Lieutenant Governor vs P.R. Ganeshan

B.P. Banerjee, J.—In this appeal an interesting question of law has been raised as to whether a Chairman who was elected under the provisions of the Adaman and Nicobar Islands (Municipal Boards) Regulation, 1957, and whose term had expired, should be allowed to continue by virtue of provisions of Section 13(5) of the said Regulation until election of a new Board in accordance with the provisions of Andaman and Nicobar Islands (Municipal) Regulation, 1994, which was promulgated by virtue of the provision of the 74th Amendment of the Constitution and to charge all the powers of the Board when there was no Municipal Board. 1957, Regulation provided the Constitution of the Municipal Board with elected and nominated members, but under the 74th Amendment of the Constitution the members of such Municipal Board should be elected and there is no scope for nomination of a member, in Andaman and Nicobar Islands a Municipal Board, namely Municipal Board, Port Blair, was constituted in terms of the provisions of the said Regulation, 1957. The law relating to the Municipality in urban area came to a thorough change on the promulgation of the Constitution (74th Amendment) Act, 1957, which was published in the Official Gazette on April 20, 1993, and the provisions of the said Act were required to be brought in full force with effect from June 1, 1994. The Andaman and Nicobar Administration being a Union Territory Administration was also required to take appropriate stage for due compliance with the provisions of the Constitution (74th Amendment) Act, 1952, with regard to the Municipality already in existence and also to be brought into an existence in this Union Territory. In terms of directives the Government of India issued from time to time and to implement the provisions of 74th Amendment of the Constitution. The Andaman and Nicobar Administration was asked by the Union of India to frame a fresh draft regulation with regard to laws relating to Municipalities and, accordingly, a draft regulation was prepared in consultation with the Ministry of Home Affairs, Government of India. The said draft regulation was placed before the Municipal Board, Port Blair, in its meeting held on December 17, 1993, and members suggested further amendment on consideration of which the Administration prepared a fresh draft regulation. Thereafter, Andaman and Nicobar Administration placed the said draft before Pradesh Council, Andaman and Nicobar Islands and the same� was discussed in the said Council. Suggestions of the Pradesh Council in the matter along with the Administration stand thereon was forwarded to Government of India for consideration. The old Municipal Board, Port Blair, was constituted with the members whose election were held in April 1990 and, according to the relevant laws of the Municipality, the tenure of membership of the elected members was fixed for a period of four years from the date of publication of the result. The said election was held in April, 1990 and 11 members were elected as the members of the Municipal Board. Those elected members along with four nominated members constituted the last Municipal Board, Port Blair, in May 1990. On April 27, 1994, the Lt. Governor issued a Notification intimating the completion of tenures hip of all elected and nominated members of the Municipal Board, Port Blair. The tenure of membership of the writ Petitioner No. 1 of the Municipal Board on completion of four years expired on April 25, 1994, whereas the tenure of membership of the writ Petitioners Nos. 2 to 3 expired on March 8, 1994. After the expiry of the tenure of membership of the writ Petitioner No. 1 on April 25, 1994, and after the issuance of the aforesaid Notification dated April 27, 1994, the Secretary, Municipal Board, Port Blair, wrote a letter to the Andaman and Nicobar Administration on April 28, 1994, relating to the operation of the Bank Account of the Municipal Board and, accordingly, the Andaman and Nicobar Administration passed an order authorising the Deputy Commissioner, Andaman district, to operate the Bank Accounts of the Municipal Board along with the Secretary, Municipal Board, Port Blair. On May 6, 1994, a writ application was filed by three writ Petitioners who are Respondents opposite parties, inter alia, praying for: (a) Issue of a writ in the nature of mandamus commanding the Respondents (i) to notify the election u/s 8(1) of the Regulation and to extend the tenure of the members till such election and not to impose proviso III of Section 8(1)(b)of the Regulation any further which is ultra vires Article 243-R of the Constitution, (ii) to allow the Petitioner No. 1 to act as chairman following the provision of Section 13(5)of the Regulation, (iii) to extend the term of the members of the Municipal Board till the election is held u/s 9(1A) of the Andaman & Nicobar Islands (Municipal Board) Regulation, 1957. (b) Issue a writ of or in the nature of certiorari commanding the Respondents to certify and transmit the records of the case in this Hon''ble Court so that on perusal conscionable justice may be .done.

On the said writ application the learned trial Judge passed an order staying the operation of the Notification dated April, 27, 1994, which was ultimately stayed by the Division Bench. On May 9, 1994, the Lt. Governor issued a Notification which is set out below:

No. F. No. 16-3/94�H & R (LSG). Whereas the term of all the members of the present Port Blair Municipal Board has expired on 8.5.1995; AND whereas the constitution of a new Municipality shall depend on the promulgation of the Regulation framed in pursuance of the Constitution (Seventy-fourth Amendment) Act, 1992;

Now, therefore, the Lt. Governor, Andaman and Nicobar Islands, in exercise of the powers conferred on him u/s 199 of the Andaman and Nicobar Islands (Municipal Boards) Regulation, 1957, as amended and all other enabling provisions in this behalf, hereby directs that the Deputy Commissioner, Andaman district shall exercise and perform all powers and duties of the said Board with immediate effect.

The matter was heard by the learned trial Judge and the learned trial Judge by an order and judgment dated September 26, 1994, made the rule absolutes by the following order:

This writ petition, therefore, succeeds in part. The orders dated 29th April, 1994, passed by the Respondent No. 1 authorising the Deputy Commissioner, Andaman district, to operate the Bank Account of the Municipal Board along with the Secretary of the Municipal Board being Annex. "Y" to supplementary affidavit as well as the order, dated 9.5.1994, issued by the Respondent No. 1 directing the said Deputy Commissioner to exercise and perform all powers and duties of the Municipal Board being Annex. "X" to the supplementary affidavit are hushed.

The writ Petitioner No. 1. being the Chairman of the Municipal Board, by operation of Section 13(5) of the 1957 Regulation shall continue to be the Chairman of the Municipal Board till a newly elected Chairman assumes office and he will be entitled to perform all his functions and duties as the Chairman in accordance with law in terms of the 1957 Regulation including the operation of the Bank Account, and the Respondents are restrained from interfering with the functioning of the writ Petitioner No. 1 as Chairman of the Municipal Board and from performing his duties as such Chairman, in any manner whatsoever. Since continuance of the members as a whole could not be directed for the reason stated hereinbefore, the writ Petitioner No. 1 being the Chairman of the Municipal Board is elected and takes over charge of his office.

Section 15(1) of the said old Regulation of 1957 provides that terms of office of the Chairman or Vice-Chairman shall be one year from the date of his election as such or the residue of his terms of office as a member whichever is less. The learned trial Judge relying on the provisions of Section 13(5) of the old Regulation held that this clause conferred a specific right upon the writ Petitioner No. 1 to continue as a Chairman irrespective of the expiry of the term of his office as Chairman or as a member and irrespective of the cessation of membership of all members under the old Regulation. The learned trial Judge was also of the view that the power of an elected Chairman to continue as Chairman under the provision of Section 13(5) of the old Regulation is not at the discretion of the Appellant but by virtue of the operation of law. It was held that such right of continuance is a vested right to the outgoing Chairman. The learned trail Judge also held that the Deputy Commissioner could not be appointed to exercise and perform all powers and duties of the Municipal Board in view of the provisions of Section 13(5) of the said Act, which conferred an authority upon the outgoing Chairman to continue irrespective of office of the Chairman or the member or by repeal of the old Act. The learned trial Judge also held that in normal course the learned trial Judge would have inclined to issue direction upon the Lt. Governor the Municipal Board so that till the election of the new members and assume office by them the old members, most of them elected and, therefore, having representative character would have continued, but the difficulty which the learned trial Judge felt in the instant case was because of the reason that during the pendency of the writ petition, 1994 Regulation had come into operation which had repealed 1957 Regulation and admittedly the Lt. Governor did not extend the tenure of the members as a whole and that would make the provision of Section 10(1)of new Regulation, 1994, inoperative. The learned trial Judge was also pleased to hold that in the instant case the action on the part of the Lt. Governor in not extending the life of members as contemplated under the old Regulation for a period of one year under Regulation 9(1) was also not bona fide.

Mr. A. S. Roy, learned Counsel, appearing on. behalf of the Appellant, contended that during the pendency of the writ application the old Regulation of 1957 was repealed and was replaced by a new Regulation of 1994 which was promulgated in view of the previsions of the 74th Amendment of the Constitution. 74th Amendment of the Constitution was made on April 28, 1993, and that when the new Regulation was promulgated on May 23, 1994, the Court is bound to take into consideration and decide the case on the basis of the new Regulation and in this context a reference was made to the decision of the Supreme Court in the State of Hariyana v. Chanan Mal AIR 1976 S.C. 1954 wherein the Supreme Court held that the Courts are bound to take judicial notice of the law as it exists after its amendment. The Court can only apply the law as it exists and not the law as it once was. Relaying upon the decision Mr. Roy contended that at the time when the case was decided by the learned trial Judge the new Regulation came into force and Court should have taken judicial notice of such new Regulation and in view of coming into operation of the new Regulation and in view of the fact the Court was bound to take judicial notice of the same. The Court was bound to decide on the basis of law laid down and/or that was existing at the time when the case was heard and disposed of. Accordingly, it was submitted that in view of the change of the law the learned trial Judge could not have passed an order directing continuance of the par under old Regulation in particular the provisions of Section 13(5) of the old Regulation. In this connection, Mr. Roy further submitted that reading the provisions of s.13(5) of the said Regulation has to be read with the provisions of Reg. 15(1) of said Regulation. According to Mr. Roy the term of office of Chairman was one year from the date of his election or his term of office as member whichever it less. In the instant case, the terms of office of member of the writ Petitioner No. 1 admittedly expired on April 25, 1994. It was the submission of Mr. Roy relying on the aforesaid provisions that under the scheme of the Act there shall be a Board which has a perpetual existence and life of the members is four years unless extended by one year by the Lt. Governor and the term of the office of Chairman is one year and every year there will be an election of Chairman and that the said section contemplates that if a Chairman elected for a particular year shall continue if within the period of one year next Chairman is not elected and in such circumstances in order to mitigate these difficulties it was the intention, of the Legislature to allow the Chairman to continue in office for the purpose of handing over charge to the newly elected Chairman. This continuance may be even after the expiry of the term of Chairman or the expiry of the term of members but this cannot. According to Mr. Roy, this provision did not authorise or confer any right upon the Petitioner No. 1 to continue in office until election under the new Act. for the purpose of constitution of a new Board in accordance with the new Regulation of 1994 would be constituted. Secondly, it was submitted by Mr. Roy that under the old Regulation the duties of Chairman is clearly provided in Section 43of the said Act. Provision of the said Section 43 is as follows:

It shall be the duty of the Chairman of a Board �

(a) unless prevented by reasonable cause, to convene and preside at all meetings of the Board to control in accordance with the bye-laws made in this behalf, the transaction of business thereat;

(b) to watch ever the financial and superintend the executive administration of the Board and to bring to the notice of the Board any defect therein coming to his knowledge, and

(c) to perform such other duties as are required of or may be imposed upon him by or under this Regulation.

Mr. Roy further submitted that under the old Regulation the Chairman had no authority or jurisdiction to exercise any of the powers and functions of the Board and, accordingly, Mr. Roy submitted that the learned trial Judge had committed an error in directing the writ Petitioner No. 1 to discharge all the powers and functions of the Board that was not there. If the law had conferred power upon the Chairman to discharge power and function of the Board in any particular situation, in that event the Court could direct that authority to discharge power and function of that authority in accordance with law. When the law did not provide such power, Court cannot give the authority to discharge the power and functions which law did not confer upon him, or in other words, the Court cannot confer power on any authority which the law never provided or contemplated. Mr. Roy at the outset took a preliminary objection that the writ application was not maintainable in the absence of the Municipal Board, It was submitted that in the absence of Board the writ application was not maintainable as the Board was not a necessary, proper party and in the writ application the writ Petitioner prayed for extension of the term of the members of the Municipal Board till the election is held u/s 9(1)(A) of the old Regulation, 1957. Of course, the learned trial Judge had chosen not to pass any order for extension of the life of the term of the members as the learned trial Judge was of the view that such an exercise of power would make a provision of Section 10(1) of the new Regulation ineffective or inoperative and that in view of the operation of the new Act such an order could not have been passed extending the life of the Board contrary to the provision of new Regulation. It was further submitted by Mr. Roy that there could not be any Chairman unless there was a Board. The Chairman is a Chairman of the Board, and in the absence of the Board the Chairman cannot be allowed to function, and that is not the spirit of the old Regulation. The learned trial Judge of course rejected this preliminary objection on the ground as no relief was prayed against the Board. The Board was not held to be a necessary and a proper party.

Mr. N. N. Adhikary, learned Counsel appearing on behalf of the writ Petitioner/opposite party submitted that Section 13(5)of the said Act conferred an independent statutory right upon the writ Petitioner opposite party to continue as a Chairman until a new Chairman is elected the right has been preserved even after repeal of the old Regulation by virtue of provisions of Section 10(b) of new Regulation. It is submitted by Mr. Adhikary that Section 13(1)fixed the tenure but Section 9(5) of the said Regulation pro-vides that notwithstanding expiry of the tenure the Chairman could continue to function as aforesaid even after the expiry of the tenure as Chairman or as a member. It was further submitted by Mr. Adhikary that in the facts and circumstances of the case the Lt. Governor could not have passed any order u/s 199 of the old Regulation which provides that if any difficulty arises in giving effect to the provisions of the said Regulation and, in particular, in relation to the constitution of a Board in any Municipal area, the Chief Commissioner may by order make such provision as may appear to him to be necessary or expedient for removing the difficulty. According to Mr. Adhikary, no difficulty was created by the expiry of the tenure of chairmanship or membership even after repeal of the old Act and coming into effect the new Regulation and, as such, the provision of Section 199 could not be invoked. In the facts and circumstances of the case, there was no difficulty as Section9(5) of the old Regulation had taken care of such difficulty and/or to overcome such difficulty.

With regard to the points of non-joinder of parties we are of the view that though the Board was a necessary party, such non-joinder had not resulted in failure of justice. A new election had to be made under the new Regulation for constitution of a Board and relief that was sought to be enforced was the right of the Chairman alone. But the question is what was the right of the Chairman and what powers and functions the Chairman can discharge as per the order of the learned trial Judge. We are of the view that by legal fiction the Chairman can continue by virtue of the provision of Section 13(5). But the important question is what power and function the Chairman can discharge in the physical absence of a Board under the old Regulation.

After considering the facts and circumstances of this case and considering the contentions of the learned Counsels appearing for the parties, we are of the view that in the instant case a peculiar situation has been brought about by 74th Amendment of the Constitution and upon promulgation of Andaman and Nicobar Islands (Municipal Boards) Regulation, 1994, under which the old law had to be repealed, a new Regulation had been promulgated strictly in conformity with the provisions of 74th Amendment of the Constitution and that a separate procedure had been laid down for the purpose of holding election and for constitution of the Board. During this interregnum period certainly a vacuum has created and that question is whether the Court can allow to the outgoing Chairman whose tenure as a Chairmanship and/or Membership expired would be allowed to continue to discharge all the powers and functions of the outgoing Board till election is held in accordance with the new Regulation. The old Regulation of 1957 did not confer any authority or jurisdiction upon the Chairman to discharge any or all the powers and functions of the Board. Section 43 of the Regulation, 1957, only provided some sort of supervisory power upon the Chairman of a Board and for watching financial and superintending executive administration of the Board and to bring to the notice of the Board any difficulty therein coming to his knowledge and/or to perform such other duties as are required of or may be imposed upon him by or under this Regulation. Under the Regulation the Chairman had the power to preside over the meeting of the Board and/or to discharge the duty as specifically imposed upon him u/s 47 of the Act. The Chairman cannot exercise any power save and except conferred upon him under the law. It is well-settled principle that a statutory authority is to discharge powers and functions strictly in accordance with the statute and any power and function discharged in contravention of such statutory power is an act of ultra vires. In our view the Court can only direct the authority concerned to discharge powers and functions as specifically imposed by the statute. The Court cannot take away any power which is statutory, nor the Court can confer any new jurisdiction or authority upon any person as the Court has no power to legislate. It is for the Legislature to confer power upon the authority or to take away the power. It is the duty on the part of the Court to direct the authorities to discharge powers and functions in accordance with the statute. We are of the view that it was beyond the power of this Court to pass such an order and the learned Judge has committed an error in directing the writ Petitioner opposite party to discharge all the powers and functions of the Board under old Regulation of 1957. If the Chairman had been conferred certain power, the Court can direct to discharge any incidental or ancillary power, but when no power was there, then the Court cannot confer any new jurisdiction or new authority upon the writ Petitioner opposite party to discharge all the powers, duties and obligation of the Board under the old Regulation. Accordingly, we are of the view that the learned trial Judge was wrong in directing the Chairman to continue or to perform all the functions and duties as a Chairman including operation of the Bank Account. And we are of the view that the learned trial Judge was also wrong in restraining the Appellants from interfering with the functioning of the writ Petitioner as Chairman of the Municipal Board and from performing his duties as Chairman. The learned trial Judge was wrong in directing that the writ Petitioner opposite party should also exercise and perform all powers and duties of the Municipal Board till the new elected members assume office traveling beyond the statute. We also place it on record that learned trial Judge was also wrong in holding that election was required to be made both under the old Regulation as well as under the new Regulation as the question of election under the old Regulation did not and could not arise as the old Regulation had been repealed by virtue of 74th Amendment of the Constitution which was replaced by a new Regulation promulgated strictly in accordance with 74th Amendment of the Constitution by the Andaman and Nicobar Inlands (Municipal Boards) Regulation, 1994. We are also of the view that in the instant case a difficulty arose with regard to constitution of the Board and/or discharging powers and functions of the Board and, as such, we are of the view that the notification issued by the Lt. Governor dated May 9, 1994, was validly passed as such a power was conferred upon the authority concerned in order to overcome this difficulty. In the peculiar facts and circumstances we are of the view for the ends of justice and for the purpose of discharging the functions of the Board, the Lt. Governor was right in issuing notification dated May 9, 1994. We are of the view that the order dated April 29, 1994, passed by the authority concerned, was also valid. For the foregoing reason the order and judgment passed by the learned trial Judge dated September 26,1994, is set aside. We also make it clear that only for the purpose of handing over the charge, the writ Petitioner opposite party may continue, but he cannot discharge any powers and functions of the Board as directed by the learned trial Judge in view of the fact that he has not been conferred with any powers under the old Regulation to represent the Board and/or to discharge any power and function which could be or could have been exercised by the Board. The Chairman cannot exercise any powers and discharge any duties which are not expressly confirmed by the statute. Lastly, we also place it on record that the said fact had not been disclosed in the writ application which has been brought on record by the Respondents in their affidavit-in-opposition. Accordingly, we set aside the order of the learned trial Judge by which the writ petition was directed to discharge all the powers and function, of the Municipal Board, but he may continue technically by legal fiction for making over charge to the Chairperson to be elected under the new Regulation, the appeal is allowed to the extent indicated above without any order as to costs.

Let a certified Xerox copy of this order be given to the Counsels appearing for the parties on usual undertakings.

S.N. Mallick, J.

I agree.