Calcutta High Court (Appellete Side)
Raj Kumar Saha vs State Of West Bengal & Ors on 14 May, 2008
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debasish Kar Gupta
W. P. No.26467(W) of 2007
With
CAN No.1419 of 2008
Raj Kumar Saha
versus
State of West Bengal & Ors.
For Petitioner : Mr. Kalyan Bandyopadhyay
Ms. Chaitali Bhattacharyya
For respondent Nos. 1 to 8 : Mr. Nisith Ranjan Adhikary
Mr. Fazlul Haque For respondent No.9 : Mr. Kamalesh Bhattacharyya Mr. Ashoke Maity For respondent No.10 : Mr. Milan Bhattacharyya For Respondent Nos.11 to 17 : Mr. Subir Hazra Judgment On : 14-05-2008.
The writ application is filed challenging the resolution dated November 23, 2007 adopted the meeting of the board of councillors of the Bhadreswar Municipality, District Hooghly as also for setting aside the election of the respondent no.10 in the post of chairman of the above Municipality. A prayer is also made in this writ application for a direction upon the respondents to hold the election of the Chairman of Bhadreawar Municipality, District Hooghly by secret ballots afresh in presence of an Observer to be appointed by this court.
According to the petitioner the election of the councillors of Bhadreawar Municipality, District Hooghly (hereinafter referred to as the said Municipality) took place on May 20, 2005. Nineteen councillors were elected under the banners of different political parties and one councillor was elected independently as follows:-
1. Petitioner No. 1 ........ Independent 1
2. Petitioner Nos. 2 to 6... Under the banner of Congress 5
3. Petitioners Nos. 7 to 11 Under the banner of TMC 5 ____ Total 11 ____ 1. Respondent no.9 Under the banner of CPI 1
2. Respondent nos. 10 to 17 Under the banner of CPI(M) 8 ____ Total 9 ____ The election of the Chairman took place on June 20, 2005. Respondent no. 14 presided over the meeting of the board of councilors of the said Municipality on that date. The respondent no.10 and the petitioner no.6 were the contestants for the post of Chairman. Both the aforesaid contestants got equal number of votes in their favour and respondent no.14, being the president of the above meeting, used his casting vote in favour of the respondent no.10. Consequent thereupon the respondent no.10 was elected as the Chairman of the said Municipality.
On October 26, 2007 eleven councillors/writ petitioners submitted a notice to the Chairman of the said Municipality, i.e. respondent no.10, requesting him to hold a special requisition meeting for the purpose of removal of the respondent no.10 from the post of Chairman. The respondent no.10 issued a notice dated November 7, 2007 to the councilors of the said Municipality for holding a special requisition meeting on November 10, 2007 at 2. p.m. on the agenda-"removal of the respondent no.10 from the post of Chairman of the said Municipality". On November 10, 2007 the above special requisition meeting of the board of councilors of the said Municipality was held. A resolution for removal of the respondent no.10 from the post of Chairman of the said Municipality was adopted in that meeting by 11:9 votes.
On November 15, 2007, the Vice-Chairman of the said Municipality/respondent no.9 issued a notice to the councilors of the said Municipality for holding board meeting of the said Municipality on November 23, 2007 at 2 p.m. on the agenda of "election of the Chairman of the said Municipality".
The respondent no.10 filed an application under Article 226 of the constitution being W. P. No.24448(W) of 2007 for declaring the petitioner no.1 disqualified to be a councilor of the said Municipality. A prayer was also made in that writ application for passing an interim order to restrain the respondents from holding any meeting of the board of councilors to elect the Chairman of the said Municipality. The above writ application was taken up by the court on November 23, 2007 but no interim order was passed in the above writ application restraining the parties to hold the board meeting on November 23, 2007 pursuant to the notice dated November 15, 2007 issued by the respondent no.9.
On November 23, 2007 at 2. p.m. the board meeting of the councilors of the said Municipality took place at 2. p.m in the presence of all the 20 councillors of the said Municipality. On the basis of declaration of the respondent no.9 not to contest the election for the post of Chairman, he continued to preside over the aforesaid meeting in accordance with the provisions of clause(c) of sub-rule(2) of Rule 6 of the West Bengal Municipalities (procedure and conduct of business) Rules 1995. As revealed from the minute book a resolution was adopted in the aforesaid board meeting declaring the respondent no.10 as newly elected Chairman of the Municipality on the basis of the proposal of the respondent no.14 which was seconded by the respondent no.11 in the absence of proposal of any other name as a candidate for the post of Chairman of the said Municipality. It further reveals from the minute book of the said Municipality that the Board meeting was concluded at 2.40 p.m. The above resolution is under challenge in this writ application on the ground that the proceeding of the board meeting of the councillors dated November 23, 2007 was not recorded correctly in the minute book of the said Municipality. According to the petitioners the respondent no.9 after declaring his unwillingness to contest the election for the post of Chairman of the said Municipality continued to preside over the board meeting on November 23, 2007. The petitioner no.3 proposed the name of the petitioner no.6 as a candidate for the post of Chairman of the said Municipality. The petitioner no.9 seconded that proposal. Thereafter the respondent no.14 proposed the name of the respondent no.10 as the other candidate for the post of Chairman of the said Municipality. That proposal was seconded by the respondent no.11. But the respondent no.9, being the president of the aforesaid Board meeting of the said Municipality, declared the name of the respondent no.10 as the newly elected Chairman of the said Municipality ignoring the proposal of the name of the petitioner no.6 as a candidate for the post of Chairman of the said Municipality as proposed by the petitioner no.3 and as seconded by the petitioner no.9.
Immediately, according to the petitioners, all of them protested the act of the respondent no.9. Consequent thereupon a commotion took place. The respondent no.9 declined to hold election for the post of Chairman of the said Municipality by ballots, two contestants being the petitioners no.6 and the respondent no.10. The respondent no.9 walked out of the meeting hall along with other councillors, namely the respondent nos. 10 to 17 taking away the minute book with him. Thereafter the petitioners, being the remaining 11 councillors decided to continue with the proceeding of the aforesaid board meeting. The name of the petitioner no.2 was proposed by the petitioner no.9 and seconded by the petitioner no.1 to preside over the meeting. The petitioner no.2 was elected president of the meeting unanimously. According to the petitioners, the name of the petitioner no.6 was proposed by the petitioner no.3 as a candidate for the post of the Chairman of the said Municipality. The above proposal was seconded by the petitioner no.9. Then the petitioners adopted a resolution unanimously electing the petitioner no.6 as the new Chairman of the said Municipality. The petitioner nos. 3 and 5 also lodged two different complaints dated November 23, 2007 before the concerned police station with regard to the commotion which took place in the meeting hall. Two criminal proceedings being Bhadreawar P.S. case nos. 247 and 248 dated November 23, 2007 were also initiated.
The respondent nos.9 and 10 filed two separate affidavits-in-opposition to the above writ application. The claim of proposal of the name of the petitioner no.6 in the board meeting of councillors of the said Municipality on November 23, 2007 as a candidate for the post of Chairman was denied in both the above affidavits.
In the affidavit affirmed by the respondent no.9, it was stated that as a president of the aforesaid meeting he invited the proposal from the councillors for contesting in the post of Chairman. The respondent no.14 proposed the name of the respondent no.10. That proposal was seconded by the respondent no.11. The respondent no.9 did not receive the proposal of any other name for the post of Chairman. The petitioners made a mess by scolding each other on the question of leadership of their team for nomination of a candidate for the post of Chairman. But they could not reach to an agreed conclusion and accordingly no other name for post of Chairman could be proposed by the petitioners. Consequent thereupon the respondent no.9, after waiting for a considerable period of time, declared the name of the respondent no.10 as the newly elected Chairman of the said Municipality. Immediately there was a commotion and attempt was made to snatch away the minute book and other official documents from the respondent no.9 forceably. The Deputy Magistrate, who was present out side the meeting hall, rescued the respondent nos. 9 to 17 with the help of police after entering into the meeting hall. By a communication dated November 23, 2007 respondent no.9 forwarded the copy of the resolution dated November 3, 2007 declaring the respondent no.10 as Chairman of the said Municipality. The respondent No.2 by an order issued under memo no.78/MA dated November 28, 2007 authorized Shi Ajit Kr. Chattapadhyay, Deputy Magistrate and Deputy Collector, Hooghly as the officer for the purpose of administering oath of secrecy to the respondent no.10, the newly elected Chairman of the said Municipality, on November 28, 2007 at 2. p.m. Thereafter the respondent no.10 took oath of secrecy of office of the Chairman of the said Municipality on November 28, 2007 at 3. p.m. It is also stated by the respondent no.9 in his above affidavit-in- opposition that a complaint was lodged to the concerned police station with regard to the untoward incident which took place in the meeting hall on November 23, 2007 in side the meeting hall.
The respondent no.10, in his affidavit, stated that he received a notice dated October 26, 2007 from some of the councillors of the said Municipality to hold a special requisition meeting. Pursuant thereto the respondent no.10 himself issued a notice dated November 7, 2007 to hold the special requisition meeting of the board of councillors of the said Municipality for addopting a resolution on the agenda of his removal from the post of the Chairman of the said Municipality. On November 10, 2007, in the meeting of the board of councillors of the said Municipality, the resolution for his removal from the post of Chairman was adopted by 11:9 votes. On November 23, 2007 at 2 p.m. he was present in the board meeting pursuant to the notice dated November 15, 2007. All the 20 councillors of the said Municipality were present in the above meeting. Respondent no.9 continued to preside over the meeting after expressing his unwillingness to be a candidate for the post of Chairman of the said Municipality. On the invitation of proposals for the name of the candidates for the post of Chairman, his name (the name of the respondent no.10) was proposed by the respondent no.14 and seconded by the respondent no.11. No other name was proposed as a candidate for the post of Chairman of the said Municipality. The incident of scolding of the petitioners on the question of leadership of their teem for nomination of a candidate for the post of Chairman and failure to reach to an agreed conclusion for proposal of the name of the candidate for the post of Chairman was repeated an reiterated in the affidavit affirmed by the respondent no.10. The incident of the declaration of his name(name of the respondent no.10) as newly elected Chairman of the said Municipality also repeated and reiterated in that affidavit-in-opposition. There was further repetition and reiteration of the incident of commotion at the instance of the petitioners as also the incident of entering of the Deputy Magistrate inside the meeting Hall and rescuing the respondent nos. 9 to 17 from the meeting hall with help of the police. It is also stated in the affidavit-in-opposition affirmed by the respondent no.10 that he took the oath of secrecy of the office of the Chairman of the said Municipality on November 28, 2007 at 3.00 p.m. pursuant to the order issued under Memo no.789/MS dated November 28, 2007 of the respondent no.2.
At the initial stage of this case by an order dated December 19, 2007 the court summoned the petitioner nos. 1 and 6, and the respondent nos. 9 and 10 in order to resolve the dispute relating to the rival contentions of the parties appearing from the statements made in this writ application and the affidavit-in- oppositions affirmed by the respondents nos. 9 and 10 respectively. The relevant portions of the order dated December 19, 2007 passed in this writ application are quoted below:
"This Court having heard learned Counsel for the parties had adjourned verdict. This Court, in view of the disputed questions of fact involved in the petition, was minded to relegate the petitioners to the normal remedy of a suit. But in course of preparing the judgment, this Court having come across the decision of the Apex Court reported in AIR 1974 SC 2105 : Babubhai Muljibhai Patel vs Nandlal Khodidas Barot considered it necessary to extend an opportunity to learned Counsel for the respondents 9 and 10 to advance argument in respect thereof. The writ petition was listed under the heading "To be mentioned" today and learned Counsel have been heard. Whether or not a writ petition involving seriously disputed questions of fact would be entertained and tried would ultimately depend on the facts of a given case and the Court may, in exercise of discretion in conformity with judicial principle, refuse to try those questions and relegate the party to his normal remedy to obtain redress in a suit. Decisions are legion on this point and elaborate discussion in relation thereto is considered unnecessary. At the same time, a Court of Writ would be perfectly justified in trying disputed questions of fact if the circumstances of a case so warrant and in such a case, exercise of discretion may not be wholly improper.
This Court finds that in a somewhat similar case concerning a Municipality where facts were disputed (whether a motion of no- confidence had been passed against the President or not was the issue), the Gujrat High Court faced with the situation that 40 affidavits had been sworn for one side and 27 for the other side, by an interim order dated September 19, 1973 had directed that some of the principal deponents who have made affidavits in the case on either side should be cross-examined by the opposite party for clearing the situation and for more elucidation of the problem with which the Court was concerned. Ultimately, the writ petition was accepted and the High Court, inter alia, on the basis of consideration of the material brought on the file, including the evidence of deponents who had been cross-examined, came to the conclusion that a motion of no-
confidence had been passed and passed necessary directions. The decision of the High Court was challenged before the Apex Court by special leave. By its decision reported in Babubhai (supra), the Apex Court dismissed the appeal. In paragraph 10 of the decision, it was ruled as follows:
"10. ***** Normally writ petitions are decided on the basis of affidavits. In come cases, however, where it is not possible for the court to arrive at a definite conclusion on account of there being affidavits of either side containing allegations and counter- allegations, it would not only be desirable but in the interest of justice the duty also of the court to summon a deponent for cross- examination in order to arrive at the truth (see observations of Shelat, J. in Barium Chemicals Ltd. V. the Company Law Board, (1966) Supp SCR 311 at p. 358 = (AIR 1967 SC 295 at p 319). The fact that the court permits cross-examination of some of the deponents in a writ petition does not warrant the proposition that the court is bound to permit cross-examination of each and every one of the deponents whom a party wishes to cross-examine. In a case like the present where as many as 40 persons filed affidavits in support of one party and 27 persons filed affidavits in support of the opposite party, the High Court, in our opinion, was well justified in the exercise of its discretion in selecting such persons whom it considered to be really important and crucial for the purpose of cross-examination. The effect of permitting cross-examination was not that the High Court was divested of all discretion and control in the matter and was bound to call for cross-examination each and every deponent who was named by either party. ****** Looking to all the facts of the case, we are of the opinion that the discretion exercised by the High Court in selecting for cross-examination those deponents whom it considered to be crucial was proper and judicious. No prejudice, in our opinion, was caused to any of the parties by the procedure adopted by the High Court. We would, therefore, hold that order dated September 19, 1973 made by the High Court does not suffer from any infirmity."
In the present case, 11 (eleven) Councillors have voiced a grievance in unison that the respondent no. 9 acted partially, and, without paying heed to the proposal of the petitioners and without calling for votes in secret ballot, declared the respondent no. 10 elected. This has been countered by the Presiding Officer, respondent no. 9, by averring that apart from the name of the respondent no. 10 no other name was proposed for the post of Chairman. It is undisputable that the respondent no. 10 had lost the confidence of the majority of the Councillors which ultimately led to his removal not too long ago and thereafter he had been unsuccessful in his attempt to thwart the meeting scheduled to be held on 23.11.07. It is also on record that the petitioners being faced with the partial attitude of the respondent no.9 had themselves assembled soon thereafter and had elected the petitioner no. 6 as the Chairman and have established a numerical supremacy. The legality of this process need not be gone into but having regard the facts referred to above, this Court is of the considered view that interest of justice would be best served if the petitioners 1 and 6, and the respondents 9 and 10 are summoned for cross-examination on the authority of the decision in Babubhai (supra). It is ordered accordingly.
The order reserving judgment stands recalled. The writ petition shall be listed on the first Friday after reopening of Court for further consideration. On that date, the petitioners 1 and 6 and the respondents 9 and 10 shall remain personally present in Court to face cross-examination by their respective adversary.
Copy of the operative part of this order, duly countersigned by the Assistant Registrar (Court), be furnished to the parties on the usual undertaking.
(Dipankar Datta, J.)"
In terms of the above order the petitioners nos. 1 and 6 and the respondent nos. 9 and 10 deposed in course of trial on evidence.
Relying upon the statements made in the writ application as also the depositions of the petitioners nos. 1 and 6, Mr. Kalyan Kr. Bandapadhyay, Learned Senior Advocate submits that the impugned resolution dated November 23, 2007 adopted in the meeting of the board of coucillors of Bhadreswar Municipality, Hooghly cannot be sustained in law. Because the minutes of the above meeting was recorded by the Head Clerk of the said Municipality. Drawing the attention of this court towards the provisions to Rule 13 of the West Bengal Municipal (procedure conduct of business) Rules, 1995(hereinafter referred to as the said rules 1995) Mr. Bandapadhyay submits that the proceeding of the meeting should, till the Chairman or Vice-Chairman or President so elected, as the case may be, took over, be recorded by the officer in the minute book of the Municipality and thereafter by the person presiding over the meeting. Since the president of the meeting, namely the respondent no.9 did not write the minutes of the above meeting dated November 23, 2007, the same is liable to be set aside.
Drawing the attention of this court towards the various provisions of Rule 4 and Rule 6 of the said Rules 1995 Mr. Bandapadhyay submits that no one other than the member of the board of councillors was entitled to be present in the above meeting date November 23, 2007.
The next submission of Mr. Bandapadhyay is this taking into consideration the circumstantial evidences it is proved that the respondent no.9 acted in violation of the provisions of Sub-rule(d) of Rule 6 read with sub-rule(9) of Rule 3 of the said Rule 1995. According to Mr. Bandapadhyay those circumstantial evidences are as follows:
I. In 2005, the petitioner no.6 was the contestant of the respondent no.10 in the election of Chairman of the said Municipality. II. In 2005 the respondent no.14 had been presiding over the meeting dated June 20, 2005 in which the respondent no.10 was elected as Chairman of the said Municipality on the strength of the casting vote of the respondent no.14 in order to break the tie. In the above meeting dated November 23, 2007 the respondent no.14 proposed name of the respondent no.10 for contesting the election in the post of Chairman of the said Municipality.
III. The petitioner no.6 was elected leader of the opposition parties unanimously.
IV. The resolution for removal of the respondent no.10 from the post of Chairman was adopted on the strength of the majority votes of eleven petitioners on November 10, 2007 in the meeting of the board of councillors of the said Municipality.
V. The respondent no.9 was under obligation to act as an instrumentality of electing the respondent no.10 as Chairman of the said Municipality in the meeting of the board of councillors of the said Municipality on November 23, 2007. Because he was holding the post of Vice-Chairman of the said Municipality not on the basis of election. But on the basis of the nomination to hold the office of the Vice-Chairman of the said Municipality by the respondent no.10 in accordance with the provisions of Section 19 of West Bengal Municipality Act 1993.
Relying upon the above circumstances Mr. Bandapadhyay submits that in the absence of direct admission the court is required to take the circumstantial evidences which lead to the only conclusion that there was the proposal of the name of the petitioner no.6 to contest the election of the Chairman of the said Municipality in the above meeting dated November 23, 2007. According to Mr. Bandapadhyay, the above circumstances lead to another inevitable inference that the respondent no.9 acted in gross-violation of the provisions of the said rules 1995 in ignoring the proposal of the name of the petitioner no.6 as a candidate for contesting the election of chairman in the above board meeting of the councillors of the said Municipality.
Relying upon the provisions of Section 3 of the Indian Evidence Act 1972 Mr. Bandapadhyay submits that under the circumstances of the instance case, it can safely be said that the claim of the petitioners with regard to the incident of proposal of the name of the petitioner no.6 was so probable that a prudent man ought to act upon the supposition that it existed.
Drawing the attention of this court towards the provisions of Section 114 of the Evidence Act 1972 Mr. Bandapadhyay submits that taking into consideration the common course of natural events and whom conduct the preponderance of probability is in favour of the proposal of the name of petitioner no.6 for contesting the election for the post of Chairman in the above meeting dated November 23, 2007 of the board of councillors of the said Municipality. According to Mr. Bandapadhyay there cannot be any other view taking into consideration the fact of removal of the respondent no.10 from the post of the Chairman of the said Municipality in the meeting dated November 10, 2007.
According to Mr. Bandapadhyay the truthfulness of the evidences of respondent nos. 9 and 10 is not beyond doubt taking into consideration their conduct. Because it is an admitted fact on the basis of evidences of the respondent no.9 that once he had been held guilty of the Contempt of Court Act 1971. Mr. Bandapadhyay drawn the attention of this court towards the deposition of the respondent no.9 in reply to the questions nos. 56, 59, 63, 64, 78, 85, 94, 95 in the trial of evidence in support of his above submission. Mr. Bandapadhyay also draws the attention of this court towards the deposition of the respondent no.10 in reply to the question nos. 67,70,71,72,74,75 and 76 in the trial on evidence.
Relying upon the decision of T. N. Seshan, Chief Election Commissioner of India. Vs. Union of India reported in (1995) 4 SCC 611 Mr. Bandapadhyay submits that the function of the Chairman of a meeting would be to preside over the meeting to ensure that precise decision are taken and correctly recorded and do all that is necessary for smooth transaction of business. Therefore, recording of the minutes of the above meeting dated November 23, 2007 by a person other than the President cannot be sustained in law.
Mr. Bandapadhyay also relying upon the decision of Sakiri Vasu Vs. State of Utter Pradesh & Ors. reported in (2008) 2 SCC 409 to submit that it is well settled that when a power is given to an authority to do something, it includes such incidental or implied powers which would ensure the proper doing of that thing. So the power to record the minutes of the above meeting was incidental or implied powers of the respondent no.9. Relying upon the decision of M. Narsinga Rao Vs. State of A. P. reported in (2001) 1 SCC 691 Mr. Bandapadhyay submits that proof depends upon the degree of probability taking into consideration the fact of the series of action in removing the respondent no.10 from the post of Chairman of the Municipality.
Nobody could believe that there was no proposal of other name for contesting the election for the post of Chairman in the above meeting. Relying upon the decision Gurbachan Singh Vs. Satpal Singh & Ors. reported in (1990) 1 SCC 445 it is submitted on behalf of the petitioners that this is not a case where there can be two views possible on the fact found and the facts which could not be possibly be found. Reliance is places on the decision of Union of India & Ors. Vs. Ashok Kumar & Ors. reported in AIR 2006 SC 124 that from the surrounding circumstances the prima facie on the part of the respondent no.9 is proved.
Relying upon the decision of the Express Newspapers Pvt. Ltd. & Ors. Vs. Union of India & Ors. reported in AIR 1986 SC 872 Mr. Bandapadhyay submits that the conduct of the respondent no.9 in the aforesaid meeting dated November 23, 20007 was an example of fraud on power. Relying upon the decision of Tejshree Ghag & Ors. Vs. Prakash Parashuram Patil & Ors. reported in (2007) 6 SCC 220 it is submitted by Mr. Bandapadhyay that the fact of the respondent no.9 in ignoring the proposal of the name of the petitioner no.6 for contesting the election for the Chairman of the said Municipality was for unauthorized purpose and that would amount to malice in law. Relying upon the decision of Reliance Energy Ltd. & Anr. Vs. Maharashtra State Road Development Corpn. Ltd. & Ors. reported in (2007) 8 SCC 1 it is submitted on behalf of the petitioners that rule of law is the heart of parliamentary democracy.
Relying upon the decision of B. Prabhakar Rao & Ors. Vs. Andhra Pradesh & Ors. reported in AIR 1986 SC 210 Mr. Bandapadhyay submits that the local authority should further the requirements of law. In view of the provisions of Rule 6 read with Rule 3 of the said Rules 1995 the respondent no.9 fails to fulfill such requirement of law.
Relying upon the decision of Naru Gopal Chakraborty & Ors. State of West Bengal & Ors. reported in 2006(4) CHN 436 it is submitted on the behalf of the petitioner that in a drastic process there is no scope for allowing a person who has lost confidence to continue even for a minute after the resolution had taken place.
Appearing on behalf of the respondent no.10 it is submitted by Mr. Milan Bhattacharya, Learned Advocate submits that it is an admitted position that the impugned resolution dated November 23, 2007 was written by the Head Clerk of the said Municipality. But he performed the secretarial work on the dictation of the respondent no.9. According to Mr. Bhattacharya recording of the resolutions in the minute book of the said Municipality included two types of works, one was ministerial and the other was secretarial. The ministerial work was performed by the president of the meeting, namely the respondent no.9 by giving dictation of the minutes. The secretarial work of writing the minute book was performed by the Head Clerk of the said Municipality. It is further submitted by Mr. Bhattacharya that sub-rule(1) of Rule 21 of the said Rules 1995 provides that the President of the meeting is required to sign the resolution of the meeting. That procedure was followed in recording impugned resolution dated November 23, 2007. The attention of this court is further drawn towards Rule 13 of the said Rules 1995 in support of the above submission. It is also submitted on behalf of the respondent no.9 that the said procedure for recording of the minutes of the resolution dated November 10, 2007 of the meeting of the board of councillors of the said minute was followed. But the petitioners are breathing hot and cold in accepting the resolution dated November 10, 2007 to take the stand that the respondent no.10 had been removed from the post of Chairman by virtue of a valid resolution for such removal. And on the other hand the impugned resolution dated November 23, 2007 is challenged on the ground of illegality.
With regard to the question of proposal of the name of the petitioner no.6 to contest the election for the post of Chairman, Mr. Bhattacharya drawn the attention of this court towards the statements made in the affidavit-in-opposition of the respondent no.9 as also that the respondent no.10 to submit that in the meeting dated November 23, 2007 of the board of councillors of the said Municipality the Congress, Trinomul Congress allies including the petitioner no.1 made a mess by scolding each other on the question of leadership of their team for nomination for the post of Chairman. That dispute with regard to the question of fact has not been resolved even after trial on evidence. Therefore, two views were possible with regard to the proposal of the name of the petitioner no.6 for contesting in support of the election for the post of Chairman of the said Municipality on that date. According to Mr. Bhattacharya no circumstance was present or referred to leading to a conclusion that there was the proposal of the name of the petitioner no.6. According to Mr. Bhattacharya the chain of events were absent to arrive at a conclusion that there was the proposal of the name of petitioner no.6. According to Mr. Bhattacharya there was no circumstantial evidence of chain of events leading to irresistible conclusion of proposal of the name of the petitioner no.6 in the above meeting dated November 23, 2007. The Isolated events mentioned by the petitioners cannot be accepted safely to be the circumstantial evidences in support of the claim of the petitioners.
With regard to the truthfulness of the petitioner nos. 1 and 6 the attention of this court is drawn towards the reply of the petitioner no.1 to the question nos. 56, 62, 67, 68, 82, and 91 to show that he used the designation of Chairman-in- council which was far from truth at the material point of time. The petitioner no.1 was one of the accused persons in connection with the criminal proceeding.
With regard to the validity of the resolution adopted by the petitioners electing the petitioner no.6 as Chairman after the conclusion of the above board meeting dated November 23, 2007, it is submitted by Mr. Bhattacharya that the same was not adopted in accordance with law. According to Mr. Bhattacharya relying upon some isolated events the petitioners are taking a chance to frustrate the intention of the legislature to conduct the business of the Municipality as enacted in the West Bengal Municipal Act 1993 read with the said Rules 1995.
Drawing the attention of this court towards the answer of the petitioner no.1 to the question nos. 118 to 120 Mr. Bhattacharya submits that attempts were made by the petitioner no.1 to confuse the court with regard to the time of starting the proceeding of the meeting dated November 23, 2007. It is also submitted by Mr. Bhattacharya that the answer of the petitioner no.6 in reply to question no.23 was an attempt to add fuel to the above fire. Drawing the attention of this court towards the reply of the respondent no.9 to question nos. 10, 11, 12, 14, 15, 19, 23, 24, 35, 76, 79, it is submitted by Mr. Bhattacharya that in view of the absence of any cross-examination relating to those depositions, the admitted fact of creating a chaos by the petitioners in the meeting and rescue of the respondent nos. 9 to 17 with help of police have been proved.
Mr. Bhattacharya relies upon the decision reported in (2005) 4 SCC 480 to submit that following the standard of "proof beyond doubt" the case of the petitioners has not been proved. Reliance is place on the decision of Babubhai Muljibhai Patel Vs. Nandlal Khodidas Barot & Ors. reported in AIR 1974 SC 2150 to submit that in all proceedings of civil jurisdiction, the provisions of Section 141 of the Code of Civil Procedure is required to be followed as far as it can be made applicable. Reliance is also placed on the decision of Puran Singh Vs. State of Punjab reported in AIR 1996 SC 1092 in support of the above submission. Relying upon the decision of State of M. P. Vs. Dharkole reported in (2004) 13 SCC 308 Mr. Bhattacharya submits that in case of slightest doubt the court should not accept the evidence and in the event of two doubts that should not be multiplied. Relying upon the decision of Vikramjit Singh Vs. State of Punjab reported in (2006) 12 SCC 306 it is submitted by Mr. Bhattacharya that there is not only a grammatical but a legal distinction between "may be proved" and "must be proved". The court cannot depend upon the conclusion which may be proved. Mr. Bhattacharya relies upon the decision of State (NCT OF DELHI) Vs. Navajot Sandhu reported in (2005) 11 SCC 600 to submit that the circumstantial evidence can only be accepted in the event of chain of events leading to only one irresistible conclusion. He further relies upon the decision of P. Mani Vs. State of T. N. reported in (2006) 3 SCC 161 to submit that when any fact is especially within the knowledge of any person, the burden of proof of that fact is upon him. But the petitioners did not discharge that burden in the instant case.
Appearing on behalf of the respondent no.9 Mr. Kamalesh Bhattacharya, Learned Counsel adopts the submissions of Mr. Milan Bhattacharya.
Drawing the attention of this court towards the provision of sub-rule(8) of Rule 3 of the West Bengal Municipal (Duties and Responsibilities of the Executive Officer) Rules 2003 Mr. Kamalesh Bhattacharya submits that the minutes of the meeting dated November 23, 2007 of the board of councillors of the said Municipality was written by the Head Clerk as officer of the said Municipality in accordance with the provisions of that rule. It is submitted by Mr. Kamalesh Bhattacharya the West Bengal Municipal (Duties and Responsibilities of Executive Officer Rules, 2003) has been published in the Kilkata Gazette Extraordinary, Part-I, dated November 28, 2003 by notification no.576/MA/O/C- 4/3R-7/2003 dated October, 17, 2003. Drawing the attention of this court is further drawn towards the sub-suction (5)J of Section 53 of the West Bengal Municipal Act 1953 to submit that the Head Clerk of the said Municipality was an officer of the said Municipality. Mr. Kamalesh Bhatacharya relies upon the decision of M. S. Narayana Menon Vs. State of Kerala reported in (2006) 6 SCC 39 to submit that even applying the standard of preponderance of probability, the petitioners fail to proof the case. The onus was not upon the respondents to disproof the case of the petitioners. Reliance is also placed in the decision of Girja Prasad Vs. State of M. P. reported in (2007) 7 SCC 625 in support of the above submission.
I have given my anxious consideration to the submissions made by the Learned Councils appearing on behalf of the respective parties and I have taken into consideration the facts and circumstances of the case including the evidences, both documentary and oral. It is not in dispute that immediately after the Municipal Election of 2005, the respondent no.10 was elected as the Chairman of the said Municipality. It is not in dispute that there was a 10:10 tie of votes cast by the councillors of the said Municipality. It is also in dispute that the President of that board meeting, namely the respondent no.14 used his casting vote in favour of the respondent no.10 to break the tie. It is an admitted fact that the notice dated October 26, 2007 for holding a special requisition meetings for removal of the respondent no.10 from the post of Chairman of the said Municipality was signed by the petitioners, i.e. the 11 councillors of the Municipality. It is also an admitted fact that in the special requisition meeting dated November 10, 2007 the respondent no.10 was removed from the post of the Chairman of the said Municipality by 11:9 votes. It is also not in dispute that pursuant to a notice dated November 15, 2007 issued by the respondent no.9, being the Vice-Chairman of the said Municipality, the meeting of the board of councilors started on November 23, 2007 at 2. p.m. Admittedly, the respondent no.9 continued to preside over the above meeting upon his declaration of unwillingness of contesting the election for the post of Chairman of the said Municipality. Admittedly all the 20 councillors of the said meeting were present in that meeting. From the materials on record including the dispositions of all the four witnesses, that is petitioner nos. 1 and 6 and respondent nos. 9 and 10, the proposal of the name of the respondent no.10 is not in dispute. The disputed question of fact centers round the proposal of the name of the petitioner no.6 by the petitioner no.3 and seconding of such proposal by the petitioner no.9. On the above fact and circumstances of the case this court is to decide first whether there was procedural irregularity in writing the minutes of proceeding of the board meeting of the said municipality dated November 23, 2007 by the Head Clark of the said Municipality.
Rule 13 of the said Rule 1995 is required to be considered at this juncture and the provisions of the above rule are quoted below:
"13. Persons to preside at meetings.- (1) Save as otherwise provided in these rules, meetings of the Municipality shall be presided over normally by the Chairman or, in his absence, by the Vice- Chairman.
(2) In the case of a special meeting for removal of the Chairman, the meeting shall be preside over by a Councillor, elected by the Councillors present in the meeting.
(3) In the case of special meeting as referred to in clause (c) of sub-rule(3) of rule 9, the officer shall conduct the proceedings of the meeting. He shall, at the very commencement of the meeting, record the attendance of the members present in the meeting and shall, for presiding over the meeting, invite the Chairman of the Municipality or, in his absence or failure to do so, the Vice-Chairman of the Municipality for the purpose. In the case of absence of the Vice-
Chairman or, his failure to preside over the meeting, the officer shall invite the Councillors present in the meeting to elect a President for that meeting only:
Provided that the proceedings of the meeting shall, till the Chairman or the Vice-Chairman or the President so elected, as the case may be, takes over, be recorded by the officer in the Minute Book of the Municipality and thereafter by the person presiding over the meeting. A copy of the proceedings of the meeting so held shall be sent to the District Magistrate and the director of Local Bodies, West Bengal, by the officer and the person presiding over the meeting respectively."
According to the provisions of the proviso to Rule 13 of the said Rules 1995, the proceeding of the board meeting dated November 23, 2007 of the said Municipality was to be recorded by the respondent no.9 being the president of that meeting. The procedure for recording is further prescribed in sub-Rule 8 of Rule 3 of the West Bengal Municipal(Duties and Responsibilities of the Executive Officer) Rules 2003 which are quoted below:
"Duties and Responsibilities of the Executive Officer.- Duties and responsibilities of the Executive Officer shall be as under:
(1)...
(2)...
(3)...
(4)...
(5)...
(6)...
(7)...
(8) To attend meetings of the Board of Councillors, if required, to render secretarial assistance to the Board of Councillors, to furnish the Chairman with the minutes of the meetings of the Board of Councillors with the assistance of the Municipal Secretary or, in his absence, of any other officer. He shall ensure submission of these proceedings to the concerned authorities as per the said Act and the rules made thereunder and initiate follow-up action in terms of the decisions of the meeting of the Board of Councillors;"
It is necessary to mention here that the West Bengal Municipal (Duties and Responsibilities of Executive Officers) Rules 2003 was framed by notification No.576/MA/O/C-4/3R-7/2003 dated October 17, 2003 and published in the Calcutta Gazette extraordinary, Part-I dated November 28, 2003. In view of the provisions of Sub-Rule(8) of Rule 3 of the West Bengal Municipapal (Duties and Responsibilities of Executive Officer) Rules 2003. The duties and responsibilities of the Executive Officer of the said Municipality included attending the meetings of the board of councillors, if required, to render secretarial assistance to the board of councillors, to prepare and maintain the minutes of the meeting of the board of councillors with the assistance of the Municipal Secretary or, in his absence, of any other officer.
Now, this court is to examine whether the Head Clerk of the Municipality was an officer of the said Municipality. In this regard the provisions of Clause (j) of sub-section(1) of Section 53 of the West Bengal Municipal Act 1993 is quoted below:
"53. Municipal establishments.- (1) Save as otherwise provided in this Act, a Municipality may have the following officers:
(a)...
(b)..
(c)..
(d)..
(e)..
(f)..
(g)..
(h)..
(i)..
(j) a Head Clerk:"
In view of the above provisions the Head Clerk of the said Municipality was one of the officers of the said Municipality.
Therefore, I find no procedural irregularity in following the procedure of recording minutes of the board meeting dated November 23, 2007 of the said Municipality by the respondent no.9 with the secretarial assistance of the Head Clerk of the said Municipality.
The next question which falls for consideration of this court is to ascertain standard to proof which is required to followed to resolve dispute with regard to the question of fact of the proposal of the name of the petitioner no.6 as a candidate for contesting the election for the post of Chairman in the board meeting dated November 23, 2007 of the said Municipality.
This writ application is filed with a prayer, amongst other for issuing a writ in the nature of mandamus for setting aside the election of the Chairman of the said Municipality. The allegation is the fraud on the power at the instance of the president in the board meeting of the said Municipality in electoral process. Therefore, if an allegation of fraud on power in the electoral process is made the same must be proved as strictly as a criminal charge and the principle preponderance of probabilities would not apply to such an allegation because if this test is not applied a very serious prejudice would be caused to the elected candidate who may be disqualified affecting electoral process adversely. In this regard the relevant portions of the decision of Manmohan Kalia Vs. Yash & Ors. reported in (1984) 3 SCC 499 are quoted below:
7. Coming now to the second category of allegations, as the appellant has confined his arguments only to the averments made regarding the application of Section 123(4) of the Act, the ambit of the case is greatly reduced. Before examining the allegations, we might mention that the learned election Judge of the High Court had dealt with all the allegations and has given convincing and cogent reasons for holding that they had not been proved either by oral or documentary evidence. It is now well settled by7 several authorities of this Court that an allegation of corrupt practice must be proved as strictly as a criminal charge and the principle of preponderance of probabilities would not apply to corrupt practices envisaged by the Act because if this test is not applied a very serious prejudice would be caused to the elected candidate who may be disqualified for a period of six years from fighting any election, which will adversely affect the electoral process.
Applying the above standard of proof beyond doubt this court is to ascertain whether the case of the petitioners has been proved.
It is for the petitioners to prove affirmatively that the respondent no.9, by illegal means or by abusing his position, obtained undue benefit for the respondent no.10. As the petitioners have depended upon the circumstantial evidences, this court is to examine to case of the petitioners on the basis of the circumstances which have been relied upon them. The petitioners depended upon three circumstances from which the conclusion in favour of the proposal of the name of the petitioner no.6 is to be arrived at. Those are as follows:-
I. in 2005, the petitioner no.6 was the contest of the respondent no.10 in the election of Chairman of the said Municipality.
II. The petitioner no.6 was elected leader of the opposition parties unanimously.
III. The resolution for removal of the respondent no.10 from the post of Chairman was adopted on the strength of Majority votes of eleven petitioners on November 10, 2007 in the meeting of the board of councilor, of the said Municipality.
The aforesaid established circumstances may lead to the hypothesis of the proposal of the name of the petitioner no.6 as a candidate for the post of Chairman. But the above circumstances cannot exclude the reasonable doubt of other possible hypothesis of difference of opinion amongst the petitioners belonging in three groups, namely Congress, Trinomul and Independent, in selecting/proposing the name of their representative to contest the election of the Chairman on November 23, 2007.
In this regard the settled principles of law to deal with the circumstantial evidence as decided in the matter of Vikramjit Singh Vs. State of Punjab, reported in (2006) 12 SCC 306 are quoted below:-
"16. In sharad Birdhichand Sarada v. State of maharashtra this Court laid down the law in the following terms: (SCC p.185, para
153) "153. A Close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(I) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this court indicated that the circumstances concerned 'must or should 'and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the observations were made: [SCC para 19, p.807 : SCC(Cri) p.1047 'Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between "may be" and "must be" is long and divides vague conjecture from sure conclusions.' (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except tht the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
(emphasis in original) It was further observed: (SCC pp.194-95, paras 179-80) "179. We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shock the conscience of any court yet suspicion, however great it may be, cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law.
180. It must be recalled that the well-established rule of criminal justice is that 'fouler the crime higher the proof'. In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence, a very careful, cautious and meticulous approach was necessary to be made." Keeping in mind the aforesaid settled principles of law, it cannot be said that the claim of the petitioner with regard to the proposal of the name of the petitioner no.6 to contest the election of Chairman of the said Municipality has not been proved.
Further, with regard to the conduct of the respondent no.9 for obtaining alleged undue benefit for the respondent no.10, it is also alleged that the respondent no.9 was holding the post of the Vice-Chairman as a nominee of the respondent no.10. So, the respondent no.9 was under obligation to be an instrumentability to elect the respondent no.10 as the Chairman of the said municipality on November 23, 2007.
The above circumstantial evidence cannot be said to be of a conclusive nature and tendency to exclude every hypothesis but the petitioners proposed to be proved. In other wards, there is absence of a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the respondent no.9 taking into consideration all human possibilities.
In this regard the relevant portions of the decision of S. P Bhatnagar Vs. State of Maharashtra reported in AIR 1979 SC 826 are quoted below:-
"22. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
Therefore, the petitioners have failed to prove affirmatively the allegation against the respondent no.9 of abusing his position for obtaining the undue benefit in favour of the respondent no.10.
The decision of M. Narsinga Rao(supra) has no manner of application in this case because the same was decided considering the question of prove of the fact depending upon the degree of probability of its having existed on the basis of the fact and circumstances of that case. The decision of Gurbachan Singh(supra) is not applicable in this case because this case is decided considering the reasonableness of doubt. For the aforesaid reasons, I find that the decision of Union of India (supra) is not applicable in this case. With regard to the decision of T. N. Seshan, Chief Election Commissioner of India(supra) I find that this court has decided the question of legality of the performance of secretarial work of writing the minutes of the meeting under reference by the Head Clerk of the said Municipality considering the relevant provisions of the West Bengal Municipal Act 1993 and the West Bengal Municipal (Duties and Responsibilities of the Executive Officer) Rules, 2003. The decision of Sakiri Vasu(supra) is also not applicable in this case for the above reason. The decisions of Express Newspapers Pvt. Ltd (supra), Tejshree Ghag & Ors.(supra) and Reliance Energy Ltd. & Anr.(supra) have no manner of application in this case. In view of the conclusion of this court that the petitioners fail to prove their allegation against the respondents. In view of the distinguishing features of the instant case I find that the decisions of B. Prabhakar Rao & Ors.(supra) and Naru Gopal Chakraborty & Ors.(supra) are not applicable in this case.
This writ application and the application relating thereto are, thus, dismissed.
There will be, however, no order as to costs.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
( Debasish Kar Gupta, J. ) Later:
After delivery of this Judgment a prayer is made for granting Xerox plain copy of this Judgment counter signed by Assistant Registrar(Court) be given to both the parties on usual undertakings.
( Debasish Kar Gupta, J. )