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Chanthmal v. The State Of Rajasthan
Judgment Summary — K.L. Bapna, J.
Factual and Procedural Background
The petitioner, a member of the Municipal Board of Nawa, challenged the Government's Notification dated 5 March 1952 under the Rajasthan Town Municipalities Act, 1951 which dissolved the Municipal Board of Nawa and appointed an Ad hoc Committee (respondents Nos. 2–6). The petitioner alleged the dissolution was motivated by party considerations after election defeat of the Congress group, that no proper enquiry into complaints was made, and sought a writ of quo warranto against the Ad hoc Committee.
The State filed replies asserting that complaints were investigated by a Regional Inspector whose report revealed serious irregularities, that the Government issued a notice to the Board and considered the Board's reply before dissolving it, and that the Government acted bona fide. The State later informed the Court that the Ad hoc Committee's period was to expire at the end of August 1952 and that on 2 August 1952 the Tehsildar of Nawa was appointed to administer the Board's day-to-day affairs. The State also filed an affidavit stating the members of the erstwhile Board took office on 1 August 1949 and that their normal three-year term had expired on 1 August 1952.
The petition was heard by reference to the requirements of sec. 203 of the Rajasthan Town Municipalities Act, 1951 (power of Government to dissolve or supersede Municipal Board) and other provisions of the Act including sec. 15 (term of office). The Court considered whether the notification complied with statutory form and substance and whether the petitioner still retained any interest in the Board by virtue of term of office.
Legal Issues Presented
- Whether the Government's notification of 5 March 1952 dissolving the Municipal Board of Nawa complied with the requirements of sec. 203 of the Rajasthan Town Municipalities Act, 1951 (including formation of opinion, declaration and reasons in the Rajasthan Gazette).
- Whether the appointment of an Ad hoc Committee under clause (b) of sub-sec. (2) of sec. 203 was valid given the form and content of the notification.
- Whether the Government could lawfully notify dissolution "up to the end of August 1952" (i.e., whether dissolution could be for a specified period or whether that phrasing was appropriate only to supersession).
- Whether the petitioner (and other members) had vacated office as members of the Municipal Board by operation of sec. 15 of the Rajasthan Town Municipalities Act, 1951 (three-year term) and related rules, and thus whether the petition remained maintainable.
- Whether any prior law under which the Municipal Board of Nawa had been constituted (such as the Marwar District Municipal Boards (Constitution) Act, 1949, or other executive orders) survived the commencement of the Rajasthan Town Municipalities Act, 1951 or had been repealed (expressly or by implication).
Arguments of the Parties
Petitioner's Arguments
- The Municipal Board was dissolved without proper enquiry and because the Congress members, having been defeated, made complaints to frustrate the independent members; the dissolution was therefore vitiated by irregularity and improper motive.
- The notification dissolving the Board was deficient and did not comply with sec. 203 requirements.
- The election notification was published in the Rajasthan Rajpatra on 27 May 1950, and on that basis the petitioner contended his term of office should expire on 27 May 1953 (i.e., he claimed his term had not yet expired).
- It was contended that the Rajasthan Town Municipalities Act, 1951 did not repeal the Marwar District Municipal Boards (Constitution) Act, 1949 because that Act was not listed in the schedule of repeals.
State's Arguments
- On receipt of complaints, the Regional Inspector made an on-the-spot enquiry which revealed serious irregularities; the Government gave notice to the Board and considered the Board's reply before dissolving it.
- The Government acted bona fide and was not motivated by party politics.
- The Ad hoc Committee's appointment was temporary and was superseded on 2 August 1952 by appointment of the Tehsildar to carry on day-to-day administration.
- The members of the Municipal Board had taken office on 1 August 1949; under sec. 15 of the Rajasthan Town Municipalities Act their three-year term expired on 1 August 1952, so the petitioner had vacated office before the hearing and had no interest to maintain the petition as a member.
- Both parties' counsel conceded that no notification had been made making the Marwar Town Areas Regulation, 1924 applicable and that the precise authority under which the Nawa Board had been functioning prior to the Rajasthan Act could not be traced; the State argued that the Rajasthan Act was a comprehensive code governing municipal boards across Rajasthan.
Table of Precedents Cited
The opinion did not cite any case law precedents. It did cite a secondary authority on statute law (Craies quoting Dr. Lushington), but no judicial precedents were referenced.
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court's analysis proceeded in distinct steps tied closely to the statutory text and the factual record before it.
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Interpretation and statutory prerequisites of sec. 203:
- The Court emphasized that sec. 203(1) requires the Government to form an opinion that a Municipal Board is incompetent, persistently in default in performance of duties, or has exceeded or abused its powers.
- Such an order must be published in the Rajasthan Gazette and must include the reasons for the declaration before the Government dissolves or supersedes the Board.
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Deficiencies in the notification of 5 March 1952:
- The challenged notification merely stated that "constant complaints" had been received regarding gross irregularities and that the Government had dissolved the Board "up to the end of August 1952."
- The Court found the notification did not state that the Government was satisfied as to the truth of the complaints or that the Government had come to the particular statutory opinion delineated in sec. 203(1). It also failed to include the requisite declaration that the Board was incompetent, in default, or had exceeded or abused its powers, together with reasons for that declaration.
- Although an affidavit placed before the Court recounted that an on-the-spot enquiry had been made by the Regional Inspector and that a notice had been given to the Board and the Board's reply considered, the Court held that the notification itself had been drafted without the statutory particulars and so did not comply with sec. 203's formal requirements.
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On the phrase "dissolved ... up to the end of August 1952":
- The Court analysed the grammar and scheme of sec. 203 and concluded that specifying a period ("for a period to be specified in the order") applies to supersession, not dissolution. Dissolution, by contrast, operates once for all.
- Therefore, the notification's phrasing that the Board was dissolved "up to the end of August 1952" was erroneous and reflected a misunderstanding of the statutory scheme.
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Consequence for appointment of the Ad hoc Committee:
- Because the notification did not comply with sec. 203, the Court held that the dissolution was not in accordance with the statute and consequently the appointment of the Ad hoc Committee under clause (b) of sub-sec. (2) was also invalid.
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The question of members' term and effect on maintainability:
- The Court accepted the Government's affidavit that the members took office on 1 August 1949 and applied sec. 15 of the Rajasthan Town Municipalities Act, 1951 which prescribes a three-year term of office (absent certain exceptions not relevant here).
- The Court rejected the petitioner's contention that term should be counted from publication of names in the Rajpatra on 27 May 1950, holding publication was not a prerequisite to holding office where the Board had begun to function from 1 August 1949.
- Relying on the Rules made under sec. 205 (rule 3 and rule 45), the Court noted the mechanism for signalling expiry and conduct of elections, concluding the petitioner vacated office on 1 August 1952 and therefore had no remaining interest as a member to sustain the petition.
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On the applicable law under which the Nawa Board had functioned prior to the Rajasthan Act:
- The Court examined whether the Marwar District Municipal Boards (Constitution) Act, 1949 or the Marwar Town Areas Regulation, 1924 or some executive order had been the operative source. It found no notification making the 1924 Regulation applicable and that parties could not point to a traceable prior statutory authority under which the Board had functioned.
- The Court reasoned the Rajasthan Town Municipalities Act, 1951 is a comprehensive, self-contained statute extending to the whole of Rajasthan and covering the entire subject-matter of municipal boards. Accordingly, even if an earlier enabling law or executive order existed, it would be deemed repealed by implication because the subsequent Act re-enacted and exhaustively covered the subject-matter.
- The Court cited the principle (via a secondary authority—Craies quoting Dr. Lushington) that implied repeal may be found where the subsequent statute wholly covers the subject or where the two statutes together would produce absurd consequences. Applying that reasoning, the Court concluded previous local laws or executive orders, if any, were effectively displaced by the Rajasthan Act.
- The Court further relied on sec. 24 of the General Clauses Act (as applied) to the effect that appointments under the old law are to be treated as made under the re-enacted law; and thus sec. 15's three-year term applied to the members in question.
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Final procedural consequence:
- The Ad hoc Committee had been superseded by the appointment of the Tehsildar to administer municipal affairs; therefore a quo warranto petition directed at the Ad hoc Committee had become infructuous.
- The Court expressly refrained from expressing any opinion on the validity or otherwise of the appointment of the Tehsildar.
Holding and Implications
Holding:
The Court concluded that the Government's notification of 5 March 1952 dissolving the Municipal Board of Nawa was not in accordance with the provisions of sec. 203 of the Rajasthan Town Municipalities Act, 1951, and that the appointment of the Ad hoc Committee under clause (b) of sub-sec. (2) was therefore invalid. Nevertheless, because the members (including the petitioner) had vacated office on 1 August 1952 by operation of sec. 15 (three-year term) and because the Ad hoc Committee had been superseded by appointment of the Tehsildar, the petition for a writ of quo warranto was held to be DISMISSED as infructuous.
Direct consequences and implications:
- The notification of 5 March 1952 was declared not to comply with statutory requirements, and the Ad hoc Committee's appointment under that notification was held invalid.
- Because the petitioner had vacated office on 1 August 1952 (three-year term under sec. 15), he had no interest as a member to seek relief and the petition was dismissed as moot in respect of the Ad hoc Committee (which had already been superseded by the Tehsildar's appointment).
- The Court did not decide the validity of the Tehsildar's appointment and expressly refrained from expressing any opinion regarding that appointment.
- No order as to costs was made.
Broader precedent: The Court's reasoning rests principally on statutory interpretation (sec. 203, sec. 15 and related provisions) and on the application of the doctrine of implied repeal when a later comprehensive statute covers the same subject-matter. The opinion did not purport to lay down a new general rule of law beyond the result in this case.
K.L Bapna, J.:— This is a petition under Art. 226 of the Constitution of India.
2. A Municipal Board at Nawa, District Nagaur, existed when the Rajasthan Town Municipalities Act, 1951 (Act No. XXIII of 1951) came into force on 22nd December, 1951. By Notification No. F. 1(c)(5)/L.S.G/51-1 dated 5th March 1952 published in Rajasthan Rajpatra of 29th March 1952, the Government dissolved the Municipal Board, Nawa, and appointed an Ad hoc Committee consisting of five persons who are respondents Nos. 2 to 6 in this case. The petitioner was a member of the Municipal Board before its dissolution and he has challenged the validity of the Government order dissolving the Municipal Board of Nawa as also the appointment of the Ad hoc Committee.
3. It was alleged that in the last municipal elections, the congress group of members was defeated and the group of independent members had been elected. The Congress group of members having been frustrated, started making complaints against the Municipal Board and the Government dissolved the Board without making any enquiry into the truth or otherwise of the said complaints. It was alleged that the order of the Government and the Notifications were vitiated by irregularities and the members of the Ad hoc Committee be called upon by a writ of quo warranto to show the validity of their appointment and in case they are unable to satisfy the court as to the validity of their appointment, they may be restrained from exercising the duties and powers of the Board.
4. On behalf of the Rajasthan State a reply was submitted on 4th August 1952 that a report had been received by the Government regarding irregularities committed by the Municipal Board, Nawa, and the Regional Inspector was deputed for enquiry on the spot and his report revealed a sorry state of affairs. The Government thereupon gave notice to the Board as to why it should not be dissolved and the reply sent by the Municipal Board was considered by the Government before dissolving the Board as it did. It was stated that the Government had acted bona fide in the matter and was not actuated by party considerations. On 26th August a further reply was submitted by the Government that the period for which the Ad hoc Committee was appointed was to expire on the 31st of August 1952 and the Government had appointed the Tehsildar of Nawa to carry on the day to day administration of the Board on 2nd August 1952 in place of the Ad hoc Committee. It was also pointed out that the members of the Municipal Board took charge on the 1st August 1949 and the normal term of members had expired, meaning thereby that the petitioner Chouthmal's term of office had expired on the 1st of August 1952.
5. On behalf of the petitioner it was urged that the Notification of election of the members of the Municipal Board, Nawa, was published in the Rajasthan Rajpatra of 27th May 1950 and therefore the term of office would expire on the 27th of May 1953.
6. The power of the Government to dissolve a Municipal Board is given in sec. 203 of the Rajasthan Town Municipalities Act, 1951, and we will have to examine the notification with reference to the provisions of that section. Sec. 203 is as follows—
“Power of Government to dissolve or supersede Municipal Board in case of incompetency:—
(1) If in the opinion of the Government any Municipal Board is not competent to perform or persistently makes default in the performance of, the duties imposed on it by or under this Act or otherwise by law, or exceeds or abuses its powers, the Government may by an order published, with the reasons for making it, in the Rajasthan Gazette, declare the Municipal Board to be incompetent or in default, or to have exceeded or abused its powers, as the case may be, and may dissolve such Municipal Board or supersede it for a period to be specified in the order.
(2) When the Municipal Board is so dissolved or superseded, the following consequences shall ensue:—
(a) all members of the Municipal Board shall, in the case of dissolution as from the date specified in the order of dissolution and in the case of supersession as from the date of the order of supersession, vacate their offices as such members;
(b) all powers and duties of the municipal board shall, during the period between dissolution and reconstitution or of super-session, be exercised and performed by such person or persons as the Government from time to time appoints in that behalf;
(c) all property vested in the municipal board shall, during the period between dissolution and reconstitution or of super-Session, vest in the Government.
(3) After the issue of an order under sub-sec. (1) the municipal board shall by the election or appointment of members be reconfigured—
(i) in the case of dissolution on the date specified in the order, or
(ii) in the case of super-session, on the date specified in the order under sub-sec. (1) or sub-sec. (4), as the case may be.
(4) If, after enquiry made, the Government so directs, the period of supersession with all the consequences aforesaid shall, from time to time, be continued by an order published as aforesaid until such date as may be fixed by the Government for the re-establishment of the municipal board.”
The Notification the validity whereof has been challenged in this petition is as follows:—
“No. F. 1(c)(5)/L.S.G/51-1—In view of constant complaints being received regarding gross irregularities committed by the President and the members of the Municipal Board, Nawa, it is hereby notified for general information that Government have, in exercise of powers conferred under sub-sec. (1) of sec. 203 of the Rajasthan Town Municipalities Act, 1951, been pleased to dissolve the said Municipal Board, up to the end of August 1952.”
This notification is followed by another Notification of the same date by which the Ad hoc Committee was constituted to carry on the administration of the Municipal Board, Nawa.
7. A careful examination of sec. 203 shows that there are certain conditions pre-requisite to the order of dissolution. First of all the Government has to form an opinion that any municipal board is not competent to perform, or persistently makes default in the performance of, the duties imposed on it by or under the Act or otherwise by law, or exceeds or abuses its powers. On coming to this opinion, the Government has to declare the Municipal Board to be incompetent or in default, or to have exceeded or abused its powers, as the case may be, by an order to be published in the Rajasthan Gazette and the reasons for such declaration have to be given in the Gazette, and thereafter the Board can be dissolved or superseded.
8. When we look at the notification, it is apparent that the provisions of sec. 203(1) have not been followed. The notification mentions that constant complaints were received by the Government regarding gross irregularities committed by the President and the members of the Municipal Board, Nawa. But whether the Government was satisfied as to the truth of the complaints is not mentioned in the notification. According to sub-sec. (1) of sec. 203 it is not the receipt of complaints by the Government alone which can authorise an order of dissolution of the Board but it is the satisfaction of the Government as to matters mentioned in the sub-section which can be the foundation for an order of dissolution. It is also apparent that a declaration that the municipal board was incompetent, or in default, or exceeded or abused its powers together with reasons for making such declaration is also wanting in this case.
9. An affidavit has been produced in this Court saying that on the receipt of complaints, the Regional Inspector was deputed for enquiry on the spot and his report also revealed a sorry state of affairs; and that a notice was Page: 449given by the Government to the Board why it may not be dissolved and the reply by the President was considered by the Government, and that the order of dissolution was passed after taking into consideration all the facts and circumstances of the case. Now, if this procedure had been gone through, the person responsible for notification of 5th March 1952 had obviously not cared to draft it in the manner required by law inasmuchas mention should have been made that the complaints had been enquired into and in the opinion of the Government, the municipal board was not competent to performs or made persistent default in the performance of, the duties imposed on it by or under the Act or otherwise by law, or exceeded or abused its powers. Not only this, the municipal board should have been declared to be incompetent or in default, or to have exceeded or abused its powers as the case may be, and the reasons for that order, should also have been mentioned and the order of dissolution was to come in the last. As it happens, the notification only mentions that certain complains had been received by the Government and the Government ordered thereupon that the Municipal Board of Nawa be dissolved. It is rather curious that such gross errors and irregularities are to be found in the notification issued under the authority of the Government.
10. A point of minor importance also arises inasmuch as the dissolution is notified up to the end of August 1952. What it means is not clear. The consequences of dissolution are mentioned in sub-sec. 2 of sec. 203 and in clause (a) it is provided that all members of the municipal board shall, in the case of dissolution as from the date specified in the order of dissolution vacate their offices as such members. In the notification the date from which the dissolution was to take place is not specified; instead thereof the date up to which the dissolution shall continue is mentioned. Clause (b) mentions the powers of the Government to appoint a person or persons to exercise the powers of the Board during the period between dissolution and reconstitution. Sub-sec. (3) relates to the reconstitution of the Board and under sub-clause (i) the Board is to be reconstituted by election or appointment in the case of dissolution on the date specified in the order. The order must, therefore, specify the date on which the board is to be reconstituted. This date is also not mentioned in the notification. The mention of dissolution up to the end of August 1952 seems to have been based on a misunderstanding of the last clause of sub-sec. (1) of sec. 203 which mentions the power of the Government to “dissolve such municipal board or supersede it for a period to be specified in the order”. The phrase ‘for a period to be specified in the order’ goes with supersession and not with dissolution. While this is a grammatical interpretation, it is supported by the scheme of the section, as in sub-sec. (4) it is mentioned that the Government may direct the period of suspension to be continued from time to time by an order published in the manner provided in the section. But a municipal board, if ordered to be dissolved, dissolves once for all.
11. We are of opinion that the notification of the 5th March 1952 dissolving the Municipal Board of Nawa was not in accordance with the provisions of sec. 203 of the Rajasthan Town Municipalities Act, 1951, and while it may be that the Government was satisfied that certain complaints regarding gross irregularities committed by the President and the members of the Municipal Board had been proved, the Government had still to come to the opinion that the municipal board was either not competent to perform, or made persistent default in the performance of the duties imposed upon it by or under the Act or otherwise by law, or that it exceeded or abused its powers; and further the Government should have declared the municipal board to be incompetent or in default, or to have exceeded or abused its powers as the case may be, together with reasons for making the order before directing its dissolution. As the Government did not comply with the requirements laid down Page: 450in sec. 203 of the Act, the appointment of the Ad hoc Committee under clause (b) of sub-sec. 2 was also invalid.
12. It was urged on behalf of the State that the Government have on the 2nd of August 1952 appointed the Tehsildar of Nawa to carry on the day to day administration of the municipal board in supersession of the Ad hoc Committee. Learned counsel for the petitioner contended that the same considerations would apply in the case of appointment of the Tehsildar if appointed under clause (b) of sub-sec. 2 of sec. 203.
13. It is, however, unnecessary to go into that question as one more aspect of the case has been brought to our notice by learned Deputy Government Advocate. In the supplementary affidavit it was mentioned that the members of the Municipal Board of Nawa took office on the 1st of August 1949 and their term of office according to sec. 15 of the Rajasthan Town Municipalities Act was three years unless extended by an order of the Government to a period not exceeding four years in the aggregate. And therefore the members of the erstwhile Municipal Board of Nawa including the petitioner vacated their offices as such members on the 1st of August 1952 and that the Collector of the District had already been directed to bold elections as early as possible and had appointed the Sub-Divisional Officer Parbatsar as the Returning Officer in this behalf.
14. Learned counsel for the petitioner contended that the Rajasthan Town Municipalities Act, 1951, did not repeal the law under which the Municipal Board of Nawa was constituted. This law was stated to be the Marwar District Municipal Boards (Constitution) Act, 1949. The argument was that under sec. 2 of the Rajasthan Town Municipalities Act, the laws and enactments repealed by the Act were mentioned in the first schedule to that Act, but the Marwar District Municipal Boards (Constitution) Act, 1949 was not included in that list. This is so. But the Marwar District Municipal Boards (Constitution) Act only provided for constitution of municipal boards in district towns. It did not provide for term of office of the members or the functions to be exercised by the boards when constituted. It appears that the Marwar District Municipal Boards (Constitution) Act was a step towards the framing of a comprehensive legislation in respect of the district towns' municipal boards but the attempt remained abortive owing to integration of the covenanting State of Marwar in the United State of Rajasthan six weeks later. The substantive law empowering the municipal boards of towns to function in Marwar was the Marwar Town Areas Regulation 1924 but the provisions of the Regulation were to be made applicable to any town by a notification by the Darbar to that effect. It was conceded by learned counsel appearing for both parties that no such notification had been issued and therefore the Marwar Town Areas Regulation 1924 was not applicable to the Municipal Board of Nawa. Learned counsel for the parties were unable to say under what authority or law the Municipal Board of Nawa had been functioning. Learned counsel for the petitioner at one stage stated that the Municipal Board of Nawa perhaps, as in other towns, had been functioning and exercising powers on the analogy of the Jodhpur Municipal Act, 1943. That Act applied to the city of Jodhpur or such adjoining areas as may be declared to be included in the municipality and could not authorise the constitution or functioning of the municipal boards in towns other than Jodhpur. In the preamble to the Marwar District Municipal Boards (Constitution) Act the purpose of the legislation is stated to be that it was expedient to provide for the constitution, in place of the existing municipal boards in the district towns, of municipal boards elected on a ward-wise basis. The preamble seems to indicate that there were municipal boards in district towns functioning from before and constituted in a particular manner, but that manner was desired to be changed on the lines provided for in the Marwar District Municipal Boards Page: 451(Constitution) Act, 1949. If any presumption is to be made as to the law under which the Nawa Board had been functioning, the Marwar Town Areas Regulation would be appropriate and it may be assumed that the notification referred to in sub-sec. (3) of sec. 2 of that Regulation had been made. In that case, there can be no difficulty in holding that the said Marwar Town Areas Regulation had been repealed by the Rajasthan Town Municipalities Act, 1951 as the said Regulation is mentioned in the first schedule in the list of laws repealed by this Act. The other alternative to the aforesaid presumption would be that the municipal board had been functioning under some executive order of the Government of Jodhpur which is now untraceable and the exact scope of that order and the powers, functions and duties of the Municipal Board of Nawa cannot be discovered. If that be so, such an executive order would occupy the status of law in Marwar under which the Municipal Board of Nawa came to be constituted and had been functioning. Such an undiscovered law would also be deemed to have been repealed by the Rajasthan Town Municipalities Act 1951 as would follow from a consideration of some of the provisions of that Act. Under sub-sec. (2) of sec. 1, the Rajasthan Town Municipalities Act is to extend to the whole of Rajasthan. Under sub-sec. 8 of sec. 4, ‘municipal board’ has been defined to mean the board of a town municipality. Under sub-sec. 9, ‘municipality’ has been defined to be any local area which is at present a town municipality and any local area which may hereafter be constituted or declared as a town municipality under sec. 5, if such municipality has not ceased to be a town municipality. Under sub-sec. 3 of sec. 5, certain duties are imposed on the municipal board of every town municipality already existing and of every town municipal board newly constituted under the Act. Under sec. 8 every municipal board is declared to be a body corporate by the name of the municipal board of the place by reference to which the municipality is known and to have perpetual succession and a common seal. Sec. 21 declares that the municipal government of a municipality vested in the municipal board except in certain cases provided for in the Act. Sec. 23 declares the functions of the chairman. Chapter III relates to conduct of business of the municipal board. Chapter IV authorises the municipal board to make rules and bye-laws for various matters mentioned in the chapter. Chapter V relates to municipal property and fund. Chapter VI describes the primary and secondary functions of the municipal board, chapter VII relates to the power of imposing taxes, chapter VIII to recovery of municipal claims, chapter IX to municipal powers and offences, chapter X to prosecutions, suits and powers of police, chapter XI to municipal accounts and administration reports, and chapter XII to control of municipal boards. The last chapter XIII relates to the appointment and powers of executive officers and other staff.
15. As will be seen from above, the Act is a self contained one and according to sub-sec. 2 of sec. 1, it extends to the whole of Rajasthan and therefore governs the powers, functions and duties of all municipal boards in Rajasthan as from the date of the commencement of this Act. Therefore, even if there be no express repeal of the undiscovered law which created the Municipal Board of Nawa, this is a case where the previous law if any would be deemed to have been repealed by implication. Quoting from Dr. Lushington in the India (1864, 33 L.J Adm. 193) Craies mentions in his book on Statute Law Craies on Statute Law, 4th Edition, 317:—
“What words will establish a repeal by implication it is impossible to say from authority or decided cases. If, on the one hand, the general presumption must be against such a repeal, on the ground that the intention to repeal, if any had existed, would have been declared in express terms, so, on the other hand it is not necessary that any express reference be made to the Page: 452statute which it is intended to repeal. The prior statute would, I conceive, be repealed by implication if its provisions were wholly incompatible with a subsequent one, or if the two statutes together would lead to wholly absurd consequences; or if the entire subject matter were taken away by the subsequent statute.”
In the present case the entire subject-matter of what would have been in the previous law is covered by the subsequent statute and if the two laws were to be held to stand together there will be a patent absurdity inasmuch as the very intention of the; enactment of the Rajasthan Town Municipalities Act, 1951 would be undermined as the preamble says that this law was enacted to consolidate and amend the law relating to town municipalities in Rajasthan and was sent up to the President of India for his assent before its promulgation. Then again it extends to whole of Rajasthan. It could not, therefore, be imagined for a moment that the Municipal Board of Nawa could exercise any powers, or function in a manner otherwise than in accordance with the Rajasthan Town Municipalities Act, 1951, after its promulgation.
16. The consequences of the implied repeal are the same as of express repeal and under sec. 24 of the General Clauses Act, the appointment of members of Municipal Board under the old law will be deemed to have been made under the re-enacted law, which in this case was the Rajasthan Town Municipalities Act, 1951. Under sec. 15 of this Act, the term of office of members is stated to be three years except in certain cases with which we are not concerned in this case. The affidavit of the Government that the members of the Municipal Board of Nawa took office on the 1st of August 1949 is not contradicted. But it was urged that the notification of the election of the members was made as late as 27th of May, 1950 and their term of office should be counted from that date. The contention is without force as the publication of the names in the Rajpatra is not a pre-requisite to the members holding office and in this case the affidavit is that the Board began to function from the 1st of August 1949 and not later as contended by learned counsel for the petitioner. Under rule 3 of the Rules framed by the Government under sec. 205 of the Rajasthan Town Municipalities Act, 1951, the chairman of the Board has to intimate to the District Magistrate not less than six months before the expiry of office of its members under sec. 15 of the Act, the date on which such term shall expire and this sets the ball of election rolling and a person who is elected or nominated to be a member of any municipal board becomes a member on taking an oath under rule 45 of the said Rules. The petitioner in this case having vacated his office on the 1st of August 1952 has no interest left in the defunct Municipal Board of Nawa as a member of that Board, and is not therefore entitled to any relief as a member of that Board in this petition. The Ad-hoc Committee appointed by the Government has already been superseded by appointment of the Tehsildar to carry on the day to day administration and this petition for a writ of quo warranto in respect of the Ad hoc Committee has become infructuous. We do not propose to express any opinion on the validity or otherwise of the appointment of the Tehsildar to carry on the day to day administration of municipal affairs of Nawa in this case.
17. The petition is therefore dismissed. No order as to costs.
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