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2016 DIGILAW 77 (CAL)

Ajay Boral v. Apurba Sarkar

2016-01-21

JOYMALYA BAGCHI, MANJULA CHELLUR

body2016
JUDGMENT : Heard the learned counsel appearing for the respective parties. 2. The entire issue of the controversy laid before us is with regard to the procedure to be adopted by the concerned authority or the person on the requisition given by the ?rd of the councillors for the removal of the Chairman of the Kandi Municipality. As a matter of fact, about nine councillors of this Municipality approached the Chairman of the said Municipality with a requisition to convene a meeting in order to hold a vote of confidence meeting against the Chairman. At that point of time, the present challenge was made in the writ petition in question contending that several procedures were not complied with. 3. Therefore, such notice was invalid. 4. Learned single Judge after a lengthy arguments addressed by all the parties concerned proceeded to dispose of the writ petition in the following manner: “In those circumstances, in my view when, in this case an allegation of defection is raised, voting, according to the impugned requisition can only be allowed provided each and every voter mentions his name and party affiliation on the ballot paper. It would be the duty of the Chairman appointed under the said Rule 13 (2) to ask the leader of the party concerned as to the manner of voting of the party. If the Chairman prima facie finds that a particular voter belongs to that party and has voted against the mandate of the party and that such voter along with similar voters from that party do not constitute a group of not less than one-third of the total number of Councillors belonging to that party, or comprise such group but have not left the party, he will withhold declaration of the result and refer the matter to the authority under Section 21 (B). The said competent authority will decide the matter in accordance with law. If such is not the case the Chairman will declare the result. If the Competent Authority finds that there is violation of the anti defection law, no effect is to be given to such resolution. If on the other hand the Competent Authority finds that there is no violation of the anti-defection law or if the Chairman is of such opinion and does not refer to the matter to the Competent Authority, then he is free to declare the result. If on the other hand the Competent Authority finds that there is no violation of the anti-defection law or if the Chairman is of such opinion and does not refer to the matter to the Competent Authority, then he is free to declare the result. If any dispute is raised by any Councillor with regard to the exercise of this power of the Chairman for reference to a Competent Authority under Section 21B, the Chairman will refer the matter to the Competent Authority which will take the necessary decision as soon as possible. This entire process should be completed within 6 weeks from date.” 5. Aggrieved by this the appellants are before us contending that the procedure contemplated under Rule 9 of the West Bengal Municipalities (Procedure and Conduct of Business) Rules, 1995 had not reached its finality and the writ petition was pre-mature. 6. It was strenuously argued that Sections 18 and 21B of the Act being two separate individual and distinct procedures meant for different purposes ought not to have been clubbed by the learned single Judge to dispose of the controversy raised in the writ petition. 7. According to Mr. Kar, learned counsel appearing for the appellants procedure for removal of the Chairman could be initiated and completed by following the procedure under Rule 9. Therefore, there is no question of borrowing any of the provisions or requisitions contemplated under Section 21(B) of the Act. According to him, they are independent and distinct procedures contemplated under the Act do not overlap. 8. Section 18(B) is the procedure is for removal of chairman of a local body and Section 21(B) is for removal of a councillor from the membership of the council upon defection. 9. As against this learned senior counsel Mr. Sanyal contends that explanation to Section 21(B) would clearly indicate that issuance of a requisition notice itself amount to act of defection. Therefore, automatically when a notice for initiation of proceedings under Section 18 comes into play, procedure and the requisition under Section 21(B) has to be followed. Therefore, the opinion of the learned single Judge that unless it is ascertained prior to further proceedings under Section 18 signatories to the requisition belongs to which party, it would not be just and proper to proceed with the said meeting contemplated under Rule 9 for removal of Chairman. 10. Mr. Therefore, the opinion of the learned single Judge that unless it is ascertained prior to further proceedings under Section 18 signatories to the requisition belongs to which party, it would not be just and proper to proceed with the said meeting contemplated under Rule 9 for removal of Chairman. 10. Mr. Chatterjee, learned counsel supports the argument of Mr. Sanyal and takes us through the correspondences and also points out that the so called requisition under Section 18 proposed by the appellants is nothing but an act of coercion since the Chairman had addressed a letter to Sub Divisional Magistrate complaining of abduction of some of the councillors especially the persons who made the requisition. Therefore, the procedure contemplated under Section 21B as observed by the learned single judge is justified in the facts and circumstances of the case. 11. Learned Additional Advocate General submits that the procedure as contemplated under Section 21(B) is entirely a different procedure than what is contemplated under Section 18 of the Act though a vote cast by a councillor contrary to the majority vote of his party under Section 18 may sometimes lead to procedure contemplated under Section 21B of the Act. 12. For the purpose of understanding the real question of controversy raised before us it would be just and proper to reproduce the provisions which are referred to by the learned counsel. 18. Terms of office of Chairman. – (1) The Chairman shall cease to hold office as such if he ceases to be a Councillor of the [municipal area] (2)The Chairman may, at anytime, by giving a notice in writing to the Board of Councillors, resign his office, and the procedure for acceptance or otherwise of the resignation shall be such as may be prescribed. – (1) The Chairman shall cease to hold office as such if he ceases to be a Councillor of the [municipal area] (2)The Chairman may, at anytime, by giving a notice in writing to the Board of Councillors, resign his office, and the procedure for acceptance or otherwise of the resignation shall be such as may be prescribed. (3) The Chairman may be removed from office by a resolution carried by a majority of the total number of [elected members] of 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 if 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. 21B. Disqualification for being a Councillor on change of political party by the Councillor. 21B. Disqualification for being a Councillor on change of political party by the Councillor. – (1) Notwithstanding anything to the contrary contained in this Act or in any other law for the time being in force, such competent authority for a Municipality as maybe appointed by the State Government by notification in this behalf (hereinafter referred to in this section as the competent authority), may, subject to the other provisions of this section, declare, for reasons to be recorded in writing, a Councillor of such Municipality to be disqualified for being a Councillor thereof, if – (a) he is an elected Councillor set up by a recognised political party and has- (i) voluntarily given up his membership of such recognised political party, or (ia) joined another recognised political party, or] (ii) exercised the voting right contrary to the manner of voting of the majority of the Councillors who are the members of such recognised political party in such Municipality, or (b) [he is an elected Councillor not set up by a recognised political party] and he has joined a recognised political party on the expiry of six months from the date of election: Provided that the competent authority shall not declare any Councillor to be disqualified under this section without giving to such Councillor a reasonable opportunity to represent his case and to be heard in person: Provided further that an elected Councillor [referred to in sub-clause (iA), or sub-clause (ii) of clause (a)] shall not, on the competent authority being satisfied in this behalf, be declared to be disqualified, if – (a) the action of such Councillor was taken obtaining prior permission of, or was condoned by, such recognised political party, or (b) Such councillor claims that he and any other councillors, who are the members, of such recognised political party, constitute in the Municipality a group representing a faction consisting of not less than one-third of the total number of Councillors set up by such recognised political party in the Municipality and that all the Councillors constituting such group have voluntarily given up their members of such recognised political party, or (c) the former recognised political party of the councillor merges with another recognised political party, and he claims that he and the other members of his former recognised political party – (i) have become members of such other recognised political party or of a new recognised political party formed out of merger, as the case may be, or (ii) have not accepted the merger, and from the time of such merger, he and such other Councillors constituting not less than one-third of the total number of Councillors set up by the former recognised political party in the Municipality, have opted to remain members of the former recognised political party or have formed a new recognised political party. (2) On being declared to be disqualified under subsection (1), a Councillor shall subject to the provisions of sub-section (12), stand removed from the Board of Councillors from the date of such declaration. (3) As soon as may be within one month from the date of the first meeting of the Board of Councillors or within one month from the date on which this section comes into force, as the case may be, the elected Councillors set up by the recognised political parties shall, by adopting a resolution, select one Councillor from amongst themselves to be the Leader and such Leader shall within fifteen days from the date of such selection, furnish to the competent authority referred to in sub-section (1)- (i) a copy of the resolution (iii) a signed statement containing the names, addresses and constituencies of himself and other Councillors set up by such recognised political party, and (iv) a copy of a set of rules and regulations, if any, by whatever name called, of such recognised political party: Provided that an office-bearer may also hold the office of the Leader: Provided further that the competent authority shall not refuse to accept, or to rely on, the documents furnished by the Leader merely on the ground that the resolution selecting the Leader was not adopted within one month from the date on which this section comes into force, as the case may be, or that the documents as aforesaid were not furnished to him within fifteen days from the date of such selection. (4) Where there is only one elected Councillor set up by a recognised political party in a Municipality, he shall furnish the documents referred to in sub-section (3) in relation to himself: Provided that in the event of any increase in the number of Councillors who are the members of such recognised political party, the provisions of subsection (3) shall apply as if the first meeting of the Board of Councillors was held or this section came into force, as the case may be, on the date of on which such increase took place. (5) A Councillor not belonging to any recognised political party shall furnish a statement to that effect to the competent authority within one month from the date of the first meeting of the Board of Councillors. (5) A Councillor not belonging to any recognised political party shall furnish a statement to that effect to the competent authority within one month from the date of the first meeting of the Board of Councillors. (6) In the event of any change of the information furnished under sub-section (3), sub-section (4) or subsection (5), the Leader or the Councillor, as the case may be, shall, as soon as may be within fifteen days from the date of such change, furnish in writing such change of information to the competent authority. (7) The Leader referred to in sub-section (3), who is a member of a recognised political party, may at any time file a petition endorsed by the General Secretary, or, if there is no General Secretary, the Secretary of the district unit [or the Head of the district functionary in whatever designation he may be called] of such recognised political party to the competent authority, stating that- (a) one or more Councillors who are the members of such recognised political party have – (i) voluntarily given up his or their membership of such recognised political party, or (iA) joined another recognised political party, or} (ii) have exercised the voting right contrary to the manner of voting of the majority of the Councillors set up by such recognised political party in the Municipality, or (b) the Councillor referred to in sub-section (4) has voluntarily given up his membership of the recognised political party that set his up, or (c) the Councillor referred to in sub-section (5) has joined a recognised political party on the expiry of six months from the date of election, and that such Councillor or Councillors should be declared to be disqualified under sub-section (1) and should be removed from the Board of Councillors. (8) Every petition referred to in sub-section (7)- (a) shall contain a concise statement of the material facts on which the petitioner relies, and (b) shall be accompanied by copies of the documentary evidence, if any, on which the petitioner relies and, where the petitioner relies on any information furnished to him by any person or persons, a statement containing the names and addresses of such person or persons and the gist of such information as furnished by such person or each of such persons. (9) On receipt of the petition referred to in subsection (7), the competent authority shall, as soon as possible within six weeks from the date of the receipt of such petition, proceed to make an enquiry to satisfy himself, among others, as to- (a) the common decision in regard to the manner of voting to be exercised by the majority of the Councillors set up by the recognised political party, and (b) whether the Councillor or Councillors against whom such petition is filed, exercised the voting right in a meeting of the Board of Councillors contrary to such manner of voting. (10) For the purpose of enquiry under sub-section (9), the competent authority may summon such members of the recognised political party or other persons, and may require such signed statement from, and production of such documents and records by the members or other persons as aforesaid, as he may deem necessary. (11) As soon as possible within eight weeks from the date of receipt of the petition referred to sub-subsection (7), the competent authority shall, in consideration of the statements, documents, and records before it- (a) reject the petition, or (b) admit the petition wholly or in part and declare any member or members of such recognised political party to be disqualified under sub-section (1) for being Councillor or Councillors of the Municipality. (12) Any Councillor declared disqualified under subsection (1) or the Leader of the recognised political party referred to in sub-section (7), if aggrieved by the decision of the competent authority, may, within thirty days from the date of the order, appeal to such authority as the State Government may appoint in this behalf and, thereupon, the authority so appointed may stay the operation of the order till the disposal of the appeal and may, after giving notice of the appeal to the competent authority, and after giving the appellant and the opposite parties an opportunity of being heard, set aside or confirm the order or declare any Councillor or Councillors to be disqualified under, and in accordance with the provisions of sub-section (1) [within a period of eight weeks from the date receipt of the appeal under this sub-section] and, upon such declaration, the Councillor or Councillors shall stand removed from the Board of Councillors. (13) The order passed by the authority referred to in sub-section (12) on the appeal shall be final. (13) The order passed by the authority referred to in sub-section (12) on the appeal shall be final. (14) Notwithstanding anything to the contrary contained in this Act or in any other law for the time being in force, no court shall have any jurisdiction in respect of any matter arising out of a Councillor of a Municipality being declared to be disqualified under sub-section(1) for being a Councillor of such Municipality.” 13. 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 (a) 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 giving 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, on 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.” 14. On reading of Sections 18 and 21(B) it is very clear that under what circumstances and how and at whose instance the Chairman may be removed from office is clearly contemplated under Section 18 of the Act. Section 21(B) is with reference to disqualification of a councillor on change of political parties by the councillor and also other instances as envisaged under the said section. Section 21(B) is with reference to disqualification of a councillor on change of political parties by the councillor and also other instances as envisaged under the said section. The procedure contemplated for removal of a chairman is further detailed in Rule 9 where it is clearly mentioned how a special meeting has to be convened. The Rule provides three alternatives as and when the Chairman, Vice Chairman or three councillors may convene a meeting as envisaged therein. So far as Section 21B of the Act is concerned, an application before competent Authority as appointed by the State Government by notification in that behalf for disqualification of a councillor on the score of defection could be entertained. It is totally a different procedure when compared that of the procedure under Section 18. No doubt under certain circumstances irrespective of success in the attempt of the persons giving requisition under Section 18, the situation may lead to procedure under Section 21(B) if an application is filed as envisaged under the said enactment. It does not mean that the Act contemplates the procedure to be followed under Section 21(B) whenever the councillors give requisition for removal of the Chairman under Section 18 of the Act. 15. In that view of the matter, we are of the opinion that the learned single Judge was not right in reading the provisions contemplated under Section 21(B) into the procedure contemplated for removal of Chairman under Section 18 of the Act read with Rule 9 of the Rules framed therein. 16. Accordingly, the appeal being M.A.T. 60 of 2016 is allowed. The order of the learned single Judge is set aside. 17. In view of the aforesaid order the appeal being M.A.T. 75 of 2016 is dismissed. 18. Stay as sought for is refused. 19. Consequently the applications being CAN 456 of 2016 and CAN 525 of 2916 stand disposed of. Certified copy of the order, if applied for, be given to the parties on urgent basis.