Anwar Hossain v. State of West Bengal — 1998 DIGILAW 538 (CAL)

JUDGMENT S.B. Sinha, J. In this writ application the petitioner has, inter alia, prayed for issuance of a writ of or in the nature of Mandamus directing the respondents not to give effect to the resolution dated 17.8.98 adopted by the respondents no. 4 to 13. 2. The petitioner was the Chairman of Dhulian Municipality. A notice for convening a meeting for removing him was issued by 1/3rd of the Councillors. As neither the petitioner nor the Vice-Chairman convened the meeting, the meeting was convened by the Councillors who had requisitioned therefor. The said notice convening the meeting was questioned by the petitioner by filing a writ application before this court which was marked as W.P. No. 12320 (W) of 1998. Admittedly, in the said writ application, an interim order of status quo was passed by a learned Judge of this court on 10.7.1998 and the same continued upto 29.7.98. The matter was taken up for hearing by Samanta, J. and the writ application was dismissed. Thereafter the petitioner served a notice which is to the following effect :- "In view of the order of the Hon'ble High Court, Calcutta dated 29.7.98 passed by Mr. Justice Prabir Kumar Samanta and in view of provision made under section 13(3) of West Bengal Municipal Act, 1993 read with rule 9(3)(c) of West Bengal Municipalities (Procedure and Conduct of Business) Rules, 1995, all concerned are hereby intimated that the District Magistrate, Murshidabad is the appropriate authority to act upon the Notice dated 25.6.98 signed by 10 (ten) Councillors due to efflux of time in terms of 9(3)(b) of West Bengal Municipalities (Procedure and Conduct of Business) Rules, 1995." 3. The said notice is contained in annexure 'C' to the present writ application. Admittedly, such a notice is not contemplated under the provisions of West Bengal Municipal Act, 1993 or West Bengal Municipal Authorities (Procedure and Conduct of Business) Rules, 1995 hereinafter referred to as the "said Rules". A meeting was thereafter convened by the requisitioning Councillors and by reason of the impugned resolution petitioner was removed from the post of Chairman of the said Municipality. 4. Mr. Manna, learned Counsel appearing on behalf of the petitioner, principally raised three contentions in support of the application. A meeting was thereafter convened by the requisitioning Councillors and by reason of the impugned resolution petitioner was removed from the post of Chairman of the said Municipality. 4. Mr. Manna, learned Counsel appearing on behalf of the petitioner, principally raised three contentions in support of the application. The learned Counsel submits that in terms of section 18(3) of the West Bengal Municipal Act, 1993 the Chairman of a Municipality can be removed only in terms of the procedure and the conduct of business in a special meeting. The learned Counsel points out that such conduct of business has been provided for in the West Bengal Municipal Authorities (Procedure and Conduct of Business) Rules, 1995. The learned Counsel referred to the provisions of Rule 9(3)(b) and submits that keeping in view the fact that Samanta, J, did not direct holding of a meeting on the basis of the old requisition, and the period of 29 days, as provided for therein, was over, the impugned meeting was liable to be held as illegal. The learned Counsel further pointed out that the representative of the Government having presided over the meeting, the meeting must be held to be invalid, keeping in view the provisions of Rule 9(3)(c) or also Rule 72(d) of the said Rules. In support of his aforementioned contention the learned Counsel placed strong reliance to the decision of a single Judge of this court in the case of Tafiluddin Ahmed & Ors. vs. State reported in 1994 (1) CLJ, 193 and Jardar Khan vs. State of Haryana and Ors. reported in AIR 1998 Punjab and Haryana, Page 249. 5. Mr. Kalyan Kr. Bandopadhyay, the learned Counsel appearing on behalf of the respondents, pointed out that the provisions of Rule 9 are directory in nature. According to the learned Counsel, right of the Councillors to convene the meeting does not end on the expiry of 29 days from the date of requisition, as has been contended by Mr. Manna. In support of such contention, Mr. Bandopadhyay has placed reliance on a Division Bench decision of this court reported in AIR 1998 Cal. 271 . It has further been submitted that no prejudice has been caused to the petitioner inasmuch as the petitioner was removed from service by a majority vote. Reliance in this connection has been placed in the decision reported in 1996(7) Judgement Today SC 216. Mr. 271 . It has further been submitted that no prejudice has been caused to the petitioner inasmuch as the petitioner was removed from service by a majority vote. Reliance in this connection has been placed in the decision reported in 1996(7) Judgement Today SC 216. Mr. Bandopadhyay has further pointed out that Shri Sushovan Das presided over the meeting but he only presided over the meeting for the purpose of election of the President. Section 18(3) of the West Bengal Municipal Act, 1993 and Rules 7(2), 9(3)(b) and Rule 13 of the West Bengal Municipalities (Procedure and Conduct of Business) Rules, 1995. The Chairman may be removed from office. "18(3): by a resolution carried by a majority of the total number of members of the Board of Councillors holding office for the time being at a special meeting to be called for this purpose in the manner prescribed upon a requisition made in writing by not less than one-third of the total number of members of the Board of Councillors, and the procedure for the conduct of business in the special meeting shall be such as may be prescribed." 7(2) : The District Magistrate shall communicate the date fixed either by him or by the State Government under the provisions of the Act, for any election, to the Registering Authority and also to the Chairman who shall forthwith publish the same in the manner prescribed by section 507 of the Act. 9(3)(b). A special meeting may also be convened after giving not less than three days notice to the members on a requisition containing specifically the agenda and signed by not less than one-third of the total number of Councillors of the Municipality by- (i) the Chairman, within fifteen days from the date of receipt of such requisition or of his failure to do so, (ii) the Vice-Chairman within seven days thereafter or, on his failure to do so or, (iii) any three of the Councillors of the Municipality within further seven days thereafter. 13. Persons to preside at meetings :- (1) Save as otherwise provided in these Rules meetings of the Municipality shall be presided over normally by the Chairman or, in his absence, by the Vice-Chairman. (2) In the case of a special meeting for removal of the Chairman, the meeting shall be presided over by a Councillor, elected by the Councillors present in the meeting. (2) In the case of a special meeting for removal of the Chairman, the meeting shall be presided over by a Councillor, elected by the Councillors present in the meeting. (3) In the case of special meeting as referred to in clause (c) of sub-rule (3) of Rule 9 the officer shall conduct the proceedings of the meeting. He shall, at the very commencement of the meeting, record the attendance of the members present in the meeting and shall, for presiding over the meeting, invite the Chairman of the Municipality or, in his absence or failure to do so, the Vice-Chairman of the Municipality for the purpose. In the case of absence of the Vice-Chairman or, his failure to preside over the meeting the officer shall invite the Councillors present in the meeting to elect a President for that meeting only : Provided that the proceedings of the meeting shall, will be the Chairman or the Vice-Chairman or the President so elected, as the case may be, takes over be recorded by the officer in the Minute Book of the Municipality and thereafter by the person presiding over the meeting. A copy of the proceedings of the meeting so held shall be sent to the District Magistrate and the Director of Local Bodies. West Bengal, by the officer and the person presiding over the meeting respectively. 6. From the factual..........., as pointed out hereinbefore, it is evident that the petitioner on one plea or other had been approaching this court with a view to remain a Chairman of the Municipality. The fact that the original requisition was valid is not in dispute. The petitioner had filed an earlier writ application wherein an order of status quo had been passed only on the ground that in the requisition the word "no confidence" had been written instead and place of "removal of the Chairman". Samanta, J. by reason of the order dated 29.7.98 held- "No doubt in the heading of the said notice the subject matter was mentioned as 'No confidence' but upon going through the entire notice, it appears that the proposed resolution for removal of the Chairman because of no confidence was specifically mentioned therein as the issue in the said Special General Meeting. Accordingly, by no stretch of imagination it can be contended that the said notice lacks material particulars for which either the Chairman or the other members of the Council were misled." 7. Having failed in his first attempt the petitioner appears to have made a further attempt to mislead the Councillors by issuing the aforementioned notice dated 3.8.98, as contained in annexure C to the writ application. In terms of Rule 9(3)(b)(i) the petitioner as a Chairman, had a duty to convene the meeting within 15 days from the date of receipt of such requisition. He failed to perform his duty. Even the Vice-Chairman also failed to perform his duty as contemplated under Rule 9(3)(b)(ii) of the West Bengal Municipal Conduct Rules, 1993. It was in this situation, three Councillors had to requisition the meeting. The time-frame specified in such Rules by no stretch of imagination can be said to be mandatory in character. In any event, it is legally incorrect to say that only upon expiry of 29 days the period of requisition has come to an end inasmuch as in that regard no such provision has been pointed out before this Court. 8. The decision of this Court in re. : Tafiluddin Ahmed & Ors. vs. State reported in 1994(1) CLJ 193 (supra) appears to have been rendered without taking into consideration the earlier decision of this Court. The learned Judge in Re. Tafiluddin Ahmed supra has, inter alia, held that the second proviso appended to sub-section (2) of section 16 of the West Bengal Municipal Act, 1993 is mandatory in nature. 9. It appears that the attention of the learned Judge was not drawn to an earlier decision of this Court in Bhagirathi Co-op. Joint Farming Society vs. Howrah Zilla Parishad, reported in 87 C.W.N. 981 and other decisions. This Court in Samarendra Goswami vs. The Dabuk Gram Panchayat & Ors. reported in 1995 (II) CHN 238 , upon taking into consideration various decisions including Bhagirathi Co-operative (supra) as also the decision in the case of Md. Asraf Ali Mondal vs. The Block Development Officers & Ors. reported in 1992 (II) CHN 229 held that the second proviso appended to section 16 of the West Bengal Panchayat Act, 1973 is directory in nature. Asraf Ali Mondal vs. The Block Development Officers & Ors. reported in 1992 (II) CHN 229 held that the second proviso appended to section 16 of the West Bengal Panchayat Act, 1973 is directory in nature. This Court further noticed- In Hukam Singh vs. State of Rajasthan & Ors., reported in AIR 1984 Raj 119 wherein it has been held : "A Division Bench of this Court in Bhure Khan vs. State of Rajasthan 1976 Raj LW 148 : ( AIR 1976 Raj 184 ) has extracted the following from Radhey Shyam's Case (1972 WLN 772) : 'In order to create healthy convention for the functions for the functioning of democracy in the country, it is necessary that this Court should be slow to help the person in his attempts to stick to his elected office even after the unequivocal declaration of the majority that he has lost their confidence, the Court should show its reluctance to allow such person to invoke the extraordinary jurisdiction.' The aforementioned decision is also, therefore, an authority for the purpose that in a case of this nature the court normally does not exercise its jurisdiction under Article 226 of the Constitution of India. 10. This aspect of the matter has also been considered in Fakruddin Mallik vs. State of West Bengal reported in 1995 AIHC 6140 and Rafikul Mandal vs. State of West Bengal reported in 1995 All India High Court Cases 6284. In Fakruddin Mallik (supra) it was held :- "Interpretation of statute must depend on the text and context. Reference in this connection may be made to the case of Reserve Bank of India vs. Peerless Co., 1987 (1) SCC 424 , wherein the Supreme Court has held as follows :- Interpretation must depend on the text and context. They are the basis of interpretation. One may well say if the text is the texure, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to any as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything, is in its place. 11. In this connection, reference may further be made to "The Interpretation and Application of Statutes" by Reed Dickersen. The author at page 135 has discussed the subject while dealing with the importance of context in the following terms :- The essence of the language is to reflect, express and perhaps even effect the conceptual matrix of established ideas and values that identifies the culture to which it belongs. For this reason, language has been called "conceptual map of human experience." Section 12 and section 16 of the said Act postulate removal of Pradhan and Upa-pradhan. A person should not be allowed to hold the office if he does not enjoy the confidence of the majority members. Such resolution for removal of the Pradhan and Upa-pradhan must be taken at an early date. It is only with that in view the legislature had purposely used the words within 15 days in relation to the first part of the said proviso and within 35 days in relation to second part thereof." Yet recently, in Swapan Kumar Acharjya & Ors. vs. Subhas Chandra Bhattacharjee & Ors. reported in AIR 1998 Cal 271 this Court has pointed out legal position as regard interpretation of statute containing performance of statutory duties by the statutory authorities. 12. vs. Subhas Chandra Bhattacharjee & Ors. reported in AIR 1998 Cal 271 this Court has pointed out legal position as regard interpretation of statute containing performance of statutory duties by the statutory authorities. 12. In Jardar Khan vs. State of Haryana and Ors. reported in AIR 1998 Punjab & Haryana page 249, supra, upon which Mr. Manna has placed strong reliance, a Division Bench of the said High Court was considering a question as to whether voting had been done in the manner laid down or not and in that context it was held that as the procedure for removing an Upsarpanch by reason of a no confidence motion was to be taken recourse to by secret ballot, the same must be held to be mandatory in nature. Such is not the position here. 13. Furthermore, it is incorrect to contend that in the meeting held on 17.8.98 Shri Sushovan Das, Executive Magistrate, presided over the meeting. It appears from a perusal of the minutes of the meeting dated 17.8.98 that as a dispute arose as to who would preside over the meeting, the Executive Magistrate was requested to preside over the meeting for the aforementioned purpose only. In the said meeting Shri Tarun Singh was elected as President of the said meeting. Thereafter, the procedure for removal of the petitioner was taken up in the meeting over which Shri Tarun Singh, one of the Councillors presided. Such a procedure is contemplated in Rule 13(2) of the Rules. 14. In this view of the matter, the contention of Mr. Manna to the effect that the meeting had not been presided over by a person authorised under the Act and Rules as laid down under Rule 7(2)(d) can not be said to be correct. 15. It is, therefore, axiomatic that the legal fiction created by sub-rule (2) of Rule (7) has become attracted in this case as all the requirements thereof had been fulfilled. 16. Furthermore, in the opinion of this court it is not a case in which this court should exercise its extraordinary writ jurisdiction. The petitioner had been removed from the post of Chairman by a majority. There had been compliance and in any event, substantial compliance, of the procedure laid down for the said purpose. 16. Furthermore, in the opinion of this court it is not a case in which this court should exercise its extraordinary writ jurisdiction. The petitioner had been removed from the post of Chairman by a majority. There had been compliance and in any event, substantial compliance, of the procedure laid down for the said purpose. A person who had lost the confidence of the majority of the Councillors cannot be permitted by a court exercising an extraordinary jurisdiction to remain in the said post only upon taking hyper-technical pleas. In any event, the petitioner, by reason of the said resolution cannot be said to have suffered any real prejudice. The apex court in Rajendra Singh vs. The State of Madhya Pradesh & Ors. Judgement Today 1996(7) SC 216 referring to its earlier judgment in State Bank of Patiala reported in JT 96(3) SC 722 observed that in a case where violation of principles of natural justice and/or violation of a directory provision of law is alleged, the person must show that any prejudice has been caused to him. 17. It is not a case where a mandatory provision of law conceived in the public interest has been violated. 18. For the reasons aforementioned there is no merit in the application which is, accordingly, dismissed but without any order as to costs. Writ petition dismissed.