Research › Search › Judgment

Calcutta High Court · body

2006 DIGILAW 757 (CAL)

SURESH MISHRA v. STATE OF WEST BENGAL

2006-12-01

JYOTIRMAY BHATTACHARYA

body2006
( 1 ) THE legality and/or validity of the notice dated 18th September, 2006 issued by the three Councillors of Champdani Municipality being Annexure-P-5 to this writ petition by which a requisition meeting was convened for transacting the business on the agenda of removal of the Chairman of the said municipality, is under challenge in this writ petition. ( 2 ) THE Chairman along with the seven other councillors of the said municipality filed this writ petition. ( 3 ) LET me now give the short background of the facts leading to the filing of this writ petition. ( 4 ) NINE councillors out of 22 of the said municipality, by their notice dated 25th August, 2006 requested the Chairman of the said municipality to convene a meeting for transacting the agenda regarding removal of the Chairman from his office. ( 5 ) SUBSEQUENTLY, four out of those nine councillors withdrew themselves from the said request, and intimated their decision to the chairman by their letter dated 26th August, 2006, being Annexure P-2 to this writ petition. The reasons which prompted them to withdraw themselves from the said request were also explained by them in their said letter. The said four members also in their respective affidavits affirmed by them disclosed the reasons for their withdrawal. ( 6 ) THE said four members, in fact, changed their decision as their signatures in the letter dated 25th August, 2006 were obtained by the other five members by misrepresentation and/or by exercise of fraud upon them. The said four members also asserted therein that they still hold their confidence in the said Pradhan. ( 7 ) THE Chairman, thereafter, by his notice dated 14th September, 2006, being Annexure P-4 to this writ petition convened an ordinary meeting for discussing various agenda including the agenda regarding the proposal of those five members for convening the meeting for his removal. ( 7 ) THE Chairman, thereafter, by his notice dated 14th September, 2006, being Annexure P-4 to this writ petition convened an ordinary meeting for discussing various agenda including the agenda regarding the proposal of those five members for convening the meeting for his removal. ( 8 ) A resolution which was unanimously adopted in the said meeting held on 23rd September, 2006, has also been produced before this Court to show that the Chairman's decision to drop the said proceeding, was approved by the members unanimously as, due to withdrawal of such request by four out of those nine members, the requirement of convening the meeting pursuant to such request did not satisfy the conditions of rule 9 (3) and (4) of the West Bengal Municipal (Conduct and Business)Rules, 1995. ( 9 ) THREE out of the remaining five councillors who did not withdraw themselves from their initial request to the Chairman for calling such a meeting, issued a notice on 18th September, 2006 being Annexure P-5 to this writ petition, convening a requisition meeting to be held at the office of the said municipality at 11. 00 a. m. on 23. 9. 2006 for considering the agenda regarding "no Confidence" against the Chairman. ( 10 ) PURSUANT to the said notice, a special meeting was held on 23rd september, 2006 and all the thirteen members who were present in the said meeting supported the motion of "no Confidence". Accordingly, a "no Confidence" motion was passed and a resolution was adopted in the said meeting. ( 11 ) HOWEVER, the resolution which was adopted in the said meeting was not given effect to in view of the interim order passed by this Court on 21st September, 2006. ( 12 ) COPIES of these resolutions which were produced before this court, were kept with the records. ( 13 ) IN this context a question has cropped up with regard to the validity of the notice dated 18th September, 2006 being Annexure P-5 to this writ petition by which the said meeting was requisitioned by the three councillors as aforesaid. ( 14 ) MR. ( 13 ) IN this context a question has cropped up with regard to the validity of the notice dated 18th September, 2006 being Annexure P-5 to this writ petition by which the said meeting was requisitioned by the three councillors as aforesaid. ( 14 ) MR. Bandyopadhyay, learned Senior Advocate appearing for the petitioner submitted that the request for convening a special requisition meeting for the said purpose at the instance of five councillors out of 22 councillors does not satisfy the condition as laid down in Rule 9 (3) (b) of the West Bengal Municipal (Pro and Conduct of Business) Rules, 1995 which provides that a special meeting may 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 councillors of the municipality. ( 15 ) MR. Bandyopadhyay thus submitted that after withdrawal of the request by four out of nine councillors, the request of the remaining five members did not satisfy the requirement of calling such a meeting as provided in Rule 9 (3) (b) of the said Rules as five out of 22 total councillors, no doubt, are less than one-third of the total number of councillors and as such the Chairman did not commit any illegality in dropping the said proceeding. ( 16 ) MR. Bandyopadhyay further submitted that the right to convene the special requisition meeting by the said three councillors did not mature as the initial request for such requisition was invalid for the reasons as aforesaid. ( 17 ) MR. Bandyopadhyay thus submitted that not only the requisition of special meeting was invalid but all further steps taken pursuant to such requisition are all invalid too. ( 18 ) ACCORDINGLY, Mr. Bandyopadhyay prayed for the Court's intervention so that the impugned notice as well as the steps which were taken subsequent thereto pursuant to the said notice, are quashed. ( 19 ) MR. Bhattachajee, learned Advocate appearing on behalf of the private/respondents supported the resolution of "no Confidence" adopted by the majority members on 23rd September, 2006. Mr. Bhattacharjee submitted that there was no illegality in the process of adoption of such resolution as this Court also, by the interim order passed on 21. 9. ( 19 ) MR. Bhattachajee, learned Advocate appearing on behalf of the private/respondents supported the resolution of "no Confidence" adopted by the majority members on 23rd September, 2006. Mr. Bhattacharjee submitted that there was no illegality in the process of adoption of such resolution as this Court also, by the interim order passed on 21. 9. 2006, permitted the councillors to hold the requisitioned meeting on 23rd september, 2006 as per notice issued by the three requisitionists vide annexure P-5 to this writ petition. ( 20 ) MR. Bhattacharjee contended that there is no provision in the west Bengal Municipal Act, 1993 and the Rules framed thereunder, which authorizes the Councillors to withdraw themselves from their request and as such once such request is made, such request becomes final. Mr. Bhattacharjee thus contended that the withdrawal of request by four members was invalid and thus the request made by nine members remained operative as initial request remained unaffected by such withdrawal. According to Mr. Bhattacharjee, the condition for calling such meeting as per Rule 9 (3) (b) of the said Rules were satisfied in this case. ( 21 ) MR. Bhattacharjee pointed out that 13 out of 22 councillors supported the "no Confidence" motion against the Chairman. As such the chairman, who was elected as Chairman in a democratic process should have accepted the majority decision for his removal which was also adopted in a democratic process. ( 22 ) MR. Bhattacharjee thus invited this Court not to interfere with the said majority decision. ( 23 ) LET me now consider the submissions of the learned Advocates for the respective parties. ( 24 ) IT is true that in democracy majority voice must be honoured; otherwise the entire structure of democracy will collapse. But, it is equally true that a decision in the democratic process should be taken by following the law and/or rules framed in this regard as the relevant law and the rules were also framed in a democratic process. ( 25 ) THEREFORE, the basic question which has arisen here for consideration relates to the legality of the resolution adopted by the majority members for removal of the Chairman. ( 25 ) THEREFORE, the basic question which has arisen here for consideration relates to the legality of the resolution adopted by the majority members for removal of the Chairman. ( 26 ) TO consider the said question, this Court will have to fall back on the provision contained in Rule 9 (3) (b) of the said Rules which deals with the procedure regarding requisition of such a meeting. ( 27 ) RULE 9 of the said Rules runs as follows : - "9. Extraordinary meeting.- (1) In an extraordinary meeting, no matter, other than the one for which the meeting has been convened, shall be discussed. Such meetings may be- (a) An emergent meeting; or (b) A special meeting. (2) An emergent meeting for transaction of business of an emergent nature, may be convened, at any time, by the Chairman or, in his absence, the Vice-Chairman, after twenty-four hours' notice to the members. (3) (a) A special meeting may be convened by the Chairman or, in his absence, by the Vice-Chairman suo motu after giving not less than three days' notice to the members. (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. (c) Notwithstanding anything contained in these rules, if the situation so demands owing to stalemate condition prevailing in the functioning of the Municipality, the officer may, in the interest of public service, convene a special meeting of the Municipality with at least three days' notice to the members, specifying the agenda and venue of the meeting. " ( 28 ) PLAIN reading of the said Rule makes it clear that the Chairman of the municipality is required to call a special meeting only if such a request is made to the Chairman by not less than one-third number of the total number of councillors of the municipality. " ( 28 ) PLAIN reading of the said Rule makes it clear that the Chairman of the municipality is required to call a special meeting only if such a request is made to the Chairman by not less than one-third number of the total number of councillors of the municipality. ( 29 ) HERE of course such a request was initially made by nine out of 22 Councillors of the Municipality. Thus apparently the requirement under the said Rules is satisfied here. ( 30 ) BUT, the problem started when four out of those nine councillors withdrew themselves from their request. In their letter dated 26th August, 2006, the said four councillors stated that their signatures in the letter dated 25th August, 2006 were obtained by the remaining five councillors by misrepresentation and/or by fraud. The said four councillors, in their subsequent letter dated 26th August, 2006 also expressed their confidence on the Chairman. ( 31 ) THEN what will be the effect of such withdrawal? Mr. Bhattacharjee, however, contended that request once made cannot be withdrawn. ( 32 ) THE allegation regarding exercise of fraud and misrepresentation upon the said four councillors by the remaining five councillors in obtaining the signatures of these four councillors in the letter dated 25th September, 2006 remains uncontroverted. Fraud vitiates everything. Thus once the allegation of fraud is proved, the Court cannot permit the subsequent actions based on such fraud to remain-on-records. ( 33 ) THAT apart consent is a conscious act of a party. As such when a party giving consent discovers that such consent was given unconsciously, he/she has every right to rectify himself/herself by withdrawal of consent. Unconscious consent is no consent. Since the consent which was given by those four councillors in the letter dated 25th August, 2006 unconsciously, such consent cannot be regarded as the conscious act on the part of those four councillors. ( 34 ) AS such this Court has no hesitation to hold that withdrawal of such request by these four councillors was legal and valid; meaning thereby that the ultimate request came from five out of 22 councillors which is not in conformity with Rule 9 (3) (b) of the said Rules. ( 35 ) IN this context, this Court holds that the Chairman rightly refused to convene any meeting pursuant to the request made by five out of 22 councillors. ( 35 ) IN this context, this Court holds that the Chairman rightly refused to convene any meeting pursuant to the request made by five out of 22 councillors. This Court further holds that the right to convene a special meeting by any three councillors, matures only when the Chairman fails to convene a meeting for the said purpose within the statutory period after receipt of a valid notice as per Rule 9 (3) (b) of the said Rules. Since the notice itself is invalid, neither the Chairman had any occasion to call any meeting pursuant to such request nor the right to call such meeting by any three members matured due to the alleged default of the Chairman. ( 36 ) THUS, this Court holds that the impugned notice being Annexure-P-5 to this writ petition by which the special meeting was called by the three members stands quashed. Consequently, the meeting which was held on 23rd September, 2006 pursuant to the impugned notice being annexure P-5 to this writ petition and the resolution taken in the said meeting also stand quashed. ( 37 ) OF course there are instances where some technical defects in the notice were ignored by the Court for showing respect to the majority decision. But, here is a case where the foundation of the meeting is based on fraud and/or misrepresentation. ( 38 ) AS such this Court cannot permit such a majority decision which was taken by 13 out of 22 Councillors to be retained-on-record as the very basis of the decision rests on fraud. ( 39 ) HOWEVER, I make it clear that the restriction in calling such a meeting within six months from the date on which the former resolution was moved as provided in the proviso to Section 18 of the West Bengal municipal Act, 1993 will not be attracted here in view of fact that the impugned notice being Annexure P-5 of this writ petition has been quashed hereinabove. As such the councillors are absolutely free to proceed afresh in accordance with law. ( 40 ) THE writ petition, thus, stands allowed.