WP(C) 486/2009 BEFORE HON’BLE THE CHIEF JUSTICE MR J CHELAMESWAR HON’BLE MR JUSTICE BP KATAKEY These writ petitions being relate to the election to the Urban Local Bodies in t he State of Assam under the provisions of the Assam Municipal Act, 1956 (in shor t 1956 Act), as amended to bring in conformity with the Constitution (Seventy Fo urth Amendment) Act, 1992 and relating to the appointment of persons authorized by the State Government to perform powers and duties which under the said Act ma y be exercised and/or performed by the Board, by invoking the power conferred un der Section 26(5) read with Section 299 of the said Act, on the expiration of th e tenure of the elected body or authorizing another person to discharge such pow ers and duties by replacing the person already authorized, all the writ petition s are taken up for hearing and disposal together. 2. Writ Petition (Civil) Nos.486/09, 744/09, 805/09, 1046/09, 1047/09, 1376 /09, 1451/09, 1460/09 and 1544/09 are filed by the writ petitioners, apart from challenging the constitutional validity of sub-section (5) of Section 26 of 1956 Act, also challenging various notifications issued by the authority authorizing persons (respondents) to discharge the powers and duties of the Board, after th e completion of the tenure of the elected body, of whom they were either elected ’Ward Commissioners’ or ’Chairpersons’ and also have prayed for holding of the election as required under the Constitution as well as the 1956 Act, except in W P(C) No.1460/09 where the person who has been authorized, was not an elected mem ber of the earlier elected body. In WP(C) Nos.613/09 and 1386/09 the writ petiti oners have not challenged the constitutional validity of sub-section (5) of Sect ion 26 of the 1956 Act, but have challenged the notifications issued by the comp etent authority authorizing the Chairman and the Ward Commissioner, respectively , of the earlier elected body of two Urban Local Bodies, though they ceased to b e the Ward Commissioners on expiry of their tenure. In WP(C) No.828 of 2009 a ch allenge has been made to the notification dated 2nd February, 2009 issued by the authority authorizing the Deputy Director, Town and Country Planning, Tezpur to discharge the powers and duties of Tezpur Municipal Board in addition to his ow n duties by cancelling the authorization made in favour of the writ petitioner f or discharge of such duties vide order dated 22nd January, 2009. 3. The brief facts relevant for the purpose of the present batch of writ p etitions are that as the duration of the elected Urban Local Bodies concerned in all the writ petitions, except the WP(C) No.1460/2009, were coming to an end be tween 3rd February to 23rd February, 2009, the Director of Municipal Administrat ion on 22nd January, 2009 issued a communication to the Commissioner and Secreta ry to the Government of Assam, Urban Development Department, to make alternative and temporary arrangement, as provided under Section 299 of the 1956 Act and ti ll the election to those bodies are held in accordance with the provisions of th e said Act, to manage the affairs of such Urban Local Bodies, whose tenure autom atically comes to an end on expiration of 5(five) years from the date fixed for holding the first meeting of the newly constituted body after a general election . The Government of Assam in Urban Development Department in view of the said co mmunication as well in view of the fact that the tenure of the elected Commissio ners have expired on expiration of the 5(five) years from the date appointed for first meeting of such bodies, authorized the private respondents in the writ pe titions to discharge the powers and duties of the Board, in exercise of the powe r conferred under sub-section (5) of Section 26 of 1956 Act read with Section 29 9(b) of the said Act, on the ground that the election to those bodies cannot be held. In WP(C) No.1460 of 2009 the general election to elect the Ward Commission ers was last held on 16.06.1997 and 14.08.1997 was the date appointed for its fi rst meeting of the Board. The term of the elected body expired on 14.08.2002 hav ing completed the 5(five) years tenure. No general election as required under th e provisions of the Constitution as well as the 1956 Act, however, has been held thereafter and the Government of Assam in Urban Development Department authoriz ed different persons to discharge the powers and duties of the Board thereafter by issuing different notifications, the last being dated 02.03.2009 authorizing the private respondent, a member of the general public, to discharge the powers and duties of Bangaigaon Municipal Board by cancelling the earlier notification dated 26.07.2006 whereby and where under the Assistant Director, Town and Countr y Planning, Bangaigaon was conferred with such power. 4. The provisions of sub-section (5) of Section 26 of 1956 Act has been cha llenged and sought to be declared unconstitutional on the ground of it being con trary to the provisions of Article 243U(3) of the Constitution of India, which r equires holding of general election to the Urban Local Bodies before expiry of t he tenure of the earlier elected body, as according to the petitioners Section 2 6(5) of the 1956 Act has given the authority the power to do, what the Constitut ion has forbidden. The authorization of the private respondents to discharge the powers and duties of the Board, after the tenure of the elected bodies expire, where they were Commissioners, has been challenged on two counts, (i) that the r espondent authority has in spite of expiration of the tenure of the elected bodi es by virtue of the provisions contained in Article 243U and Section 26(1) of 19 56 Act, has allowed such Commissioners to discharge powers and duties of the Boa rd thereby doing something indirectly which cannot be done directly and (ii) tha t under Section 299 of 1956 Act the Government can authorize only Government off icials to discharge the powers and duties of the Board, after its dissolution. 5. We have heard the learned counsel appearing for the writ petitioners, th e learned Advocate General, Assam appearing on behalf of the State respondents a nd the learned counsel appearing on behalf of the private respondents, namely, p ersons who have been authorized by the State of Assam to discharge the powers an d duties of the Board after its dissolution. 6. The learned counsel for the petitioners questioning the constitutional v alidity of sub-section (5) of Section 26 of 1956 Act has submitted that Chapter IXA which has been brought into the Constitution by the Constitution (Seventy Fo urth Amendment) Act, 1992 (in short, Seventy Fourth Amendment), with the object of holding timely election to the Urban Local Bodies and Article 243U(1) having mandated that unless sooner dissolved under any law for the time being in force, every Municipality shall continue for 5(five) years from the date appointed for its first meeting and no longer, as well as Clause 3 of the said Article having mandated that an election to constitute a Municipality shall have to be complet ed before expiry of its duration specified in Clause (1), and the scheme of Chap ter IXA of the Constitution being not to allow an elected body to continue beyon d the period of 5(five) years, so that the Urban Local Bodies can be managed by the elected body only, any provision made in the local Acts, namely, 1956 Act, r elating to the election to constitute a Municipality must conform to such consti tutional requirement and the State Act cannot have a provision which has the eff ect of not holding the election before expiration of the duration of an elected body as required under Article 243U of the Constitution. According to the learne d counsel since sub-section (5) of Section 26 of 1956 Act provides for authorizi ng any person to discharge the powers and duties of the Municipality after the t enure of the elected body comes to an end, which has the effect of postponing th e election to an indefinite period of time as desired by the Government, the sam e is contrary to the constitutional provisions enshrined in Article 243U of the Constitution of India. 7. According to the learned counsel since Constitution mandates holding the election before expiry of the tenure of the elected body and the scheme of Chap ter IXA of the Constitution requires management of the affairs of Urban Local Bo dies by the elected body only, the State Election Commission in consultation wit h the State Government is under constitutional obligations to hold the election in proper time so that only elected bodies can manage the affairs of such Urban Local Bodies. No provision, therefore, can be made in the Municipal Act, after t he Seventy Fourth Amendment of the Constitution, which has the effect of not hol ding the election in due time as required under the Constitution, submits the le arned counsel. It has further been submitted that the State Government under the provisions of the Constitution is duty bound to do whatever is required to be d one so that the State Election Commission, who has been entrusted with the respo nsibility of holding the general election to the Urban Local Bodies, held such e lection in time. It has further been submitted that non-holding of the election before expiration of the tenure of the elected body of Urban Local Bodies and no t providing the requisite fund by the State, in fact, amounts to failure on the part of the State Election Commission and the State Government to discharge thei r constitutional obligations. 8. Challenging the notifications issued by the Government of Assam in Urban Development Department authorizing the private respondents to discharge the pow ers and duties of the Board, after expiration of the tenure of the elected body, it has been submitted by the learned counsel for the petitioners that even assu ming that the provisions of sub-section (5) of Section 26 of the 1956 Act is not ultra vires the provisions of the Constitution, Section 299 which comes into pl ay because of the provisions contained in Section 26(5) of the said Act empowers the State Government to authorize Government officials only to exercise the pow ers and duties of the Board, on its dissolution. According to the learned counse l it is evident from the proviso to Clause (b) of Section 299 that only the Gove rnment officials can be so authorize as the proviso speaks about the ’officer’. The learned counsel referring to Section 293 of the said Act further submit that the person who can be authorize under Section 299(b) can only be the Government officers such as the Commissioner of the Division, the Deputy Commissioner, Dir ector of Municipal Administration, Sub-Divisional Officer or any other officer a s by Section 293 such officers are empowered to enter into and inspect any munic ipal office and affairs of, or any immovable property in the occupation, of or a ny work in progress under, or any institution under the control and administrati on of the Board, apart from the power to call for and inspect any books of docum ent in possession or under the control of the board. The learned counsel draw su pports to their argument from a Single Bench decision of this court in Manoranja n Deka versus State of Assam and others. 9. According to the learned counsel in any case a Ward Commissioner or the Chairperson of an earlier elected bodies cannot be authorized by the Government to discharge the powers and duties of the Board, after the tenure of such electe d bodies come to an end by virtue of the provisions contained in the Constitutio n as well as in the 1956 Act, as, such Commissioners/Chairmen ceased to be the C ommissioners and Chairmen and if such is allowed to happen it would nothing but the fraud on the Constitution, as what cannot be done directly would then be all owed to be done indirectly. Such an action on the part of the respondent authori ties is nothing but the extension of the tenure of an elected Commissioner beyon d 5(five) years from the date appointed for holding the first meeting of the boa rd, which is not recognized by the Constitution, submits the learned counsel. 10. Referring to the provisions contained in Chapter IXA of the Constitution , more particularly the provisions contained in Article 243U and 243ZA, it has b een submitted by the learned counsel for the petitioners that it is the constitu tional obligations of the State Election Commission as well as the State Governm ent to hold the election before expiration of the tenure of the elected body and such constitutional obligations have to be performed by such authorities so tha t the constitutional mandate is not violated. But in the instant case, according to the learned counsel, though the State Election Commission has time and again written to the State Government to provide the necessary fund for the purpose o f holding the election, the State Government has not made available the requisit e fund for holding such election and thereby it has failed to discharge its cons titutional obligation of providing necessary fund to the State Election Commissi on for the purpose of election and to see that such elections are held in time. Referring to the decision of the Apex Court, in Kishansing Tomar versus Municipa l Corporation of the City of Ahmedabad & Ors, it has been submitted that Part IX A has been inserted in the Constitution so that there is no delay in the constit ution of the new Municipality after every 5(five) years and in order to avoid th e mischief of delay in the process of election and allowing the nominated bodies to continue. According to the learned counsel, keeping in view the said objecti ves it is necessary for the State Government to recognize the significance of th e State Election Commission and to abide by the directions of the Election Commi ssion relating to the holding of election as the constitutional duties of holdin g election to the Urban Local Bodies vest on the State Election Commission. The learned counsel, therefore, submit that necessary directions may be issued to th e State Government as well as to the State Election Commission to take all requi red steps so that elections can be held immediately and till then to manage the affairs of such bodies by authorizing Government officials to discharge the powe rs and duties of the Board. 11. The learned senior counsel appearing for the petitioner in WP(C) No.828 of 2009, which is on a different footing than the other writ petitions, challeng ing the order dated 02.02.2009 passed by the Commissioner and Secretary to the G overnment of Assam, Urban Development Department authorizing the Deputy Director , Town and Country Planning to discharge the powers and duties of Tezpur Municip al Board by cancelling the authorization of the petitioner to discharge such pow ers and duties made vide order dated 22.01.2009, has submitted that the petition er having once been authorized to discharge such powers and duties, he cannot be divested of such power without sufficient ground, which also must be reflected in the order itself by which he has been divested for such power. According to t he learned senior counsel the petitioner having once been authorized, he cannot be removed arbitrarily and since the action on the part of the State respondents is arbitrary, it strikes at the root and therefore, it cannot be sustained. Ref erring to the decision of the Apex Court in Commissioner of Police versus Gordha ndas Bhanji it has further been submitted by the learned senior counsel that the authority cannot play fast and loose with the powers vested in them, and person s to whose detriment orders are made, entitled to know with exactness and precis ion the reason for which such orders are made. According to the learned senior c ounsel since the petitioner has been divested of the power of discharging the po wers and duties of the Board without there being any reason whatsoever to revoke the authorization made in his favour on 22.01.2009, the impugned order dated 02 .02.2009 authorising the Deputy Director, Town and Country Planning to exercise the powers and duties of the Board requires to be interfered with. 12. The learned Advocate General appearing for the State respondents on the contrary supporting the provisions of sub-section (5) of Section 26 of the 1956 Act has submitted that though Article 243U of the Constitution mandates holding of the election to the Urban Local Bodies prior to expiration of the tenure of s uch elected body so that the elected body can manage the affairs of such Urban L ocal Bodies, the State Legislature has thought it fit to enact the provision as contained in sub-section (5) of Section 26 of 1956 Act, in case, for good and su fficient reason the election cannot be held in time. Such provision, according t o the learned Advocate General, is not ultra vires the provision of Article 243U of the Constitution as it has not extended the tenure of elected body and has d ealt with only the situation that may arise for not holding the election in time , for good and sufficient reason. The learned Advocate General submits that by e nacting the provisions of Section 26(5) of the said Act only the gap has been fi lled up, as the Constitution does not to deal with such situation. According to learned Advocate General, Section 26 of the said Act clearly stipulates that as soon as the tenure of the elected body comes to an end it stands dissolved and t he administration of such Urban Local Bodies in the eventuality of not holding e lection is to be managed in accordance with the provisions contained in sub-sect ion (5) of Section 26 read with Section 299 of 1956 Act. The learned Advocate Ge neral further submits that Section 299 does not debar the State Government from authorizing any person other than the Government officials to discharge the powe rs and duties of the Board, after its dissolution, as it is evident from the lan guage used in Clause (b) of Section 299 that the State Government can authorize ’such person’, which cannot be interpreted to be the Government officials only, which may even include any Ward Commissioner who vacated the office due to expir y of his tenure, by virtue of the provisions contained in Article 243U of the Co nstitution as well as Section 26 of the 1956 Act. The learned Advocate General h as, however, submitted that the State shall take all required steps so that elec tion can be held by the State Election Commission by August, 2009. 13. In so far as the Writ Petition (C) No.828/09, it has been submitted that since under Section 299(b) of 1956 Act the Government only nominates a person t o discharge the powers and duties of a Board, after its dissolution, it can canc el such nomination and nominate another person in his place for which no reason is required to be given, as, such nominated person has no right over any post to claim to be nominated. Moreover, no reason having been assigned while nominatin g the writ petitioner in the said writ petition to discharge the powers and duti es of the Board, he cannot challenge the subsequent order nominating another per son in his place on the ground that the same does not reflect any reason. 14. Mr. Pathak, the learned Senior counsel appearing for some of the private respondents supporting the submissions of the learned Advocate General has subm itted that though the constitutional scheme requires holding of election before expiry of the term of an elected body, Section 26(5) of 1956 Act has been enacte d to take care of the eventuality that may arise for not holding the election in time. According to the learned senior counsel a person who has been authorized to discharge the powers and duties of the Board under Section 299(b) of 1956 Act is the nominee of the State Government only and he is to discharge such powers and duties on behalf of the State Government and such nominees may even be the e lected Commissioner or Chairman of the earlier Board whose term has expired and cannot be restricted to the Government officials only. Mr. Borbora, the learned senior counsel for the private respondents in another writ petition, in addition , has submitted that there is no impediment in the 1956 Act to appoint any perso n, which includes the earlier elected person, as Clause (b) of Section 299 speci fically empowers the State Government to authorize any ’such person’. It has fur ther been submitted that the term ’Officer’ as occurring in proviso to Section 2 99(b) of the said Act does not refer to the Government officials only and in any case the Commissioners/Chairmen of such elected bodies being public servant wit hin the meaning of Section 21 of the Indian Penal Code, such Commissioners/Chair men can also be authorized to discharge the powers and duties of the Board under Section 299(b) of 1956 Act. 15. Mr. Bhattacharjee, the learned senior counsel appearing for the private respondent in WP(C) No.613 of 2009 has submitted that the discretion conferred o n the Government by virtue of Section 299(b) of authorizing ’such person’ to dis charge the powers and duties of the Board, after its dissolution, is absolute an d such discretion can be exercised by the Government in such a way so that the o bjectives of the Act are achieved. It has further been submitted that the Govern ment by virtue of the power conferred by the said provision can nominate any per son to discharge the powers and duties of the Board, except, however, such perso n against whom there are allegations. In the instant case the authorization of t he respondent having not been challenged on the ground of having allegations aga inst him, the writ petition deserves to be dismissed. Mr. A.K. Goswami and Mr. M .K. Choudhury, the learned senior counsel appearing for the private respondents in WP(C) Nos.1047 of 2009; 1544 of 2009 and WP(C) Nos.744 of 2009; 1451 of 2009, respectively, also support the contention of the learned counsel for the afores aid respondents as noted above. 16. Mr. Dutta, the learned senior counsel appearing for the respondents in W P(C) Nos.486 of 2009 and 1460 of 2009, supporting the submissions of the learned Advocate General has submitted that since the State Legislature inserted the pr ovision of Section 26(5) in the statute book to deal with the extraordinary situ ation and the Constitution having not provide any provision to deal with such si tuation, it cannot be said that the said provision is unconstitutional being ult ra vires Article 243U, when Section 26 specifically provides that the tenure of the elected body shall come to an end on expiry of 5(five) years from the date a ppointed for its first meeting. Mr. Dutta submits that a provision of law could be challenged as unconstitutional only on two counts i.e. the lack of legislativ e competency or being against the fundamental or other constitutional rights. Ac cording to the learned senior counsel there is no dispute that the State legisla ture has the legislative competency to legislate 1956 Act, therefore, only groun d which left open to the petitioner is to demonstrate that such a provision of l aw either violative of the fundamental rights or other constitutional rights, wh ich according to