WP(C) 2193/2008 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER B.K. Sharma, J. The petitioners, the erstwhile councillors of the Gauhati Munici pal Corporation (GMC), who otherwise would have continued as Councillors upto Ja nuary, 2009, but for the dissolution of the elected body by the impugned order, have invoked the writ jurisdiction of this Court assailing the legality and vali dity of the action on the part of the State respondents towards dissolving the e lected body. 2. As stated above, the petitioners are the elected Councillors of the GMC representing different Wards. Be it stated here that the last general election o f the GMC was held for 57 Wards and 57 Councillors got elected, out of which one died. Be it also stated here that the general strength of the body is maximum 6 0. records have revealed that in addition to the elected members, there are 8 ex -officio members with voting rights. 3. A general meeting of the elected body of the corporation was held on 7.5 .2008 and amongst others, the resolution for election of Mayor and Deputy Mayor was also adopted. As per the resolution, the election was to be held on 22.5.200 8. Such resolution had to be adopted as the term of office of both the Mayor and the Deputy Mayor was to expire on 22.5.2008. The proceedings of the general mee ting held on 7.5.2008 and the resolutions adopted therein were communicated to a ll concerned including the State Government. 4. After the aforesaid meeting and the resolution, the Municipal, Secretary , GMC circulated the agenda of the election of the Mayor and the Deputy Mayor vi de Annexure-A notice dated 15.5.2008 intimating the time and venue of the electi on, which was 22.5.2008 at 11.00 AM at the GMC Conference Hall. After the notice , the Commissioner, GMC by his Annexure-B letter dated 15.5.2008 allocated dutie s and responsibilities to the officers mentioned in the letter for smooth functi oning of the election. However, in the meantime, the Municipal Secretary, GMC is sued a notice dated 21.5.2008 (Annexure-C) interalia stating that due to resigna tion of nearly 50% of the Councillors of the GMC and as directed by the Governme nt vide letter dated 21.5.2008, the scheduled election would stand postponed unt il further order. Be it stated here that 21.5.2008 was a declared holiday on acc ount of Janmotsava of Sri Sri Madhabdev and consequently, State Government offic es including that of GMC remained closed and were not functioning. 5. According to the petitioners, they came to know about the postponement o f the election only on 22.5.2008, when they went to attend the election as sched uled. Immediately on coming to know about the same, the petitioners alongwith 25 other Councillors (totaling 29) submitted an application (Annexure-D) before th e Commissioner, GMC requesting him to hold the election within three days as per the provisions of Section 84 (2) of the GMC Act, 1971. On 26.5.2008, the petiti oners filed a writ petition registered and numbered as WP(C) No. 2077/2008 appre hending dissolution of the corporation and also assailing the aforesaid notice d ated 21.5.2008. However, on the date of filling the writ petition, the elected b ody of the corporation was dissolved with immediate effect by the impugned order dated 26.5.2008 (Annexure-F) purportedly invoking the provisions of Section 425 (1) of the GMC Act, 1971. 6. As per the aforesaid order dated 26.5.2008, attention of the Government was attracted to a particular news item dated 8.5.2008 under the caption bid to open toll-gates wherein it was elaborated that in the general body meeting of the corporation a decision had been taken to open toll-gates contrary to the Gov ernment instruction and the orders of this Court in that regard. The order also indicated about issuance of show cause notice to the corporation by letter dated 15.5.2008 under Section 425 of the Act as to the reasons for taking such decisi on. The order further mentioned about the purported reply dated 19.5.2008 of the corporation containing the note of the Mayor. As per the order, legal opinions were obtained from the Legal Remembrances, Assam as well as the Advocate General of the State pertaining to the matter and the consequent decision to dissolve t he corporation as per the provisions of Section 425 (1) of the Act. 7. It is the case of the petitioners that they could come to know about the purported show cause notice and the purported reply only from the impugned orde r. According to them, no notice was ever served on the corporation and that they were also not aware of any reply submitted in respect of the notice. On enquiry , they came to know that it was the Commissioner, GMC, who had received the show cause notice and thereafter, without intimating the elected body furnished repl y. According to the petitioners, the Commissioner, inspite of receipt of applica tions from the Councillors failed to furnish copy of the show cause notice, but only furnished a unsigned copy of the reply (Annexure-G). 8. It is in the aforesaid fact situations, the petitioners have invoked the writ jurisdiction of this Court assailing the legality and validity of the enti re exercise on the part of the Government towards dissolution of the elected bod y. Apart from the ground that no notice was served on the corporation towards di ssolution of the elected body, it has also been urged that the manner and method in which the elected body has been dissolved is violative of the constitutional mandates. According to the petitioners the grounds assigned in the impugned ord er are non-existent and the dissolution of the elected body on such grounds is n othing but colourable exercise of power. 9. It has been urged in the writ petition that the State Government does no t have any role to play in the affairs of the municipality since it is a body co rporate and guided by its own Act and the Constitution of India. That being the position, the scheduled election could not have been postponed irrespective of r esignation tendered by 27 Councillors of the particular political party. Be it s tated here that after such resignation tendered by 27 Councillors, the body comp rised of 29 Councillors and 8 ex-officio members with voting rights. 10. Counter affidavits have been filed both by the GMC as well as the State respondents in the Guwahati Development Department. In both the affidavits, the action on the part of the State respondents has been justified. According to the affidavits, the action on the part of the elected body of the corporation warra nted interference invoking the power under Section 425 (1) of the Act. In the af fidavit-in-reply filed by the petitioners, their stand in the writ petition has been reiterated. 11. Mr. S. Katakey, learned counsel for the petitioners, in his persuasive p ursuits and elaborate arguments submitted that the entire action on the part of the State respondents is actuated by malafide and colourable exercise of power. According to him, there being failure towards compliance of the principles of na tural justice before the impugned action was taken as mandated under the provisi ons of the Act as well as the Constitution of India and the manner and method in which a democratically elected body was set at naught warrant interference of t his Court. 12. Countering the above argument both Mr. K.N. Choudhury, learned Additiona l Advocate General, Assam assisted by Ms. R. Chakraborty, learned Additional Sr. Govt. Advocate, Assam as well as Mr. D. Saikia, learned Standing Counsel, GMC u pon a reference to the purported resolution adopted by the body in its meeting h eld on 7.5.2008 towards opening toll-gates, which according to them was in viola tion of the direction of this Court and was without the approval of the Governme nt submitted that such action on the part of the elected body created a situatio n in which the Government had no option than to invoke Section 425 (1) of the Ac t. Both Ms. R. Chakraborty, learned State Counsel and Mr. D. Saikia, learned Sta nding Counsel, GMC have produced their respective records. In addition, Mr. Chou dhury, learned Additional Advocate General, Assam pressing the Misc. Case No. 18 94/2008 submitted that the writ petition is bad for non-joinder of necessary par ties. According to him, the writ petition cannot be adjudicated upon in absence of the Mayor and the Administrator of the corporation. 13. I have given my anxious consideration to the submissions advanced by the learned counsel for the parties. I have also gone through the relevant files, i n which the impugned decision has been taken. In consideration of the same, I no w proceed to deal with the matter judging the viewpoints expressed by the learne d counsel for the parties. 14. But for the dissolution of the elected body by the impugned order dated 26.5.2008, the elected body would have continued upto 11.1.2009. Article 243 U o f the Constitution of India provides duration of Municipalities etc. in terms of which every Municipality, unless sooner dissolved under any law for the time be ing in force, shall continue for 5 years from the date appointed from its first meeting and no longer. It further provides that a Municipality shall be given a reasonable opportunity of being heard before its dissolution. The Government too k its impugned decision in the form of the impugned order dated 26.5.2008 invoki ng the provisions of Section 425 (1) of the GMC Act, 1971. As per the said provi sion, if, at any time, the Government is satisfied that a corporation is not com petent to perform, or persistently makes default in the performance of the dutie s imposed on it by or under the Act or any other law, or exceeds or abuses its p owers, the Government may, by notification, in which the reasons for so doing sh all be stated, declare the corporation to be superceded for a period not exceedi ng one year. However, before such an order is made, a reasonable opportunity to show cause shall be given to the corporation. 15. Section 423 and 424 of the Act empower the Government to annul illegal p roceedings of the corporation and to suspend its action. If the Government is of the opinion that the execution of any resolution or order of the Corporation is in contravention of or in exercise of the powers conferred by the Act or of any other law for the time being in force or is likely to lead to a breach of the p eace or to cause injury or annoyance to the public or to any class or body or pe rsons, the Government may by order in writing, suspend the execution of such res olution or ordered, or prohibit the doing of any such act. However, before such an action, the Government will have to give the corporation an opportunity of sh owing cause why such an order should not be made, unless in the opinion of the G overnment the immediate making of such order is necessary. 16. Needless to say that the life of a democratically elected body must not be curtailed by the authority, which is empowered to do so unless the situation is so grave that such curtailment is unavoidable. Section 425 (1) of the Act env isages such situations, which are - Corporation is not competent to perform; per sistently makes default in the performance of the duties imposed on it or exceed s or abuses its powers. During the course of hearing learned counsel for the res pondents submitted that it is the third category in which the matter falls and b ecause of which the Government had to take the decision to dissolve the body cou pled with the fact that in the meantime 27 Councillors had resigned. 17. If we go by the show cause notice dated 15.5.2008, copy of which has bee n annexed to the counter affidavit filed by the respondent corporation, the only allegation made was that the General Council of the corporation had decided to re-open the toll-gates in violation of the judgment of this Court in Zakir Hussa in Vs. State of Assam reported in 2003 (1) GLT 644, as well as the order dated 1 2.6.2006 passed in PIL Case No. 33/2006 at a time when the State Government was examining the matter of framing of bye laws for installation of toll-gates. It i s on that ground the notice was issued asking to show cause. The plea relating t o issuance of notice only to the Commissioner, GMC and not to the purported offe nding body and the submission of show cause reply too by the Commissioner withou t placing the show cause notice to the General Council for its reply will be dea lt with a little later. 18. In response to the aforesaid show cause notice, the Commissioner, GMC su bmitted his reply on 19.5.2008 stating that contrary to his consistent stand aga inst opening the toll gate, the General Body of the corporation took the decisio n for opening of toll-gates in its meeting held on 7.5.2008. In the show cause r eply, it was further indicated that in the general body meeting majority of the Councillors supported the proposal for opening the toll-gates, although, the May or was of the view that the Government approval in the matter should be awaited. As per the purported view of the Mayor, incorporated in the show cause reply, s he had to comply with the request of constituting the Monitoring Committee to wo rk out the modalities towards supervision and collection of tolls from the toll- gates. 19. Although, in the notice, only allegation made was the purported violatio n of the orders of this Court in resolving to open the toll-gates, but in the im pugned order, three additional grounds towards dissolution of the General Counci l have been assigned. They are - (i) the purported arising of dramatic and unpre cedented situation due to tendering of resignation by about 50% of the Councillo rs; (ii) the views of the Advocate General and (iii) inspite of receipt of the s how cause notice, the General Council not reversing its earlier decision to open toll-gates. 20. It is in the above context, Mr. Katakey, learned counsel for the petitio ners referred to the decision of the Apex Court in Mahinder Singh Gill Vs. the C hief Election Commissioner, reported in (1978) 1 SCC 405 in which it was emphasi zed that an order made by the statutory functionary based on certain grounds mus t be judged by the reasons so mentioned and cannot be supplemented by fresh reas ons. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought ou t. This view has been reiterated in Bhikhubhai Bhithlabhai Patel Vs. State of Gu jarat reported in (2008) 4 SCC 144. 21. Strictly speaking, it is not a case of supplementing the grounds assigne d in the impugned order in the form of affidavit or otherwise. However, the emph asis on the part of the petitioners was by way of bringing an analogy with that kind of a situation in the instant case in view of the fact that the allegations made in the show cause notice being only in respect of the purported resolution to open toll-gates in defiance of the orders of this Court, but in the impugned order additional grounds of obtaining legal opinions and the resignation tender ed by some of the Councillors were assigned. According to the petitioners irresp ective of resignation tendered by 27 Councillors, the General Body of the corpor ation comprising of 29 Councillors could have continued for its entire life span as per the provisions of the Act and the Constitution of India. Further case of the petitioners is that if the legal opinions obtained in the matter formed bas is of the impugned order, it was incumbent on the part of the Government to appr ise the same beforehand by way of show cause notice to the General Body of the c orporation. 22. Section 425 deals with the powers of the government to superceded a corp oration under the circumstances stated therein. The only circumtance indicated i n the show cause notice was the purported resolution adopted towards opening tol l-gates in defiance of the orders of this Court. The question is as to whether, even if such an allegation is accepted, same would fall in the categories under which the Government upon recording satisfaction to do so can supercede the corp oration. In the show cause notice there is no allegation of any incompetence, ma king persistent default or exceeding or abusing its powers. However, during the course of hearing learned counsel for the respondents submitted that although th ere was no such allegation, but going by the conduct of the General Body in adop ting resolution towards opening the toll-gates in defiance of the orders of this Court, same was in the category of exceeding or abusing its powers. 23. At the first instance it must be pointed out that on a reading of the mi nutes of the meeting of the Body held on 7.5.2008, nothing could be gathered tha t the Body took a resolution to open the toll-gates. What has transpired is that the Councillors comprising the Body in the meeting held on 7.5.2008, discussed on various issues pertaining to the corporation including that of finance. In th e meeting the provisions of the Act and the existing by-laws of the corporation framed in 1976 and 1997 was also discussed. It was also pointed out that in Zaki r Hussain (supra), this Court held the 1997 by-laws to be invalid. It was furthe r discussed that the matter was sent to the Government for approval permitting t he corporation to install toll-gates at prescribed places. Some members expresse d the view that the tax could be collected under the 1976 by-laws and that there was no ban imposed either by the Government or this Court towards opening of to ll-gates. 24. During the discussion of the matter, it was resolved to constitute an al l party committee to examine the matter in its true prospective. It was also obs erved that the committee should sit early and finalise the matter. As to whether in view of the decision in Zakir Hussain (supra) and the observation made in th e PIL, there was complete ban on opening toll-gates is not the issue to be resol ved in this proceeding. In the PIL, the order passed by this Court was that the Government would take appropriate decision in the matter as expeditiously as pos sible preferably within three months. The Court discussed about the contention o f the petitioner that the proposal for establishment of toll/check gates to be s et up within GMC area should be finalized and that the Government had misinterpr eted the ratio of the judgment in Zakir Hussain (supra). It was also noted that according to the petitioner such inaction on the part of the Government amounted to interference in the functioning of the corporation. 25. In Zakir Hussain (supra) the 1997 by-laws, interalia permitting installa tion of check gates in the National Highway was under challenge. It was observed that the GMC did not have the power to install collection counter on the Nation al Highway under 1997 by-laws and setting up of the same on the National Highway was completely illegal. It was further observed that the 1997 by-laws could sti ll survive, if the same were read subject to limitation that the collection coun ters could not be set up by the Municipality on the National Highway. It was in that context Mr. Katakey, learned counsel for the petitioners submitted that wha t is barred is the setting up of toll-gates in the national Highways but not set ting up of the same beyond National Highways coupled with the empowerment as per the provisions of the Act and the 1976 by-laws read with Article 243 X. He subm itted that it was a methodical ploy on the part of the Government to fall back o n the aforesaid judgment and the observation made in the PIL projecting the same to be so serious so as to attract dissolution of the Corporation invoking the p rovision of Section 425 of the Act. 26. Apart from the fact that in the minutes of discussions held on 7.5.2008, there was no resolution as such to open toll-gates from a particular date, the discussion in the meeting only pertained to opening of toll-gates keeping in min d the observations made in Zakir Hussain (supra). To examine the matter in detai l, the all party committee was constituted. In the show cause notice such course of action on the part of the elected members of the Body was faulted with and t he Commissioner was issued with the show cause notice asking him to furnish repl y. Such transaction of business in the General Council of the corporation and wh en there is nothing to show that in fact any workable resolution towards opening toll-gates in defiance of the orders of this Court was adopted, the action on t he part of the Government to dissolve the Body on that score cannot be said to b e backed by any logical, reasonable and justifiable reasons, except the determin ed effort to dissolve the Body for the reason other than any valid reasons. Furt her, even accepting that infact such resolution as indicated in the show cause n otice was adopted, same could have been tackled taking recourse to the provision s of Section 423/424 of the Act discussed above. 27. We now proceed to deal with the plea of the petitioners that the show ca use notice addressed to the Commissioner and the reply thereto submitted by the Commissioner was not the compliance of the mandates envisaged under Section 425 (1) of the Act and Article 243 U of the Constitution of India. It is in this con text, learned counsel for the parties have referred to various provisions of the Act. 28. Section 4 dealing with Municipal Authorities provides that there shall b e a corporation charged with the Municipal Administration of the City of Guwahat i to be known as the Municipal Corporation of Guwahati. For efficient performanc e of the functions of the corporation there shall be Municipal Authorities like the Standing Committee and the Commissioner. Section 5 makes provision for const itution of the corporation with councilors subject to maximum of 60 members. As per Section 5 (2) the corporation shall be a body corporate with perpetual succe ssion. Section 29 deals with appointment of Commissioner, who shall not be a mem ber of the corporation but shall be a whole time officer of the corporation with the right to attend all the meetings of the corporation without any right of vo ting. Dealing with his power, Section 34 provides that the executive power for t he purposes of carrying out the provisions of the Act shall be vested in him, wh ich, however, shall always be subject to restrictions, limitations and condition s imposed. 29. As per Section 51 of the Act, for the purposes of constituting the corpo ration, the Commissioner shall, by one or more notifications published in the of ficial gazette, call upon all the Wards to elect Councillors in accordance with the provisions of the Act. Section 52 provides that when a vacancy occurs in the office of a councilor, the Commissioner shall, as soon as may be, after the occ urrence of