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2008 DIGILAW 713 (CAL)

Debagopal Chakraborty v. STATE OF WEST BENGAL

2008-07-18

Manik Mohan Sarkar, Pratap Kumar Ray

body2008
JUDGMENT: 1. BEING aggrieved by refusal to pass any interim order by the learned Trial Judge in W. P. No. 26467 (W) of 2007 wherein an interim order was prayed for directing respondents not to take steps in pursuance of the notice dated 30th May, 2008 being Annexure P-10 of the petition, being a notice issued by the majority group of Councillors of the concerned Municipality with the agenda for removal of the Chairman, the writ petitioner, this appeal has been preferred. 2. ALONG with the appeal, an application seeking interim order was filed. On exchange of affidavits the said application was heard. In course of hearing it appears that in adjudicating the issue, the merit of the writ application as well as the appeal are required to be considered. 3. HAVING regard to such situation, on consent of the parties the writ application, appeal and appropriate interim application all are taken up for final hearing on dispensing with the service of notice of appeal and other formalities. 4. THE point involved is very short, namely, whether the notice issued by the majority elected members of the Board of Councillors with the agenda of removal of Chairman of the concerned Municipality is attracted by the embargo as laid down in proviso of sub-section 3 of Section 18 of West Bengal municipal Act, 1993 which provides that no meeting should be convened for such purpose till the expiry of period of six months from the date the Chairman assumes office. The relevant provision of the said Act under sub-section 3 of section 18 of the West Bengal Municipal Act, 1993 (hereinafter for brevity referred to as Municipal Act) reads such :- "18. Terms of office of Chairman. . . . . . . . . . . . . . The relevant provision of the said Act under sub-section 3 of section 18 of the West Bengal Municipal Act, 1993 (hereinafter for brevity referred to as Municipal Act) reads such :- "18. Terms of office of Chairman. . . . . . . . . . . . . . (3) The Chairman may be removed from office by a resolution carried by a majority of the total number of [elected members] if the Board of councillors holding office for the time being [present and voting by them], 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 [elected 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 : provided that no such resolution shall be moved before the expiry of six months from the date of assumption of office by a Chairman, and in such resolution is not carried by a majority of the total number of [elected members], no further resolution for such purpose shall be moved before the expiry of a period of six months from the date on which the former resolution was moved". The writ petitioner is a Chairman of the Municipality. It is the case of the writ petitioner/appellant that though he was elected as Chairman and on taking oath assumes office on 28th November, 2007, but such election as was challenged in W. P. No. 26467 (W) of 2007 he suffered an interim order passed in the said application being the order dated 29th November, 2007 whereby and whereunder the Municipality was restrained from taking any policy decision as well as to incur any capital expenditure and, as such, the writ petitioner/ appellant could not function properly with full exercise of his power and function till the writ application was dismissed on 14th May, 2008, so the convening of the meeting by the majority members of the Board of Councillors breached the said proviso of sub-Section 3 of Section 18, namely, the time limit of convening a meeting as prescribed by counting the six months period w. e. f. 14. 5. 2008. 5. 2008. It appears from the proviso of sub-section 3 of Section 18 that time limit of six months starts from the date of assumption of office by a Chairman. There is no mentioning in the statute that functioning as Chairman should be the starting point to count the time limit of six months as provided therein. The assumption of office by the Chairman is controlled by Section 50a of the said Act which speaks that Chairman shall assume office after taking oath of secrecy as to be administered by the District Magistrate or his delegatee as the case may be. Section 50a of the said Act reads such :- "50a. Oath of secrecy to be taken by Chairman, Vice-Chairman and members of Chairman-in-Council.- (1) The Chairman, the Vice-Chairman, and a member of the Chairman-in-Council shall assume office after taking the oath of secrecy in the following form :-"1. A. B., do swear in the name of God/solemnly affirm that I wilt not directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to me as Chairman/vice-Chairman/ a member of the Chairman-in-Council except as may be required for the due discharge of my duties such Chairman/vice -Chairman/member of the Chairman-in-Council. " (2) In the case of the Chairman, the oath of secrecy shall be administered by the District Magistrate or the Sub-divisional magistrate in whose jurisdiction the Municipality is situated or an officer of the State Government authorised in this behalf by the district Magistrate. In the case of the Vice-Chairman or a member of the Chairman-in-Council, the oath of secrecy shall be administered by the Chairman". 5. ON a bare reading of Section 50a it appears that a Chairman is required to assume office. The word "shall assume office" is a direction upon the subject concerned who will assume the office which means the assumption of office on taking oath is an act and/or function by the Chairman himself and it does not require any authorisation by any body or induction by any body in that office. The word "shall assume office" is a direction upon the subject concerned who will assume the office which means the assumption of office on taking oath is an act and/or function by the Chairman himself and it does not require any authorisation by any body or induction by any body in that office. In the earlier writ application which has been referred to contend by the appellant/writ petitioner that the writ petitioner could not discharge his function properly in view of the interim order passed earlier so the time limit should be construed from the date of dismissal of the said writ application that is from 15th May, 2008, it appears that it was a writ application filed by the majority elected members of the Board of Councillors assailing the election of chairman, the present writ petitioner/ appellant who filed an affidavit-in-opposition affirmed on 10th day of December, 2007. The record of the said writ application was called for and the same has been produced before us. From paragraph 2 (1) of the affidavit-in-opposition filed by the present appellant in the said writ application registered as A. S. T. No. 3111 of 2007 subsequently re-numbered as W. P. No. 26467 (W) of 2007 it appears that a categorical statement was made on oath by affirming the same as true to his knowledge by the present appellant that he assumed the office of the Chairman after taking oath of secrecy in accordance with Section 50a of the said Act on 28th november, 2007. The relevant paragraph reads such :- "2. (1) On 28. 11. 07 oath of secrecy was conducted in terms of the order dated 28. 11. 07 issued by the District Magistrate, Hooghly as above and such oath taking ceremony was initiated by Vice-Chairman, Bhadreswar Municipality to all other councilors including the writ petitioners. Sri Debagopal Chakrabarti assumed the office of Chairman after taking the oath of secrecy in accordance with Section 50a of West Bengal Municipal Act, 1953. Copy of such administration of oath of secrecy in presence of Dy. Magistrate and Dy. Collector, Hooghly Sri Ajit Kumar Chattopadhyay conducted at 3 P. M. on 28. 11. 07 is annexed hereto and marked with the Letter "r-6". " 6. FROM the said averment it is admitted that the appellant/writ petitioner assumed office of Chairman on 28. 11. 2007. Copy of such administration of oath of secrecy in presence of Dy. Magistrate and Dy. Collector, Hooghly Sri Ajit Kumar Chattopadhyay conducted at 3 P. M. on 28. 11. 07 is annexed hereto and marked with the Letter "r-6". " 6. FROM the said averment it is admitted that the appellant/writ petitioner assumed office of Chairman on 28. 11. 2007. Hence, there is no doubt that the statutory provision of sub-section 3 of Section 18 so far as time limit to consider the six months has been fulfilled in view of clear language in the proviso of sub-section 3 of Section 18 which stipulates that the date to be counted from the date of assumption of office by a Chairman. Furthermore, from the affidavit-in-opposition of the stay application as filed by the majority members of the Board of Councillors, a detailed functioning of the Chairman during the pendency of the writ application have been narrated with relevant documentary evidence. It appears that in earlier writ application there was no interim order restraining the functioning of the Chairman who by his own admission assumed his office as Chairman on 28th November, 2007. The order dated 29th November, 2007 as passed in the said writ application W. P. No. 26467 (W) of 2007 reads such :-"29. 11. 07.- The election of the respondent No. 10 as Chairman of bhadreswar Municipality is under challenge in this petition. This Court is satisfied that this writ petition calls for expeditious disposal. In view thereof the respondents are granted liberty to file affidavit-in-opposition by 10th December, 2007, reply, if any, thereto shall be filed by 13th december, 2007. 7. THE writ petition shall be listed as "specially Fixed Matter" on 14th december, 2007 at 2 P. M. 8. SINCE the material allegations contained in the writ petition (in paragraphs 11 to 16 have been disputed by learned Counsel for the respondent No. 10 as well as the learned Counsel representing the other respondents, this Court is not inclined to pass any interim order as prayed for in this petition. SINCE the material allegations contained in the writ petition (in paragraphs 11 to 16 have been disputed by learned Counsel for the respondent No. 10 as well as the learned Counsel representing the other respondents, this Court is not inclined to pass any interim order as prayed for in this petition. However, having regard to the fact that 11 out of 20 Councillors of the Municipality are before this Court alleging that the Presiding Officer of the meeting did not call for election by ballots despite the petitioners' having proposed the name of the petitioner No. 6 and that a commotion followed wherein the respondent No. 10 was declared elected without secret ballots, this Court is, prima facie, satisfied that the allegations contained in the petition are believable. Based on such satisfaction the only interim order, this Court thinks it fit to pass at this stage is that the Municipality shall remain restrained from taking any policy decision as well as to incur any capital expenditure until further orders of this Court. " On a bare reading of the said order it appears that the Municipality was restrained from taking any policy decision as well as to incur any capital expenditure until further order of the Court. By the said interim order no restriction imposed about functioning of the Chairman of the Municipality who was respondent No. 10 in said writ application. 9. IT has been contented by Mr. Chatterjee, learned Advocate appearing for the appellant that assumption of office does not mean mere sitting in the office but requires proper functioning in all respects and as the municipality was restrained to take a policy decision and to incur any capital expenditure, the Chairman could not exercise his proper function in the office. In support of his case a judgement has been relied upon on meaning of the word "office" being the case Smt. Kanta Kathuria v. Manak Chand Surana reported in AIR 1970 SC 694 . The said case was on issue as to whether a government pleader holds the office of profit or not to attract the disqualification clause under Article 191 of the Constitution of India prescribing disqualification to contest an election in the Assembly or in the Council. The word "office" as defined in the context of that particular provision of law vis-a-vis the appointment of a Special Government Pleader was considered in the said judgement. The word "office" as defined in the context of that particular provision of law vis-a-vis the appointment of a Special Government Pleader was considered in the said judgement. It is held that meaning of the word "office" is not a specific one and it depends upon different factors. The learned Advocate, Mr. Chatterjee has strongly relied upon paragraph 29 to identify the meaning of office. Relevant portion of the said paragraph reads such :- "29. . . . . . . . . . . The word "office" is of indefinite content; its various meanings cover four columns of the New English Dictionary, but i take as the most relevant for purposes of this case the following : "a position or place to which certain duties are attached, especially one of a more or less public character". " 10. THOUGH the ratio of the said judgement has no applicability in the instant case in view of the clear statutory provision being the proviso to sub-section 3 of Section 18, still then the judgement cannot be applied. From the paragraph as quoted above it appears that the word "office" means a position or place to which certain duties are attached, especially one of a more or less of public character. Even we assume the meaning of the word "office" as above, it will not help the appellant to rescue the legal position. The office of the chairman no doubt is a position or place where certain duties are attached which more or less of public character and there is no doubt in it. Here it is not a dispute whether the office of the Chairman is an office within the meaning of the word "office" but here is the dispute about the meaning of the word "chairman of the office". As already discussed, assumption of word pre-supposes an action by the particular person concerned who is assuming something, here a person who is elected as a Chairman does not function as a Chairman until and unless under Section 50a he assumes the office himself by taking oath, it requires to be administered by the District Magistrate. The very language "assumption of office" under Section 50a by the Chairman does not require his induction in the office by any other agency or to empower to perform certain duties therein. But he himself on taking oath is assuming the office. The very language "assumption of office" under Section 50a by the Chairman does not require his induction in the office by any other agency or to empower to perform certain duties therein. But he himself on taking oath is assuming the office. In view of such position, the judgement as referred to has no relevancy in the instant case. The said judgement has no applicability in this case, in view of clear language "assumption to office" in the statute and admission of appellant about his presumption to office. On behalf of the respondents, Mr. Bandopadhyay, learned Senior advocate has referred a judgement reported in 1980 (1) All E. R. 266 to submit that the word "assumption" is indicative of some act or acts which demonstrate undertaking of responsibility of one-self. As already discussed that the meaning of the word "assumption" is an act of the person concerned who is assuming something. The function of the Chairman has been detailed in Section 16 which reads such :- "16. [powers and functions of the Chairman.- (1) The Chairman shall be [the executive head of the Municipality and the municipal administration shall be under his control] and he shall exercise such powers and functions as conferred on him by or under this Act. (2) The Chairman shall preside over the meetings of the Chairman-in-Council as well as the Board of Councillors. (3) The Chairman shall allocate the business among the members of the Chairman-in-Council in case of group A, Group B and Group c municipalities. (4) The matters to be discussed at a meeting of the Chairman-in-Council as well as the Board of Councillors shall be prepared under the direction of the chairman and shall be circulated to the members of the Chairman-in-Council as well as the Board of Councillors, as the case may be, in such manner as the Chairman may determine. (5) The Chairman shall, if he is of opinion that immediate execution of any work is necessary and the same ordinarily requires the approval of the board of Councillors or the Chairman-in-Council, as the case may be, direct the execution of such work : provided that the Chairman shall report forthwith to the Board of councillors or the Chairman-in-Council, as the case may be, the actions taken under this section and the reasons thereof. " 11. " 11. ON scrutiny of the different functions of the Chairman as detailed in said affidavit-in-opposition it appears that no such statutory function suffered any embargo by the interim order dated 29. 11. 2007 passed by this Court in a writ application being W. P. No. 26467 (W) of 2007. 12. HAVING regard to our discussions above, accordingly we are of the view that for the purpose to satisfy the proviso of sub-section 3 of Section 18 the date of assumption of the office will be the starting point and here in the instant case the writ petitioner/appellant from his own admission as already referred to above admitted that he assumed office on 28th November, 2007. For the purpose of removal of chairman by the majority members the functioning of the Chairman is irrelevant but date of assumption of the office by him is a relevant factor to serve a notice satisfying the proviso aforesaid. As there is no dispute about the date of assumption of office by the writ petitioner/appellant as a Chairman, there is no merit in the writ application to assail the notice issued by the majority elected members of the Board of Councillors to convene a meeting with the agenda for removal of the Chairman which was impugned in the writ application. Accordingly, the writ application, appeal and the application for interim relief all stand dismissed with a cost of Rs. 10,000/- which to be paid by the appellant to the contesting respondents of this application, namely, the members of the Board of Councillors, who convened the meeting, as a cost of legal proceeding. Such cost be paid within a month from this date from his own pocket.