Calcutta High Court (Appellete Side)
Chainbanu Khatun & Ors vs State Of West Bengal & Ors on 9 September, 2009
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Kishore Kumar Prasad
M.A.T. 368 of 2009
Chainbanu Khatun & Ors.
Versus
State of West Bengal & Ors.
For the Appellants : Mr. Milan Chandra Bhattacharya
Ms. Daisy Basu
For the Respondent
Nos. 5 to 14 : Mr. Hirak Mitra
Mr. Amal Baran Chatterjee
Mr. Nure Zaman
Mr. M. R. Abedin
For the State : Mr. Fazlul Haque
Heard On: 25.08.2009 & 01.09.2009.
Judgment On: 09.09.2009.
PRANAB KUMAR CHATTOPADHYAY, J.
The only question that falls for consideration in this appeal is whether convening a meeting will mean holding of the same. In other words, convening and holding of the meeting will have identical meaning in relation to various provisions of West Bengal Municipal Act, 1993 and West Bengal Municipalities (Procedure & Conduct of Business) Rules, 1995.
The appellants herein are the Councillors of Dhulian Municipality who filed the writ petition challenging the right, authority and jurisdiction of the three Councillors to issue notice on 14th August, 2008 calling a special meeting of the Board of Councillors of the said Dhulian Municipality on 19th August, 2008 for the purpose of discussions and also to adopt resolution for removal of the Chairman of the said Municipality, when the Vice-chairman of the said Municipality had already issued notice on 11th August, 2008 convening the special meeting on 20th August, 2008 in terms of Rule 9(3)(b)(ii) of the West Bengal Municipalities (Procedure & Conduct of Business) Rules, 1995 (hereinafter referred to as the 'said Rules, 1995').
The learned Single Judge finally disposed of the writ petition on 8th April, 2009, holding that on failure of the Chairman, the Vice-chairman of the said Municipality also failed to call the special meeting, pursuant to the request of the requisitionists, within the prescribed period as provided in Rule 9(3)(b)(ii) of the said Rules, 1995 and the three Councillors had correctly exercised their rights under Rule 9(3)(b)(iii) by calling the special meeting on 19th August, 2008.
Assailing the aforesaid judgment and order passed by the learned Single Judge, the instant appeal has been preferred.
Undisputedly, the requisitionists served a notice on 22nd July, 2008 upon the Chairman of the Municipality to convene a special meeting of the Board of Councillors for discussion and to adopt a resolution for removal of the said Chairman. On failure of the Chairman, the Vice-chairman of the said Municipality by the notice dated 11th August, 2008 convened a special meeting on 20th August, 2008 to discuss the 'no confidence motion' as mentioned in the letter of the aforesaid requsitionists dated 22nd July, 2008. A copy of the said notice was also forwarded to the District Magistrate, Murshidabad for information by the Vice-chairman.
Three Councillors of the Dhulian Municipality also issued a notice on 14th August, 2008 convening a special meeting on 19th August, 2008 for discussion and to adopt a resolution for removal of the Chairman of the said Municipality. By the aforesaid notice, all the Councillors were requested to attend the said special meeting. The said notice dated 14th August, 2008 issued by the three Councillors is set out hereunder:
" N O T I C E
Memo No. 01(19)/D.M./(camp office) Dated:14.08.08
To All Councillors-
Sl.No. Councilors Name Designation Ward No.
1. Majahar Hossain Councilor 1
2. Hasnara Bibi do 2
3. Rahena Yeasmin do 3
4. Amrul Mahaldar do 4
5. Dilip Sarkar do 5
6. Sampa Das do 6
7. Prasanta Sarkar do 7
8. Safar Ali do 8
9. Chen Banu Khatun Chairman (Dhuliyan Municipality) 9
10. Sundar Kumar Ghosh Councilor 10
11. Yeasin Sk. do 11
12. Afrin Bibi do 12
13. Mansur Ali do 13
14. Md. Badrul Sk. do 14
15. Majeda Bibi do 15
16. Bhagya Nath Das do 16
17. Shib Shankar Singha Vice-Chairman(Dhuliyan Municipality) 17 18. Asiya Bibi Councilor 18 19. Nirmal Kumar Jain do 19 As Chairman and Vice-Chairman of Dhuliyan Municipality failed to convene Special meeting on the requisiton signed by councillors dt. 22.07.2008 and as per provision of rule 9(3)(b)(iii) Chapter - III of (West Bengal Municipalities (Procedure & Conduct of Business) Rules, 1995, We, the following councillors request you to attend the special meeting to be held on dt. 19-08-08 at 11:00 A.M. in Dhuliyan Municipal Office to discuss the following Agenda. Agenda-
Discussion and to adopt resolution for removal of Chairman of Dhuliyan Municipality from her office.
Sd/-
1. Nirmal Ku. Jain
2. Md. Mansur Ali
3. Afrin Bibi, Councilors, Dhuliyan Municipality 14.08.08"
There is no dispute that the Chairman failed to convene a special meeting of the Board of Councillors upon receipt of the written notice dated 22nd July, 2008 from 10 Councillors of the said Municipality. However, the Vice-chairman of the said Municipality convened a special meeting by issuing a notice dated 11th August, 2008.
In terms of Rule 9(3)(b)(ii) of the West Bengal Municipalities (Procedure & Conduct of Business) Rules, 1995, the Chairman of the Municipality is required to call a special meeting on a requisition within 15 days from the date of receipt of such requisition. Therefore, the Vice-chairman can only assume jurisdiction to convene the special meeting on failure of the Chairman to convene a meeting within 15 days from the date of receipt of the requisition.
In the present case, Chairman of the Municipality received a notice from the requisitionists on 22nd July, 2008 and on failure of the said Chairman to convene a special meeting within 15 days i.e. within 6th August, 2008, the Vice-chairman got the authority to convene the said special meeting within 7 days thereafter i.e. on or before 14th August, 2008.
Undisputedly, the Vice-chairman issued notice on 11th August, 2008 convening a special meeting on 20th August, 2008 for the purpose of discussion of the 'no confidence motion' as specifically mentioned in the notice of the requisitionists dated 22nd July, 2008.
Mr. Hirak Mitra, learned Senior Counsel representing the respondent Nos. 5 to 14 submitted before this court that the Vice-
chairman should have held the special meeting on or before 14th August, 2008 i.e. within 7 days after failure of the Chairman to convene the said special meeting. Mr. Mitra further submitted that the word 'convene' cannot be equated with the expression issue of a notice and as the Vice-chairman has issued a notice on 11th August, 2008, the same cannot be said to be in compliance with the requirements of Rule 9. Referring to Rules 3, 6, 8 and 9 of the West Bengal Municipalities (Procedure & Conduct of Business) Rules, 1995, Mr. Mitra submitted that unless the word 'convene' bears the meaning 'hold', the object of the Act and the Rules will be totally frustrated.
Mr. Mitra also referred to the Concise Oxford English Dictionary wherein the meaning of the word 'convene' has been given as follows:
"come or bring together for a meeting or activity"
Mr. Milan Chandra Bhattacharya, learned Counsel representing the appellants, however, submitted that the point raised in this appeal has already been answered by the Division Bench of this court in the case of Tarak Nath Singh vs. State of West Bengal reported in 2007(4) C.H.N. 517. Relying on the aforesaid judgment, Mr. Bhattacharya submitted that convening a meeting cannot be equated with holding of the same.
Mr. Mitra, learned Senior Counsel representing the respondent Nos. 5 to 14 submitted that the aforesaid decision of the Division Bench in the case of Tarak Nath Singh (Supra) is clearly distinguishable as according to the said learned Senior Counsel, relevant Rules were not considered in the said judgment and it was judgment in sub silentio. Therefore, according to Mr. Mitra, the aforesaid earlier judgment of the Division Bench of this court in the case of Tarak Nath Singh (Supra) should not be followed on the ground of precedents sub silentio and should be treated as given per incuriam.
Mr. Mitra, learned Senior Counsel of the respondent Nos. 5 to 14 analysed Rules 3, 6, 8 and 9 of the West Bengal Municipalities (Procedure & Conduct of Business) Rules, 1995 in support of his arguments. The aforesaid Rules are set out hereunder:
"3. Election of the President of the meeting to elect the Chairman. - (1) The first meeting of the Board of Councillors shall be convened under Section 50B by the officer within a period of 30 days from the date of publication of the names of elected members in the Official Gazette under section 71 of the West Bengal Municipal Elections Act, 1994 (West Ben. Act XXXIV of 1994).
(2) When a meeting is held under sub-rule (1) at which a quorum is present, the Councillors, who have taken the oath or affirmation of allegiance to the Constitution of India under section 50, shall elect one of the elected members to preside at such meeting. The proceedings of the meeting relating to the election of the President shall be conducted by the officer.
(3) The President shall be duly proposed and seconded and shall not be a candidate for the office of the Chairman.
(4) If only one Councillor is proposed and seconded as President, he shall be deemed to be duly elected as such. If names of more than one Councillor are proposed and seconded, the President shall be elected by vote by secret ballot by the Councillors present in the meeting. (5) The officer shall, under specification detailed below, cause the ballot paper to be distributed among the Councillors present.
Ballot paper for the election of the President Counterfoil Names of Space for candidates placing of mark 'X' Signature of Signature of Officer Councillor (6) The Counterfoil shall bear the signature of the officer and the Councillor in the space provided, while the ballot paper shall bear the signature of the officer only on the back.
(7) The ballot paper shall be invalid if the mark 'x' is placed opposite the names of more than one candidate, or if it is so placed as to render it doubtful as to which candidate such mark is intended to apply. (8) Each Councillor, after placing the mark 'x' on the ballot paper, shall fold the same so as to conceal the vote recorded, and hand it over to the officer. (9) As soon as all the ballot papers have been delivered to the officer, he shall, in the order hereinafter specified,-
(a) reject any ballot paper which does not bear the signature of the officer;
(b) reject any ballot paper which is irregularly marked or unmarked;
(c) read out the names of the candidates against which the mark 'x' has been validly placed;
(d) count the votes; and
(e) declare the candidate to whom the largest number of votes has been given to be elected as the President of the first meeting of the Councillors.
(10) If the votes of two or more Councillors proposed and seconded as President of the meeting are equal, then the election of one of them shall be decided by the officer by lot and his decision shall be final. (11) The officer shall keep a record of the proceedings of the meeting in the Minute Book of the Municipality and send one copy of the same to the District Magistrate and the Director of Local Bodies, West Bengal, and shall also send the counterfoils and the ballot papers used for electing the President of the first meeting of the Councillors for election of Chairman in a sealed cover to the District Magistrate for preservation for a period of one year from the date of such election. (12) The function of the officer shall cease as soon as the President of the first meeting of the Councillors for election of the Chairman is elected.
* * * * * * * * * * * * * * * * * *
6. Filling up of the casual vacancy of the office of the Chairman. - (1) In the case of any vacancy caused by death of the Chairman, -
(a) within seven days or as soon thereafter as may be but not later than fifteen days after the death of the elected Chairman, the Vice- Chairman shall convene a meeting of the Board of Councillors exclusively for the purpose of election of the Chairman;
(b) the Vice-Chairman shall preside over such meeting if he is not a candidate for the post of the Chairman;
(c) if the Vice-Chairman is a candidate for the post of the Chairman, he shall declare so immediately, but shall continue to preside over such meeting until a President for that meeting is elected in the manner laid down in sub-rules (3) to (11) of rule 3 mutatis mutandis;
(d) the Vice-Chairman or the President elected under clause (c) of this sub-rule, as the case may be, shall conduct the election of the Chairman in the manner laid down in rule
4. (2) In the case of any vacancy in the office of the Chairman caused by resignation, -
(a) within seven days or as soon thereafter as may be but not later than fifteen days of registration by the Chairman, a meeting of the Board of Councillors shall be convened by the Chairman or, on his failing to do so, by the Vice-Chairman within seven days thereafter or, on his failing to do so, by any three of the elected Councillors within further seven days thereafter for acceptance of the resignation or otherwise. Such meeting shall be presided over by the Chairman or, in his absence, by the Vice-Chairman or, in his absence, by a Councillor, elected by the Councillors present, as President for that meeting only. The resignation letter shall be placed before the Board of Councillors and after such discussions as the President of that meeting permits, the issue shall be decided on the basis of majority of vote. In the case of equality of vote, the President of the meeting shall decide the issue by lot;
(b) if the resignation of the Chairman is accepted by the Board of Councillors, within seven days of such acceptance a meeting shall be convened by the Chairman; who is continuing in office under sub-section (4) of section 18 or, on his failing to do so, by the Vice-Chairman within seven days thereafter or, on his failing to do so, by any three Councillors within seven days thereafter for the purpose of election of the Chairman;
(c) the Vice-Chairman shall preside over such meeting if he is not a candidate for the post of the Chairman;
(d) if the Vice-Chairman is a candidate for the post of the Chairman, he shall declare so immediately, but shall continue to preside over such meeting until a President for that meeting is elected in the manner laid down in sub-rules (3) to (11) of rule 3 mutatis mutandis;
(e) the Vice-Chairman or the President elected under clause (d) of this sub-rule, as the case may be, shall conduct the election of the Chairman in the manner laid down in rule
4. (3) If there is a requisition for removal of the Chairman under sub-section (3) of section 18,-
(a) a special meeting for considering the resolution for removal of the Chairman shall be held in the manner laid down in these rules;
(b) if the resolution for removal of the Chairman is duly carried out, the vacancy in the office of the Chairman shall be filled up by election at a meeting to be held in accordance with the procedure laid down in clauses (b), (c), (d) and (e) of sub-rule (2), the provisions of which shall apply mutatis mutandis.
* * * * * * * * * * * * * * * * * *
8. Ordinary meetings. - (1) The Chairman or, in his absence, the Vice-Chairman shall convene a meting of the Municipality for the transaction of normal business not less than once in every month.
(2) If there is no business to be laid before the members at any such meeting, the Chairman or, in his absence, the Vice-Chairman shall, instead of convening the meeting, give notice of the fact to each member at least three days before the date appointed for the meeting.
(3) Seven days' notice to the members shall be necessary for such meeting.
(4) The Councillors may, at a meeting, fix the date or dates and time for holding the next meeting or meetings.
9.Extraordinary meeting. - (1) In an extraordinary meeting, no matter, other than the one for which the meeting has been convened, shall be discussed. Such meeting may be -
(a) an emergent meeting; or
(b) a special meeting.
(2) An emergent meeting for transaction of business of an emergent nature, may be convened, at any time, by the Chairman or, in his absence, the Vice-Chairman, after twenty-four hours' notice to the members. (3) (a) A special meeting may be convened by the Chairman or, in his absence, by the Vice-Chairman suo motu after giving not less that three days' notice to the members.
(b) A special meeting may also be convened after giving not less than three days' notice to the members, on a requisition containing specifically the agenda and signed by not less than one-third of the total number of Councillors of the Municipality, by-
(i) the Chairman, within fifteen days from the date of receipt of such requisition or, 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.
(c) Notwithstanding anything contained in these rules, if the situation so demands owing to stalemate condition prevailing in the functioning of the Municipality, the officer may, in the interest of public service, convene a special meeting of the Municipality with at least three days' notice to the members, specifying the agenda and venue of the meeting."
Mr. Mitra also urged before this court that the word 'convene' mentioned in the aforesaid Rules bears the meaning 'hold' otherwise the object of the Act and the Rules will be totally frustrated. We are unable to agree with the aforesaid contentions of Mr. Mitra.
Mr. Fazlul Haque, learned Counsel representing the State- respondents, however, adopted the arguments advanced on behalf of the respondent Nos. 5 to 14.
Although Mr. Mitra, learned Senior Counsel submitted before this court that the word 'convene' should mean 'hold' otherwise the various provisions of West Bengal Municipalities (Procedure & Conduct of Business) Rules, 1995 will have no sense, Mr. Bhattacharya, learned Counsel representing the appellants submitted that the Court cannot add any word to a statute that the legislature has not used. Mr. Bhattacharya further submitted that the Court cannot scan the wisdom of the legislature. In support of the aforesaid contentions, Mr. Bhattacharya referred to and relied on a decision of the Supreme Court in the case of Sanjay Singh and another vs. U.P. Public Service Commission, Allahabad and another reported in (2007) 3 SCC 720 (paragraph 19) which, in our opinion, is very much relevant in the facts of the present case. The words 'convene' and 'hold' cannot be given identical meaning while interpreting different provisions of the said Rules, 1995 as the aforesaid interpretation will tantamount to rewriting the statute and scanning the wisdom of the legislature. In the case of Sanjay Singh and another (Supra), Supreme Court stated as under:
"19..........................................It is well settled that courts will not add words to a statute or read into the statute words not in it. Even if the courts come to the conclusion that there is any omission in the words used, it cannot make up the deficiency, where the wording as it exists is clear and unambiguous....................."
Mr. Bhattacharya also submitted that ordinary meaning has to be given to the word used by the legislature.
Both the words 'convene' and 'hold' have been used in different provisions of the West Bengal Municipalities (Procedure & Conduct of Business) Rules, 1995. The rule framing authority consciously used the word 'convene' and 'hold' in different provisions of the said Rules, 1995. The word 'hold' has been specifically used in Rule 3(2) and 7(2) of the said Rules, 1995. The said Rules, 1995 have been framed in terms of Section 417 of the West Bengal Municipal Act, 1993.
The word 'convene' cannot be substituted by the word 'hold' as suggested by Mr. Mitra, learned Senior Counsel representing the respondent Nos. 5 to 14 since the rule framing authority consciously used both the words in different places of the said Rules, 1995.
Convening a meeting under no circumstances can be equated with holding of the same in view of clear provisions of Rule 7(2) of the West Bengal Municipalities (Procedure & Conduct of Business) Rules, 1995. The said Rule 7(2) is set out hereunder:
"7. Meeting and its validity.-(1)........................ (2) A meeting of the Municipality shall be deemed to have been duly held when-
(a) the meeting is duly convened;
(b) there is necessary quorum;
(c) the meeting is held within the municipal premises;
(d) the meeting is presided over by a person authorised under the Act and these rules; and
(e) the proceedings of the meeting are duly recorded."
In view of the aforesaid Rule 7(2), a meeting shall be deemed to have been duly held provided the said meeting was duly convened. Therefore, a meeting can be duly held only after the same is duly convened.
Mr. Mitra, learned Senior Counsel of the respondent Nos. 5 to 14 referred to and relied on a Division Bench judgment in the case of Onkarsa Tukaram and others vs. Municipal Committee, Nandura reported in AIR. 1940 Nagpur 293 wherein the learned Judge observed that convening does not mean issuing notices. The aforesaid passing observation cannot be made applicable in the facts of the present case as the said observation was made in a completely different context.
However, it has been specifically mentioned in the aforesaid judgment at Page 294 as under:
"To convene means to call together or to assemble."
It has not been held in the aforesaid judgment that the word 'convene' and 'hold' will have the identical meaning.
Therefore, in view of the aforesaid clear provisions of Rule 7(2), convening a meeting and holding of the same cannot have identical meaning.
In any event, the aforesaid issue has already been decided by the Division Bench of this court in the case of Tarak Nath Singh vs. State of West Bengal (Supra).
In analysing Rule 9, Mr. Mitra, learned Senior Counsel of the respondent Nos. 5 to 14 submitted that the word 'convene' must mean 'hold' as otherwise the Chairman may convene a meeting by issuing a notice within the prescribed time limit as mentioned in Rule 9(3)(b)(i) but fix a date after couple of months as a result whereof, the purpose of the Rule will be totally frustrated. Mr. Mitra further submitted that the Vice-chairman may also misuse his power in similar manner.
The aforesaid arguments have also been properly dealt with by the earlier Division Bench in the case of Tarak Nath Singh (Supra) as hereunder:
"24. The learned Single Judge, however, held that for the purpose of electing a new Chairman, the Vice-Chairman should hold a meeting within seven days from removal of the erstwhile Chairman. According to the learned Single Judge, if a Vice-Chairman is allowed to call a meeting after six months or one year from the date of removal of the earlier Chairman and to officiate as a Chairman then the intention of the legislature for holding a special meeting would be frustrated.
25. We are unable to accept the aforesaid finding of the learned Single Judge. Under Rule 6, the Vice-Chairman is required to convene a meeting and not to hold a meeting. Furthermore, the aforesaid apprehension of the learned Single Judge is not based on sound reasoning. The provision of Rule 6(2) only provides for convening a meeting by the Vice-Chairman for the purpose of election of the Chairman within a week from the date of removal of the said Chairman and not holding a meeting.
26. In any event, after removal of the Chairman if the Vice-Chairman of the Municipality decides to hold the meeting for election of the Chairman after a considerable period causing inordinate delay even after convening the meeting for the aforesaid purpose within a week from the date of removal of the said Chairman then also the aggrieved party will not be remediless as they can approach the Court for issuance of a suitable direction upon the Vice-Chairman for holding the meeting within a reasonable time......................................."
In the present case, however, Vice-chairman issued the notice for holding the meeting on 20th August, 2008 whereas the three Councillors by the notice dated 14th August, 2008 fixed the date of the meeting on 19th August, 2008 i.e. only 24 hours before the scheduled date of the meeting as fixed by the Vice-chairman, which, in our opinion, cannot be said to be unreasonable under any circumstances.
Mr. Mitra although submitted that the earlier judgment of the Division Bench of this court in the case of Tarak Nath Singh (Supra) should be treated as given per incuriam and cannot be followed on the ground of precedents sub silentio, we are unable to accept the same. It is not correct that the Rules analysed by Mr. Mitra were not considered earlier by the Division Bench of this court in the case of Tarak Nath Singh (Supra). Non-quoting of any particular Rule in the body of the judgment does not mean that the same was not considered and, therefore, does not make the judgment precedents sub silentio since the issues raised herein were also considered and decided in the said judgment. When the issues raised in the present appeal have already been specifically considered and decided by the earlier Division Bench of this court in the aforesaid case of Tarak Nath Singh (Supra), question of sub silentio cannot and does not arise and the said decision cannot be also rendered per incuriam.
Mr. Mitra, learned Senior Counsel representing the respondent Nos. 5 to 14 suggested that the matter should be referred to a larger Bench to which we are unable to agree as we are of the opinion that the earlier judgment of the Division Bench of this court in the case of Tarak Nath Singh (Supra) should be followed in deciding the issues raised in the present appeal and there is no need to refer the matter to a larger Bench to examine any issue.
We cannot allow the learned Single Judge to avoid and/or ignore the binding effect of the earlier judgment of the Division Bench of this court in the case of Tarak Nath Singh (Supra) as the said learned Judge is bound to follow the principles laid down by the earlier Division Bench in the case of Tarak Nath Singh (Supra). The learned Single Judge, in our opinion, has erroneously decided the issues raised in the writ petition and wrongly interpreted the word 'convene' while deciding the said writ petition on merits. Furthermore, the findings of the learned Single Judge that the meeting held on 19th August, 2008, pursuant to the notice dated 14th August, 2008 issued by the three Councillors was rightly held and the meeting held on 20th August, 2008 pursuant to the notice dated 11th August, 2008 issued by the Vice-chairman in compliance with Rule 9(3)(b)(ii) was irregular cannot be approved by us for the reasons discussed hereinbefore and also for the reason that the three Councillors of the Dhulian Municipality could convene a special meeting only on the failure of the Vice-chairman to do so in terms of Rule 9(3)(b)(ii). Since the Vice-chairman had already convened the special meeting in terms of Rule 9(3)(b)(ii), the aforesaid three Councillors had no authority and/or jurisdiction to convene the said special meeting by issuing the notice dated 14th August, 2008 requesting the Councillors of the said Municipality to attend the special meeting on 19th August, 2008.
Mr. Bhattacharya, learned Counsel of the appellants has rightly argued before this court that the Chairman of the Dhulian Municipality cannot be removed without observing the prescribed procedure under the West Bengal Municipalities (Procedure & Conduct of Business) Rules, 1995. Undisputedly, a special meeting has to be convened in terms of Rule 9(3)(b) of the said Rules, 1995 for adopting any resolution regarding removal of the Chairman of the Municipality.
It appears from the records that the Sub-Divisional Officer, Jangipur, Murshidabad had also convened a meeting of the Councillors of the Dhulian Municipality in order to ascertain, by secret ballot, the views of the said Councillors on the issue of removal of the Chairman of the said Municipality. The Sub- Divisional Officer, Jangipur, Murshidabad had no authority to convene a meeting of the Councillors of the Dhulian Municipality under the aforesaid West Bengal Municipalities (Procedure & Conduct of Business) Rules, 1995 for deciding whether the Chairman had lost majority support. Therefore, no reliance can be placed on the outcome of the meeting convened by the Sub-Divisional Officer, Jangipur since the said meeting could not be convened by the Sub- Divisional Officer, Jangipur under the said Rules, 1995. It is well settled that when a statutory authority is required to do a thing in a particular manner under the Statute then the same should be done in that manner alone. In support of the aforesaid principle, Mr. Bhattacharya relied on the following decisions:
1) AIR 1975 SC 915 [Ramchandra Keshav
Adke (Dead) by Lrs. Vs. Govind Joti
Chavare and others.
2) (2005) 7 SCC 234 [Shin-Etsu Chemical
Co. Ltd. vs. Aksh Optifibre Ltd. and
another]
3) (2003) 2 SCC 111 [Bhavnagar
University vs. Palitana Sugar Mill
(P) Ltd. and others]
4) (2008) 9 SCC 177 [Meera Sahni vs.
Lieutenant Governor of Delhi and
others]
In the case of Ramchandra Keshav Adke vs. Govind Joti Chavare and others reported in AIR 1975 SC 915, a three-Judges Bench of the Supreme Court considered the issue relating to the consequence of non-compliance with the mandatory procedure and following the decision of the Privy Council in the case of Nazir Ahmed vs. King Emperor reported in AIR 1936 PC 252 observed:
"25. A century ago in Taylor v. Taylor, (1875) 1 Ch D 426 Jessel M. R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council, in Nazir Ahmed v. Emperor, 63 Ind App 372 = (AIR 1936 PC 253 (2) and later by this Court in several cases...................................."
In the case of Shin-Etsu Chemical Co. Ltd. vs. Aksh Optifibre Ltd. and another reported in (2005) 7 SCC 234, another three- Judges Bench of the Supreme Court held:
"29. If the requirements of a statute which prescribes the manner in which something is to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in such a manner and no other manner, it has been laid down that those requirements are in all cases absolute, and that neglect to attend to them will invalidate the whole proceeding. (Craies on Statute Law, 7th Edn., at p. 263)"
In the case of Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. and others reported in (2003) 2 SCC 111, Supreme Court held:
"40. The statutory interdict of use and enjoyment of the property must be strictly construed. It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the said Act are only creature of statute. They must act within the four corners thereof."
The aforesaid principle has been reiterated in a recent judgment of the Supreme Court in the case of Meera Sahni vs. Lieutenant Governor of Delhi and others reported in (2008) 9 SCC
177. Paragraph 35 of the said judgment is stated as under:
"35. It is by now a certain law that an action to be taken in a particular manner as provided by a statute, must be taken, done or performed in the manner prescribed and in no other manner. In this connection we may appropriately refer to the decision of this Court in Babu Verghese v. Bar Council of Kerala wherein it was held as under: (SCC pp. 432-33, paras 31-32) '31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under
:(IA pp. 381-82) 'where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.'
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of Vindh Pradesh and again in Deep Chand v.
State of Rajasthan. These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law."
Therefore, in the present case, no reliance can be placed on the report of the Sub-Divisional Officer, Jangipur on the outcome of the meeting of the Councillors of the Dhulian Municipality convened by him pursuant to an interim direction passed by a learned Judge of this court as the said Sub-Divisional Officer is not competent or authorised to convene any meeting of the Councillors in order to decide whether the Chairman had lost the majority support behind him.
We, accordingly hold that the meeting held on 20th August, 2008 pursuant to the notice issued by the Vice-chairman on 11th August, 2008 in terms of Rule 9(3)(b)(ii) should be regarded as a valid and proper meeting in terms of Rule 7(2) of the West Bengal Municipalities (Procedure & Conduct of Business) Rules, 1995 since the said special meeting was convened by the Vice-chairman in strict compliance with the provisions of Rule 9(3)(b)(ii) and we quash the resolutions adopted in the meeting held on 19th August, 2008 pursuant to the notice issued by the three Councillors, since the said meeting was totally illegal and irregular as we have already held that the said three Councillors had no authority and/or jurisdiction to convene the said special meeting when the Vice-chairman of the Dhulian Municipality in due compliance with the provisions of Rule 9(3)(b)(ii) convened the meeting by issuing the notice dated 11th August, 2008.
Since we have quashed the resolutions adopted in the aforesaid illegal meeting held on 19th August, 2008 at the instance of the three Councillors pursuant to the notice dated 14th August, 2008, all steps taken on the basis of or pursuant to the resolutions adopted in the said meeting will also automatically stand quashed. The resolutions adopted in the meeting held on 20th August, 2008 pursuant to the notice dated 11th August, 2008 issued by the Vice-chairman are declared valid, operative and should be given effect to forthwith as we have specifically held hereinbefore, that the special meeting was duly convened by the Vice-chairman of the Dhulian Municipality in compliance with Rule 9(3)(b)(ii), and was validly held in terms of Rule 7(2) of the West Bengal Municipalities (Procedure & Conduct of Business) Rules, 1995.
In the aforesaid circumstances, the judgment and order under appeal passed by the learned Single Judge cannot be sustained and the same is, therefore, set aside.
The present appeal thus stands allowed.
In the facts and circumstances of this case, there will be no order as to costs.
Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.
[PRANAB KUMAR CHATTOPADHYAY, J.] KISHORE KUMAR PRASAD, J.
I agree.
[KISHORE KUMAR PRASAD, J.] LATER:
After pronouncement of the judgment, Mr. M. R. Abedin, learned Counsel of the respondent Nos. 5 to 14 prays for stay of the operation of the said judgment and order. We find no reason to grant such stay.
Accordingly, the prayer for stay is refused.
[PRANAB KUMAR CHATTOPADHYAY, J.] [KISHORE KUMAR PRASAD, J.]