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2007 DIGILAW 719 (CAL)

TARAK NATH SINGH v. STATE OF WEST BENGAL

2007-09-18

KALIDAS MUKHERJEE, PRANAB KUMAR CHATTOPADHYAY

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( 1 ) ASSAILING the judgment and order dated 6th September, 2007 passed by the learned Single Judge in AST No. 1313 of 2007, this appeal has been preferred at the instance of the writ petitioner and stay application has also been filed in connection with the said appeal. ( 2 ) WE have heard the learned Counsel of the respective parties in connection with the said appeal as well as the stay application. ( 3 ) THE writ petition filed by the appellant herein was finally disposed of by the learned Single Judge on 6th September, 2007 upon hearing the submissions of the respective parties whereby and whereunder the said learned Single Judge dismissed the writ petition on the ground that the same lacks merit. ( 4 ) GOING through the judgment and order under appeal and also scrutinising the records, we find that the Chairman of the Champdani Municipality was removed pursuant to the resolution passed in the meeting of the Board of councillors held on 20th August, 2007. The Vice-Chairman of the said municipality issued a notice on 24th August, 2007 convening a meeting of the councillors on 12th September, 2007. Eight Councillors of the said Municipality were, however, not ready to wait till 12th September, 2007 and issued a notice on 30th August, 2007 for holding a meeting on 3rd September, 2007 under Rule 6 (3) of the West Bengal Municipalities (Procedure and Conduct of Business)Rules, 1995. ( 5 ) CHALLENGING the validity and/or legality of the said notice dated 30* August, 2007 issued by the eight Councillors of the Champdani Municipality for holding meeting on 3rd September, 2007, the appellant herein filed a writ petition, which was finally disposed of by the learned Single Judge by the judgment and order under appeal dated 6th September, 2007. ( 6 ) MRS. Chandrima Bhattacharyya, learned Counsel representing the appellant/writ petitioner submits that the appellant duly convened the meeting for the purpose of electing the Chairman of the Municipality in compliance with the prescribed provisions of the West Bengal Municipalities (Procedure and Conduct of Business) Rules, 1995 and, therefore, the notice issued by the eight Councillors on 30th August, 2007 for holding a meeting on 3rd September, 2007 for the identical purpose cannot be sustained in the eye of law. Mrs. Mrs. Bhattacharyya further submits that the meeting held on 3rd September, 2007 pursuant to the aforesaid notice dated 30th August, 2007 issued by the eight councillors for holding the election of the Chairman of the Municipality cannot be said to be a valid meeting in the eye of law and, therefore, the resolutions passed in the said meeting and all steps taken thereafter pursuant to the decision of the said meeting should be declared invalid and also to be quashed. ( 7 ) REFERRING to Rule 6 (3) (b) Mrs. Bhattacharyya submits that the vacancy in the office of the Chairman should be filled up by election at a meeting to be convened by the Vice-Chairman within seven days from the date of removal of the Chairman. The relevant provisions of Rule 6 sub-rule (2) (b) (c) (d) (e) and (3) (b) are set out hereunder: "6. Filling up of the casual vacancy of the office of the Chairman.- (1 ). . . . . . . . . . . . . . . . . . . . . . . . . . (2) In the case of any vacancy in the office of the Chairman caused by resignation, - (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2) In the case of any vacancy in the office of the Chairman caused by resignation, - (a ). . . . . . . . . . . . . . . . . . . . . . . . . . (b) if the resignation of the Chairman is accepted by the Board of Councillors, within seven days of such acceptance a meeting shall be convened by the chairman; who is continuing in office under sub-section (4) of section 18 or, on his failing to do so, by the Vice-Chairman within seven days thereafter or, on his failing to do so, by any three Councillors within seven days thereafter for the purpose of election of the Chairman; (c) the Vice-Chairman shall preside over such meeting if he is not a candidate for the post of the Chairman; (d) if the Vice-Chairman is a candidate for the post of the Chairman, he shall declare so immediately, but shall continue to preside over such meeting until a President for that meeting is elected in the manner laid down in sub-rules (3) to (11) of Rule 3 mutatis mutandis; (e) the Vice-Chairman or the President elected under clause (d) of this sub-rule, as the case may be, shall conduct the election of the Chairman in the manner laid down in Rule 4. (3) If there is a requisition for removal of the Chairman under sub-section (3) of section 18, - (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) if the resolution for removal of the Chairman is duly carried out, the vacancy in the office of the Chairman shall be filled up by election at a meeting to be held in accordance with the procedure laid down in clauses (b), (c), (d) and (e) of sub-rule (2), the provisions of which shall apply mutatis mutandis. " ( 8 ) IN the present case, admittedly, the Chairman of the Municipality was removed from the office on 20th August, 2007 and the Vice-Chairman convened the meeting by issuing notice on 24th August, 2007 fixing the date of the meeting on 12th September, 2007. Mrs. " ( 8 ) IN the present case, admittedly, the Chairman of the Municipality was removed from the office on 20th August, 2007 and the Vice-Chairman convened the meeting by issuing notice on 24th August, 2007 fixing the date of the meeting on 12th September, 2007. Mrs. Bhattacharyya submits that the Vice-Chairman is under an obligation to convene a meeting within seven days from the date of removal of the Chairman but there is no compulsion under the rules to hold the said meeting within the aforesaid period of seven days from the date of removal of the Chairman. Mrs. Bhattacharyya further submits that convening a meeting does not mean holding of the same. A meeting is convened for the purpose of holding the same on a particular date. ( 9 ) REFERRING to Rule 7 (2) of the aforesaid Rules, 1995. Mrs. Bhattacharyya submits that a meeting of the municipality shall be deemed to have been duly held when the meeting is duly convened. The said learned Counsel of the appellant also referred to Black's Law Dictionary, 8th Edition, wherein the meaning of the word 'convene' has been given as hereunder: "convene-1. To call together; to cause to assemble. " ( 10 ) MR. Milan Bhattacharyya, learned Counsel representing the private respondents, namely some of the Councillors of the said Municipality submits that the appellant herein cannot claim himself as the Vice-Chairman of the municipality as the said Vice-Chairman could not be nominated by the Chairman under the provisions of the West Bengal Municipal Act, 1993. According to Mr. Bhattacharyya, the Vice-Chairman should be elected by the Board of Councillors and Vice-Chairman in respect of the Chairman-in-Council can only be nominated by the Chairman of the Municipality. ( 11 ) THE aforesaid contentions of Mr. Bhattacharyya cannot be accepted in view of the clear provisions of the West Bengal Municipal Act, 1993. The two types of Vice-Chairman in a Municipality, as suggested by Mr. Bhattacharyya, have not been provided either in the West Bengal Municipal Act, 1993 or in the rules framed thereunder. ( 12 ) SECTION 15 (2) clearly provides that the Vice-Chairman and the other members of the Chairman-in-Council shall be nominated by the Chairman from amongst the Councillors. Section 15 (2) of the West Bengal Municipal Act, 1993 is set out hereunder: "15. Chairman-in-Council.- (1 ). . . . . . . . ( 12 ) SECTION 15 (2) clearly provides that the Vice-Chairman and the other members of the Chairman-in-Council shall be nominated by the Chairman from amongst the Councillors. Section 15 (2) of the West Bengal Municipal Act, 1993 is set out hereunder: "15. Chairman-in-Council.- (1 ). . . . . . . . (2) The Vice-Chairman and the other members referred to in sub-section (1)shall be nominated by the Chairman from amongst the Councillors of the municipality [within a period of thirty days of his entering into office] and shall assume office after taking [oath of secrecy under section 50a :] provided that the State Government may, on an application by the Chairman and for reasons to be recorded in writing, extend the period as aforesaid by such period not exceeding thirty days as the State Government may think fit. . . . . . . . " ( 13 ) THE terms of the office of the Vice-Chairman of the municipality have been specifically mentioned in section 19 of the West Bengal Municipal Act, 1993 as hereunder: "19. Vice-Chairman.- (1) The Vice-Chairman shall, in the absence of the chairman, preside over the meetings of the Chairman-in-Council as well as the Board of Councillors. (2) When - (a) the office of the Chairman falls vacant by reason of death, resignation, removal or otherwise, or (b) the Chairman is, by reason of leave, illness or other cause, temporarily unable to exercise the powers, perform the functions and discharge the duties of his office, the Vice-Chairman shall exercise the powers, perform the functions and discharge the duties of the Chairman until a Chairman is elected under sub-section (3) of section 17 and assumes office or until the Chairman resumes his duties, as the case may be. (3) The Vice-Chairman shall, at any time, perform such other duty or exercise such other powers as may be delegated to him under the provisions of this act. " ( 14 ) FURTHERMORE the aforesaid issue was never raised before the learned single Judge and, therefore, the said learned Single Judge had no occasion to consider and decide the same. ( 15 ) MR. Milan Kumar Bhattacharyya learned Counsel representing the private respondents also submits that in the facts of the present case, convening a meeting and holding of the same cannot have different meeting. ( 16 ) MR. ( 15 ) MR. Milan Kumar Bhattacharyya learned Counsel representing the private respondents also submits that in the facts of the present case, convening a meeting and holding of the same cannot have different meeting. ( 16 ) MR. Bhattacharyya referred to Concise Oxford Dictionary wherein the meaning of the word 'convene' has been given as hereunder: "convene/kuhn-veen/*v. (convenes, convening, convened) 1. call people together for (a meeting ). 2. assemble for a common purpose. " ( 17 ) MR. Bhattacharyya also referred to Webster English Law Dictionary wherein the meaning of the word 'convene' is: "con. vene, kon. ven, v. i.- convened, convening. [l. convenio. ] To come together; to meet; to meet in the same place, to assemble; rarely said of things.-v. i. To cause to assemble; to call together. " ( 18 ) MR. Bhattacharyya also referred to 'golden rule of construction' as mentioned in Craies on Statute Law, Seventh Edition, Pages 84 to 86. ( 19 ) WE, however, do not understand how the aforesaid citations can be of any help to Mr. Bhattacharyya since the same do not establish that convening of a meeting would mean holding of the same. In our considered opinion, the meeting is convened for the purpose of holding the same and, therefore, convening of a meeting and holding of the same cannot be identical as argued by Mr. Bhattacharyya. ( 20 ) MR. Fazlul Haque, the learned Counsel of the respondents Nos. 1 to 5 adopted the arguments advanced by Mr. Milan Bhattacharyya, learned Counsel for the private respondent Nos. 7 to 19. ( 21 ) IN the present case, we find from the records that the appellant herein was nominated as Vice-Chairman of the Municipality by the then Chairman under memo dated 18th August, 2007 and the said appellant took oath of secrecy under section 50a of the West Bengal Municipal Act, 1993 on 18th august, 2007 from the Chairman of the said Municipality. Mr. Bhattacharyya however, submits that the executive officer of the said Municipality has informed that no knowledge about the said oath administered by the chairman to the appellant herein. In terms of section 50a of the West Bengal municipal Act, 1993, oath of the Vice-Chairman should be administered by the Chairman of the Municipality and the Executive Officer has no role to play in this regard. In terms of section 50a of the West Bengal municipal Act, 1993, oath of the Vice-Chairman should be administered by the Chairman of the Municipality and the Executive Officer has no role to play in this regard. ( 22 ) NOW, the issue which requires consideration is whether the appellant herein as Vice-Chairman duly convened the meeting for holding election of the chairman in accordance with the West Bengal Municipalities (Procedure and conduct of Business) Rules, 1995. ( 23 ) UNDISPUTEDLY, the earlier Chairman was removed on 20th August, 2007 and the Vice-Chairman convened the meeting on 24th August, 2007 fixing the date for holding the said meeting on 12th September, 2007. Therefore, it cannot be said that the Vice-Chairman did not convene the meeting within seven days as prescribed under Rule 6. ( 24 ) THE learned Single Judge, however, held that for the purpose of electing a new Chairman, the Vice-Chairman should hold a meeting within seven days from removal of the erstwhile Chairman. According to the learned Single Judge, if a Vice-Chairman is allowed to call a meeting after six months or one year from the date of removal of the earlier Chairman and to officiate as a Chairman then the intention of the legislature for holding a special meeting would be frustrated. ( 25 ) WE are unable to accept the aforesaid finding of the learned Single Judge. Under Rule 6, the Vice-Chairman is required to convene a meeting and not to hold a meeting. Furthermore, the aforesaid apprehension of the learned Single judge is not based on sound reasoning. The provision of Rule 6 (2) only provides for convening a meeting by the Vice-Chairman for the purpose of election of the chairman within a week from the date of removal of the said Chairman and not holding a meeting. ( 26 ) IN any event, after removal of the Chairman if the Vice-Chairman of the municipality decides to hold the meeting for election of the Chairman after a considerable period causing inordinate delay even after convening the meeting for the aforesaid purpose within a week from the date of removal of the said chairman then also the aggrieved party will not be remediless as they can approach the Court for issuance of a suitable direction upon the Vice-Chairman for holding the meeting within a reasonable time. However, in the present case, the Vice-Chairman has not only convened a meeting within a week from the date of removal of the Chairman but also fixed the date for holding such meeting within a reasonable time. ( 27 ) UNDER the specific provisions of Rule 6 of the aforesaid Rules, 1995, the vice-Chairman of the Municipality is under an obligation to convene a meeting for the purpose of filling up the vacancy in the post of Chairman on account of his removal within seven days from the date of such removal which, in the present case, the said Vice-Chairman did by convening a meeting on 24th August, 2007 after removal of the erstwhile Chairman on 20th August, 2007. ( 28 ) RULE 6 specifically casts an obligation to convene a meeting within seven days from the date of removal of the Chairman and not holding the meeting within such period of seven days. The meeting is to be convened by the Vice-Chairman for the purpose of holding the election of the Chairman and, therefore, convening of a meeting cannot be equated with holding of the same as would be evident from the provisions contained in Rule 7 (2), which is set out hereunder: "7. Meeting and its validity.- (1 ). . . . . . . . . . (2) A meeting of the Municipality shall be deemed to have been duly held when, - (a) the meeting is duly convened; (b) there is necessary quorum; (c) the meeting is held within the municipal premises; (d) the meeting is presided over by a person authorised under the Act and these rules; and (e) the proceedings of the meeting are duly recorded. " ( 29 ) IN the case of Onkarsa Tukaram vs. Nandura Municipality reported in air 1940 Nagpur 293 it has been held: "to convene means to call together or to assemble. " ( 30 ) FOR the aforementioned reasons, we are of the opinion that the eight councillors had no authority to convene a meeting by issuing the notice dated 30th August, 2007 fixing the date of the meeting on 3rd September, 2007 while the Vice-Chairman had already convened the meeting in terms of Rule 6 (2) (b)of the Rules, 1995 on 24th August, 2007 by fixing the date of the meeting on 12th september, 2007. ( 31 ) IN the aforesaid circumstances, the notice dated 30th August, 2007 issued by the eight Councillors convening the meeting for the purpose of holding election of the Chairman on 3rd September, 2007 cannot be sustained in the eye of law and the same is quashed. Accordingly, all the resolutions passed in the said meeting including the election of the Chairman of the Municipality and all steps taken thereunder and thereafter cannot be sustained also in the eye of law being invalid. Therefore, the same are quashed. ( 32 ) FOR the aforementioned reasons, we also hold that the Vice-Chairman had duly convened the meeting following the prescribed rules and, therefore, we uphold the action of the Vice-Chairman in the matter of convening the meeting for the purpose of holding the election of the Chairman of the municipality. However, the said meeting could not be held on the scheduled date due to the order passed by the learned Single Judge and, therefore, we direct the Vice-Chairman, namely the appellant herein to hold the said meeting for the election of the Chairman of the Municipality without any further delay but positively within a period of two weeks from today after serving notice to all concerned including all the elected Councillors of the said Municipality. ( 33 ) IN view of the aforesaid finding, we direct the parties herein to maintain status quo as was prevailing in the Champdani Municipality before issuance of the notice dated 30th August, 2007 by eight Councillors till the new Chairman is elected and assumes office. ( 34 ) FOR the reasons discussed hereinabove, the judgment and order under appeal passed by the learned Single Judge is set aside and this appeal as well as the connected application stand allowed with no order as to costs. Appeal and application allowed. .