Calcutta High Court (Appellete Side)
(Sankar Mandal vs State Of West Bengal And Others) on 26 April, 2017
Author: Harish Tandon
Bench: Harish Tandon
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Harish Tandon.
W.P. 11388(W) of 2017
(Sankar Mandal vs. State of West Bengal and others)
with
W.P. 12468(W) of 2017
(Parimal Sarkar vs. The State of West Bengal and others)
For the Petitioner in
W.P. 11388(W) of 2017 : Mr. Ashish Kumar Sanyal,
Mr. Pratip Kumar Chatterjee.
For the Petitioner in
W.P. 12468(W) of 2017 : Mr. Saptangshu Basu,
Mr. Gautam Banerjee.
For the State in
W.P. 11388(W) of 2017 : Mr. Subhabrata Datta,
Mr. Benazir Ahmed.
For the State in
W.P. 12468(W) of 2017 : Mr. Swapan Kumar Dutta,
Mr. Dipankar Das Gupta.
For the respondent nos. 15 to
23 in W.P. 11388(W) of 2017 & for the respondent nos. 14 to 22 in W.P. 12468(W) of 2017 : Mr. Arunava Ghosh, Mr. Anindya Lahiri, Mr. Puspal Chakraborty, Ms. Pranati Das.
Judgment on : 26th April 2017.
The Court: Both the writ petitions have been taken up together as some of the questions involved therein have a common linkage.
An interesting point is raised in the instant writ petitions whether a fresh requisition is required by the requisitionists and given to the Vice-Chairman in the event the Chairman did not convene the meeting on receipt of the requisition within the statutory period of time enshrined under Rule 9(3)(b)(i) of the West Bengal Municipalities (Procedure and Conduct of Business) Rules, 1995 (hereinafter referred to as 'said Rules').
The undisputed facts, which emerged from the pleadings made in the respective writ petitions, are that the petitioner and the private respondents were elected as Councilors of the Jiaganj-Azimganj Municipality as nominated members of the different political parties. The petitioner in WP 11388(W) of 2017 was elected as Chairman by the majority of the elected Councilors and was discharging his duties and functions in such capacity. Nine Councilors requisitioned, showing the lack of confidence against the Chairman and wanted his removal.
At this juncture, the instant writ petition being WP 11388(W) of 2017 is filed before this Court for setting aside and/or quashing the notice dated 24th March 2017.
The pith and substance of challenge discernable from the averments made in the said writ petition is that the said requisitionists did not put their signatures on the said requisition and, therefore, such notice would fall on the above pretext.
Since a serious question was raised over the genuinity and authenticity of the signatures put on the said requisition, this Court directed the respondents to clarify such position before this Court proceeds with the writ petitions and decides the cause.
All the requisitionists affirmed the separate affidavit stating that they have signed on the said requisition and, therefore, the signatures appended therein are genuine and the statement of the petitioner is untrue and incorrect.
It would not be wrong to say that the best person, who can dispute the signature, is the same person whose signature is appended on the written document and not a third party. Once the requisitionists stated on oath that they have put their signatures on the said requisition, the Court should not proceed merely on the ipsi dixit of such statement made by the petitioner, who is neither the signatory nor have an authority to challenge such signatures.
Realizing the difficulty in proceeding on the above factual matrix, more particularly, after the affidavits sworn by the respective requisitionists are filed before this Court, a sudden drift is shown by the petitioner in raising a question of law as indicated in the opening paragraph of the judgment.
Before I proceed to deal with the legal points raised before this Court, it would be profitable and relevant to quote the salient provisions of the West Bengal Municipal Act, 1993 (hereinafter referred to as 'said Act') and the said Rules applicable in this regard, which are reproduced as under:
"Section 18 of the said Act:
18. Terms of office of Chairman.-(1) The Chairman shall cease to hold office as such if he ceases to be a Councillor of the [municipal area] (2) The Chairman may, at any time, by giving a notice in writing to the Board of Councillors, resign his office, and the procedure for acceptance or otherwise of the resignation shall be such as may be prescribed.
(3) The Chairman may be removed from office by a resolution carried by a majority of the total number of [elected members] of the Board of Councillors holding office for the time being [present and voting by them,] at a special meeting to be called for this purpose in the manner prescribed upon a requisition made in writing by not less than one-third of the total number of [elected members] of the Board of Councillors, and the procedure for the conduct of business in the special meeting shall be such as may be prescribed:
Provided that no such resolution shall be moved before the expiry of six months from the date of assumption of office by a Chairman, and if such resolution is not carried by a majority of the total number of [elected members], no further resolution for such purpose shall be moved before the expiry of a period of six months from the date on which the former resolution was moved.
Rule 9 of the said Rules:
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 than 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."
On composite reading of the aforesaid provisions, the Chairman may be removed from his office by a resolution of the majority of the total elected members of the Board of Councilors present and voting at the special meeting called for such purposes in the prescribed manner upon a requisition made in writing by not less than one-third of the total elected members. Such special meeting is required to be convened in the manner so prescribed.
Rule 9 of the said Rules contemplates the manner and the methodology for convening the special meeting. On receipt of the requisition it is imperative on the part of the Chairman to convene a meeting within fifteen days from the date thereof and on his failure to do so, the Vice-Chairman shall convene such meeting within seven days thereafter and on his failure, the same can be convened by three of the Councilors within seven days thereafter.
It is, therefore, manifest from the aforesaid provision that the moment the requisition is received, the Chairman is statutorily bound to convene a meeting within fifteen days from the date of receipt thereof. The legislatures were conscious while framing those Rules that the Chairman, who is sought to be removed, may not be interested in calling the meeting and for such reason the power was vested upon the Vice-Chairman to convene the meeting and on his failure as well by three of such Councilors.
At the time of the submissions advanced by the respective counsels, it was noticed that the word "or" was appearing between sub-clause (ii) of clause (b) of sub-rule (3) of Rule 9 of the said Rules, which was conspicuously and evidently absent in between clause (i) and clause (ii) thereof. An impression was gathered from the said word being used in between clause (ii) and clause (iii), that the moment the Chairman failed to convene a meeting within the time indicated in clause (i), such meeting can be called and convened either by the Vice-Chairman or by any three Councilors of the said Municipality.
It is a cardinal principle of interpretation of statute that the word "or" used in the statute is to be read in disjunctive sense and, therefore, if two eventualities and/or contingencies are provided, any one of the same would confirm to the said provision and the action cannot be impinged simply on the ground that the other was not followed and/or adhered to. But after giving an anxious thought over the same, this Court feels that the word "or", if to be interpreted in such sense, may invite an anomalous situation when both the authorities under clause (ii) and clause (iii) may simultaneously act and a chaotic situation may arise.
It is a golden principle of interpretation that the Court should lean in interpreting the provisions of the statute not only on the basis of the legislative intent, purpose and object for its incorporation but also to make it workable rather than to render otios and redundant. If the interpretation of a word leads to an absurdity and would frustrate the legislative intent, such interpretation should be avoided and guarded against.
Upon reading the various provisions of the Act, more particularly, Section 16 to Section 19 of the said Act, the powers, jurisdiction and functions of the different authorities, namely, the Chairman and the Vice-Chairman have been expressly and specifically provided therein and, therefore, the provisions should be harmonized in such manner.
The aforesaid sections give clear intention of the legislatures that the Chairman shall be an executive head of the Municipality and he has to discharge the powers and functions enshrined under Section 16 of the said Act. In absence of the Chairman, either by resignation, removal or otherwise, such functions shall be vested upon the Vice-Chairman until the post, which fell vacant, is filled up. If the statute confers the powers and duties upon the Vice-Chairman to be performed in absence of the Chairman, such powers cannot be abridged and/or curtailed if three Councilors of the Municipality are permitted to convene a meeting without waiting for the Vice-Chairman to convene the meeting after the Chairman fails to convene the meeting within the time indicated in clause (i) thereof.
Up to this juncture, this Court has no hesitation that the Vice-Chairman has been entrusted with such onerous duty to convene the meeting after the Chairman fails to convene the meeting within the time frame, but the matter took a turn when an argument is advanced at the Bar, more particularly, on behalf of the petitioner in both the writ petitions, that such meeting can only be convened if a fresh requisition is submitted by the requisitionists directly to the Vice- Chairman.
What is sought to be contended by the petitioner of both the writ petitions that the requisition is required to be sent to the Chairman and if he fails to convene the meeting within fifteen days from the date of receipt thereof, such requisition automatically lapsed and the Vice-Chairman cannot usurp the power of the Chairman under the said provision on the basis of such requisition. It is, thus, submitted that there must be a fresh requisition by the requisitionists directly to the Vice-Chairman after the prescribed period provided for convening the meeting by the Chairman expires.
The aforesaid inspiration is drawn from the expression used in clause (i) of the said Rule relatable to the Chairman that the period of convening the meeting should be counted from the date of receipt of the requisition, which is absent in case of a Vice-Chairman under clause (ii) thereof.
According to the petitioner, if the legislatures have consciously and deliberately omitted certain expressions, after the relevant provisions, the Court should interpret such provisions on the plain meaning thereof without adding and/or subtracting any words or sentence nor can borough such expressions to have been impliedly incorporated in the said provisions. There is no difficulty in understanding the law that once the language in the statute is clear and unambiguous and do not lead to any confusion or absurdity, the plain and simple meaning of those expressions should be adopted by the Court. It would not be necessary to take shelter under an external aid in order to interpret the words used in the statute. It would not be equally wrong to say that if the provisions of the Rules being the sub-ordinate legislation is repugnant and/or contrary to the parent Act, such Rule cannot be said to be legally binding. Even in case of any of the provisions, which contravene the provisions of the parent Act, cannot legally bind the authorities or the parties.
Section 18 sub-section (3) of the said Act, which contains exhaustive provision relating to the removal of the Chairman, expressly provides that the requisition in writing must be given by not less than one-third of the total number of elected members of the Board of Councilors for convening a special meeting and the conduct of the business in the said meeting shall be such as may be prescribed. Sub -rule (3) of Rule 9 of the said Rules simply provides the time frame within which such meeting is to be convened and the notices containing the agenda is to be served on the members of the Municipality.
A distinction has to be drawn between the words "convene" and "hold" and such distinction is real and apparent. The expression used in the said Rule is convening of the meeting and not holding of the meeting. The reference in this regard can be made to a Division Bench judgment of this Court in case of Chainbanu Khatun & Ors. Vs. State of West Bengal & Ors., reported in 2009 (4) Calcutta High Court Notes 501, wherein it is held that the word "convene" cannot be substituted by the word "hold", as both the words conveyed definite and different intentions. It is was further noticed therein that those words are used in the said Rules at different places and in such perspective it is held that once the legislatures have used different words at different places in the same statute, it must convey a different meaning and the intentions and synonimity should be avoided while interpreting the same. Much emphasis is made on a expression "receipt of such requisition" appearing in clause (i) of Rule 9(3)(b) of the said Rules that it connotes the requisition to be served directly to the Chairman for the purpose of commencement of the time period enshrined therein.
The Municipal Affairs is in reality a public institution for self-government and improvement in local administration in relation to the affairs of the State. To consolidate the law relating to the Municipal Affairs the Act has been promulgated and the Municipality is defined as body corporate with perpetual common seal and may sue or be sued in such name.
Section 12 of the said Act contemplates the municipal authorities charged with the responsibility of carrying out the provisions of the said Act, which includes the Chairman. The Board of Councilors shall be the elected members nominated by different political parties and shall also include the nominated members of the State Government under Section 14 of the said Act. All executive powers of the Municipality are vested upon the Municipal-in-Council and the manner in which the business shall be transgated shall be on the basis of the prescribed mode and the manner. Though the Chairman-in-Council is collectively responsible to the Municipality but the Chairman presides the meeting of the Chairman-in-Council as well as the Board of Councilors. It would appear from sub-section (1) of Section 16 of the Act that the Chairman is an executive head of the Municipality and all municipal administration shall be under his control.
From the various provisions of the Act it appears that the Municipal Affairs are controlled, guided and administered not only by the Board of Councilors or the Chairman-in-Council but also by the Chairman in his capacity and in order to discharge the functions and duties entrusted in the Act, the legislatures have created such post and the person posted thereupon has to discharge such functions through other sub-ordinate officers and the employees of the Municipality.
Neither Section 18(3) nor Rule 9 of the said Rules contemplates that the requisition must be sent directly to the Chairman and not through his office assistants and the time shall not reckon in the event such requisition is not directly served upon the Chairman. If the Act is silent on such eventuality, the recourse can be made to the provisions contained in different Act, which stands parimeteria with the present one.
An identical issue was raised before the Co-ordinate Bench in case of Jasoda Mondal vs. State of West Bengal & Ors., reported in 2002 (3) Calcutta High Court Notes 193, wherein the matter relates to Panchayat Act and the requisition was made by the requisitionists for removal of Prodhan of the Panchayat. The Co-ordinate Bench noticed the expression "given" instead of "serve" and held that if the statute is silent, such requisition if given to an assistant in the office of the Prodhan it is logically inferred that such requisition is placed before the head of the said office and, therefore, a harmonious construction to the words should be adopted. It would be apposite to quote the observations recorded in the above noted decision, which reads thus:
"5. The reason why that should be given to the Prodhan is that until the Prodhan is removed from his post, he being the leader of the team, should be shown respect and accordingly he alone has been authorised to convene a meeting to consider even such a motion. Only in the event, despite such requisition, the Prodhan does not convene a meeting, the law permits the requisitionists to convene a meeting.
6. The job assistant is directly under the Prodhan. He is the executive head of the Gram Panchayat, and working directly under the Prodhan. In the normal course, a high authority, as the Prodhan, is not required to accept all communications by his own hand. If a requisition is handed over to the job assistant for the purpose of forwarding the same to the Prodhan, the presumption would be that the job assistant, upon receipt of the requisition, did forward the same to the Prodhan to bring to his knowledge that such a requisition has been received. The Prodhan thereupon is required to act. But a person, who is working directly under the Prodhan, would not forward the requisition to the Prodhan is incomprehensible."
In the instant case, both the provisions in the Act as well as the Rules are silent on the above aspect. The expression "receipt of such requisition" appearing in clause (i) of Rule 9(3)(b) of the said Rules should be read and mean the requisition given in the office of the Chairman and received by his assistant or any office bearer authorized and empowered in this regard. Once the requisition is given it is legally presumed that the same has been brought to the knowledge of the Chairman and the period would start ticking the moment the same is received by the office of the Chairman.
It is improbable to conceive the situation where a requisition for removal of the Chairman is given in the office but the same would not be placed before the Chairman or brought to his knowledge. The reason for the same is that he would loose his status as a Chairman and, therefore, the submission that such requisition must be directly handed over to the Chairman so that he will have a knowledge thereof, is not acceptable.
So far as the role of the Vice-Chairman is concerned, the language used in clause (ii) of the said Rule is clear, explicit and leads no manner of ambiguity that the moment the period for convening the meeting by the Chairman expires, the Vice Chairman has to call a meeting within seven days therefrom. The word "thereafter" used in clause (ii), if interpreted in the manner as suggested by the petitioner, it would frustrate the legislative intent and shall lead to a cumbersome situation. It was never the intention of the legislature that the requisition by the requisitionists would perish or automatically lapse on the failure of the Chairman to convene the meeting within the stipulated time and a fresh requisition is required to be served upon the Vice-Chairman.
The word "thereafter", therefore, has to be construed and be given a plain meaning to mean that the moment the Chairman fails to convene the meeting within the stipulated time, such requisition would invite the Vice-Chairman to convene the meeting within the stipulated time. The consequence of removal of the Chairman has a serious repercussion, as the person shall loose his status and dominance over the members of the Municipality.
In a democratic set up the confidence of the head of the institution elected by the members of the Municipality is paramount and if the majority lost confidence upon him, he cannot claim to remain in such post and the decision of the majority should bind all the members.
The Chairman, who is in helm of affairs, cannot circumvent and misuse the provisions of the Act and the Rules and postpone or delay his removal having sense that the majority decisions are against him in declining to convene the meeting and invite the de novo actions to be taken by the requisitionists.
This Court, therefore, cannot agree with the submission advanced by the petitioner that a fresh requisition is necessary to be served upon the Vice- Chairman on failure to convene the meeting within the statutory time by the Chairman.
Both the writ petitions are dismissed.
There shall, however, be no order as to costs.
ab (Harish Tandon,J.)