Calcutta High Court (Appellete Side)
Ganesh Das vs The State Of West Bengal & Others on 25 September, 2019
Author: Samapti Chatterjee
Bench: Samapti Chatterjee
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Justice Samapti Chatterjee
WP 10395 (W) of 2019
Ganesh Das
Vs
The State of West Bengal & Others
For the Petitioner : Mr. Mr. Bikash Ranjan Bhattacharjee, Sr. Advocate
Mr. Vikash Singh, Advocate
For the State : Mr. Kishore Dutta, Ld. Advocate General
Mr. Sirsanya Bandopadhyay, Advocate
Mr. Arka Kr. Nag, Advocate
For the Respondent No.6 : Mr. Swapan Banerjee, Advocate
Mr. Sourav Sen, Advocate
Ms. Sayani Bhattacharya, Advocate
Heard on : 03.07.2019, 11.07.2019, 12.07.2019,
15.07.2019, 16.07.2019 & 17.07.2019.
Judgment on : September 25, 2019.
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Samapti Chatterjee, J.
1. The petitioner filed the present writ petition for the following reliefs :-
a) Dispensation of service in terms of Rule 26 of the Appellate Side Rules of this Hon'ble Court;
b) A Writ of Mandamus commanding the respondents to withdraw and/or cancel and/or rescinding the impugned memo dated June 10, 2019 issued by the Respondent No.3;
c) A Writ of Mandamus commanding the respondents to take steps to ensure smooth running of municipality in terms of Municipal Act and Regulations by existing board.
d) A declaration that the notification dated June 10, 2019 order vide memo dated June 10, 2019 and memo dated June 10, 2019 are null and void;
e) A Writ of and/or in the nature of Mandamus do issue setting aside and/or quashing and/or rescinding the notification dated June 10, 2019 order vide memo dated June 10, 2019 and memo dated June 10, 2019;
f) A Writ of and/or in the nature of Prohibition do issue directing the respondents and each of them to give any effect and/or further effect to and/or from acting in any manner pursuant to 3 the notification dated June 10, 2019 order vide memo dated June 10, 2019 and memo dated June 10, 2019;
g) A Writ of and/or in the nature of Certiorari do issue directing the respondent authorities, particularly the respondent no.1, to forthwith certify and transmit to this Hon'ble Court all the records and documents pertaining to the notification dated June 10, 2019 order vide memo dated June 10, 2019 (a copy whereof is annexed hereto as P/2) issued by the petitioner, so that considerable justice may be administered;
h) Rule NISI in terms of prayers above;
i) An order of injunction be passed restraining the respondents and each one of them from giving effect to or further effect and/or acing in furtherance with the notification dated June 10, 2019, order vide memo dated June 10, 2019 and memo dated June 10, 2019;
j) Ad-interim order in terms of prayers above;
k) Costs of and incidental to this application be borne by the respondents;
l) Such further and other order or orders be made and/or direction or directions be given as to this Hon'ble Court may deem fit and proper.
2. The petitioner's case in a nutshell is as follows :- 4
On 31st May, 2019 petitioner joined Bhartiya Janta Party (BJP) along with other councillors of the Naihati Municipality. On the same date i.e. on 31st May, 2019 a requisition signed by the petitioner and other 17 councillors of Naihati Municipality was submitted to the Chairman of Naihati Municipality whereby they requested the Chairman to call for a special meeting of the councillors for passing a no-confidence motion against the said Chairman.
On 10th June, 2019 a memo being no. 602/Con/BKP was issued whereby the respondent no.3 has been requested to make necessary arrangements for transferring the charges to the administrator. Petitioner came to know of that purported memo being no. 602/Con/BKP only on 12th June, 2019.
3. Now the following issues are to be determined :-
(i) Whether the appointment of administrator is contrary to law and/or procedure established by Statute ?
(ii) Whether the Sub-Divisional Officer, Barrackpore, North 24-Pgs has any authority or jurisdiction to direct the Executive Officer Naihati Municipality for making necessary arrangements for transferring the charges to the administrator ? 5
4. Mr. Bikash Ranjan Bhattacharya, learned Senior Counsel appearing for the petitioner submitted that the respondent no.3 has no authority to issue the impugned order dated 10th June, 2019 thereby directing the Executive Officer to make necessary arrangements for transferring the charges to the administrator without holding any meeting of the elected councillors though on 31st May, 2019 a requisition by 18 councillors of the said Naihati Municipality was submitted to the Chairman of Naihati Municipality thereby requesting the Chairman to call for a special meeting of the councillors for passing a no-confidence motion against the Chairman.
The West Bengal Municipalities' Procedure and Conduct Business Rules 1995 (hereinafter referred to as 'the said Rules, 1995') provides that a special meeting could be convened by the Chairman by issuing notice within fifteen days from the date of receipt of the requisition and only upon failure of the Chairman to issue any such notice within the prescribed period the Vice Chairman would have the authority to convene such meeting and if Vice Chairman also fails then three councillors from the requisitionists can hold such special meeting for removal of the Chairman on the basis of 'no-confidence motion'.
Unfortunately before the expiry of 15 days of the said requisition the Government has appointed the administrator which is arbitrary, 6 illegal and patently contrary to the statute. In support of his contention Mr. Bhattcharjee relied on Rule 9 Sub Rule (3) (b) (i), (ii), (iii) of the West Bengal Procedure and Conduct of Business Rule, 1995 which is quoted below :-
"9. Extraordinary meeting.-(3) (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, of 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."
Mr. Bhattacharjee also relied on Chapter 3 of Section 12, Section 16, Section 18 of the Municipal Act which are quoted below :-
"Section 12-Municipal authorities.-The municipal authorities charged with the responsibility of carrying out the provisions of this Act shall, for each municipal area, be as follows :- 7
(a) the Municipality,
(b) the Chairman-in-Council, and
(c) the Chairman.
Section 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: 8
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. Section-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 any time, 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 the, 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 9 moved before the expiry of a period of six months from the date on which the former resolution was moved."
Mr. Bhattacharjee also referred to Chapter 28 Sections 425 and Section 426 which are quoted below :-
"Section 425-Delegation of power by the State Government.- (1) The State Government may, with regard to the Municipalities generally or to any Municipality or group of Municipalities in particular and subject to such conditions or restrictions as it may deem fit to impose, by notification, delegate to the Director of Local Bodies or the District Magistrate or the Sub-divisional Magistrate or the District Municipal Development officer any of the powers vested in, or the functions imposed upon, the State Government by or under this Act, and thereupon, the Director of Local Bodies or the District Magistrate or the Sub-divisional Magistrate or the District Municipal Development officer shall exercise such powers or perform such functions as if he were the State Government.
(2) The State Government may, by notification, appoint one or more Deputy Director or Assistant Director of Local Bodies to exercise the powers and perform the functions of the Director of Local Bodies. 10
Section 426-Supervision by Director of Local Bodies.-(1) The Director of Local Bodies or the District Magistrate or the Sub- divisional Magistrate or the District Municipal Development Officer in addition to the powers or functions delegated to him, may-
(a) inspect, or cause to be inspected, any immovable property owned, used or occupied by the Municipality or any work in progress under the direction of a municipal authority;
(b) inspect or examine any department of the Municipality or any office, service, work or thing under the control of the Board of Councillors;
(c) record, in writing for the consideration of the Board of Councillors, any observation he thinks proper in regard to the proceedings or duties of any of the municipal authorities. (2) For the purpose of inspection or examination, the Director or Local Bodies or the District Magistrate or the Sub-divisional Magistrate or the District Municipal Development Officer may require the Chairman or any officer of the Municipality-
(a) to produce any book, record, correspondence, plan or other document,
(b) to furnish any return, plan, estimate, statement, account or statistics, or
(c) to furnish or obtain any report.
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(3) When a requisition is made under sub-section (2), the Chairman or any officer of the Municipality, as the case may be, shall comply with such requisition."
Mr. Bhattacharjee also referred to Sections 427, 428, 429 and 431 which are quoted below :-
"Section 427-Power of State Government to call for documents, returns or information from Chairman or any officer of Municipality-The State Government may, at any time,-
(a) Call for any document in the possession or under the control of the Chairman or any officer of the Municipality;
(b) Require the Chairman or any officer of the Municipality to furnish any return, plan, estimate, statement, account, report or statistics, or any information whatsoever.
Section-428-Inspection of municipal works and institutions by Government officers.-Any work or institution constructed or maintained, or any programme undertaken in whole or in part, at the expense of the Municipality and all registers, books, accounts or other documents relating thereto shall, at all times, be open to inspection by such officers as the State Government may appoint in this behalf. 12 Section 429-Power to suspend action under the Act.-(1) The State Government may, after giving the Board of Councillors a reasonable opportunity of being heard, annul any proceeding or resolution or order which it considers to be not in conformity with the provisions of this Act or the rules made thereunder and may do all things necessary to secure such conformity :
Provided that pending the hearing to be given to the Board of Councillors, the State Government may suspend the operation of such proceeding or resolution or order.
(2) The State Government, on receiving any information that the Board of Councillors or any other municipal authority is about to pass an order or instruction or implement any act in excess of any power conferred by this Act, may forthwith prohibit the passing of such order or instruction or implementation of such act, and such prohibition shall be binding on the Municipality :
Provided that the State Government shall immediately thereafter give an opportunity to the Board of Councillors to make its representation in the matter upon which the State Government shall give its final order with reasons in writing.
Section 431-Power of the State Government to intervene in case of gross neglect or serious irregularity.-(1) If, in the opinion of the State Government, the Board of Councillors has shown gross neglect in the 13 performance of the duties imposed upon it by or under this Act or any other law for the time being in force, or has committed serious irregularities in the performance of such duties, the State Government may by order direct the Board of Councillors to show cause within the period specified in the order why it shall not be dissolved on grounds of charges mentioned in this order.
(2) If the Board of Councillors fails to answer the charges within the period specified in the order or within such further time as may be allowed by the State Government, or if the answers do not convince the State Government, or where more than two-thirds of the total number of Councillors holding office for the time being have, for any reason, resigned the State Government may dissolve the Board of Councillors by an order published in the official gazette with effect from the date of the order.
(3) When an order of dissolution has been passed, all the powers and functions vested upon the municipal authorities under this Act or any other law for the time being in force, shall be exercised by such person or persons to be designated as Administrator or Board of Administrators as the State Government may appoint for the purpose. (4) A general election to the Municipality shall be held within six months of its dissolution for the constitution of a new Board of Councillors immediately thereafter :14
Provided that the new Board of Councillors shall continue only for the remainder of the period for which the dissolved Municipality would have continued had it not been so dissolved :
Provided further that when the period for which the Board of Councillors would have continued is less than six months, it shall not be necessary to hold any elections for constituting a new Board of Councillors for such period.
(7) If any question arises as to what constitutes gross, neglect or a serious irregularity under this section, the opinion of the State Government as recorded in writing in the order, under this section shall be final and conclusive and the same shall not be questioned in any court of law."
Mr. Bhattacharjee strongly emphasized that Sub-section 2 of Section 426 (supra) as well as Section 431 have not been complied with by the authority. No opinion was formed by the State regarding gross negligence or serious misconduct of the Board of the Councillors. No notice had been served by the Government to 31 Councillors. No such meeting of the Board of Councillors by the Chairman was ever been called. The above exercises are sine qua non for appointment of administrator on the board of councillors. In other words the preconditions for invoking Section 431 have not been adhered to at all. 15
Mr. Bhattacharjee also referred to Article 243(b), 243 ( r ), 243 (q) and 243 (w) of the Constitution of India. Mr. Bhattacharjee also relied on the Hon'ble Apex Court decisions reported in (2010) 5 SCC Page-329 Paras-2, 4, 5, 8 and 20 (Laxmi Verma vs State of Maharashtra And Others) and 2012 (4) SCC Page-407 Paras-21 to 62 (Ravi Yashwant Bhoir vs District Collector, Raigad And Others). (2010) 5 SCC Page- 329 Para 2, 4, 5, 8 and 20 of Laxmi Verna case (as referred above) are quoted below :-
"Para-2-Even though short but an important and crisp question of interpretation of Section 41 (2) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (hereinafter shall be referred to as "the Act") arises for our consideration in these appeals. The provision stands as under :
' "41. (1) The term of office of the Councillors shall be co-terminus with the duration of the Council.
(2) A Councillor may resign his office unconditionally at any time by notice in writing in his hand addressed to the Collector and delivered in person and sign before the Collector and then only such resignation shall be effective."
This particular sub-section (2) of Section 41 is required to be interpreted by us in this and the connected matter. Para-4-Facts of the case lie in a narrow compass, which are as under : Respondent 6, Rupesh Yogeshwar Dhepe was an elected 16 Councillor of Ward No.8 of Municipal Council, Achalpur, District Amravati. Election was held sometime in the year 2008. On 18-12- 2008, Respondent 6 wrote a letter to the Collector, threatening to resign, if certain demands made by him were not fulfilled, within a period of ten days. Since the demands were not fulfilled, on 29-12- 2008 he keeping the promise, tendered his resignation. The Collector held that the resignation was valid and accepted it. On his resignation and acceptance thereof, since the seat fell vacant, the Collector proceeded to arrange for elections of Ward No.8 from which Respondent 6 was earlier elected and the election programme commenced.
Para-5-In the meantime, Respondent 6 filed a revision application before the Additional Commissioner stating therein that he had in fact not resigned in accordance with law and there has been complete violation of sub-section (2) of Section 41 of the Act. Thus, no fresh election should be conducted. But in the meanwhile election programme was already announced. The election programme so announced specifically mentioned that election was subject to the decision of pending proceedings. In the fresh elections, the present appellant, Laxmi Verma was elected as a Councillor and subsequently she was also elected as President of Municipal Council and is continuing as such.
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Para-8-We have critically gone through the orders passed by the learned Single Judge and the Division Bench in LPA and are of the considered opinion that both had dealt with the matter at length and ultimately came to the conclusion that there has not been full and complete compliance of the provisions of sub-section (2) of Section 41 of the Act. Therefore, there was no legally valid resignation tendered by Respondent 6 and the Collector committed an error in accepting the same.
Para-20-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."
It is also strongly argued by Mr. Bhattacharjee that republic is our strength and the democratic functioning is the touch stone of the republic which has been trampled in the present case. 18
Mr. Bhattacharjee further urged that under Section 431 (2) of the Municipalities Act, 1993 resolution should be adopted in a democratic process. The State is under obligation to comply with the provisions of the statute and act as a role model. The State is bound to follow the law and cannot violate the provisions of the statute. In support of his contention Mr. Bhattacharjee relied on an Hon'ble Apex Court decision reported in 2015 (10) SCC Page-400 (Paras-26, 27 and 32) (Rajendra Shankar Shukla And Others vs State of Chhattisgarh And Others) which are quoted below :-
"Para-26-We are in agreement with the legal contentions raised by the learned Senior Counsel on behalf of the appellants. Once the Constitution provides for democratically elected bodies for local self- government, a nominated body like Respondent 2 RDA cannot assume the role of an elected body and consequently usurp the power of the local authority in framing development schemes and subsequently altering the size and use of land in KVTDS. Para-27-On the other hand, it was argued by Ms Pinky Anand and Mr. Prashant Desai, learned Senior Counsel on behalf of the respondents that most of the submissions made by the learned Senior Counsel of the appellants were not raised before the courts below and have been raised for the first time before this Court on the 19 ground of violation of the 73rd and 74th Amendments of the Constitution. Further, it was argued that there has been full compliance with the 73rd and 74th Constitutional Amendments and the Committee as contemplated by the said amendment is also responsible for the modification or revision of the development pan under Section 23 read with Section 14 to 18 of the 1973 Act. Para-32- Further, this Court has frowned upon the practice of the Government to raise technical pleas to defeat the rights of the citizens in Madras Port Trust v Hymanshu International wherein it was opined that it is about time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Para 2 from the said case reads thus :
"2. We do not think that this is a fit case where we should proceed to determine whether the claim of the respondent was barred by Section 110 of the Madras Port Trust Act (2 of 1905). The plea of limitation based on this Section is one which the court always looks upon with disfavour and it is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such a plea to defeat a just claim of the citizen. It is high time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of 20 citizens and do what is fair and just to the citizens. Of course, if a Government or a public authority takes up a technical plea, the court has to decide it and if the plea is well founded, it has to be upheld by the court, but what we feel is that such a plea should not ordinarily be taken up by a Government or a public authority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable. Here, it is obvious that the claim of the respondent was a just claim supported as it was by the recommendation of the Assistant Collector of Customs and hence in the exercise of our discretion under Article 136 of the Constitution, we do not see any reason why we should proceed to hear this appeal and adjudicate upon the plea of the appellant based on Section 110 of the Madras Port Trust Act ( 2 of 1905)".
It is also emphatically argued that question of law can be raised at any time even before the Appeal Court even when it is not pleaded. In support of this proposition reliance is placed on a Hon'ble Supreme Court decision reported in 2011 (12) SCC page-695 Para-19 (National Textile Corporation Limited vs Nareshkumar Badrikumar Jagad And Others) which is quoted below :-
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"Para-19-There is no quarrel to the settled legal proposition that a new plea cannot be taken in respect of any factual controversy whatsoever, however, a new ground raising a pure legal issue for which no inquiry/proof is required can be permitted to be raised by the court at any stage of the proceedings."
Mr. Bhattacharjee also drew Court's attention to Prayer (C) of the writ petition (supra). He emphasized to the supplementary affidavit and submitted that by a Government notification dated 10th June, 2019 an elected board of councillors cannot be superceded without following the requirements as prescribed under the statute. The impugned notification as well as by the impugned order dated 10th June, 2019 issued by the respondent no.3 directing the Executive Officer Naihati Municipality to make necessary arrangements for transferring the charges to the administrator appointed on 10th June, 2019 by the District Magistrate is patently illegal and demonstratively contrary to statute and is therefore not sustainable in law.
Mr. Bhattacharjee also referred to the Paragraph-3 of the State affidavit-in-opposition and vehemently urged that no documents have been annexed to the writ petition in support of the contention. Therefore, Court should not give any weightage to the Para-3 of the affidavit-in- opposition. Furthermore, attention of the Court was drawn to Sub-para 22
(a) of Para-4 of the State's affidavit-in-opposition. Sub-para (a) to (c) of Para-4 is quoted below :-
"a. That Since, mid May, 2019 the Department of Urban Development and Municipal Affairs, Government of West Bengal had been receiving information that disturbances and hooliganism was causing hamper of civic services to the citizens residing within the Municipal Jursidiction of Naihati Municipality. b. The said disturbances and hooliganism reached to such an extent that padlocks were put in the entrance of the Chamber/Office of the Chairman, Naihati Municipality. Pursuant thereto the Respondent No.4 lodged a Complaint with the Naihati Police Station on 29th May, 2019 and after due consideration the Police Authorities registered the said Complaint of the Respondent No.4 as FIR, being P.S. case No.284/19, dated 29th May, 2019.
c. Subsequently, the answering Respondents received a communication on 29th May, 2019 from the Respondent No.6 perusing which it stands clear that firstly some of the Councillors of the said Municipality were creating disturbances and hooliganism within the municipal jurisdiction of the Naihati Municipality, which was hampering the implementation of the day to day basic civic services inter alia appearing to be gross 23 neglect shown by the Board of Councillors in the performance of duties imposed upon it by or under the West Bengal Municipal Act, 1993.
d. As per the communication made by the Respondent No.6 on 29th May, 2019 it became clear that the said Municipality has turned non-functional and as such has failed to discharge the constitutional obligation mandated upon the said Municipality. e. Hence, upon perusing the said communication dated 29th May, 2019 received from Respondent No.6, the Respondent No.1 decided to issue an Order show causing the Board of Councillors of the Naihati Municipality in search of the reason based on which the Board of councillors may seek an exemption from not being dissolved pursuant to the incident of showing gross neglect to the duties imposed upon it."
Mr. Bhattacharjee placed reliance on a Supreme Court decision reported in (2012) 5 SCC Page-370 (Maria Margarida Sequeira Fernandes And Others vs Erasmo Jack De Sequeira (Dead) (Through LRS) Para-32, 33, 34 and 35 which are quoted below :-
"Para-32-In this unfortunate litigation, the Court's serious endeavour has to be to find out where in fact the truth lies. Para-33-The truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice. The entire 24 judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth.
Para-34-In Mohanlal Shamji Soni v Union of India this Court observed that in such a situation a question that arises for consideration is whether the Presiding Officer of a court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well-accepted and settled principle that a court must discharge its statutory functions-whether discretionary or obligatory-according to law in dispensing justice because it is the duty of a court not only to do justice but also to ensure that justice is being done.
Para-35-What people expect is that the court should discharge its obligation to find out where in fact the truth lies. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice." 25
Mr. Bhattacharjee also quoted some portion from Andrew Burrows Thinking About Statutes Interpretation, Interaction, Improvement. The relevant portion is quoted below :-
"Steyn said : 'During the last 30 years, there has been a shift away from the literalist approach to purposive methods of construction....the modern emphasis is on a contextual approach designed to identify the purpose of a statute and to give effect to it. In Lord Bindham's words in R v. Secretary of State for Health, ex p Quintavalle, ;The court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment. In the same case, Lords Steyn again emphasised that a purposive, rather than a literal, approach was now to be taken. 'The pendulum has swung towards purposive methods of construction. This change was not initiated by the teleological approach of the European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas....[N] owadays the shift towards purposive interpretation is not in doubt. Lord Nicholls in R v. Sec of State for the Environment, Transport and the Regions, ex p Spath Holme Ltd emphasised the 26 importance of context saying ' Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context.' And the precisely accurate and succinct words of the late and sadly missed Toulson LJ, as he then was, in An Informer v. A Chief Constable, Construction of a phrase in a statute does not simply involve transposing a dictionary definition of each word. The phrase has to be construed according to its context and the underlying purpose of the provision. Three specific points on the modern approach are noteworthy. First, the modern approach has subsumed many of the old so-called 'canons' of interpretation, such as the rule eiusdem generis or the rule expressio unius."
In conclusion Mr. Bhattacharjee submitted that Board of Councillors elected by the people's mandate cannot be dissolved by a gazetted notification without following due process of law as envisaged under the statute. It is evident that the elected Board of Councillors has been dissolved by a gazetted notification which is patently illegal, wholly arbitrary and contrary to statute and is therefore liable to be quashed and set aside.
5. Per contra, learned Advocate General strongly argued that the impugned gazetted notification is not challenged by the petitioner. Only 27 by way of filing supplementary affidavit that impugned gazetted Government order has been brought before this Hon'ble Court. The petitioners only challenged the subsequent order dated 10th June, 2019 issued by the respondent no.3, Sub Divisional Officer, Barrackpore.
Learned Advocate General further referred to Paragraph-3 of the supplementary affidavit and para-34 of the writ petition.
Learned Advocate General placed reliance on 2010 (1) SCC Page- 417 Paragraphs-28 & 29 (Amarjeet Singh & Others vs Devi Ratan And Others) which are quoted below :-
"Para-28-In the instant case, promotions had been made by two different DPCs held on 19.12.1998 and 22-1-1999. Both DPCs had made promotions under different Rules on different criterion and their promotions had been made with retrospective effect with different dates notionally. In the writ petition before the High Court, the promotion of the appellants had not been under challenge. The seniority which is consequential to the promotions could not be challenged without challenging the promotions. Challenging the consequential order without challenging the basic order is not permissible.
Para-29-In Roshan Lal v. International Airport Authority of India the petitions were primarily confined to the seniority list and this Court 28 held that challenge to appointment orders could not be entertained because of inordinate delay and in absence of the same, validity of consequential seniority could not be examined. In such a case, a party is under a legal obligation to challenge the basic order and if and only if the same is found to be wrong, consequential orders may be examined."
On the same point learned Advocate General also relied on another decision reported in 2010 (1) SCC Page-756 Para-22 (Edukanti Kistamma (Dead) through LRS And Others vs S. Venkatareddy (Dead) Through LRS And Others) which is quoted below :-
"Para-22-It is a settled legal proposition that challenge to consequential order without challenging the basic order/statutory provision on the basis of which the order has been passed cannot be entertained. Therefore, it is a legal obligation on the part of the party to challenge the basic order and only if the same is found to be wrong, consequential order may be examined ."
6. Learned Advocate General also drew Court's attention to Section 431 (1) of the Municipal Act 1992. He emphasized that these are only procedural and that should be demonstrated before the Hon'ble Court. If any procedural step is not complied with by the Government that could be considered as a procedural mistake only and could be 29 described as violation of natural justice. The violation of natural justice is a law of procedure.
7. As to the issue of natural justice it is submitted by learned Advocate General that generally no decision should be taken behind the back of the person concerned without giving him/her an opportunity of hearing. In support of his contention reliance was placed on Hon'ble Supreme Court decision reported in AIR 1955 (SC) Page-425 Para-17 (Sangram Singh vs Election Tribunal, Kotah ) which is quoted below :-
"Para-17-Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of Course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle."30
On the same issue he also relied on a Hon'ble Division Bench decision reported in 2007 (4) CHN Page-605 Para-21 (DB) (Upananda Chatterjee vs State of West Bengal & Ors), as follows:- .
"Para-21-In our view, the provisions of giving seven clear days' notice as mentioned in the second proviso to section 16 of the Act is a directory provision and not a mandatory one as rightly held in the case of Aloke Pramanik (supra) while construing a similar provision of the same statute. It is now settled by the Apex Court that if a particular statutory provision is a procedural one, even the use of the word "shall" in such provision will not make it mandatory unless consequence of disobedience has been indicated in the statute. The exceptions to the previously mentioned rule of interpretation are in the cases where there is either "no-notice", or "no-opportunity" or "no hearing". In this connection, we may refer to the following observations of the Supreme Court in the case of State Bank of India v. S.K. Sharma reported in AIR 1996 SC 1669 at 1683 :-
"A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case. In the case of violation of a procedural provision, the position is this procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. There are, generally speaking, conceived in his interest. Violation of any 31 and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no-notice', 'no-opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice viz, whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively."
8. Learned Advocate General also contended that there is no averment in the writ petition that the petitioner suffered prejudice by the action of the State authority. Unless petitioner made out a case of prejudice, merely praying that the impugned order should be quashed Court should not entertain such prayer. In support of his contention reliance was placed on AIR 1974 (SC) Page 579 Para-63 and also Hon'ble Supreme Court decision reported in 2017 (7) SCC Page-729 Para-32 (Shivashakti Sugars Limited vs Shree Renuka Sugar Limited And Others) which is quoted below :-
"Para-32-M/s Chidambaram and Kavin Gulati, Senior Advocates argued the matter on behalf of the appellant. It was their submission that on the date when the appellant applied for and got acknowledged its IEM on 8-6-2006, M/s Raibag Sahakari Sugar Factory was not in operation on that 32 date. Therefore, distance requirement as provided for under Clause 6-A was not applicable in the instant case. It was also emphasised that M/s Raibag Sahakari had not crushed sugarcane since 2001-2002 i.e. in the last five crushing seasons prior to 8-6-2006, which was also a relevant consideration to hold that distance requirement was inapplicable in this case. It was submitted that there was a clinching evidence to prove the aforesaid facts inasmuch as this has been judicially acknowledged in the orders of the High Court itself while dealing with the challenge to the action of the State Government in inviting tenders for giving lease to M/s Raibag Sahakari and while deciding challenge to the grant of the said lease in favour of Respondent 1."
It is also submitted that merely on technical ground that there are some lapses on the part of the authority to follow the procedure or technical steps as envisaged in statute the Court should not grant any relief. On that point reliance is placed on one Hon'ble Supreme Court decision reported in 2010 (13) SCC Page-255 Paras-25, 29 and 48 (Natwar Singh vs Director of Enforcement And Another) which are quoted below :-
33
"Para-25-It is true that Rule 4 does not require the adjudicating authority to supply copies of any documents along with the show- cause notice. The Rule does not require the adjudicating authority even to furnish any list of documents upon which reliance has been placed by it to set the law in motion. Does it mean that the adjudicating authority is not required to furnish the list of documents and copies thereof upon which reliance has been placed by it to issue notice of show cause to a person against whom a complaint has been made by the authorised officer ? Whether the principles of natural justice and doctrine of fairness require supply of documents upon which reliance has been placed at the stage of show-cause notice?
"It is not possible to lay down rigid rules as to when the principles of natural justice are to apply : nor as to their scope and extent. Everything depends on the subject-matter."
"...Their application, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject matter of the case."
Para-29-It is thus clear that the extent of applicability of the principles of natural justice depends upon the nature of inquiry from out of the decision pursuant to such inquiry.
34
Para-48-On a fair reading of the statute and the Rules suggests that there is no duty of disclosure of all the documents in possession of the adjudicating authority before forming an opinion that an inquiry is required to be held into the alleged contraventions by a noticee. Even the principles of natural justice and concept of fairness do not require the statute and the Rules to be so read. Any other interpretation may result in defeat of the very object of the Act. Concept of fairness is not a one-way street. The principles of natural justice are not intended to operate as roadblocks to obstruct statutory inquiries. Duty of adequate disclosure is only an additional procedural safeguard in order to ensure the attainment of the fairness and it has its own limitations. The extent of its applicability depends upon the statutory framework." On the same issue reliance was also placed on another Hon'ble Supreme Court decision reported in 2007 (4) SCC Page-54 Paras-26, 27 & 28 (Ashok Kumar Sonkar vs Union of India And Others) which are quoted below :-
"Para-26-This brings us to the question as to whether the principles of natural justice were required to be complied with. There cannot be any doubt whatsoever that the audi alterim partem is one of the basic pillars of natural justice which means no one should be 35 condemned unheard. However, whenever possible the principle of natural justice should be followed. Ordinarily in a case of this nature the same should be complied with. Visitor may in a given situation issue notice to the employee who would be effected by the ultimate order that may be passed. He may not be given an oral hearing, but may be allowed to make a representation in writing. Para-27-It is also, however, well settled that it cannot put any straitjacket formula. It may not be applied in a given case unless a prejudice is shown. It is not necessary where it would be a futile exercise.
Para-28-A Court of law does not insist on compliance with useless formality. It will not issue any such direction where the result would remain the same, in view of the fact situation prevailing or in terms of the legal consequences. Furthermore in this case, the selection of the appellant was illegal. He was not qualified on the cut-off date. Being ineligible to be considered for appointment, it would have been a futile exercise to give him an opportunity of being heard."
9. It is also argued by the learned Advocate General that in Paragraphs 24 and 29 of the writ petition the petitioners alleged malafide but failed to prove the same. Unless the malafide is proved only by pleading no relief can be given to the petitioners. Paragraphs 24 and 29 of the writ petition are quoted below :-
36
"Para-24-However, it appears that the respondent authorities, doing the bidding of the political masters, are exploiting the authority vested upon the chairman in the regular course of business to reply to such notice for show cause even in the extraordinary circumstances. That there is a deliberate malafide ploy by the chairman and the respondent authorities to misuse the position of the chairman to illegally show that an administrator is required to be appointed upon the municipality to run its business. Para-29-Your petitioner states that the impugned decision of the respondent no.1 as exercised by them with mala fide intent and the powers exercised thereunder are also arbitrary, capricious and unreasonable being contravention of the procedure established by law."
On that issue learned Advocate General relied on Hon'ble Apex Court decision reported in (2007) 1 SCC Page-1 Paragraph-61 (Parkash Singh Badal And Another vs State of Punjab And Others) and 2007 (8) SCC Page-418 Paragraph-83 (Dhampur Sugar (Kashipur) Ltd vs State of Uttaranchal And Others) which are quoted below :-
(2007) 1 SCC Page-1 Para-61 "Para-61-A plea of mala fides has not only to be clearly pleaded but specifically proved by adducing cogent evidence. Mere allegations and suspicions would not be sufficient. The person against whom 37 mala fide conduct is attributed is interestingly not a party in the proceedings.
2007 (8) SCC Page-418 Para-83 Para-83-Allegations of mala fide are serious in nature and they essentially raise a question of fact. It is, therefore, necessary for the person making such allegations to supply full particulars in the petition. If sufficient averments and requisite materials are not on record, the court would not make "fishing" or roving inquiry. Mere assertion, vague averment or bald statement is not enough to hold the action to be mala fide. It must be demonstrated by facts allegations and the burden is "very heavy" (vide E.P Royappa v State of T.N.). The change of mala fide is more easily made than made out. As stated by Krishna Iyer, J. in Gulam Mustafa v State of Maharashtra it is the last refuge of a losing litigant (see also Ajit Kumar Nag v GM (PJ), Indian Oil Corpn). In the case on hand, except alleging that the policy was altered by the Government, to extend the benefit to Respondent 4, no material whatsoever has been placed on record by the appellant. We are, therefore, unable to uphold the contention of the learned counsel that the impugned action is mala fide or malicious."
10. It is therefore submitted by the learned Advocate General that upon entertaining a writ petition of this nature any order passing by this 38 Court would be ultimately nothing but a futile exercise. In conclusion learned Advocate General submitted that there is no illegality or infirmity or ambiguity in the impugned orders which deserves interference by this Hon'ble Court.
Decision with Reasons
11. Considering the submissions advanced by the learned Advocates appearing for the respective parties and after perusing the records and the decisions cited above I find that on 30th May, 2019 eighteen councillors submitted a no-confidence before the Chairman for convening a special meeting as per provision of Rule 9 (3) (b) of the West Bengal Municipalities (Procedure and Conduct of Business ) Rules, 1995. But instead of convenning such meeting as per rules by the impugned notification dated 10th June, 2019 administrator was appointed as well as the order dated 10th June, 2019 issued by the Sub-Divisional Officer Barrackpore, North 24-Parganas (respondent no.5 herein) to the Executive Officer Naihati Municipality thereby requesting him to make an arrangement for transferring the charges to the administrator.
Accordingly, vide letter dated 12th June, 2019 issued by the Executive Officer Naihati Municipality the petitioners and other respondents were informed that the Board of Councillors has been 39 dissolved by an order dated 10th June, 2019 and Sri Shyamal Roy Choudhury (WBCS) (Executive) Deputy Magistrate and Deputy Collector Barrackpore sub-Division has been appointed as administrator of Naihati Municipality.
12. It is also evident from records that without complying Section 425, 426, 427, 428 and 429 of the West Bengal Municipal Act, 1993 as referred above vide the impugned notification dated 10th June, 2019 the elected board of councillors had been dissolved. In my considered view the State authorities were under obligation to comply with those provisions before taking drastic action like dissolving an elected board of councillors. I also find that the Chairman was under obligation to convene a meeting under Rule 9(3) (b) (I) if Chairman fails then under 9 (3) (b) (II) Vice Chairman and if he also fails to convene any special meeting then under 9 (3) (b) (III) three elected councillors amongst the councillors who have taken 'no-confidence meeting'. But unfortunately such procedure as provided in law have not been followed in the present case. There is no iota of evidence and documents shown by the respondent authority in their affidavit-in-opposition that before dissolving the elected board of councillors all those provisions as referred above have been strictly complied with. No documents also could be produced by the respondent authorities showing compliance of Sub-Section 2 of Section 426 as well as Section 431. 40
13. No evidence/documents annexed to the States affidavit-in- opposition to show that the inspection of the municipal work was conducted by the Government authorities under Sub-Section 2 of Section 426 and even compliance of Section 431 prior to imposing such capital punishment of dissolving the elected Board of Councillors. No opinion was formed by the State regarding gross negligence or serious irregularities or serious misconduct of the Board of Councillors. 31 councillors were not even served with any notice by the Government. Furthermore, no meeting of Board of Councillors was ever conducted by the Chairman before taking drastic decision like dissolution of the elected board of councillors.
14. In my considered view Article 243b, 243r, 243q and 243 had not been complied with by the authority. In my opinion democratic functioning is the basic of republic opinion. The Board of Councillors who were elected in a democratic manner by the people's mandate should not be dissolved without following the statutory mandate of the Municipal Act 1993 as well as Rules framed thereunder.
Surprisingly I find that the gazette notification is dated 10th June, 2019 and on the selfsame date by subsequent order the executive officer was directed to hand over the charges of the said Municipality to the administrator by the order dated 10th June, 2019. The impugned action creates a cloud of doubt in the mind of the Court, as to why all these 41 drastic action was taken in such a haste machanically just to ensure that "no-confidence motion" could not be tabled in a special meeting to be conveyed by the Chairman in terms of Rule 9 (3) (b) (I) (II) and (III). The action per se to say the least is illegal and constituted fraud on statute. It is indeed unfortunate that such action is being stoutly defended by the contesting respondents. Therefore it is crystal clear that mala fide had been proved by the action of the lawmaker who failed to follow the the statutory mandate before dissolving the elected Board of Councillors.
15. In my considered view the posts of the Chairman, Vice- Chairman and the councillors are not of any selected or appointed or promotional posts. They are elected by the people's mandate and they are people's representative.
16. I cannot accept the submission of the learned Advocate General that the requirement of complying the statutory mandate is nothing but a procedureal one and compliance of natural justice is not mandatory. Accordingly this submission of learned Advocate General is rejected by the Court.
17. It is very much shocking when on the face of the act of the Government it is evident that without following the law as laid down in the statute the elected body was dissolved by the impugned order that 42 has been explained and narrated by the counsels casually that those are nothing but mere non-compliance of natural justice.
It is highly improper, unfair and unjust on the part of the State authority to dissolve an elected board of councillors at their sweat whims. State is under obligation to follow the statute but the present case is an instance of disobediance of the mandate of the statute at the highest order. Such action of state authorities would convene a bad message to the society as well as the people at large who elected their councillors.
In my considered view if the gazetted notification is not challenged (though it is brought before this Court in a supplementary affidavit) then illegal, arbitrary, un-constitutional action of the Government dissolving the elected board of councillors would perpetuate and the Court of law would be a mere spectator; therefore the impugned action can not be allowed to exist but should be scrapped.
18. It is the duty of the Court being the custodian of law to correct the mistake/wrong done by the State thereby restoring the same to its original position. In this score reliance is placed on AIR 1987 SCC Page-537 Paragraphs-18 , 19, 20 & 21 ( The Comptroller and Auditor General of India, Gian Prakash, New Delhi and Another vs K.S. Jagannathan and Another )which are quoted below:- 43
"Para-18-The first contention urged by learned Counsel for the Appellants was that the Division Bench of the High Court could not issue a writ of mandamus to direct a public authority to exercise its discretion in a particular manner. There is a basic fallacy underlying this submission - both with respect to the order of the Division Bench and the purpose and scope of the writ of mandamus. The High Court had not issued a writ of mandamus. A writ of mandamus was the relief prayed for by the Respondents in their writ petition. What the Division Bench did was to issue directions to the Appellants in the exercise of its jurisdictions under Article 226 of the Constitution. Under Article 226 of the Constitution, every High Court has the power to issue to any person or authority, including in appropriate cases, any Government, throughout the territories in relation to which it exercises jurisdiction, directions, orders, or writs including writs in the nature of habeas corpus, mandamus, quo warranto and certiorari, or any of them, for the enforcement of the Fundamental Rights conferred by Part III of the Constitution or for any other purpose. In Dwarkanath v. Income-Tax Officer, Special Circle, Kanpur (1965) 3 SCR 536, 540 : (AIR 1966 SC 81 at P.84) this Court pointed out that Article 226 is designedly couched in a wide language in order not to confine the power conferred by it only to the power to issue prerogative writs as understood in England, such wide language being used to enable the High Courts "to reach 44 injustice whereever it is found" and "to mould the reliefs to meet the perculiar and complicated requirements of this country". In Hochtief Gammon v State of Orissa, (1976) 1 SCR 667, 676 : (AIR 1975 SC 2226 at P. 2232) this Court held that the powers of the courts in England as regards the control which the Judiciary has over the Executive indicate the minimum limit to which the courts in this country would be prepared to go in considering the validity of orders passed by the Government or its officers.
Para-19-Even had the Division Bench issued a writ of mandamus giving the directions which it did, if circumstances of the case justified such directions, the High Court would have been entitled in law to do so for even the courts in England could have issued a writ of mandamus giving such directions. Almost a hundred and thirty years ago, Martin, B, in Mayor of Rochester v Regina 1858 E.B. & E 1024, 1032, 1034 said :
"But, were there no authority upon the subject, we should be prepared upon principle to affirm the judgment of the Court of Queen's Bench. That Court has power, by the prerogative writ of mandamus, to amend all errors which tend to the oppression of the subject or other misgovernment, and ought to be used when the law has provided no specific remedy, and justice and good government require that there ought to be one for the execution of the common 45 law or the provisions of a statute : Comyn's Digest, Mandamus (A)....Instead of being astute to discover reasons for not applying this great constitutional remedy for error and misgovernment, we think it our duty to be vigilant to apply it in every case to which, by any reasonable construction, it can be made applicable."
The principle enunciated in the above case was appointed and followed in the King v Revising Barrister for the Borough of Hanley (1912) 3 LN 518, 528-9, 531. In Hochtief Gammon's case (AIR 1975 SC 2226) this Court pointed out at Page 6751 that the powers of the Courts in relation to the orders of the Government or an officer of the Government who has been conferred any power under any statute, which apparently confers on them absolute discretionary powers, are not confined to cases where such power is exercised or refused to be exercised on irrelevant considerations or on erroneous ground or mala fide, and in such a case a party would be entitled to move the High Court for a writ of mandamus. In Padfield v Minister of Agriculture Fisheries and Food 1968 AC 997 the House of Lords held that were Parliament had conferred a discretion on the Minister of Agriculture Fisheries and Food, to appoint a committee of investigation so that it could be used to promote the policy and objects of the Agricultural marketing Act, 1958, which were to be determined by the construction of the Act which was a matter of law for the court and though there might be reasons which would justify 46 the Minister in refusing to refer a complaint to a committee of investigation the Minister's discretion was not unlimited and if it appeared that the effect of his refusal to appoint a committee of investigation was to frustrate the policy of the Act, the court was entilted to interfere by an order of mandamus. In Halsbury's Laws of England, Fourth Edition Volume I, paragraph 89 it is stated that the purpose of an order of mandamus "is to remedy defects of justice and accordingly it will issue to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right, and it may issue in cases where, although there is an alternative legal remedy yet that mode of redress is less convenient beneficial and effectual." Para-20-There is thus no doubt that the High Courts in India exercising their jurisdction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and matrials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit 47 and proper case a High Court can in the exercise of its jurisdiction under Article 226 issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government of a public authority, and in proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion.
Para-21-It is now necessary to examine the nature of the discretion conferred by the said Office Memorandum dated January 21, 1977 -"Whether it is a discretionary power simpliciter or a discretionary power couled with a duty?" From the provisions of the Constitution referred to above it is transparently clear that it is a discretion to be exercised in the discharge of the Constitutional duty imposed by Article 3 to take into consideration the claims of the members of the Scheduled Castes and the Scheduled Tribes. Consistently with the maintenance of efficiency of administration in the making of appointments to services and posts in connection with the affairs of the Union of a State. This duty is to be exercised in keeping with the Directive Principle laid down in Article 46 to promote with special care the educational and economi interests of the weaker sections of the people and in particular of the Scheduled 48 Castes and the Scheduled Tribes, and to protect them from social injustice and all forms of exploitation Article 37 of the Constitution provides that the Directive Principles of State Policy contained in Part IV of the Constitution, in which Article 46 occurs are fundmental to the governance of the country and tht it is the duty of the state to apply these principles in making laws. As said by Murtaza Fazal Ali. J. in State of Kerala v N.M. Thomas (1976) 1 SCR 906 (at page
996) : (AIR 1976 SC 490 at p.548) "the directive principles form the fundamental feature and the social conscience of the Constitution and the Constitution enjoins upon the State to implement these directive principles".
(emphasis supplied).
19. It is trite law that question of law even if not taken in the trial court the same could be taken in appeal court. In this upshot of the discussions it is appropriate to quote repeated statements of and cautions sounded by the Hon'ble Supreme Court in the decision reported in 2010 (2) SCC Page-733 (Sanghvi Reconditioners Private Limited vs Union of India And Others) and 2010(9) SCC Page-157 (Greater Mohali Area Development Authority And Others vs Manju Jain And Others).
(Emphasis supplied).
49
20. In my considered view when the initial proceeding is bad and is quashed then all subsequent/consequential steps taken are also bad and should be quashed. In this context reliance is placed on 2011 (3) SCC Page-436 (Santanu Chatterjee vs The State of West Bengal & Others) .
(Emphasis supplied)
21. In my opinion alleged disturbance and hooliganism within the municipal area of Naihati Municipality cannot be a ground for dissolution of the elected board. If at all any disturbance and hooliganism had been created within the municipal area then it is the duty of the administration/the police authority to control the siutation with strong hand. And not the duty of the elected members of the board of councillors to take steps against the disturbance and hooliganism had been carrying on in that municipal area.
22. Now I deal with the cases cited by the learned Advocate General.
In Amarjeet Singh And Others (supra) the cited case is in respect of departmental promotion between two aspirant employees but the initial promotion of the appellant was not under challenge but seniority which is consequential to the promotion was challenged which was turned down by the Hon'ble Apex Court. In my view this proposition is a trite law but the facts of the case in hand is different to the facts of the cited 50 case. In the present case the petitioner had complained that without following the statutory mandate by the impugned gazatte notification the elected board has been dissolved. Therefore, it is the task of the Court to examine whether statutory mandate has been followed by the State before appointing administrtor thereby issuing gazette notification. This Court therefore is in agreement with the submission of Mr. Bhattacharjee that without following the statutory mandate the State has appointed administrator by notification dated 10th June, 2019 which in my considered view State is not permitted by the statute. So, the cited case has no manner of application.
In Edukanti Kistamma (Dead) (supra) cited by learned Advocate General was rendered in a landlord and tenancy matters. In that cited case as the basic order /statutory provision was not challenged, it was held that the subsequent order cannot be challenged. In my opinion this settled proposition of law is not disputed but the present case is totally of different proposition.
In Sangram Singh (supra) the cited by learned Advocate General issue involved was that every citizen should be given opportunity of hearing before taking any decision otherwise it violates natural justice. By catena of Hon'ble Supreme Court decisions this proposition of law in my opinion is a settled proposition; I am however not at all in agreement with learned Advocate General that dis-obeying the statutory obligation 51 is nothing but a mere procedural formalities therefore it does not amount of violation of any statutory mandate. In my considered view State is obliged to comply with the statutory mandate. Statutory mandate cannot be described as procedural one and that procedural mandate should followed by the State. I am tempted to refer 79 CWN Page-883 Para-12 which is quoted below :-
"Para-12-In the case of Naniuddin Bepari v The Chairman of the Municipal Commissioners, Dacca, 40 C.W.N. 17, R.C. Mitter J. observed at pp.18-19 as follows :-
"It is a fundamental principle of law that a natural person has the capacity to do all lawful things unless his capacity has been curtailed by some rule of law. It is equally a fundamental principle that in the case of a statutory corporation it is just the other way. The Corporation has no power to do anything unless those powers are conferred on it by the statute which creates it. In the Municipal Act of 1884, I do not find any power given to the Municipality to allow the use of a public thoroughfare from day to day for any other purposes than a public pathway. It has no doubt the power to divert a road and if it diverts it, a portion of the old road which is no longer necessary to be used as a road is land for all intents and purposes and as I have stated, the Municipality can deal with that land, which is no longer used as road, under the provisions of sec.34". 52
(Emphasis supplied) In Upananda Chatterjee (supra) relied on by learned Advocate General the Hon'ble Court held that the provision of seven clear days' notice provided in Section 16 of the Act is directory and not mandatory but the issue involved in the present case is totally different. although I accept the proposition of law of the cited case but the same has no manner of application in the case in hand.
In Shivashakti Sugars Limited case (supra) it was referred by the learned Advocate General on the point that there is no averment in the writ petition that the petitioners suffered prejudice by the action of the state authority and unless petitioner made out a case of prejudice cannot claim that the impugned order should be quashed. In my considered view this cited case is totally inapplicable in fact situation of the present case as the petitioner's grievances is that statutory mandates have not been complied with before making elected board of councillors as defunct thereby appointing administrator vide the impugned notification and that by the impugned order the executive officer was directed to handover the charges of the said municipality to the administrator which is assailed to be contrary to law prescribed in the statute.
On the point that no prejudice was suffered by the petitioner learned Advocate General relied on Ashok Kumar Sonkar's case (supra). 53 in my opinion the case has no manner of aplication in the case in hand where the petitioner suffered highest prejudice by the impugned action of the State whereby the elected board of councillors was dissolved and administration was appointed defying all canons of law.
On the point of malafide not complied in the writ petition the learned Advocate General relied on two Hon'ble Apex Court decisions as Parkash Singh Badal case (supra) and Dhampur Sugar (Kashipur) Ltd (supra) as mentioned above. In my opinion the above-referred cases have no manner of application in the present case for the reasons and on the facts discussed.
In Natwar Singh case (supra) referred by the learned Advocate General that real prejudice has to be shown in the petition and that since no real prejudice was shown in the petition the Court should not allow the writ petition only on the ground that non-compliance of procedural or technical methods. In this regard I reiterate my findings and discussions above to avoid repeatation and prolixity.
23. I find all the cases cited above by the learned Advocate General have no manner of application in the present case because all the cases are either between two individuals regarding service promotion etc. Or arising out of some contractual obligations.
24. The upshot of the discussions above is that the notification dated 10th June, 2019, the order dated 10th June, 2019 issued by the 54 Sub-Divisional Officer, Barrackpore North 24-Parganas as well as the information of appointment of the administrator namely Sri S. Roy Choudhury vide order dated 12th June, 2019 are hereby quashed and set aside.
25. Accordingly, I direct the District Magistrate to conduct a meeting on the basis of the 'no-confidence motion' taken by the 18th elected councillors on 30th May, 2019 at the office premises of the District Magistrate without any further delay but positively within three weeks from the date of delivery of this judgment.
I also direct the Commissioner, Barrackpore Commissionerate, 24- Parganas (North) to render all cooperation and assistance to all the councillors and ensure that they all could peacefully without any obstruction or hindrance of any nature whatsoever, attend the meeting at the office premises of District Magistrate on the schedule date and time as fixed by the District Magistrate and also to maintain law and order there at by deploying appropriate force untill the proceeding is declared complete.
25. With these directions this writ petition is disposed of without any order as to costs.
55
26. Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties after fulfilling all the formalities.
(Samapti Chatterjee, J)