Calcutta High Court (Appellete Side)
Bandhu Gopal Saha vs The State Of West Bengal & Others on 4 December, 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 13600 (W) of 2019
Bandhu Gopal Saha
Vs
The State of West Bengal & Others
For the Petitioner : Mr. Bikash Ranjan Bhattacharyya, Senior Advocate.
Mr. Saptanghsu Basu, Sr. Advocate
Mr. Vikas Singh, Advocate
For the State : Mr. Kishore Dutta, Ld. Advocate General
Mr. Arka Kumar Nag, Advocate
For the respondent no.3 : Mr. D. Saha Roy, Advocate
Mr. Neli Basu, Advocate
For the Requisitionists : Mr. Siddhartha Banerjee, Advocate
Mr. Arkaprava Sen, Advocate
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For the Respondent No.4,
5, 14 and 17 : Mr. Abhishek Halder, Advocate
Mr. Tirthankar Dey, Advocate
For the Respondent Nos.7-
9, 12, 15, 16 & 19 : Ms. Mrinalini Majumder, Advocate
Mr. Gautam Ray, Advocate.
Heard on : 19.07.2019, 25.07.2019, 31.07.2019 &
09.08.2019 & 13.08.2019.
Judgment on : December 4, 2019.
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 and/or in the nature of Mandamus commanding the respondent authorities and each one of them their men, agents, assigns and subordinates to rescind, cancel, withdraw and set aside the notice of Notice No. 75 (23)-20 dated 16.07.2019; 3
c) A writ of and/or in the nature of Mandamus commanding the respondent authorities and each one of them their men, agents assigns and subordinates to declare the Notice No.75(23)-20 dated 16.07.2019 is illegal and void abinitio and nonest of law;
d) A writ of and/or in the nature of Certiorari do issue directing the respondents and each one of them to forthwith certify and transmit to this Hon'ble Court all the records and documents pertaining to this instant case, so that conscionable justice may be administered by quashing the same i.e. Notice No.75 (23)-20 dated 16.07.2019;
e) Any other appropriate writ or writs, order or orders and/or direction or directions;
f) Rule NISI in terms of prayers above and in the event no cause or insufficient cause is shown, to make the said Rule absolute;
g) An interim order restraining the respondents not to proceed further with the impugned Notice No.75(23)-20 dated 16.07.2019 till the disposal of this application;
h) Ad-interim order in terms of prayer (g) above;
i) Costs of and incidental to this application be borne by the respondents;
j) Such further and other order or orders be made and/or direction or directions be given as to this Hon'ble Court may seem fit and proper.
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2. The petitioner's case in a nutshell is as follows :-
That the petitioner was elected as a councillor of Halisahar Municipality. Suddenly on 17th July, 2019 the petitioner came to know that a notice being no. 75(23)-20 dated 16th July, 2019 has been issued by the respondent no.3 the Chairman herein, to the councillors of the said municipality. The contents of the said letter was that a special meeting of the Board of Councillors of the said Municipality will be held on 19th July, 2019 for the purpose of considering the 'No-Confidence Motion' against the Chairman of the said Municipality. That notice was issued only through the whatsapp on 16th July, 2019 though the law governing the municipalities clearly mandates that a notice of 'No- Confidence' is to be sent through registered post only and not through whatsapp.
The petitioner received the said notice without any copy of purported requisition letter dated 16th July, 2019. Vide letter dated 18th July, 2019 the petitioner requested the Chairman (respondent no.3 herein) to withdraw the said notice and to proceed in accordance with law. Accordingly, the petitioner filed the present writ petition for quashing and setting aside the said notice being no. 75 (23)-20 dated 16th July, 2019.5
The said matter was mentioned in the morning session on 19th July, 2019 by Mr. Saptangshu Basu, learned Senior Advocate before this Court for granting leave to move the writ petition at 2 p.m., considering the urgency as the meeting was scheduled to be held at 3 p.m. on 19th July, 2019 service of notice in terms of Rule 26 of the Appellate Side Rules of this Hon'ble Court was dispensed with. Accordingly leave was granted to move the petition at 2 p.m. after giving notice upon the learned Advocate appearing for the State.
Accordingly the matter was taken up for hearing after 2:15 p.m. and the following order was passed :-
"The petitioner has filed the present writ petition assailing the impugned notice dated 16th July, 2019 passed by the Chairman, Halisahar Municipality thereby directing that the meeting would be held on 19th July, 2019 at 3 p.m. in connection with no confidence motion against the Chairman of the said Municipality. Mr. Bhattacharjee, learned Senior Advocate appearing for the petitioner, submits that this notice was only served through whatsapp message to the petitioner which is not the proper mode of service as prescribed by the statute. Mr. Bhattacharjee further 6 submits that just to frustrate the elected councillors' attempt to bring no confidence motion against the Chairman, the Chairman on his own issued the impugned notice dated 16th July, 2019 to held a meeting on 19th July, 2019 at 3 p.m. Mr. Bhattacharjee further contends that considering the urgency, the petitioner has prayed for leave in terms of Rule 26 of the Appellate Side Rules. The same is considered and dispensed with.
Per contra, learned Advocate General submits that there is no urgency in the present case. No pleading has been made regarding the urgency. Learned Advocate General also submits that only one elected councillor has moved this writ petition just to frustrate the meeting to be held today at 3 p.m. Learned Advocate General further submits that the Chairman, whose notice is under challenge, has not been purposely served by the petitioner. Learned Advocate Genera further submits that no statutory violation has been proved in the present case. The impugned notice has been issued after following Rule 9 Sub-Rule 3(b) of the West Bengal Municipalities (Procedure and Conduct of Business) Rules, 1995. Learned Advocate General further contends that the petitioner has received the notice on 17th July, 2019 through whatsapp but purposely moved it today. Therefore, This point cannot be raised by he petitioner that no notice was given thereby following the procedure. 7 Considering the submissions as advanced by the learned Advocates for the parties and after perusing the records, I find that the notice dated 16th July, 2019 was only given through whatsapp on 17th July, 2019 which is not at all proper service as prescribed under the statute. Therefore, I am prima facie satisfied that the petitioner has been able to make out a prima facie case which deserves some protection by this Court.
Accordingly, after being prima facie satisfied, the impugned notice dated 16th July, 2019 whereby the Chairman of the Halisahar Municipality fixed the meeting on 19th July, 2019 at 3 p.m. is hereby stayed till 23rd July, 2019.
Let this matter appear in the list on 23rd July, 2019 at 3 p.m. The petitioner is directed to communicate this order to the Chairman of the Halisahar Municipality through whatsapp immediately. Let a photostat plain copy of this order, duly counter-signed by the Assistant Registrar (Court), be handed over to the learned Advocates for the parties on usual undertakings."8
3. Mr. Biskash Ranjan Bhattacharjee, learned Senior Advocate appearing for the petitioner contended that though the impugned meeting dated 19th July, 2019 was stayed by the Court before 3 p.m. but in spite of that the meeting was held on the plea that order was not served upon the respondent no.3 though the respondent no.3 was served with the order through whatsapp.
4. It is also submitted that in presence of learned Advocate General and Mr. Gautam Roy who appeard for respondent no.9 the order was passed. Be that as it may, the order was not complied with.
It is vehemently argued by Mr. Bhattacharjee that without complying the statutory mandate as envisaged under Section 9 (3) (b) of the Municipal Act, 1995 purported no-confidence motion was issued through whatsapp which is nothing but a stage-managed theory to avoid a prospective no-confidence so as to avail the protection of six months within which time no further no-confidence motion could be taken out as prescribed under proviso of Section 18 (3) of the said Act.
5. Mr. Bhattacharjee also strongly submitted that under the statute a notice of no-confidence is to be sent by registered post only not through whatsapp. Therefore, it is contended that the purported notice 9 is in contravention of the law laid down in Rule 9 (3) (b) of the West Bengal Municipalities (Procedure and Conduct of Business) Rules, 1995 (hereinafter referred to as the said Rules). As per Rules the Chairman only could have convened the meeting on 20th July, 2019 after giving not less than three days notice to the elected members.
But unfortunately in the present case the Chairman in contravention of the said provision issued the whatsapp notice for convening the special meeting on 19th July, 2019 instead of 20th July, 2019.
6. Mr. Bhattacharjee vehemently argued that it appears that the ruling partly and the Chairman of Halisahar Municipality the respondent no.3 herein, are in hand in gloves for obvious reasons thereby trying to frustrate and sabotage the function of the Halisahar Municipality to the detriment of the petitioner and other following elected councillors.
It is also submitted that purported meeting dated 19th July, 2019 is nothing but, malfafide with some ulterior motive to misuse the position of the Chairman.
7. Mr. Bhattacharjee also relied on affidavit filed by the Chairman and drew Court's attention at Page-12 and emphasized that it is crystal 10 clear that the signature was obtained after the copy forwarded to the Sub-Divisional Officer Barrackpore, North 24-Parganas and the Executive Officer Halisahar Municipality. He also emphasized that before the copy forwarded 8 councillors put their signature. Curiously, beneath the words "copy forwarded" those eight councillors second time put their signature. Furthermore, on the top of page-12 rubber stamp of Halisahar Municipality was used thereby mentioning letter no. 683 (2) 20 dated 16th July, 2019. It is the procedure that if any rubber stamp is used then the person who is using the rubber stamp of the particular authority shall put his signature there, but unfortunately that is lacking in the Page-12 of the affidavit.
It is also evident that on the self-same date i.e. on 16th July, 2019 the Chairman issued notice for special meeting of the Board of Councillors of Halisahar Municipality to be held on 19th July, 2019 at 3 p.m. in connection with no-confidence motion against the Chairman of Halisahar Municipality as per requisition dated 16th July, 2019. It is also evident that the agenda no.1 was to consider the no-confidence motion. It is explained by Mr. Bhattacharjee that earlier notice dated 16th July, 2019 appearing at Page-12 the letter number is 683 (2)-20 just and the next page at page-13 it should be memo no. 684 (3)-20 but surprisingly at page-13 memo number is 75(23)-20. This system of 11 maintaining Government records is shocking and unthinkable and can not be accepted in law.
8. Mr. Bhattacharjee further drew Court's attention at Page-14 of A/O and pointed out that in the Halisahar Peon Book initially it was written 2019 thereafter it was struck out and rewritten as 2016 and on 29th September, 2016 which proved that Peon Book was only used by the Halisahar Municipality once in the year 2016. Thereafter on 16th July, 2019 that Peon Book was again used by the Halisahar Municipality. It is surprising that under the column "Peon's name" the councillors name and signatures are appearing and in the receipt column peculiarly the Peon's name is appearing with date and time mentioned as 16th July, 2019 at 10:30 p.m. Curiously enough on 16th July, 2019 at 10:30 p.m. the Chairman sent the said notice through speed-post and it is evident from the remarks appearing at page-19 that speed-post was refused by the petitioner on 18th July, 2019. Although admittedly on 18th July, 2019 petitioner since from morning all along was at this High Court premises to affirm the instant writ petition.
It is also strongly contended by Mr. Bhattacharjee that the Chairman has no authority to send letter on 17th July, 2019 to the Principal Secretary, Government of West Bengal , Department of Urban 12 Development and Municipal Affairs thereby intimating refusal of receiving notice of special meeting of Board of Councillors.
9. Mr. Bhattacharjee submitted that there is no provision under the statute that Principal Secretary, Government of West Bengal, Department of Urban Development and Municipal Affairs shall be informed by the Chairman regarding refusal of accepting notice for special meeting in connection with no-confidence motion. He further emphasized that event above narrated proved that upon dictation of the Principal Secretary Chairman purportedly conducted the meeting on 19th July, 2019 at 3 p.m. thus disobeying the statutory mandate that at least three days prior notice shall be given by the Chairman before conducting special meeting.
10. Before parting with his argument Mr. Bhattacharjee re- iterated that purported meeting for motion of no-confidence held on 19th July, 2019 is nothing but a stage manage theory to avail the proviso of Section 18 (3) of the said Act. Therefore this purported meeting is nothing but fraud upon the statute.
It is also submitted by Mr. Bhattacharjee that the respondent authority not only committed fraud upon the statute but at the same time committed fraud upon the judiciary thereby disobeying the interim 13 order passed on 19th July, 2019. Accordingly Mr. Bhattacharjee submitted that Court should quash the notice issued through whatsapp dated 16th July, 2019 and also the purported special meeting, pursuant to that notice held on 19th July, 2019 for trust vote in favour of the Chairman by his supporting councillors who supported the Chairman thereby ensuring that the Chairman can enjoy the power for further six months taking advantage of proviso of Section 18 (3) of the said Act.
11. Per contra, Mr. Kishore Dutta, learned Advocate General contended that out of 23 councillors in the said municipality one is at present behind the bars. Therefore at present there are 22 councillors. Out of 22 councillors 13 councillors attended meeting and cast their trust vote in favour of the Chairman.
12. It is also argued by the learned Advocate General that till date no challenge has been made in respect of the meeting. He referred to Rule 9 (3) (b) , Section 17 and Section 18 (3) (supra) and thereafter contended that the Section 18 (3) prescribes both confidence as well as no confidence, therefore the meeting in question is a meeting to cast trust vote in favour of the Chairman. 9 (3) (b) , Section 17 and Section 18 (3) are quoted below :-
"Rule 9 -Extraordinary meeting.-(3) (b) A special meeting may also be convened after giving not less than three days' notice to the 14 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."
Section 17- Election of Chairman.- (1) The Board of councillors, [in its first meting under Section 50B], shall elect in accordance with such procedure as may be prescribed, one of its [elected] members to be the Chairman who shall assume office forthwith [after taking oath of secrecy under Section 50A].
(2) If the Board of Councillors fails to elect a Chairman in the manner prescribed, the State Government shall appoint by name one of the Councillors to be the Chairman.
(3) In the case of any casual vacancy in the office of the Chairman caused by death, resignation, removal or otherwise, the Board of Councillors shall in accordance with such procedure as may be prescribed, elect one of the Councillors to fill up the vacancy. (4) In the case of casual vacancies in the offices of both the Chairman and the Vice-Chairman caused by death, resignation, 15 removal or otherwise, the State Government may appoint by name one of the Councillors to be the Chairman who shall hold office until a Chairman, elected under the provisions of sub-section (3), [enters upon his office].
[Provided that the Chairman appointed under this sub-section shall hold meeting of the Board of Councillors within thirty days from the date of taking over his charge for the purpose of election of the new Chairman under sub-section (3) in such manner as may be prescribed.] Section 18 (3)-The Chairman may be removed from office by a resolution carried by a majority of the total number of [elected members] of the Board of Councillors holding office for the time being [present and voting by them] at a special meeting to be called for this purpose in the manner prescribed upon a requisition made in writing by not less than one-third of the total number of [elected members] of the Board of Councillors, and the procedure for the conduct of business in the special meeting shall be such as may be prescribed :
Provided that no such resolution shall be moved before the expiry of six months from the date of assumption of office by a Chairman, and if such resolution is not carried by a majority of the total number of [elected members] no further resolution for such purpose shall be moved before the expiry of a period of six months from the date on which the former resolution was moved."16
Therefore learned Advocate General contended that the majority have voted in favour of the trust vote. Out of 22, 13 elected councillors had cast their trust vote in favour of the Chairman. It is the petitioner who after receiving the notice choose not to appear. It is also contended that since the meeting was held after following the statute, therefore, question of commission of fraud upon the statute, as has been canvassed by Mr. Bhattacharjee, does not arise and such submissions is baseless and unacceptable.
13. It is further submitted by learned Advocate General that since no statutory violation has been committed, Court should dismiss the writ petition.
14. Mr. D. Saha Roy, learned Advocate appearing for the Chairman after adopting and endorsing the submissions of learned Advocate General submitted that notice was properly served on 16th July, 2019 by following the statutory mandate. No violation of statute has been committed by the Chairman. It is further contended by Mr. Saha Roy that the Chairman has every right to issue a letter to the Principal Secretary of the said department narrating the scenario. Accordingly, there is no illegality to write a letter to the Principal Secretary by the Chairman.
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15. Mr. Saha Roy also vehemently urged that out of 22 councillors 13 councillors had cast their trust vote in favour of the Chairman. Accordingly 'no confidence motion' was failed. It is the petitioner who intentionally failed to attend such meeting for trust vote. It is further submitted that not only through whatsapp but by Peon Book as well as through speed-post notice was issued to all the councillors for attending the special meeting scheduled to be held on 19th July, 2019 at 3 p.m..
16. Therefore in conclusion Mr. Saha Roy submitted that there is no illegality or infirmity or ambiguity in the meeting dated 19th July, 2019 which deserves interference by this Hon'ble Court.
17. Mr. Banerjee learned Advocate appearing for the respondent nos 6, 10, 11, 13, 18, 21 , 22 & 23 submitted that the letter dated 16th July, 2019 as appears at Page-12 of the affidavit-in-opposition filed by the Chairman, respondent no.3 herein, was never issued by the municipality. That letter was issued by eight members of the Halisahar Municipality who have taken out a no-confidence motion against the Chairman of the municipality. Therefore, question of putting signature of the eight councillors after the rubber stamp does not arise. 18
It is also submitted that in the said letter the councillors put their signatures once just after the letter of no-confidence and thereafter again just after copy forwarded for kind information and taking necessary action. This factum of putting double signature cannot be described as defective one .
It is also submitted that the requisition of the councillors have never been challenged in the said writ petition. The petitioners also did not challenge the special meeting dated 19th July, 2019 fixed at 3 p.m. in connection with the 'no-confidence motion' against the Chairman. Therefore, in conclusion Mr. Banerjee submitted that meeting was perfectly held by following the Rules. Accordingly this writ petition does not deserve any interference by this Court. Writ petition should be dismissed.
Decision with Reasons
18. In this upshot considering the rival submissions of the learned Advocates appearing for the respective parties and after perusing the records I find that on 16th July, 2019 the petitioners and other councillors were informed through whatsapp that a special meeting would be held on 19th July, 2019 at 3 p.m. in connection with 'no- confidence motion' against the Chairman of Halisahar Municipality on the basis of the requisition dated 16th July, 2019 taken out by the eight 19 councillors. Assailing that notice through whatsapp the petitioner filed the writ petition on 19th July, 2019 after obtaining leave.
After considering the submission of Mr. Bhattacharjee this Court after being prima facie satisfied, stayed the notice dated 16th July, 2019 whereby the special meeting was fixed by the Chairman on 19th July, 2019 at 3 p.m. till 23rd July, 2019. Though the said order was passed in presence of learned Advocate General on 19th July, 2019 at about 2:15 p.m., but in spite of that special meeting was held by the Chairman. In the said special meeting out of 22 councillors 13 councillors had cast their trust vote in favour of the Chairman.
It is very much significant to mention that under Rule 9 (3) (a) &
(b) (as referred above) it is provided that before holding special meeting on 'no-confidence motion' at least not less than three days notice shall be issued to the members Unfortunately in the present case that statutory mandate was not followed. Only the whatsapp notice was given on 16th July, 2019 and special meeting on the basis of no-confidence motion was held on 19th July, 2019. It is evident from the speed post Peon Book that on 16th July, 2019 at 10:30 p.m. one Jayanta Mukherjee, Peon delivered that notice through Peon Book to some councillors though on the face of the peon book service as apears at Page-14 and 15 is a highly disputed one. In the Receipt Column one Jayanta Mukherjee put his signature as 20 Peon and in "Peon's name column" some councillors name appear. This unique mode of serving notice through peon book creates cloud of doubt to the mind of the Court. Not only that it is noticed that on selfsame date i.e. on 16th July, 2019 through speed post at 10:30 P.M. notice was issued.
19. Therefore, this peculiar mode of service is very much questionable. I also cannot ignore the fact that on 16th July, 2019 the petitioner was served with the notice through speed post which was returned with the postal remark as "refused" on 18th July, 2019. while it is evident from the jural portion of the writ petition that the petitioner on 18th July, 2019 was at the High Court to affirm the instant writ petition.
It is surprising that while statute does not empower the Chairman to inform Principal Secretary, Government of West Bengal, Department of Urban Development and Municipal Affairs then what prompted him to issue letter on 17th July, 2019 to the Principal Secretary of the said Department. This action on the part of the Chairman clearly shows beyond any doubt that the Chairman acted upon dictation of the Principal Secretary which is wholly illegal and absolutely contrary to the statute. The legal dictum on "Acting Upon Dictation" has been reiterated in catena of Hon'ble Supreme Court decision. Some of such decisions are quoted below :-
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(I) (2004) 2 SCC Page-65 Paragraph-26 (Bahadursinh Lakhubhai Gohil vs Jagdishbhai M. Kamalia And Others- It is also well settled that if any decision is taken by a statutory authority at the behest or on the suggestion of a person who has no statutory role to play, the same would be ultra vires.
(II) (2011) 5 SCC Page-435, Paragraphs-26-28 ( Joint Action Committee Of Air Line Pilot's Association Of India (ALPAI) And Others vs Director General Of Civil Aviation And Others).
Para-26-The contention was raised before the High Court that the Circular dated 29-5-2008 has been issued by the authority having no competence, thus cannot be enforced. It is a settled legal proposition that the authority which has been conferred with the competence under the statute alone can pass the order. No other person, even a superior authority, can interfere with the functioning of the statutory authority. In a democratic set-up like ours, persons occupying key positions re not supposed to mortgage their discretion, volition and decision-making authority and be prepared to give way to carry out commands having no sanctity in law. Thus, if any decision is taken by a statutory authority at the behest or on suggestion of a person who has no statutory role to play, the same would be patently illegal.
Para-27- Similar view has been reiterated by this Court in Commr. of Police v Gordhandas Bhanji, Bahadursinh Lakhubhai Gohilv 22 Jagdishbhai M. Kamalia and Pancham Chand v State of H.P. observing that an authority vested with the power to act under the statute alone should exercise its discretion following the procedure prescribed therein and interference on the part of any authority upon whom the statute does not confer any jurisdiction, is wholly unwarranted in law. It violates the constitutional scheme. Para-28-In view of the above, the legal position emerges that the authority who has been vested with the power to exercise its discretion alone can pass the order. Even a senior official cannot provide for any guideline or direction to the authority under the statute to act in a particular manner."
(Emphasis supplied) It is also trite law that when the initial notice is bad then all subsequent/consequential steps taken on the basis of such notice is considered non-est. On that score the Hon'ble Apex Court decision reported in 2011 (3) SCC Page-439 ( State Of Orissa And Another vs Mamata Mohanty) is relied on.
20. On the point of statutory mandate that has not been complied with a Hon'ble Division Bench decision reported in 2006 (4) CHN Page- 905 Paragraphs-9 & 10 (Turner Morrison & Co. Ltd. & Anr vs State of 23 West Bengal & Others) has been relied . Paragraphs 9 & 10 are quoted below :-
"Para-9-We have considered the rival contentions of the parties. We have also benefited ourselves by the views of two learned Judges of this Court. We are of the view that the approach made by the learned Judges in interpreting the particular provisions of the statute is accurate and we do not find any scope of interference on that score. We are in full agreement with Their Lordships to the extent that it is the mandate of the legislature upon the Corporation to provide for a copy of the order passed by the Hearing Officer to the objector. So long such communication is not made it would not be proper for the Corporation to raise supplementary bill and compel the objector to pay the same without exercising his right under the statute to have an appeal preferred before the Tribunal. Para-10-Next question comes as to the mode of communication. Mr. Das Adhikari submits that under Rule 9 (2) the format has been prescribed and order is communicated through Form H. We have perused Form H. As we have recorded hereinbefore, Form H does stipulate the words "copy of order". We are unable to accept Mr. Das Adhikari's contention the extent that mere communication of the enhanced valuation is sufficient compliance of the statutory 24 mandate as contemplated under Section 188 (3). We are in total agreement with Their Lordships to the extent that the Corporation with the red card."
(Emphasis supplied)
22. In my considered view it is crystal clear that to avail further six months as envisaged under proviso of Section 18 (3) of the Act, the Chairman with his supporters had acted in extreme haste thus violating mandatory provision of the statute.
22. Therefore, the impugned notice dated 16th July, 2019 is bad in law and is clearly isolative by the relevant provision of the said Act. I also cannot accept the theory of "Trust Vote" as has been strongly urged by the learned Advocates of the respondents contending that statute never prescribed for "Trust Vote", but statute prescribed to bring "No- confidence Motion". In the present case all the eight councillors who took out "No-confidence Motion" were present in the meeting but have cast "Trust Vote" on "No-confidence Motion". Therefore, the impugned notice cannot be treated as no-confidence motion but can be described as "confidence motion" to cast "trust vote" in favour of the Chairman. 25
23. In this upshot on the basis of the above discussions in my considered view the mode of service of notice of no-confidence dated 16th July, 2019 upon the elected councillors for holding special meeting on 19th July, 2019 cannot be sustained in the eye of law as the statutory mandate has not been complied with by the Chairman.
Accordingly, I have no hesitation to hold that the notice being no.75(23)-20 dated 16th July, 2019 is bad, illegal, un-constitutional and is therefore, void, abinitio.
23. Resultantly, the notice dated 16th July, 2019 is hereby quashed and set aside. Consequently, all subsequent steps, acts and deeds taken on the basis of the said notice viz the meeting dated 19th July, 2019 and all other steps in connection therewith are declared void, illegal , unconstitutional and are accordingly, quashed and set aside.
However, this judgement will not preclude the petitioner and other elected councillors to take out no confidence motion against the Chairman if situation demands in accordance with law.
24. With the aforesaid direction this writ petition is disposed of without any order as to costs.
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25. Urgent photostat certified copy of this order, if applied for be supplied to the parties on priority basis.
(Samapti Chatterjee, J)