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2008 DIGILAW 112 (GAU)

Rupjyoti Patangia v. State of Assam

2008-02-08

BIPLAB KUMAR SHARMA

body2008
JUDGMENT B.K. Sharma, J. 1. The Petitioners who are the Ward Commissioners of the Municipal Board in question are aggrieved by the decision conveyed by the Government of Assam in the Urban Development Department to the effect that the Chairman and Vice-Chairman of the Municipal Board have been voted out by a majority of the Ward Commissioners in the no-confidence motion initiated against them and as to the appointment of the particular Ward Commissioner as the Chairman of the Board till election of anew Chairman. 2. The election of the Municipal Board, namely Dhekiajuli Municipal Board was held in the month of December, 2003 for election of Ward Commissioners and Ward councillors results of which were declared in the last week of December, 2003. In the election, the Petitioners were elected as Ward Commissioners. The first meeting of the Municipal Board was convened by the Deputy Commissioner of the District on 27.11.2004 for taking oath of allegiance and for election of the Chairman and Vice-Chairman. The meeting was so convened under Rule 1 of the Second Schedule of the Assam Municipal Act, 1956. 3. In the meeting the Petitioner Nos. 1 and 2 were elected uncontested as Chairman and Vice-Chairman of the Board. It will be pertinent to mention here that there are 10 elected Ward Commissioners and the MP and MLA of the area are the Ex-Officio members of the Board, totaling the number of Ward Commissioners to 12. According to the Petitioners in the house of 10 elected Ward Commissioners, their strength is 7. 4. Earlier the Ward Commissioners opposed to the Petitioner Nos. 1 and 2, brought a no-confidence motion against them but the same was defeated in the meeting held on 20.4.2005. The Circle Officer, Dhekiajuli Revenue Circle visited the office of the Municipal Board on 28.9.2007 to make an enquiry as to whether the letter of requisitioning special meeting to discuss no-confidence motion against the Petitioners No. 1 and 2, was received by the one Shri Bishnuja Daimari, a Grade-IV employee of the Board or in fact, the same was handed over and/or served on the Petitioner Nos. 1 and 2. 1 and 2. According to the Petitioners, said Shri Daimari revealed to the Circle Officer and others that in the month of August, 2007, the present Chairman of the Board, i.e. Respondent No. 4, handed over to him a letter asking him to sign on it without putting any date and to hand over the same to the Petitioner No. 1. However, said Shri Daimari never handed over the same to the Petitioners. 5. Above aspect of the matter was stated by Shri Daimari by his Annexure-B letter dated 28.9.2007 addressed to the Petitioner No. 1. The Petitioner No. 1 lodged Annexure-C FIR of the same date with Dhekiajuli RS. to take appropriate action in the matter relating to the said incident. 6. It is the definite case of the Petitioners that till the date of filing of the writ petition, no notice requisitioning special meeting to discuss no-confidence motion against the Petitioner No. 1 was served and that private Respondents adopted manufactured resolution of no-confidence motion against the Petitioner No. 1 assembling at Circuit House, Dhekiajuli. According to the Petitioners even if the special meeting was held, there was no requisite number of members to oust the Petitioner Nos. 1 and 2 from the office as required under Section 28 of the Act. 7. The Petitioner No. 1 visited the office of the Deputy Commissioner, Sonitpur on 16.11.2007 in connection with a meeting conveyed to him and in the said meeting he came to know about the issuance of impugned notification dated 16.11.2007 (Annexure-D) by which the Respondent No. 4 was allowed to hold the office of the Chairman of the Board till election of a new Chairman. The notification indicated that the Chairman and the Vice-Chairman of the Board had been voted out by a majority of Ward Commissioners in the no-confidence motion initiated against them. 8. According to the Petitioner No. 1, he was caught by surprise when he came across the notification. He lodged a complaint with the Government of Assam on 19.11.2007. While lodging the said complaint, he also sought for a copy of the no-confidence motion resolution. However, he was not furnished with the same. According to the Petitioners, entire exercise has been carried out in complete violation of the provisions of the Act and is politically motivated. He lodged a complaint with the Government of Assam on 19.11.2007. While lodging the said complaint, he also sought for a copy of the no-confidence motion resolution. However, he was not furnished with the same. According to the Petitioners, entire exercise has been carried out in complete violation of the provisions of the Act and is politically motivated. The Petitioners have asserted that they being in the majority group with 7 Ward Commissioner (6 elected and 1 ex-officio, i.e. local MLA), they could not have been ousted from power as has been done by so called no-confidence motion. According to the Petitioners, the Government in the Urban Development Department has issued the impugned notification dated 16.11.2007 without ascertaining the real position solely on the basis of the political pressure. 9. The Respondent No. 4 who has been allowed to hold office of the Chairman on temporary basis, has flied the affidavit in opposition justifying the action towards passing the no-confidence resolution and the issuance of the impugned notification. Certain allegations have been made against the Petitioners. According to him when no action was taken against the Petitioner Nos. 1 and 2 in respect of their illegal activities, the Respondent No. 4 alongwith others addressed the letter dated 23.7.2007 to the Petitioner No. 1 requisitioning special meeting to discuss on no-confidence motion against him and the Petitioner No. 2. It has been admitted in the affidavit that the letter dated 23.7.2007 was served on said Shri Daimari, an office peon in the office of the Chairman. The copies of the letter were also sent to the Secretary to the Government of Assam in the Municipal Administration Department, Deputy Commissioner, Sonitpur and the Director of Municipal Administration. 10. According to the Respondent No. 4, a notice under Section 43(3) of the Act was also sent to the Petitioner Nos. 1 and 2 and other members indicating that a special meeting to discuss the no-confidence motion had been requisitioned by letter dated 23.7.2007. It has been stated in the affidavit that inspite of receipt of the notice, the Petitioner No. 1 failed to convene the meeting within 20 days of receipt of the same as required, and consequently the special meeting was called on 15.9.2007 by the requisitionists. It has been stated in the affidavit that inspite of receipt of the notice, the Petitioner No. 1 failed to convene the meeting within 20 days of receipt of the same as required, and consequently the special meeting was called on 15.9.2007 by the requisitionists. The stand of the Respondent No. 4 is that the notice for the meeting was sent to all the members including the Petitioners No. 1 and 2 through Dak Book, but they refused to acknowledge the same by putting their signatures. The copy of the notice dated 10.9.2007 convening the special meeting on 15.09.2007 has been annexed to the counter affidavit as Annexure-10. 11. Further stand of the Respondent No. 4 is that in the special meeting held on 15.9.2007, no-confidence motion was passed against the Petitioner Nos. 1 and 2 and the Respondent No. 6 by his letter dated 17.9.2007 forwarded the proceedings of the meeting and other related documents to the Deputy Commissioner of the District for his necessary action. Thereafter the impugned notification dated 16.11.2007 was issued. 12. Dealing with the special plea of the Petitioners that the copy of the letter dated 23.7.2007 requisitioning the no-confidence motion against the Petitioner Nos. 1 and 2 was never served on them and the same was only furnished to the office peon who in turn never placed the same before the Petitioner Nos. 1 and 2, the Respondent No. 4 has admitted in paragraphs 21-22 of the counter affidavit that the copy of the letter of requisition was received by the peon. Placing reliance on Annexure-16 letter dated 2.10.2007 purportedly addressed to the Dhekiajuli P.S. by said Shri Daimari, it is the stand of the Respondent No. 4 that the letter dated 28.9.2007 (Annexure-B) about which mention has been made above, is a manufactured one and said Shri Daimari only signed on the blank paper being put to scare by the Petitioner No. 1. 13. The Petitioners have filed their affidavit in reply denying the contentions raised in the affidavit in opposition filed by the Respondent No. 4. The Petitioners have referred to Dhekiajuli P.S. Case No. 308/07 under Section 302, IPC read with Section 7 of Cinematography Act, 1952 in which the Respondent No. 4 has obtained bail. It has been stated that the requisition notice dated 23.7.2007 was never served on the writ Petitioners. The Petitioners have referred to Dhekiajuli P.S. Case No. 308/07 under Section 302, IPC read with Section 7 of Cinematography Act, 1952 in which the Respondent No. 4 has obtained bail. It has been stated that the requisition notice dated 23.7.2007 was never served on the writ Petitioners. It has been reiterated that since the requisition notice was never served on the Petitioner No. 1, he could not convene the special meeting and thus there is no question of failure on his part to convene the meeting so as to give rise to a situation in which the members could hold the special meeting. As regards the plea of the Respondent No. 4 that the subsequent notice was sent through Dak Book, the stand of the Petitioners is that there is no question of sending notice through the Dak Book as the same was in the office in which the Petitioners continued till their illegal removal. The Petitioners have also referred to the earlier writ proceeding in W.P.(C) No. 7398/04 which arose pursuant to the no-confidence motion brought against the Petitioners and as to how after the decision in the said case they had been continuing in the office till their ouster allegedly by way of illegal no-confidence motion. 14. I have considered the submissions made by Mr. R.P. Sharma, learned Sr. counsel assisted by Mr. K.D. Singh, learned Counsel for the Petitioners as well as Ms. R. Chakraborty, learned Counsel for the official Respondents. I have also considered the submissions made by Mr. P.K. Goswamj, learned Sr. Counsel assisted by Mr. J.N. Phukan, learned Counsel for the Respondent No. 4. Learned State Counsel has produced the records. On perusal of the records in file No. UDD(M)/62/2004, it was revealed that the file contained pages 1 to 12 with official notes and documents from Serial No. 1 to 82. However, the document at page No. 36 was found missing. Noticing the same and that there was discussion of the contents of the said page in the note sheet, learned State Counsel was requested to produce the said page No. 36. The particulars page has been produced subsequently. 15. The first question which comes for determination is as to whether the first requisition letter dated 23.7.2007 (Annexure-9 to the counter affidavit filed by the Respondent No. 4) was served on the Petitioners, more particularly the Petitioner No. 1. The particulars page has been produced subsequently. 15. The first question which comes for determination is as to whether the first requisition letter dated 23.7.2007 (Annexure-9 to the counter affidavit filed by the Respondent No. 4) was served on the Petitioners, more particularly the Petitioner No. 1. By the said letter the Petitioner No. 1 was requested by 5 Ward Commissioners to convene the special meeting to discuss the no-confidence motion. There is no manner of doubt that the letter was never personally served on the Petitioner No. 1, but was served on said Bishuram Daimari. This aspect of the matter has been admitted by the Respondent No. 4 in his counter affidavit. It is also an admitted position that the letter was never handed over to the Petitioner No. 1 or anyone else of the Petitioners by said Shri Daimari. That being the position, there was no question and/or occasion for the Petitioner No. 1 to convene the special meeting as envisaged under the rules. 16. Although a faint effort has been made by the Respondent No. 4 to contend that the letter dated 23.7.2007 was served on the Petitioner No. 1 through Dak Book, and he refused to accept the same, but on perusal of the pleading to that effect (paragraph-10 of the counter affidavit), it is seen that what was sent to the Petitioner No. 1 was the Annexure-10 undated letter in the form of notice under Section 43(3) of the Act intimating convening of the special meeting on 15.9.2007 at 5 p.m. It will be pertinent to mention here that the notice did not indicate any venue of the meeting. The Respondent No. 4 has also not annexed the copy of the notice meant for the Petitioners but has annexed the copy of the same addressed in his name. 17. Section 43(3) of the Act emphasizes a subsequent action on the part of the person signing the requisition which according to the Respondent No. 4 was on 23.7.2007. Admittedly, the said letter dated 23.7.2007 was never served on the Petitioners, more particularly the Petitioner No. 1. The statements made in paragraph-10 of the counter affidavit on which much reliance was placed by the learned Counsel for the Respondent No. 4, are relating to subsequent notice under Section 43(3) of the Act. It was purportedly sent to the Petitioner Nos. 1 and 2 through Dak Book. 18. The statements made in paragraph-10 of the counter affidavit on which much reliance was placed by the learned Counsel for the Respondent No. 4, are relating to subsequent notice under Section 43(3) of the Act. It was purportedly sent to the Petitioner Nos. 1 and 2 through Dak Book. 18. During the course of hearing, learned Counsel for the Respondent No. 4 produced the purported Dak Book which is not official. As contended by the Petitioners, the official Dak Book was in the office and thus there could not have occasion for the private Respondents to send notice through the said official Dak Book. Similarly, the Note Book, which has been produced as Dak Book cannot be said to be Dak Book. The Note Book shows use of the same only for the purpose of providing endorsement in respect of the meeting held on 15.9.2007 and not in respect of service of requisition letter dated 23.7.2007. Although the Note Dak Book mentions about the special meeting, but no specified date is discernible. 19. Apart from the above, there is nothing to indicate in the Note Book that there was refusal on the part of the Petitioners to put their signatures in the said Book. There is no endorsement to that effect by any authority in presence of witnesses as is required under the procedure relating to service of notice. 20. The record produced by the Municipal Board only contains the said Note Book stated to be Dak Book, the requisition letter dated 23.7.2007 with the endorsement of office peon, namely Shri Daimari, the intimation to the Deputy Commissioner, Sonitpur by the Respondent No. 6, a Ward Commissioner, intimating about no-confidence motion passed against the Petitioner Nos. 1 and 2 and the format under Section 43(3) of the Act signed by 5 Ward Commissioners. It also contains the minutes of the meeting held on 15.9.2007 recorded in particular Register. As per the said minutes of the meeting, same was held in the Inspection Bunglow of Dhekiajuli on 15.9.2007 at 5 p.m. As indicated above, the notice under Section 43(3) of the Act did not specify the venue of the meeting. 21. The Government record/file produced by the learned State Counsel has been mentioned above. As per the said minutes of the meeting, same was held in the Inspection Bunglow of Dhekiajuli on 15.9.2007 at 5 p.m. As indicated above, the notice under Section 43(3) of the Act did not specify the venue of the meeting. 21. The Government record/file produced by the learned State Counsel has been mentioned above. The file indicates that when the matter relating to no-confidence motion purportedly passed against the Petitioners was processed, it was pointed out that the matter should have been dealt with under Section 28(2) of the Act. The venue of the meeting was also questioned in the note. It was also indicated that Section 43(3) of the Act is not attracted without following the procedure laid down in under Section 28(2) of the Act. 22. The office note also indicates that the Petitioners lodged complaint about non-receipt of the copy of the no-confidence motion. The note dated 3.10.2007 was put up before the Commissioner and Secretary indicating that the requisition letter was not received by the Petitioner No. 1 but was received by the office peon who kept the same at his residence without bringing it to the notice of the Petitioner No. 1. 23. The office note dated 12.10.2007 put up before the Commissioner and Secretary indicates about the inquiry conducted by the Circle Officer and his finding that the letter of requisition was served on a Grade-IV employee. On 15.10.2007 a note was put up indicating the order of the Minister of Urban Development Department at page No. 36. It is this particular page which was missing from the file which, however, later on was produced by the learned State Counsel. 24. The letter dated 3.10.2007 addressed to the Minister of Labour and Urban Development by one Shri Hiranya Bora, Ex-MLA and Chairman, ADDC. The letter speaks of the no-confidence motion on party line and non-attendance of any of the Ward Commissioner from a particular political party. By the letter, a recommendation was made for appointment of the Respondent No. 4 as the Chairman. On the body of the letter, there is endorsement of the Minister and the Commissioner & Secretary of the Department. 25. The Commissioner and Secretary by his note dated 6.11.2007 intimated the Minister, UDD that the notice of requisition was received by Grade-IV employee and the same was not brought to the notice of the Chairman. On the body of the letter, there is endorsement of the Minister and the Commissioner & Secretary of the Department. 25. The Commissioner and Secretary by his note dated 6.11.2007 intimated the Minister, UDD that the notice of requisition was received by Grade-IV employee and the same was not brought to the notice of the Chairman. Thereafter legal opinion was obtained followed by the impugned notification. 26. Apart from the revelations made from the records and the pleadings of the parties, there was no manner of doubt that the requisition letter dated 23.7.2007 was never served on the Petitioner No. 1 enabling him to take action as per the provisions of the Act. Subsequent action on the part of the requisitionists and their unanimous action in passing the no-confidence motion by holding a meeting in a place other than the office of the Board is inconsequential. 27. Section 28(2) of the Act makes the provision for removal of elected Chairman or Vice-Chairman by a resolution of the Board in favour of which not less than half of the whole number of Commissioners shall have to give their votes at a meeting specially convened for the purpose. It was submitted by the learned Counsel for the parties that in the instant case, whole number of Commissioners means 10 elected Ward Commissioners, and half of the said numbers constitutes the quorum to pass the no-confidence motion. Thus, so far as number game is concerned, there is no dispute, but the question which arises for consideration is as to whether the special meeting was convened and the no-confidence motion was passed as per the prescription provided in the Act. 28. Section 33 of the Act makes provision for appointment or election of Chairman and Vice-Chairman. The Petitioner Nos. 1 and 2 were elected as Chairman and Vice-Chairman of the Board in the first meeting held for the purpose. Section 36 empowers the State Government to appoint anyone from amongst the Commissioners as the Chairman to hold the office as such temporarily till a Chairman is elected. Such a course of action can be taken when the posts of both Chairman and Vice-Chairman are vacant. 29. Section 36 empowers the State Government to appoint anyone from amongst the Commissioners as the Chairman to hold the office as such temporarily till a Chairman is elected. Such a course of action can be taken when the posts of both Chairman and Vice-Chairman are vacant. 29. Section 41 of the Act makes provision for filling of casual vacancies of Chairman and Vice-Chairman, As per requirement, such vacancies are to be filled up by election by way of calling a meeting within 45 days of occurrence of vacancies. Upon failure to call such meeting duty lies on the Deputy Commissioner or the Sub-Divisional Officer as the case maybe, to call the meeting. Thus, even otherwise also by efflux of time and upon failure to call the meeting within the specified period of 45 days of occurrence of the vacancies of Chairman and Vice-Chairman, the impugned notification dated 16.11.2007 has spent its force. By now and even at the time of hearing of the writ petition, the stipulated period of 45 days had expired and yet the meeting has not been called by the authorities specified under Section 41 of the Act. 30. Section 43 of the Act deals with ordinary and special meetings as per which the Commissioners shall meet for the transaction of business at their office, at least once in every month and as often as a meeting shall be called by the Chairman or, in his absence, by the Vice-Chairman. Section 43(2) of the Act mandates that the Chairman, or in his absence, the Vice-Chairman may call a special meeting whenever he thinks fit and shall call one on a requisition signed by not less than three of the Commissioners. Section 43(3) comes into play in the event of failure on the part of Chairman or Vice-Chairman to call the special meeting within 20 days after placing the requisition. Upon failure to call special meeting, the meeting may be called by the persons who signed the requisition. 31. In the instant case there was no failure on the part of the Chairman to call the special meeting on the basis of the requisition dated 23.7.2007 inasmuch as the same was never placed before him. This position has been admitted by the Respondent No. 4 himself in the counter affidavit. If the requisition was not placed before him, there was no question of calling the special meeting. This position has been admitted by the Respondent No. 4 himself in the counter affidavit. If the requisition was not placed before him, there was no question of calling the special meeting. The occasion for the persons signing the requisition to call and hold the meeting would have arisen, had there been failure on the part of the Chairman, i.e. Petitioner No. 1, to do so. Thus, the action as contemplated under Section 43(3) of the Act being only consequential to failure on the part of the Chairman to call the special meeting as contemplated in Section 43(2) of the Act, unless the requirement of Section 43(2) is fulfilled, there is no question of taking any action under Section 43(3)of the Act. Everything was done in a hush hush manner. Firstly the requisition letter dated 23.7.2007 was not served on the Petitioner No. 1, but was served on the office peon. Secondly, even the special meeting notice of was not served on the Petitioners. The notice also did not indicate the venue of the meeting. What happened in the case is that, since the requisitions constitute 50% of the elected Ward Commissioner, they forming the group in opposition took the entire action towards removal of the elected Chairman and the Vice-Chairman in a clandestine manner and in the process the mandatory requirements of the provisions of the Act were merrily flouted. 32. Above being the position, the no-confidence motion passed against the Petitioner Nos. 1 and 2 is of no consequence. This is not to mean that the private Respondents cannot bring no-confidence motion against the elected Chairman and Vice-Chairman, but the same will have to be strictly in accordance with the provisions of the Act and not in the manner and method in which they have done. 33. As noticed above, there being failure on the part of the authorities to call the meeting within 45 days of occurring the vacancies of Chairman and the Vice-Chairman, the impugned notification dated 16.11.2007 has otherwise also spent its force. However, this aspect of the matter need not detain us in view of the finding that the entire action on the part of the private Respondents towards passing the no-confidence motion and the action of the official Respondents to give credence to the same being illegal and contrary to the provisions of the Act. 34. However, this aspect of the matter need not detain us in view of the finding that the entire action on the part of the private Respondents towards passing the no-confidence motion and the action of the official Respondents to give credence to the same being illegal and contrary to the provisions of the Act. 34. For the forgoing reasons, discussions and conclusions, this writ petition is allowed with the declaration that the no-confidence motion passed against the Petitioners on 15.9.2007 is illegal and consequently, the notification dated 16.11.2007 (Annexure-D) is also of no consequence. The Petitioner Nos. 1 and 2 stand restored to their position of Chairman and Vice-Chairman of Dhekiajuli Municipal Board. This however, shall not preclude the Ward Commissioners to bring no-confidence motion against them in accordance with law and the provisions of the Act. 35. The writ petition is allowed. The resolution dated 15.9.2007 purportedly passed against the Petitioner Nos. 1 and 2 by the private Respondents as well as the consequential impugned notification dated 16.11.2007 (Annexure-D) stand set aside and quashed. There shall be no order as to costs.