—
“If an action will lie then a mandamus cannot issue. That is admitted by everybody. Therefore, the foundation of the application is that no such action will lie……”
25. Banerjee, J., has followed this principle in the case of In re: Nani Lal Roy v. Satyendra Nath Roy(3).
26. In the case of Informations or Writs in the nature of a quo warranto such Information's or Writs are not issued as a matter of course where there is an alternative remedy which is equally appropriate and effective. (Halsbury, Vol. 9, paragraph 1380).
27. It is true that under Art. 226 of the Constitution the power of the Court is not confined to the power to issue writs in the nature of mandamus and other writs mentioned therein.
28. Under the article the Court has wider powers. But the power of the Court is discretionary and as has been pointed out by the Allahabad High Court the proceedings under Art. 226 being of a summary and coercive nature the powers under the article should be sparingly used and only in those clear cases where the rights of persons have been seriously infringed and he has no other adequate and specific remedy available to him. See Indian Sugar Mills Association v. Secretary, Government of Uttar Pradesh(4).
29. In an earlier case in the Patna High Court in interpreting Art. 226 of the Constitution Meredith, C.J, observed:—
“It could never have been intended that resort could be had to this extraordinary procedure where an adequate remedy is available by ordinary legal process, for example, by suit; otherwise, the ordinary legal procedure including the payment of court-fees would be abrogated. An application under Art. 226, in my judgment, is and must remain an extraordinary remedy to be used where ordinary legal process cannot give adequate and prompt relief.”
30. [Bagaram Tulpule v. State Of Bihar*(5)].
31. In my view the contention of Mr. Sen is well founded and the application must fail on this ground also.
32. In the result the petition fails and the Rule is discharged with costs. The hearing-fee is assessed at three gold mohurs.
N.D.R
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