Gauhati High Court
Pabitra Gogoi vs The State Of Assam And 14 Ors on 30 October, 2024
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/12
GAHC010224822024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5495/2024
PABITRA GOGOI
S/O- LATE RAMESH CH. GOGOI,
R/O- SRIPURIA LNB ROAD (NEAR NEPALI MANDIR,
P.S- TINSUKIA, DIST- TINSUKIA, ASSAM, PIN-786145
VERSUS
THE STATE OF ASSAM AND 14 ORS
SECRETARY URBAN DEVELOPMENT DEPARTMENT (MUNICIPALITIES),
DISPUR, ASSAM, PIN-781006
2:THE DIRECTOR OF MUNICIPAL ADMINISTRATION
ASSAM
HENGRABARI
GUWAHATI
ASSAM
PIN-781006
3:THE DISTRICT COMMISSIONER
TINSUKIA
ASSAM
PIN-786145
4:THE TINSUKIA MUNICIPAL BOARD
THROUGH EXECUTIVE OFFICER
TINSUKIA
ASSAM
PIN-786145
5:THE EXECUTIVE OFFICER
Page No.# 2/12
TINSUKIA MUNICIPAL BOARD
TINSUKIA
ASSAM
PIN-786145
6:INDRANI ROY
WARD NO-01
O/O THE TINSUKIA MUNICIPAL BOARD
TINSUKIA
ASSAM
PIN-786145
7:DHIRAJ KUMAR SINGH
WARD NO-11
O/O THE TINSUKIA MUNICIPAL BOARD
TINSUKIA
ASSAM
PIN-786145
8:TARUN SINGH
WARD NO-15
O/O THE TINSUKIA MUNICIPAL BOARD
TINSUKIA
ASSAM
PIN-786145
9:PULAK CHETIA
WARD NO-09
O/O THE TINSUKIA MUNICIPAL BOARD
TINSUKIA
ASSAM
PIN-786145
10:DR. PAYAL SHARMA
WARD NO-04
O/O THE TINSUKIA MUNICIPAL BOARD
TINSUKIA
ASSAM
PIN-786145
11:BASAL SEN
WARD NO-13
O/O THE TINSUKIA MUNICIPAL BOARD
TINSUKIA
ASSAM
PIN-786145
12:ASHOK KUMAR AGARWAL
Page No.# 3/12
WARD NO-10
O/O THE TINSUKIA MUNICIPAL BOARD
TINSUKIA
ASSAM
PIN-786145
13:PRADIP KUMAR DAS
WARD NO-03
O/O THE TINSUKIA MUNICIPAL BOARD
TINSUKIA
ASSAM
PIN-786145
14:MAMTA KALWAR
WARD NO-07
O/O THE TINSUKIA MUNICIPAL BOARD
TINSUKIA
ASSAM
PIN-786145
15:PUSPA SINGH
WARD NO-06
O/O THE TINSUKIA MUNICIPAL BOARD
TINSUKIA
ASSAM
PIN-78614
Advocate for the Petitioner : MS A DEKA, MR. R P SARMAH,MR. D DOLEY
Advocate for the Respondent : GA, ASSAM, MR. S S ROY ( Resp. 4 & 5 )
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 30.10.2024 Heard Mr. R.P. Sarmah, learned Senior Counsel assisted by Ms. A. Deka, learned counsel for the petitioner; Mr. N. Goswami, learned Junior Government Page No.# 4/12 Advocate, Assam for the respondent nos. 1, 2 & 3; and Mr. S.S. Roy, learned Standing Counsel, Tinsukia Municipal Board for the respondent nos. 4 & 5.
2. In the election for the Ward Commissioners to the Tinsukia Municipal Board, comprising of 15 wards, held on 12.12.2022, the petitioner had been elected as a Ward Commissioner by direct franchise. The respondent nos. 6 to respondent no. 15 had also been elected as Ward Commissioners of the Tinsukia Municipal Board. The Members of Legislative Assembly [MLA] and Members of Parliament from the jurisdictional area are also the members of Tinsukia Municipal Board by virtue of their positions in term of Section 11 of the Assam Municipal Act, 1956. The petitioner was thereafter elected as a Chairman of Tinsukia Municipal Board.
3. On 18.07.2024, 10 nos. of Ward Commissioners submitted a requisition expressing no-confidence against the Chairman of the Tinsukia Municipal Board, that is, the petitioner seeking convening of a Special Meeting for consideration of the motion of no-confidence brought against him. However, by a subsequent letter of withdrawal dated 25.07.2024, the earlier requisition dated 18.07.2024 was withdrawn by the said requisitionists. But again on 14.10.2024, the same 10 nos. of Ward Commissioners, that is, respondent nos. 6 to respondent no. 15 had submitted a requisition before the petitioner expressing want of confidence in him to continue as a Chairman of the Tinsukia Municipal Board. Close on the hills of the submission of the requisition dated 14.10.2024, the Executive Officer of the Tinsukia Municipal Board, that is, the respondent no. 5 wrote a letter to the petitioner as the Chairman, Tinsukia Municipal Board on 14.10.2024, as a copy of the requisition dated 14.10.2024 was submitted to him. The contents of Page No.# 5/12 the said letter dated 14.10.2024 would be extracted in a later part of this order.
4. This writ petition is preferred to assail the requisition dated 14.10.2024 submitted by the 10 nos. of Ward Members, that is, the respondent nos. 6 to respondent no. 15 before the petitioner and the letter dated 14.10.2024 issued by the Executive Officer, Tinsukia Municipal Board [the respondent no. 5].
5. Issue notice, returnable on 09.12.2024.
6. As Mr. Goswami, learned Junior Government Advocate, Assam has appeared and accepted notice on behalf of the respondent nos. 1 - 3 and Mr. Roy, learned Standing Counsel, Tinsukia Municipal Board has appeared and accepted notice on behalf of the respondent nos. 4 & 5, no formal notice need to be issued to the said respondents. The petitioner shall, however, furnish requisite nos. of extra copies of the writ petition along with annexures, to Mr. Goswami and Mr. Roy within 2 [two] working days from today.
7. The petitioner shall take steps for service of notice upon the respondent nos. 6-15 by registered post with A/D within 2 [two] working days from today.
8. Heard the learned counsel for the parties also on the interim prayer.
9. Mr. Sarmah, learned Senior Counsel appearing for the petitioner has submitted that the Executive Officer could not even have requested the Chairman of the Tinsukia Municipal Board, that is, the petitioner by the kind of letter dated 14.10.2024. In support of his such submission, Mr. Sarmah has Page No.# 6/12 referred to two decisions of the co-ordinate benches of this Court in W.P.[C] no. 168/2024 [Sharmistha Deb and others vs. the State of Assam and others] & W.P.[C] no. 2868/2024 [Labanya Pait Doley vs. The State of Assam and others]. He has contended that the provisions of Section 28 and Section 43 of the Assam Municipal Act, 1956 do not permit the Executive Officer to interfere with the process of calling for a special meeting on the motion of no-confidence. He has further contended that the requisitionists expressing any want of confidence in the Chairman of a Municipal Board are required to serve a copy of such requisition to all the other members of the Board, eligible to vote in the special meeting since it is incumbent on the part of such requisitionists to serve the requisition to the other members of the Board, the requisition dated 14.10.2024 has suffered from illegality. It is further contended that the provisions of Section 29, more particularly, Clause [c] and Clause [g] of sub-section [2] of Section 29 of the Assam Municipal Act, 1956 have made the respondent no. 6, respondent no. 7, respondent no. 8, respondent no. 9, respondent no. 11, respondent no. 12 & respondent no. 13 liable to be removed as Ward Commissioners due to their continuous absence on four or more occasions in the meetings of the Tinsukia Municipal Board and as such, the requisition submitted by them is clearly non est in law. He has further contended that after withdrawal of the first requisition dated 18.07.2024 by a letter of withdrawal dated 25.07.2024, a second requisition letter on 14.10.2024 by the same 10 requisitionists are not tenable and maintainable in law.
10. The provisions for removal of a Chairman of a Municipal Board is provided in Section 28 of the Assam Municipal Act, 1956, as amended. As per sub-section [2] of Section 28, an elected Chairman may be removed from his office by a Page No.# 7/12 resolution of the Board in favour of which more than half of the whole members of the Commissioners shall have given their votes at a meeting specially convened for the purpose.
11. From the facts projected in this writ petition, the stage of voting has not yet been reached. The other provisions which is of relevance is Section 43 and the same is quoted herein below in its entirety for ready reference :
43. Ordinary and special meetings-
[1] The Commissioner shall meet for the transaction of business at their office, at least once in every month, and as often as a meeting shall be called by the Chairman or, in his absence by the Vice-Chairman. If there be no business to be laid before the Commissioners at any monthly meeting, the Chairman shall instead of calling the meeting, give notice of the fact to each Commissioner three days before the date which is appointed for the monthly meeting.
[2] The Chairman, or, in his absence, the Vice-Chairman may call a special meeting whenever he thinks fit and shall call one on a requisition signed by not less than three of the Commissioners.
[3] If the Chairman or the Vice-Chairman fails to call a special meeting within fifteen days after any such requisition has been made, the meeting may be called by the persons who signed the requisition.
12. In the Order dated 29.04.2024 passed in the writ petition, W.P.[C] no. 168/2024, nine elected Ward Commissioners made a complaint to the Deputy Commissioner, Dhemaji ventilating their grievance about no-confidence against the Chairperson by a letter dated 01.01.2023. By a letter dated 12.12.2023, the District Commissioner, Dhemaji forwarded the complaint submitted by the Ward Commissioners expressing their no-confidence against the Chairperson, Page No.# 8/12 Silapathar Municipal Board giving 15 days' time to hold a Board Meeting from the date of receipt of the said letter.
12.1. Having regard to the provisions of Section 28, Section 47 and Section 296 of the Assam Municipal Act, 1956, the Hon'ble Court has inter alia observed that the District Commissioner would have no power even to make a requisition to the Chairperson to convene a special meeting for the removal of the Chairperson. In the Judgment and Order dated 23.07.2024 rendered in the writ petition, W.P.[C] no. 2868/2024, the order dated 29.04.2024 [supra] has been referred to. In W.P.[C] no. 2868/2024, the Executive Officer informed the concerned Chairman of the Board by a Communication that in view of the Lok Sabha Election and the Model Code of Conduct, the special meeting which was called by the Chairman on 24.05.2024, should be withheld till 04.06.2024. It was in that context, the Hon'ble Court has held that same analogy, as has been applied to the District Administration, would also apply in the case of an Executive Officer as the Executive Officer of the Municipal Board has no control over the removal of the Chairman of a Municipal Board.
13. This Court has not found any statutory bar in submission of a requisition expressing no confidence for the second time after withdrawal of a previous requisition. The learned Senior Counsel for the petitioner has not been able to show any provision or authority regarding prohibition of a second requisition after withdrawal of a previous requisition by the same requisitionists.
14. The provision of Section 43[2] of the Assam Municipal Act, 1956 has enabled Ward Commissioners of a Municipal Board to bring a motion of no-
Page No.# 9/12 confidence against an elected Chairman of the Municipal Board.
15. This Court has not found sufficient force in the submission of the learned Senior Counsel for the petitioner that the requisitionists are to serve the copy of the requisition notice to all the other members of the Court, in absence of any statutory prescription to that effect.
16. In so far as the contention as regards the respondent nos. 6 to respondent no. 15 is concerned, it is not brought to the notice of the Court that the requisitionists-Ward Commissioners have been removed from the Board by the State Government by exercising power under Section 29 of the Assam Municipal Act, 1956, as amended. As the said respondents are still members of the Board, this Court prima facie does not find any illegality in their submitting the requisition along with other members of the Board on 14.10.2024.
17. The contents of the letter of the Executive Officer read as under :-
To : The Chairman,
Tinsukia Municipal Board,
Tinsukia.
Sub : Special meeting to be convened under Section 43 of Assam Municipal Act. 1956.
Sir, With reference to the subject cited above, it would like to inform you that, 10 [Ten] nos. of Ward Commissioner have lost confidence upon you and to prove your majority a special meeting needs to be convened under Section 43 of the Assam Municipal Act, 1956. Therefore kindly arrange for special meeting within 20 days from today as per Section 43[3] of the Assam Municipal Act, 1956.
Page No.# 10/12 Thanking you.
Yours faithfully Executive Officer, Tinsukia Municipal Board, Tinsukia.
18. The provisions of sub-section [2] and sub-section [3] of Section 42 came up for consideration in Jyotirmoy Paul and another vs. State of Assam and others, 2015 [1] GLT 196, and the Hon'ble Court has observed as under :-
Section 43 (2) does not provide to whom the requisition shall be given. There is no requirement of service of notice personally to the Chairman and therefore, it is not necessary that the requisition has to be personally served on the Chairman or Vice- Chairman as the case may be. As Section 43 (2) warrants calling of a special meeting on a requisition signed by not less than three Commissioners, the Chairman or the Vice- Chairman must have information of the requisition so as to enable them to call a meeting within the outer limit of 20 days.
The Chairman and the Vice-Chairman are elected by the Commissioners, which in other words, signifies that they had the majority support at the time of election. They may lose confidence of their electors with the passage of time and if in terms of the provisions of the Act, requisition is given complying with the required formalities to hold a special meeting to discuss a No Confidence Motion, it is imperative that a special meeting is to be held to discuss the No Confidence Motion. Section 43 (3) is a safeguard given to the requisitionists because a Chairman or a Vice-Chairman can ignore a requisition and not hold a meeting to frustrate the requisitionists. It is equally possible, to checkmate the Chairman or the Vice-Chairman, the requisitionists may profess to have brought the requisition to the notice of the Chairman without really doing so. There is time limit of 20 days for holding a meeting from the date of requisition made. On failure of Chairman to hold a special meeting within the specified time, as it appears, the requisitionists can hold a meeting immediately thereafter. This is of some moment Page No.# 11/12 and importance. On a reading of Section 43 (2) and 43 (3) together, this Court is of the opinion that the legislative mandate demands that the requisition must be brought to the notice of the Chairman or Vice-Chairman and there must be some evidence and/or material to show that a conclusion can be arrived at that the requisition was so brought to the notice of the Chairman and/or the Vice-Chairman. Since a right has been conferred upon the requisitionists to convene a meeting after 20 days of the requisition made, in order to enable them to exercise that right, the requisitionists must be able to show some acceptable material that the Chairman and/or the Vice-Chairman was served personally or through any other method or that the requisition was brought to the notice of the Chairman and/or Vice-Chairman through the intervention of any authority in an official manner. If any functionary within the Town Committee establishment is trying to play truant and cause mischief by trying to side with either of the two camps, as alleged in this case, appropriate steps can surely be taken to ensure the imperative of Section 43 (2) and 43 (3).
19. By the Assam Municipal [Amendment] Act, 2024, Section 52 has been provided for appointment of Executive Officer. Sub-section [1] and sub-section [2] of Section 52 read under :-
52. [1] There shall be an Executive Officer in every municipality who shall be appointed by the State Government and shall act as the Principal Municipal Officer of the Municipality and all other officers and employees of the Municipality shall be subordinate to him. The Executive Officer shall not be a member of the Board, but shall be a whole-time officer of the Board and shall have the right to attend all the meetings of the Board without any right of voting.
[2] The executive power for the purpose of carrying out the provisions of this Act shall be vested in the Executive Officer, who shall perform such duties and exercise such powers as may be prescribed.
20. From the text and tenor of the contents of the letter dated 14.10.2024, as extracted above, this court is of the considered view that the Executive Officer who has the right to attend all the meetings of the Board and a whole time Page No.# 12/12 officer of the Board, has written the said letter to the Chairman apprising him about the provisions of sub-section [2] of Section 43 of the Assam Municipal Act, 1956 is primarily for the purpose of carrying out the provisions of the act performing his duties as an Executive Officer.
21. In such view of the matter, the grounds agitated on behalf of the petitioner for an interim order are found prima facie not merited at this stage. In such view of the matter, this Court is not inclined to pass any order staying the operation of the requisition dated 14.10.2024 [Annexure-C to the writ petition] and the letter of the Executive Officer, Tinsukia Municipal board [the respondent no. 5] dated 14.10.2024 [Annexure-D to the writ petition].
JUDGE Comparing Assistant