Calcutta High Court (Appellete Side)
Sohan Prasad Choudhary vs The State Of West Bengal & Ors on 2 January, 2020
Author: Arindam Sinha
Bench: Arindam Sinha
1
02.01.2020
Item no. Unlisted
Dd
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Arindam Sinha
WP 42 (W) of 2020
Sohan Prasad Choudhary
Vs.
The State of West Bengal & Ors.
For petitioner : Mr. Bikash Ranjan Bhattacharya, ld. sr. adv.
Mr. Saptansu Basu, ld. sr. adv.
Mr. Dhiraj Trivedi
Mr. S. Dasgupta
Mr. Vikash Singh
Mr. Tarunjyoti Tewari
Mr. Manbendra Bandopadhyay
Mr. Sushil Kr. Mishra
Mr. Ravi Ranjan Kumar
Mr. Rishav Thakur
Mr. Saket Sharma
For respondent
nos. 1, 3 & 4 : Mr. Kishore Dutta, ld. AG
Mr. Arka Kr. Nag
For respondent
nos. 6-8 : Mr. Debabrata Saha Roy
Mr. Pingal Bhattacharyya
Mr. Neil Basu
For respondent
nos. 2 & 5 : Mr. Pritam Majumdar
Mr. Vipra Garg
2
Heard on : 02.01.2020.
Judgment on : 02.01.2020.
A Councillor of Bhatpara Municipality has petitioned for
interference, to declare notice dated 30th December, 2019 as issued in violation of the Rules and, therefore, bad. The facts are, requisition dated 6th December, 2019 was duly made for removal of present Chairman of the Municipality. The requisition was received on the day itself. On 20th December, 2019, the Chairman issued meeting notice on the item of business of his removal. The meeting would be a special meeting of Councillors of Bhatpara Municipality, to be held on 20th January, 2020 at 1.00 PM. The Vice-Chairman of the Municipality by letter dated 26th December, 2019 addressed to Principal Secretary of concerned department in Government of West Bengal said, inter alia, as follows :-
"With reference to the above, this is to inform you that the Chairman, Bhatpara Municipality has convened a Special Meeting as per provision of Rule 9(3)(b)(i) of the W.B. Municipalities (Procedure & Conduct of Business) rules, 1995 after giving 31 (thirty one) days' notice to the members which is clearly in contravention to the rule 9(3)(b)(i) where it is clearly mentioned that such Special Meeting be convened after giving 3(three) days' notice.
Thus 31(thirty one) days' notice is not at all permissible under any circumstances neither under rule-8 nor under rule-9.3
Therefore, you are requested to declare the notice as void so that I, being the Vice-Chairman of Bhatpara Municipality, can convene the Special Meeting as per provision of Rule 9(3)(b)(ii) of the aforesaid rule."
On 28th December, 2019 some Councillors wrote to said Principal Secretary contending that the Vice-Chairman had made a thinly veiled attempt to usurp the powers of the Chairman, in colourable exercise of authority. On 30th December, 2019 three other Councillors issued impugned notice convening meeting on the agenda, to be held today at 10:30 AM.
Mr. Bhattacharya, learned senior advocate appears on behalf of petitioner and moves the petition as 'unlisted motion' on leave obtained. He submits, rule 9 in West Bengal Municipalities (Procedure and Conduct of Business) Rules, 1995 provides for prescribed procedure, mandated by West Bengal Municipal Act, 1993. The Chairman, on receipt of the requisition, convened meeting within 15 days thereof. He relies on view expressed by a learned single Judge of this Court by order dated 31st August, 2016, in AST 269 of 2016 [Mahendra Kumar Rungta vs. The State of West Bengal & Ors.] to submit, in similar fact situation said learned Judge had set aside subsequent notice of meeting issued by Councillors of concerned Municipality. He submits further, there is no challenge to the notice of meeting issued by the Chairman.
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Mr. Dutta, learned senior advocate, Advocate General, appears on behalf of State and submits, section 18 mandates for prescribed procedure as in rule 9. Mahendra Kumar Rungta (supra) cannot be relied upon as a precedent since he has further and other points, neither argued nor considered in making of the order. He submits, there is legislative intent in mandating prescribed procedure, which procedure gives timeframe for convening special meeting. Outer limit of time for convening such a meeting, taking into consideration happening of all contingencies provided, is less than a month. The Chairman sought to make such provision unworkable by convening a meeting, notified as scheduled to be held approximately 45 days after receipt of the requisition. In such a situation, the Councillors requisitioning the special meeting duly acted, the meeting has been held and the Chairman removed by majority of elected Councillors of the Municipality.
Petitioner does not have legal right infringed or affected to move Court for issuance of a writ of Mandamus. There is no pleading regarding petitioner's right to move. Prayer 'C' is prayer for declaration. Petitioner, as a Councillor, has right to vote in the special meeting. The special meeting was duly convened by the Councillors. Petitioner could have participated and voted. That the special meeting was duly convened and held is also clear from omission of 5 the Chairman to move Court or take any step in challenging the notice convening meeting, issued by the Councillors. He reiterates his emphasis on outer limit of time, provided by the Rules, for convening special meeting on the agenda. The special meeting notified and held was within timeframe prescribed, another reason for no interference.
He relies on several judgements of Supreme Court. On a citizen's right to move for Mandamus, he relies on Director of Settlements, A.P vs. M.R. Apparao reported in (2002) 4 SCC 638, paragraph 17, from where relied upon passage is extracted and set out below :-
"17. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition."
On the point he also relies on State of M.P vs. Sanjay Kumar Pathak [(2008) 1 SCC 456], paragraphs 20, 24 and 25. On procedure, he relies on Rani Kusum vs. Kanchan Devi [(2005) 6 SCC 705], paragraph 13, reproduced below :-
"13. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. A 6 procedural law should not ordinarily be construed as mandatory; the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed."
On unoworkability he relies on State of Madhya Pradesh vs. Narmada Bachao Andolan [(2011) 7 SCC 639], paragraph 78, reproduced below :-
"78. Therefore, an interpretation having a social justice mandate is required. The statutory provision is to be read in a manner so as to do justice to all the parties. Any construction leading to confusion and absurdity must be avoided. The court has to find out the legislative intent and eschew the construction which will lead to absurdity and give rise to practical inconvenience or make the provision of the existing law nugatory. The construction that results in hardship, serious inconvenience or anomaly or gives unworkable and impracticable results, should be avoided."
He also relies on Rajput Ruda Meha vs. State of Gujarat [(1980) 1 SCC 677], paragraph 6 to submit, this judgment supports his contention that Mahendra Kumar Rungta (supra) cannot be relied upon as a precedent. Lastly, he relies on Union of India vs. Elphinstone Spinning & Weaving Co. Ltd. [(2001) 4 SCC 139].
On query from Court whether State would file affidavit on Court passing interim order, Mr. Dutta submits, the writ petition be dealt with here and now on his submissions.
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Mr. Saha Roy, learned advocate appears and submits, he is representing respondent nos. 6 to 8 who have issued the notice of meeting held today and majority of elected Councillors who have voted to remove the Chairman, in the meeting. He submits, the majority of Councillors, who are also his clients, have not been made parties. The writ petition should be made to fail on that ground alone. His clients constitute majority of elected Councillors. They have met as per notice convening meeting issued by respondent Councillors and have voted for removal of the Chairman. This has already happened today and should not be undone on interference by Court. His clients were not parties in Mahendra Kumar Rungta (supra). That judgment cannot be relied upon as against his clients' contentions. In addition, he adopts submissions made on behalf of State.
Mr. Bhattacharya submits in reply, none of the judgments relied upon by State are applicable to the case at hand. His client has given sufficient notice of case by the pleadings and prayers. State has sought to answer the case, as fully understood. Mahendra Kumar Rungta (supra) covers instant case. State having been party to and heard in that case, cannot now seek to persuade coordinate Bench otherwise.
Sequence of facts have been given above. So far as notice impugned in Mahendra Kumar Rungta (supra) is concerned, there 8 is similarity with notice impugned herein. In that case there was omission of Chairman. On 24th August, 2016, the Vice-Chairman issued a notice of special meeting to be held on 26th September, 2016 at 11:30 a.m. Coordinate Bench held as follows :-
"From the facts discussed above, it is quite clear that the impugned notice by the three councillors issued on 27th August, 2016 called a meeting on 30th August, 2016 was not valid. When the Vice- Chairman, within the time prescribed by the rules had called a meeting, no default had arisen under Rule 9(3)(b)(ii), so as to empower the councillors to call a meeting under Rule 9(3)(iii).
Therefore, the notice dated 27th August, 2016 is hereby set aside."
Section 18 is a substantial provision mandating a special meeting to be called for purpose of removal of Chairman in manner prescribed, upon a requisition duly made as provided. Prescribed procedure sets time limits with outer limit of a total period of 29 days from date of receipt of requisition, duly made, for special meeting to be convened. The rule does not provide for time limit between notice convening meeting and holding of it. In Mahendra Kumar Rungta (supra), time in between notice of meeting issued by Vice-Chairman and date of meeting was more than 30 days. In this case, notice issued by the Chairman convening the meeting is dated 20th December, 2019 and the meeting fixed on 20th January, 2020. Those are relevant facts as in Mahendra Kumar Rungta (supra) and this 9 case, for the setting aside of subsequent notice of meeting issued by Councillors to be binding on State, at least. So far as Councillors represented at this hearing but not parties are concerned, they are up against a view expressed by coordinate Bench, on the facts, with which this Bench respectfully agrees.
In Director of Settlements, A.P (supra) there was declaration of law requiring applicant to satisfy he has a legal right to performance of a legal duty by the party, against whom mandate is sought. Here petitioner is a Councillor in a democratic set up. He has petitioned Court challenging notice of meeting issued by some Councillors, alleging that the notice was not issued in manner prescribed. The writ petition is found to be maintainable at his instance. Omission of the Chairman, if at all can be said to be an omission, cannot non-suit petitioner.
Sanjay Kumar Pathak (supra) was a decision of Supreme Court rendered in the realm of service law, on well settled position of law that none has vested right to appointment. In Rani Kusum (supra) Supreme Court declared that a procedural law should not ordinarily be construed as mandatory. Procedural law referred to in that decision is the Code of Civil Procedure, 1908, particularly provision in order 8 rule 1 therein. It has already been pointed out above that manner of procedure in the Rules of 1995 has been 10 mandated by the Act. In this context, Mr. Bhattacharya had referred to judgment of Supreme Court in Laxmi Verma vs. State of Maharashtra reported in (2010) 5 SCC 329, paragraph 18 set out below:-
"18. However, after going through the aforesaid sub-section (2) of section 41 of the Act, the plain and only conclusion that can be arrived at is that resignation has to be tendered by the Councillor addressed to the Collector. It is to be delivered by him in person and then he has to affix his signature before the Collector on compliance of the aforesaid conditions, then only such resignation shall be effective. It cannot be disputed that an obligation was created by the Statute to perform it in the manner as provided therein, then in case of its non-compliance, the effect thereof would be rendered redundant and invalid in law."
Clearly Rani Kusum (supra) is not applicable to this case. Elphinstone Spinning & Weaving Co. Ltd. (supra) is also found to be not applicable to this case. Regarding Rajput Ruda Meha (supra), petitioner's contention of sufficient notice of case had by State is accepted. Letters have been acted upon as writ petitions! For reasons aforesaid, the writ petition succeeds. Impugned notice dated 30th December, 2019 is set aside and quashed. Needless to say any action taken pursuant thereto is of no consequence. 11
The writ petition is disposed of.
Learned advocates representing State and respondent nos. 6 to 8 pray for stay of operation of this judgment dictated in Court. The prayer is considered and rejected.
(Arindam Sinha, J.)