1. This is an appln. under Art. 226, Const. Ind., for a writ in the nature of Mandamus or in the nature of Quo Warranto or for such further or other order as to this Ct. may seem fit and proper.



2. A Rule nisi was issued by B. K. Guha J. on 10-10-1950 and the matter has now come up before me for the hearing of that Rule.

3. The facts are that in February 1950 eleven out of the 17 elected Comrs. of the Bally Municipality including the petnr. made a representation to the Secretary, Dept. of Local Self-Government, West Bengal, making serious allegations against the opposite party, the Chairman of the Municipality in relation to the management of the affairs of the Municipality. In the enquiry started by the Govt. as a result of such representation the majority of the charges brought against the opposite party were proved and the Govt. was of the opinion that the only course left was to remove the opposite party from the office of Chairman.



4. One of the Comrs. having left for Pakistan, the Govt. announced his removal from office on 14-7-1950 and declared his seat as vacant.



5. At a special meeting convened upon the requisition of the said eleven Comrs. to consider a resolution for removal of the opposite party from the office of the Chairman eleven Comrs. voted for the resolution, three voted against and two were absent. The meeting was held on 2-9-1950.

6. The opposite party has challenged the validity of the resolution as according to him the resolution was not passed by a majority of two-thirds as required under s. 61 (2), Bengal Municipal Act, 1932.

7. Under S. 15 (1), Bengal Municipal Act, (xv [15] of 1932) the then Provincial Govt. specified that the body of Comrs. should consist of twenty-two Comrs.

8. By virtue of S. 16, Bengal Municipal Act, seventeen Comrs. of the Municipality were to-be elected and five Comrs. were to be appointed by the Provincial Govt.



9. This S. 16 was amended by the Bengal Municipal (West Bengal) Amendment Act (XI [11] of 1947) which came into force on 5-1-1948 and provided as follows: "The Comrs. of the Municipality shall be deemed to be constituted of the elected Comrs. only."

10. In the amending Act there is also the following provision:

"Section 13 (d): The number of Comrs. of the Municipality shall be deemed to be the total number of elected seats on the municipality as fixed by the existing orders of the Provincial Govt. until the number is altered by the Provincial Govt."

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1. Section 61 (2), Bengal Municipal Act, 1932, provides as follows:

"An elected chairman and a Vice chairman may at any time be removed from his office by a resolution of the comrs. in favour of which not less than two-thirds of the whole number of the comrs. have given their votes at a meeting specially convened for the purpose."

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2. The contention of Mr. Sen, the Senior Govt. pleader, who appears for the opposite parky is that the "whole number" in S. 61 (2) means the total number of elected seats on the Municipality as fixed by the orders of the Govt. In other words the "whole number of the Comrs. of the Bally Municipality is 17.

13. Two-thirds of this number is 11.1/3 and as only 11 Comrs, that is, less than two thirds of the whole number of Comrs. voted for the resolution the resolution was ineffective and so the opposite party is still functioning and is entitled to function as chairman of the municipality.



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4. Mr. H. N. Sanyal, the learned counsel appearing for the petnr. contends that S. 61 (2) has to be read with S. 3 (53) of the Act. Section 3 (53) is as follows:

"The Commissioners means the persons for the time being appointed or elected to conduct the affairs of any municipality under the Act."

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5. According to Mr. Sanyal the "whole number" in S. 61 (2) means the number of Comrs. who were functioning at the material time as Comrs and who were capable of voting and were entitled to receive notices about any meeting to be convened. Mr. Sanyals contention is that the "whole number" was at the material time 16 as one Comr. had ceased to function and his seat was declared vacant.

16. It is true that the expression "for the time being" means "at the present time" but it is a well known rule of interpretation that this expression has to be construed with reference to the context in which it occurs.

17. The real question is what is the true construction of S. 61 (2). The words "the Comrs," occurring in S. 61 (2) have to be interpreted with reference to the context in which they occur.It is clear that "whole number" in S. 61 (2) means the total number. Section 13 (d) of the Amending Act states in clear and unambiguous language that the expression "number of Comrs. of the Municipality" means the total number of elected seats on the municipality. In the case of Bally Municipality the Govt. has only declared one seat as vacant.In other words the seat "has not been done away with but it still exists and Mr. Sen has stated before me that this seat is intended to be filled up in the near future.



18. Mr. Sanyals argument lays stress on the words "the Comrs." in S. 61 (2) but completely ignores the words "whole number" in that section.When words are introduced in the vocabulary of a Statute they are so introduced with a purpose. It is a well-known proposition that words are not used in a Statute without a meaning and effect must be given to all the words used for the Legislature is deemed not to waste its words or say anything in vain.



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9. I have no hesitation in holding that the words "whole number of the Comrs." in S. 61 (2) has reference to the total number of elected seats in the municipality and such number in the Bally municipality is and was at all material times 17.

20. The next question is as to whether the voting by 11 Comrs. was sufficient compliance with the requirements of S. 61 (2). In my view the answer must be in the negative. The Section requires that not less than two-thirds of the whole number of the Comrs. must vote before a chairman or a Vice-chairman can be removed. The Section is mandatory. The number of votes must not be less than two-thirds in any event but it may be more. Two-thirds of 17 is 1

1. 1/3. Mr. Sanyals argument is that the fraction should be ignored and the next whole number below it should be accepted as the number. Mr. Sanyal argued that as compliance is impossible in the nature of things and fraction of a person capable of voting is an impossibility the compliance should be dispensed with. In my view, however, the requirement of two-third majority in S. 61 (2) is a condition precedent which must be fulfilled before the Comrs. can derive power or jurisdiction to remove a chairman or a vice chairman from office. I am clearly of the opinion that voting by 11 Comrs. was not sufficient compliance with the sanction, and the resolution for removal of the opposite party was ineffective and must be deemed to have been lost.

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1. Mr. Sen has also contended before me that this appln. under Art. 226 of the Constitution is not maintainable as it was open to the petnr. to have recourse to an ordinary suit for declaration that the opposite party was no longer in his office of chairman and was not entitled to function as such and also for injunction restraining him from functioning as such. He submits that when there is another adequate and specific remedy Court will not issue writs in the nature of mandamus nor make any order or give any direction under Art. 226 of the Constitution.

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2. It is an elementary principle that re-course ought not to be allowed to an extraordinary remedy when it is not really needed, and a mandamus will never be granted to enforce the general law of the land which may be enforced by action. See Kesho Prosad v. Board of Revenue, 38 Cal. 553 [LQ/CalHC/1911/131] at p. 556 : (10 I. C. 253).



23. In the case of In re Nathan, the Ct. of Appeal in England has also affirmed the proposition stated above. At p. 471 (1884) 12 Q. B. D. 461: (53 L. J. Q. B. 229) Brett M. R. observed as follows:

"If an action will lie then a mandamus cannot issue. That is admitted by everybody. Therefore the foundation of the application is that no such action will lie. . . "

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4. Banerjee J. has followed this principle in the case of Nani Lal v. Satyendra, 54 C. W. N. 42.

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5. In the case of Informations or Writs in the nature of a Quo Warranto such Informations or Writs are not issued as a matter of course where there is an alternative remedy which is equally appropriate and effective. (Halsbury Vol. 9, para 1380).

26. It is true that under Art. 226 of the Constitution the power of the Ct. is not confined to the power to issue Writs in the nature of mandamus and other Writs mentioned therein. Under the Article, the Ct. has wider powers. But the power of the Ct. is discretionery and as has been pointed out by the Allahabad H. C. the proceedings under Art. 226 being of a summary and coercive nature the powers under the Article should be sparingly used and only in those clear cases where the rights of person have been seriously infringed and he has no other adequate and specific remedy available to him. See Indian Sugar Mills Assocn. v. Secretary, Government of Uttar Pradesh, A. I. R

. (38) 1951 ALL.

1. : (1950 A. L. J. 767 (F.B.).

27. In an earlier case in the Patna H. C. in interpreting Art. 226 of the Constitution Mere dith C. J. observed:

"It could never have been intended that resort could be had to this extraordinary procedure where an adequate remedy is available by ordinary legal process, for example, by suit ; otherwise, the ordinary legal procedure including the payment of court tees would be abrogated. An appln under Art. 226, in my judgment is and must remain an extraordinary remedy to be used where ordinary legal process cannot give adequate and prompt relief." (Bagaram v State of Bihar, A. I. R. (37) 1950 Pat. 387 [LQ/PatHC/1950/80] : (29 Pat. 491 F. B.).



28. In my view the contention of Mr. Sen is well founded and the appln. must fail on this ground also.

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9. In the result the petn. fails and the Rule is discharged with costs. The hearing fee is assessed at three gold mohurs.