Calcutta High Court (Appellete Side)
Prasanta Mitra vs State Of West Bengal & Ors on 9 July, 2019
Author: Samapti Chatterjee
Bench: Samapti Chatterjee
1
019
W.P. 12184(W) of 2019
Prasanta Mitra
Vs.
State of West Bengal & Ors.
Mr. Arunava Ghosh,
Mr. Asim Kumar Barman,
Mr. Anindya Lahiri,
Mr. Puspal Chakraborty,
Ms. Pranati Das
... For the Petitioner.
Mr. Kishore Datta, ld. A.G.,
Mr. Abhrotosh Majumder, ld. Addl. A.G.,
Mr. Arka Kr. Nag
... For the State.
Mr. Debabrata Saha Roy,
Mr. Pingal Bhattacharyya,
Mr. Subhankar Das,
Mr. Neil Basu
... For the Respondent Nos. 6 to 14.
The petitioner files the present writ petition assailing the impugned notice for removal dated 24th June, 2019 issued by the nine elected councillors out of 18 councillors of Gangarampur Municipality.
The fact of the case in a nut shell is as follows :
On 25th April, 2015 the Municipal election in respect of Gangarampur Municipality was held. The petitioner as well as the private respondents were elected as councillors of Gangarampur Municipality. Thereafter on 25th May, 2015, the petitioner was elected as Chairman of the Gangarampur Municipality in the first meeting. The minutes of the meeting was forwarded to the District Magistrate, Dakshin Dinajpur by the Executive Officer on 11th June, 2015. All 2 on a sudden, on 24th June, 2015, the petitioner was astonished thereby receiving the impugned notice of removal taken out by the nine councillors of the said Municipality. Accordingly, the petitioner files the present writ petition thereby seeking following relief :
a) Leave be granted dispensing with the requirement of service of notice upon the respondents under Rule 26 of the Writ Rules;
b) A writ of or in the nature of certiorari commanding the respondents authorities and/or their agents and/or employees and/or their servants to certify and transmit unto this Hon'ble court the records, papers and documents relating to the notice dated 24.06.2019, being annexure "P-3" herein, so that conscionable justice may be administered by quashing the same.
c) A writ of Mandamus commanding the concerned respondents their men and/or agents and/or assigns, and employees to rescind, recall and withdraw the notice dated 24.06.2019, being annexure "P-3"
herein;
d) A writ of Mandamus commanding the concerned respondents and authorities not to act on the basis of impugned notice dated 24.06.2019 being annexure 'P-3' herein in any manner whatsoever.
e) Any other writ(s) order(s), and/or direction(s); 3
f) Rule NISI in terms of prayers (a),(b),(c),(d) and (e) above.
g) An interim order of injunction od issue restraining the respondents, and/or the concerned respondent, their men, agents and assigns from acting in any manner pursuant to or in accordance with the notice dated 24.06,2019 being annexure "P-3" herein, until the disposal of the instant application;
h) An interim order do issue staying the operation of the notice dated 24.06.2019, being annexure "P-3" herein, until the disposal of the instant application;
i) An ad interim order in terms of prayers (g) and (h) above;
j) Costs of an incidental to this application;
k) Such other or further order or orders, direction or directions as to
this Hon'ble court may deem fit and proper.
The following issues are to be determined:
i) Whether in a removal notice any stigmatic word can be used.
ii) When majority of the councillors have taken out notice of removal against
the Chairman then whether it is the duty of the Chairman to comply the Act, provision of Rules as laid down under the Act as well as the Rule.' 4 Mr. Ghosh, learned Advocate appearing for the petitioner submits that the impugned removal notice is a stigmatic one because in the said notice the respondents have raised some baseless allegations which are imposing stigma to the political career of the petitioner. Mr. Ghosh further contends that in removal notice one should not raise any allegations, which are, stigmatic in nature, which will hamper the political career of the person concerned. But unfortunately, in the present case the requisitionists/private respondents have motivatedly, purposely used some stigmatic words without supported by any authenticated documents.
Accordingly, Mr. Ghosh in support of his contention relies on a Hon'ble Division Bench decision reported in 2013 (Vol.1) CHN 458 paragraphs 21-24. In conclusion, Mr. Ghosh submits that the court should quash the impugned removal notice since it is a stigmatic one.
Per contra, learned Additional Advocate General submits that as per Section 18(3) of the said Act the elected members have the right to take a resolution by a majority of the total elected members for removal of the Chairman. Section 18(3) is quoted below:
(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 5 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;
The learned Additional Advocate General further submits that as per Rule 9(3)(b) it is the duty of the Chairman to hold an extra-ordinary meeting within 15 days from the date of receipt of such requisition. Failure to do so, the Vice- Chairman within 7 days thereafter or on his failure to do so any of the three Councillors of the Municipality within further 7 days shall hold an extra- ordinary meeting.
Rule 9(3)(b) is quoted below:
(b) A special meeting may also be convened after giving not less than three days' notice to the members, on a requisition containing specifically the agenda and signed by not less than one-third of the total number of Councillors of the Municipality, by
(i) The Chairman, within fifteen days from the date of receipt of such requisition or, on his failure to do so,
(ii) The Vice-Chairman within seven days thereafter or, on his failure to do so, or
(iii) Any three of the Councillors of the Municipality within further seven days thereafter.6
The learned Additional Advocate General further contends that the Chairman cannot challenge the notice of removal taken out by the requisitionists. As per law he may call an extra-ordinary meeting within 15 days. Failing which the Vice-Chairamn can call a meeting within seven days and thereafter any three of the Councillors of the Municipality can call a meeting within 7 days. Therefore, without following the procedure as laid down under the said Acts and Rules the Chairman cannot challenge the notice of removal on some pretext or other. He has to prove support of majority members in the floor of the house since all are elected members including the Chairman. The learned Additional Advocate General also submits that the citation as relied upon by Mr. Ghosh has no manner of application in the present case.
Therefore, in conclusion the learned Additional Advocate General submits that court should dismiss the writ petition in limine with costs. Mr. Saha Raoy, learned Advocate appearing for the requisitionists/private respondents after adopting the submission of learned Additional Advocate General submits that it is the duty of the Chairman to comply with the formalities as prescribed under Rule 9(3)(b) of the West Bengal Municipal Act. Unfortunately, without complying the formalities the Chairamn has challenged the notice for removal, which is not permissible in law. Considering the submissions as advanced by the learned Advocate appearing for the parties and after perusing the records, I find that out of 18 elected councillors, nine councillors have taken out the notice for removal under section 18(3) of the West Bengal Municipal Act. Since all the members are elected by the 7 public, therefore, if no confidence motion is taken against any of the member then it is the duty of that member to establish his confidence in the Floor of the House thereby taking majority's support in his favour. Unfortunately, in the present case the Chairman without following the procedure has challenged the same before the court of law. Instead of gathering support of the majority members in the Floor of the House, Chairman has challenged the same. Further in my considered view petitioner was elected through a democratic process. He is not an employee or staff of any Government office or Company that he has been terminated with some stigma which can spoil his career to get some employment. Therefore, allegation made in the notice of removal does not impose any stigma to the political career of the petitioner. Now, I have to deal with the decision relied on by Mr. Ghosh. In my considered view the judgment was passed in the context of Panchayet matter where the prescribed authority who is a Government nominee acted on the basis of the resolution taken by the elected members/ requisitionists. There the procedure for removal of Savapath is completely different from the procedure of removal of any of the elected Chairman or the Councillor. In the present case there is no such Government nominee is appointed. Here it is the Chairman who is also an elected member to hold an extra-ordinary meeting within the stipulated time. If the Chairman fails to hold an extra-ordinary meeting then the further procedure as laid down under Rule 9 (3)(b) (supra) is to be followed. Therefore, in my considered view this decision has no manner of application in the present case.
8Considering the above discussion and after perusing the records and relevant Sections and Rules, in my considered view there is no illegality or infirmity or ambiguity in the impugned notice for removal dated 24th June, 2019 which deserves interference by this Hon'ble court.
Resultantly, the writ petition is dismissed.
However, there will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
( Samapti Chatterjee, J. )