Calcutta High Court (Appellete Side)
Parimal Sarkar vs The State Of West Bengal & Ors on 19 June, 2017
Author: Biswanath Somadder
Bench: Biswanath Somadder
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Mr. Justice Biswanath Somadder
And
The Hon'ble Mr. Justice Sankar Acharyya
CAN 4705 of 2017
in
MAT 734 of 2017
Parimal Sarkar
Vs.
The State of West Bengal & Ors.
For the appellant/applicant: Mr. Saptansu Basu, Sr. Adv.
Mr. Gautam Banerjee
For the State: Mr. Subhabrata Dutta
Mr. Benazir Ahmed
For the respondent no.7: Mr. Pratip Kumar Chatterjee
For the respondent nos.8-13: Mr. Mihir Kundu
For the respondent nos.14-22: Mr. Kalyan Kr. Bandopadhyay, Sr. Adv.
Mr. Arunava Ghosh
Mr. Anindya Lahiri
Mr. Puspal Chakraborty
Ms. Pranati Das
Heard on: 14.06.2017 & 19.06.2017.
Judgment on: 19th June, 2017.
Biswanath Somadder, J.
By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the application for stay.
The instant appeal arises out of a common judgment and order rendered by the learned Single Judge while disposing of two writ petitions, being WP 11388 (W) of 2017 (Sankar Mandal vs. State of West Bengal & Ors.) and WP 12468 (W) of 2017 (Parimal Sarkar vs. The State of West Bengal & Ors.). This appeal has been taken out by Parimal Sarkar, being the writ petitioner in WP 12468 (W) of 2017.
The only issue which arises for consideration in the facts and circumstances of the instant case is whether there was any infraction of Rule 9(3)(b) of the West Bengal Municipalities (Procedure and Conduct of Business) Rules, 1995, while a special meeting was convened by the requisitionists.
The undisputed facts have been succinctly stated by the learned Single Judge in the impugned judgment and order and in order to avoid prolixity, we do not propose to repeat or reiterate the same. However, since an issue arises for consideration, we propose to deal with the same by referring to only certain relevant and material facts for the purpose of effective adjudication.
Parimal Sarkar - the appellant before us - was nominated as the Vice- Chairman of Jiaganj-Azimganj Municipality by a memo dated 6th April, 2017, issued by the Chairman of the said Municipality. The text of the memo dated 6th April, 2017, is required to be reproduced hereinbelow:-
"Respected Sir, With utmost delight I would like to nominate you as the Vice-Chairman of this Municipality by exercising power as per Section 15(2) of West Bengal Municipal Act, 1993. Today onwards you will act as the Vice Chairman of this municipality."
Even at the time of his nomination, a requisition for a special meeting under section 18(3) of the West Bengal Municipal Act, 1993 dated 24th March, 2017, addressed to the Chairman, Jiaganj-Azimganj Municipality, District - Munshidabad, signed by several Councillors of the said Municipality was already on record in the office of the said Municipality. Parimal Sarkar's specific case before the writ Court was that if the Chairman failed to convene the special meeting within the statutory time-frame of 15 days from date of receipt of such requisition, such requisition automatically lapsed and a fresh requisition ought to have been made by the requisitionists directly to the Vice-Chairman.
As observed at the very outset, the only issue which arises for consideration is whether there has been any infraction of the statutory provision, as contained under Rule 9(3)(b) of the West Bengal Municipalities (Procedure and Conduct of Business) Rules, 1995, while a special meeting was convened by the requisitionists. The relevant Rule, namely, Rule 9(3)(b) including clauses (i), (ii) and (iii) thereunder, are required to be quoted hereinbelow:
"9. 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
(b) 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."
A plain reading of the Rule as quoted above reveals that upon the failure of the Chairman to convene a special meeting within 15 days from receipt of the requisition, the statutory obligation to convene such meeting lies with the Vice- Chairman and on his failure, such statutory obligation falls upon three of the Councillors of the Municipality within such time-frame as specified therein. The relevant Rule does not even contemplate of a fresh requisition notice to be issued directly to the Vice-Chairman for the purpose of convening a special meeting after the Chairman fails to convene such meeting within the statutory time-frame of fifteen (15) days from date of receipt of the requisition.
At the time of moving of the instant appeal, it was submitted from the Bar that the Vice-Chairman had no knowledge of the requisition notice dated 24th March, 2017 (which was addressed to the Chairman of Jiaganj-Azimganj Municipality by several councillors including the erstwhile Vice-Chairman of the Municipality), since at that material point of time, Parimal Sarkar had not even assumed office of the Vice-Chairman. As such, it could not have been said that there was any failure on the part of the Vice-Chairman to convene a special meeting and, therefore, Rule 9(3)(b)(iii) could not have been invoked by the requisitionists, without, at first, addressing a fresh requisition directly to the Vice-Chairman in terms of Rule 9(3)(ii).
At this juncture, we ought to take notice of certain provisions of the West Bengal Municipal Act, 1993, especially section 13(2) and 13(3) of the said Act of 1993. For convenience, the same are quoted hereinbelow:
"13. The Municipality.-- ... ... ...
(2) The Municipality shall be a body corporate with perpetual succession and a common seal, and may, by the name of the Municipality of the town by reference to which the Municipality is known, sue and be sued.
(3) All executive actions of the Chairman-in-Council shall be expressed to be taken in the name of the Municipality."
As stated earlier, Parimal Sarkar was nominated as the Vice-Chairman of Jiaganj-Azimganj Municipality by its Chairman, vide memo dated 6th April, 2017. Even the letter-head used by the Chairman of Jiaganj-Azimganj Municipality clearly reflects use of a common seal and "Office of the Councillors", as printed at the top of the said memo dated 6th April, 2017, is indicative of the body corporate nature of the Municipality. Therefore, nomination of Parimal Sarkar as the Vice-Chairman of Jiaganj-Azimganj Municipality by its Chairman would squarely fall within the statutory definition of an executive action of the Chairman-in-Council, as contemplated under section 13(3) of the West Bengal Municipal Act, 1993. Once Parimal Sarkar was nominated as the Vice-Chairman of Jiaganj-Azimganj Municipality on the basis of an executive action taken by the Chairman-in-Council, he ipso facto is deemed to have assumed knowledge of the requisition dated 24th March, 2017, addressed to the Chairman of Jiaganj-Azimganj Municipality by various Councillors, including the erstwhile Vice-Chairman of the concerned Municipality; the same being a matter of record in the office of the concerned Municipality.
To cite ignorance or lack of knowledge of the existence of the requisition dated 24th March, 2017 and taking a plea that there was no failure on his part to convene a special meeting in terms of Rule 9(3)(b)(ii) of the West Bengal Municipalities (Procedure and Conduct of Business) Rules, 1995, therefore, is a clear case of afterthought on the part of Parimal Sarkar. We may also take note of the fact that Parimal Sarkar has not come forward, either before the writ Court or before us, in order to prove that he had assumed office of the Vice- Chairman of the concerned Municipality upon due compliance of Section 50A of the West Bengal Municipal Act, 1993, relevant part whereof is quoted hereinbelow:
"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 (emphasis supplied by us) in the following form:
... ... ..."
Today, the effect of the special meeting called by requisitionists is long over. The Chairman of the concerned Municipality has already been removed by majority vote. Parimal Sarkar's writ petition was simply a ploy to thwart a democratic process which was required to be followed by public institutions such as the concerned Municipality. In a democracy, all persons heading such public bodies continue to hold office provided they enjoy the confidence of the persons who comprise of such bodies. Election is the essence of democratic republicanism. In this context, one may take notice of the judgment of the Supreme Court in Usha Bharti vs. State of U.P. & Ors. reported in AIR 2014 SC 1686, which has been referred to and relied upon by this Division Bench in several of its judgment, including Farida Bibi vs. The State of West Bengal & Ors. reported in 2016 (5) CHN (Cal) 258, Putul Gayen & Ors. vs. Pijush Bairagi & Ors. reported in (2017) 1 Cal LT 241 (HC), Sujata Bhachhar (Kirtonia) vs. State of West Bengal reported in 2017 (2) CHN (Cal) 103 and two unreported judgments in Ujjal Kumar Singha vs. The State of West Bengal & Ors. MAT 2052 of 2016 with CAN 12447 of 2016 and Panchu Mandal vs. State of West Bengal & Ors., FMA 1209 of 2015 (MAT 242 of 2015) with CAN 1814 of 2015.
That apart and in any event, in an Intra-Court Mandamus Appeal, no interference is usually warranted unless palpable infirmities or perversities are noticed in the impugned judgment and order. No such palpable infirmities or perversities are noticed on a plain reading of the impugned judgment and order. The impugned judgment and order is supported with cogent and justifiable reasons and, as such, does not merit any interference whatsoever.
For reasons stated above, the appeal and the application for stay are liable to be dismissed and stand accordingly dismissed with costs assessed at 200 G.Ms. to be deposited with the State Legal Services Authority, West Bengal, to be kept earmarked for its utilisation by the Mediation and Conciliation Committee of the High Court, within a week from date.
List this matter one week hence only for the purpose of ascertaining payment of costs in terms of this order.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(Biswanath Somadder, J.) I agree.
(Sankar Acharyya, J.) pg .