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2017 DIGILAW 501 (CAL)

Ranjana Singh v. State of West Bengal

2017-05-19

HARISH TANDON

body2017
JUDGMENT : This is virtually a second round of litigation at the behest of some of the Councilors of the Jiaganj Ajimganj Municipality challenging the notice issued by 3 requisitionists for convening the meeting for removal of the Chairman and the resolution adopted at such meeting. Earlier the erstwhile chairman and the vice chairman of the said municipality instituted separate writ petitions being WP 11388(W) of 2017 and WP 12468(W) of 2017 assailing the notice of requisition for special meeting under Section 18(3) of the West Bengal Municipal Act, 1993, addressed to the erstwhile chairman on various grounds including that the signature appearing therein of 9 such Councilors are forged and fabricated. 2. A separate affidavit was filed by the aforesaid requisitionist stating that the signature appended in the notice dated 24th March, 2017are genuine and contains their signatures. A legal point was raised that when the chairman refused to convene the meeting, a separate notice of requisition is required but under Rule 9 of the West Bengal Municipality (Procedure and Conduct of Business) Rules, 1995, to be served upon the vice chairman and on his failure to convene a meeting within the stipulated time, the requisitionist may held the meeting. After examining the provision contained under the West Bengal Municipal Act, 1993 and the aforesaid Rules, the writ petition was dismissed as the said notice was held to be in conformity with the aforesaid provisions. Six councilors have joined in the instant writ petition and are challenging not only the notice dated 18.04.2017 issued by three of such councilors requesting the special meeting as the chairman and vice chairman have failed to convene such meeting within the stipulated time but also the resolution adopted in the special meeting convened for the purpose of removal of the chairman. 3. Admittedly, the petitioners and the respondent nos. 8 and 9 did not attend the special meeting in which the resolution was passed for removal of the erstwhile chairman, the respondent no 8. It is not in dispute that the municipality consists of 17 elected councilors out of which the respondent nos. 8 and 9 were elected as chairman and vice chairman respectively. The fact remains that the notice of the special meeting was served upon the councilors including the petitioners but they did not attend the meeting. It is stated in the writ petition that the respondent no. 8 and 9 were elected as chairman and vice chairman respectively. The fact remains that the notice of the special meeting was served upon the councilors including the petitioners but they did not attend the meeting. It is stated in the writ petition that the respondent no. 1 was attacked by some miscreants and was apprehensive to attend the meeting held on 24.04.2017. The apprehension was real in the sense that the executive office of the municipality before the said special meeting, wrote to the officer-in-charge of the Jiaganj Police Station to provide adequate police assistance for maintenance of law and order situation. The office-in-charge of the said police station responded to the said request and showed his inability to provide such police force because of the ensuing election of Domkal Municipality and requested the executive office of the municipality to defer the date of meeting. The Sub-Divisional Officer, Lalbag, Murshidabad also indicated the aforesaid fact to the executive office of the municipality and requested him to do the needful. 4. The petitioner therefore states since the executive office was apprehending that there would not be a peaceful meeting and it is very difficult to maintain the law and order thereat, such apprehension is fortified by the aforesaid action of the authorities. Basically the writ petition is founded on the facts that the petitioners being apprehensive of law and order situation that may arise during the special meeting did not attend the same and there is no fair and transparent meeting held on 24.04.2017. Since the meeting ended with the resolution of removal of the chairman by the councilors present and voted a further meeting was called to elect the chairman during the pendency of the instant writ petition and such facts have been disclosed in the affidavit-in-reply filed by the petitioner. The respondents in their affidavit-in-opposition have taken a stand that the requisition for special meeting was validly issued by the councilors and the special meeting was also held strictly in conformity with the Rules applicable thereto. In support of the aforesaid stand various documents are annexed to the affidavit-in-opposition pertaining to the requisition notice and the resolution taken at the special meeting. 5. In support of the aforesaid stand various documents are annexed to the affidavit-in-opposition pertaining to the requisition notice and the resolution taken at the special meeting. 5. The point which hinges for consideration before this Court is whether the special meeting was convened strictly in conformity with the provisions contained in the said Act and the Rules and whether the petitioners were prevented from attending the said special meeting because of fear and therefore the resolution taken in the said special meeting is liable to be cancelled, quashed and set aside. 6. Learned Advocate appearing for the petitioner submits that the special meeting was not convened strictly in terms of sub Rule 3 of Rule 6 of the said Rules. It is further submitted that sub Rule 11 of Rule 4 of the said Rules makes imperative to keep the record of the proceeding of the meeting in the minute book of the municipality by president in continuation of the proceeding recorded by the officer and having not done so is bad and illegal. It is further submitted that the officer defined under Section 2(1)(e) of the said Rules was not present at the said special meeting which is mandatory and therefore any resolution taken in the special meeting is contrary to the provisions thereof. 7. According to learned Advocate, the resolution must be recorded by the officer first and thereafter the president in continuance thereof should record the proceedings of the meeting in the minute book of the municipality which is conspicuously absent in the present case. It is ardently submitted that Section 50A of the West Bengal Municipal Act, 1993 clearly provides that the Chairman cannot assume office without taking oath of secrecy in the prescribed form and in the instant case the said provision has been violated. It is vehemently submitted that the respondent no. 8, the erstwhile chairman was attacked and an FIR was lodged before the concerned police station and therefore the petitioners had fear of their lives at the said meeting and therefore were prevented from attending so and placed reliance upon a judgment of the Apex Court in case of Kuldeep Nayar Vs. Union of India & Ors. reported in (2006) 7 SCC 1 . Union of India & Ors. reported in (2006) 7 SCC 1 . It is further submitted that a subsequent event can be taken note of by the Court and if those facts are disclosed in affidavit-in-reply, it forms part of the record and there is no difficulty on the part of the Court to mould the relief. 8. On the other hand, the learned Advocate for the contesting respondent other than the respondent nos. 8 and 9 submits that Rule 3 of the said Rules is applicable only when the first meeting of the Board of Councilors is convened under Section 50B of the Act and has no manner of application in the election of a fresh chairman after the erstwhile chairman is removed by resolution taken in the special meeting. It is succinctly submitted that the subject disputed in the instant writ petition was a subject matter in an earlier two writ petitions filed by respondent nos. 8 and 9 and having decided conclusively, cannot be reopened and/or reagitated in the instant writ petition it is further submitted that sub-Rule 11 of Rule 4 is applicable when the first meeting of the Board of Councilors is convened and not when the chairman is removed by resolution in a special meeting and a new chairman is elected. It is thus submitted that the presence of the officer is imperative in the first meeting of the Board of Councilors under Rule 3(1) of the said Rule and not thereafter. The story of attack on the erstwhile chairman and the apprehension pleaded in the pleading has no basis as they cannot be related to each other. It is further submitted that the staffs of the municipality were deployed at the venue of the special meeting and therefore the fear as stated by the petitioner is unfounded and without any basis. It is lastly submitted that there was a valid quorum at the special meeting and the respondent no. 8 was removed from the post of chairman unanimously and a new chairman was subsequently elected in a validly held meeting. 9. From the respective submissions it appears that the entire submission is based upon the applicability of Rule 3, 4 and 6 of the said Rules in the fact situation. 8 was removed from the post of chairman unanimously and a new chairman was subsequently elected in a validly held meeting. 9. From the respective submissions it appears that the entire submission is based upon the applicability of Rule 3, 4 and 6 of the said Rules in the fact situation. It is undisputed that the chairman may be removed from office by a resolution carried out by the majority of the total number of elected members of the Board of Councilors present and voting at a special meeting called for such purpose in a prescribed manner upon a requisition made in writing by not less than 1/3rd of the total number of elected members of the Board of Councilors under Section 18(3) of the Act. 9 councilors initially issued a requisition notice which is more than 1/3rd of the total elected members of the Board of Councilors. Rule 9 of the said Rule containing provisions relating to extraordinary meeting imbibe within itself an emergency meeting and a special meeting. Sub Rule 3 of Rule 9 requires the chairman or in his absence the vice chairman to convene the meeting after giving not less than 3 days notice to the member and may also be convened with the similar notice to the members on a requisition containing specifically attend and signed by not less than 1/3rd of the total number of councilors of the municipality. The chairman is obligated to convene a meeting within 15 days from the date of receipt of the requisition and on his failure the vice chairman has to convene such meeting within 7 days thereafter and on his failure any three of the councilors may convene such meeting within 7 days thereafter. The notice dated 18.04.2017 issued by three of such councilors clearly indicates that the chairman and the vice chairman have failed to convene the meeting within the stipulated time and such meeting is to be convened on 24th April, 2017 at 12 noon at the premises of the said municipality. 10. This Court does not find that the said notice is not in conformity with the aforesaid rules and be declared invalid. 10. This Court does not find that the said notice is not in conformity with the aforesaid rules and be declared invalid. Sub Rule 3 of Rule 6 provides that if the resolution of removal of chairman is duly carried out, the vacancy in the office can be filled up at the meeting to beheld in accordance with the procedure laid down in Clauses b, c, d and e of sub Rule 2 of Rule 6. The aforesaid clauses in sub Rule 2 thereof, more particularly Clause ‘d’ stipulates that in the event of vice chairman is a candidate for the chairman, he will continue to preside over such meeting unless the president for that meeting is elected. On a bare look of Rule 3 of the said Rules more particularly sub Rule 1 thereof, it is clear and explicit that it relates to the first meeting of the Board of Councilors to be convened within 30 days from the date of the publication of the names of the elected members in the official gazette under Section 71 of the West Bengal Municipal Elections Act, 1994. The first meeting is required to be convened by an officer defined under Section 2(1)(e) of the said Rules and sub Rule 2 obligated the councilors forming the quorum and present at the said meeting to elect one member to preside such meeting to elect the president after having taken oath and affirmation of allegiance to the Constitution of India. The election of the president shall be conducted by the officer and shall not be the candidate for the office of the chairman. In the event there are two or more persons proposed and seconded for the post of the president the election would be done by secret ballot. Sub Rule 11 of Rule 3 requires the office to keep the record of the proceeding of the meeting in the minute book of the municipality and the copies of the same shall be sent to the District Magistrate and Director of local bodies, West Bengal along with the counter foils and the ballot papers. Sub Rule 4 which contains an exhaustive provision relating to the election of the Chairman is merely a reproduction of the provisions of Section 3 applicable for election of a president. Sub Rule 4 which contains an exhaustive provision relating to the election of the Chairman is merely a reproduction of the provisions of Section 3 applicable for election of a president. The contention of the petitioner that sub Rule 11 of Rule 4 mandates the recording of the meeting by the officer and thereafter the president shall record the proceeding of the meeting in continuation thereof does not appear to be so. The role of the officer in recording the proceeding relates to the first meeting of the Board of Councilors and none of the provisions contained in the said Rules requires the officer to remain present and record the proceedings of the meeting in the minute book. Once the first meeting convened by the officer is complete in all respect the ball roll to the Board of Councilors and the recording of the proceedings in any subsequent meeting is imposed upon the president. None of the provisions relating to convening of the special meeting for removal of the chairman requires the officer to remain present in the meeting and if the provisions do not indicate so, nothing can be added in the Rules as it would frustrate the legislative intention. 11. The expression “in continuance of the proceeding recorded by the officer” appearing in sub Rule 11 of Rule 4 should be read harmoniously with sub Rule 1 of Rule 3 and is reletable to the first meeting of the Board of Councilors. If the intention was that all subsequent meetings of the Board of Councilors should be convened by the officer there should be an expressed indication in the various provisions of the Rules which is conspicuously absent. The legislative intention can further be fortified from Clause ‘c’ of sub Rule 3 of Rule9 which starts with a non obstante clause and empowers the officer to convene a special meeting of the municipality specifying the agenda and venue of the meeting if the situation so demands owing to stalemate condition prevailing in the functioning of the municipality. From the harmonious reading of the various provisions of the said Rules, this Court does not find that the presence of the executive officer is necessary in convening the special meeting for removal of the chairman by the requisitionist. 12. From the harmonious reading of the various provisions of the said Rules, this Court does not find that the presence of the executive officer is necessary in convening the special meeting for removal of the chairman by the requisitionist. 12. This Court does not find any justification in the stand of the petitioners that because of the fear they did not attend the meeting. The petitioners stated in the writ petition that once the executive officer wanted the police personnel to remain present at the meeting it implies that the said officer was apprehensive of the law and order situation. It is further stated in the writ petition that they were not informed that the police declined to provide such assistance and they were under impression that the meeting would not be held as the request to defer the meeting was indicated by the police officer. 13. The aforesaid stand cannot be said to be justifiable for the simple reason that none of the provisions in this Act and Rules provides that a further notice is required to be given that the special meeting would be convened on a notified date. There is no legal basis to presume that the meeting would be dealt as the police authorities refused to extend their support and assistance for the special meeting. 14. There cannot be any quarrel to the proposition of law laid down in case of Kuldeep Nayar (Supra) that in a democratic set up the voter should cast his vote to the best of his conscience, without fear, pressure or coercion. The purity of the election is bedrock of free and fair election. 15. This Court therefore does not find any infirmity and/or illegality in the special meeting convened for removal of the chairman to be in contravention to the provision of the aforesaid Rules. 16. It is no longer res integra that if the relief claimed in the writ petition becomes inappropriate because of the subsequent events, the Court can mould the relief. Since, the resolution taken in the special meeting for removal of the chairman is held not in contravention to the provisions of the Rules, this Court does not find any illegality in electing the chairman as the office cannot remain vacant and the functioning of the municipality cannot remain at halt. 17. Since, the resolution taken in the special meeting for removal of the chairman is held not in contravention to the provisions of the Rules, this Court does not find any illegality in electing the chairman as the office cannot remain vacant and the functioning of the municipality cannot remain at halt. 17. In view of the findings recorded herein above, the writ petition is devoid of merit and is hereby dismissed. No costs.