Shila Chatterjee & Ors vs State Of West Bengal & Ors
2023 Latest Caselaw 367 Cal

                          IN THE HIGH COURT AT CALCUTTA
                            Constitutional Writ Jurisdiction
                                    Appellate Side

Present :- Hon'ble Justice Amrita Sinha

                                 WPA 26900 of 2022

                                Shila Chatterjee & Ors.
                                          Vs.
                              State of West Bengal & Ors.

For the writ petitioner         :-    Mr. Pratik Dhar, Sr. Adv.
                                      Mr. Kaustav Bagchi, Adv.
                                      Mr. Debayan Ghosh, Adv.
                                      Ms. Priti Kar, Adv.

For the State                   :-    Mr. Anirban Ray, Ld. G.P.
                                      Mr. Raja Saha, Adv.
                                      Mr. Arka Kumar Nag, Adv.

For the respondent no. 11       :-    Mr. Suman Sengupta, Adv.

Mr. Dip Jyoti Chakraborty, Adv.

For the respondent no. 13       :-    Mr. Firoz Edulji, Adv.
                                      Mr. Saikat Chatterjee, Adv.

Hearing concluded on            :-    03.01.2023


Judgment on                     :-    13.01.2023


Amrita Sinha, J.:-

The order dated 2nd December, 2022 passed by the Additional Secretary to the

Government of West Bengal, Department of Urban Development and Municipal

Affairs (Municipal Affairs branch) is impugned in the present writ petition.

The matter was heard on 5th December, 2022 and an interim order was passed

by the Court.

The contesting respondents have filed their opposition and the matter is taken

up for final hearing on merits. The petitioners choose not to file any reply and rely

upon the affidavits filed by the respondents.

The case portrayed by the petitioners is as follows:-

The petitioners, seven in number, and the respondent nos. 10 to 14, total five,

are the elected members of Jhalda municipality. There are altogether twelve seats of

Councillors in the said municipality. The respondent no. 10 was elected as

Chairman and the respondent no. 11 was nominated as Vice-Chairman of the

municipality.

Being dissatisfied with the activities and conduct of the Chairman, the

petitioners took steps for his removal and the Chairman stood removed on 21st

November, 2022.

According to Rule 5 of the West Bengal Municipalities (Procedure and Conduct

of Business) Rules, 1995 (hereinafter referred to as 'the Rules'), it is the duty of the

Vice-Chairman to report the vacancy to the District Magistrate not later than seven

days from the date of such vacancy.

According to Rule 6 (3) (b) of the Rules, the vacancy in office of the Chairman is

to be filled up by election at a meeting to be held in accordance with the procedure

laid down in clauses (b), (c), (d) and (e) of Rule (6) (2).

The Vice-Chairman was required to convene a meeting for election of the

Chairman within seven days and on the failure of the vice-Chairman to convene the

meeting, any three councillors shall convene the meeting for election of the

Chairman.

As the Vice-Chairman failed to convene the meeting for election of Chairman

within seven days, three of the petitioners issued notice on 29th November, 2022 for

convening the said meeting. The notice dated 29th November, 2022 was addressed

to all the councillors of the municipality and copy forwarded to the District

Magistrate, Director of Local Bodies, Sub-Divisional Officer, Jhalda, Executive

Officer of Jhalda municipality and Inspector-in-Charge, Jhalda police station. The

date of the meeting was fixed on 3rd December, 2022 at 11 a.m. in the municipal

office premises.

In the evening of 2nd December, 2022 the petitioners came to learn from media

reports that the State Government invoked the provision of Section 17(4) of the West

Bengal Municipal Act, 1993 (hereinafter referred to as 'the Act') and appointed the

respondent no. 13 as Chairman to hold office until a Chairman is elected as per

Section 17(3) of the Act and enters upon his office.

The petitioners submit that on 3rd December, 2022 the petitioners were present

at the scheduled place and the meeting took place on time. In the said meeting the

petitioner no. 1 has been unanimously elected as the new Chairman of the

municipality. Copy of the proceeding of the meeting held on 3rd December, 2022 was

forwarded to the Executive Officer of the municipality and to the other State

authorities via electronic mail.

The petitioners refer to the order dated 2nd December, 2022 passed by this

Court in WPA no. 25187 of 2022 (Purnima Kundu & Ors. Vs. State of West Bengal

& Ors.) wherein the Court recorded that the newly constituted board has convened

a sitting of the municipal body on 3rd December, 2022. The Court directed that no

coercive measures shall be taken against the petitioners till 7th December, 2022.

According to the petitioners, the respondent authorities were well aware of the

fact that the majority of the elected members of the municipality fixed the meeting

for election of Chairman on 3rd December, 2022 and accordingly, it was highly

improper on the part of the State to invoke the provision of Section 17(4) of the Act.

It has been submitted that on the removal of the Chairman it was the statutory

duty of the Vice-Chairman to take steps for filling up the vacancy and hold election

for electing the Chairman. As the Vice-Chairman failed to act in accordance with the

statutory provisions, three members of the municipality took steps for convening

the meeting for election of Chairman.

The petitioners contend that the impugned order is a deliberate attempt to

frustrate the outcome of the meeting fixed on 3rd December, 2022 for election of

Chairman.

It has been argued that the State Government misconstrued the provision of

Section 21(b) of the Act and acted on the resignation submitted by the Vice-

Chairman. According to Section 21(b) of the Act, resignation of the Vice-Chairman

cannot be made effective till the same is accepted. The resignation shall take effect

only from the date of its acceptance. Without the resignation being formally

accepted, the State ought not to have concluded that there is vacancy in the post of

Vice-Chairman.

The petitioners refer to the letter dated 28th November, 2022 addressed to the

Sub-Divisional Officer signed by the Vice-Chairman with copy to the Head Clerk of

Jhalda municipality whereby the Vice-Chairman tendered his resignation with

immediate effect.

It has been contended that the Sub-Divisional Officer is not the competent

authority to accept the resignation tendered by the Vice-Chairman. As the letter of

resignation was not tendered before the competent authority, the same could not

have been taken note of or acted upon by the State.

In support of the submission that resignation does not become effective till the

same is accepted, the petitioners rely upon the following decisions delivered by the

Hon'ble Supreme Court.

North Zone Cultural Centre & Anr. Vs. Vedpathi Dinesh Kumar; (2003) 5

SCC 455 and Secretary, Technical Education U.P. & Ors. Vs. Lalit Mohan

Upadhyay & Anr.; (2007) 4 SCC 492.

The petitioners further submit that the State ought not to be permitted to

agitate fresh grounds for issuance of the impugned order as the same will be

contrary to the principles laid down by the Constitution Bench of the Hon'ble

Supreme Court in the matter of Mohinder Singh Gill & Anr. Vs. The Chief

Election Commissioner, New Delhi & Ors.; (1978) 1 SCC 405, State of Punjab

Vs. Bandeep Singh & Ors.; (2016) 1 SCC 724 and United India Travel Services

Vs. Union of India; (2018) 8 SCC 141.

The petitioners refer to Article 243-P(e) of the Constitution of India where

'Municipality' has been defined as an institution of self-government constituted

under Article 243-Q.

The petitioners submit that the State Government ought not to interfere with

the democratically elected body of the municipality.

The petitioners pray for setting aside the impugned order dated 2nd December,

2022.

Learned advocate representing the respondent no. 11 the Vice-Chairman of the

municipality submits that, his client was nominated by the Chairman to act as the

Vice-Chairman and as the Chairman stood removed, accordingly, the Vice-

Chairman tendered his resignation to the Sub-Divisional Officer on 28th November,

2022.

It has been submitted that as the Vice-Chairman is nominated by the

Chairman, he performs duty at the pleasure of the Chairman. By tendering his

resignation he expressed his desire not to perform the duties of the Vice-Chairman.

The State Government acted on the basis of his resignation.

It has been contended that an office bearer who tendered his resignation,

cannot be compelled to perform the duties of the office, irrespective of the fact

whether his resignation is accepted or not.

In support of the contention that the Vice-Chairman acts at the pleasure of the

Chairman, reliance has been placed on the judgment by the Hon'ble Division Bench

of this Court in Swapan Kumar Nayak Vs. Egra Municipality & Ors.; AIR 2008

Cal 108.

Reliance has also been placed on the judgment delivered by the Hon'ble

Supreme Court in the matter of Moti Ram Vs. Param Dev & Anr.; AIR 1993 SC

1662 paragraphs 15, 16 and 17 in support of the submission that there has been

spontaneous relinquishment of his right in relation to his office.

The respondent no. 11 supports the act of the State Government.

Learned advocate representing the respondent no. 13, i.e, the councillor, who

has been appointed to act as the Chairman by the impugned order dated 2nd

December, 2022, submits that, the writ petition is liable to be dismissed on the

ground of misrepresentation and fraud.

It has been submitted that the notice of the meeting dated 29th November, 2022

was never served upon the respondent no. 13. A false and incorrect statement has

been made on oath declaring that the notice of meeting scheduled on 3rd December,

2022 was served upon all the respondents. There is no proof of service of the said

notice upon the respondent no. 13. Reference has been made to various provisions

of the Indian Evidence Act and the Indian Penal Code to impress upon the Court

that proceeding for perjury ought to be initiated against the petitioners for swearing

false averments on oath.

The respondent no. 13 supports the act of the State Government in issuance of

the impugned order dated 2nd December, 2022.

The learned Government pleader defends the action of the State and submits

that a proper approach had to be taken by the State as admittedly the post of

Chairman and Vice-Chairman fell vacant. It has been submitted that for the

purpose of smooth functioning of the municipality the State had to invoke the

provision of Section 17(4) of the Act as there was casual vacancy in the offices of

both the Chairman and the Vice-Chairman.

It has been submitted that irrespective of the fact whether the resignation of

the Vice-Chairman is formally accepted or not as the Vice-Chairman already

tendered his resignation and had expressed his intention not to function as the

Vice-Chairman, the State had to invoke the aforesaid provision for filling up the

casual vacancies. As the Vice-Chairman already put in his resignation, he cannot be

forced to act as such.

It has been contended that the impugned order is merely a stop gap

arrangement, temporary in nature and no right will accrue in favour of the

respondent no. 13 if she performs the duties as Chairman of the municipality.

It has been argued that Section 442 of the Act gives power to the State to act in

a manner which is not inconsistent with the law upon removal of the difficulties, if

any.

It has been argued that the principle of non-traverse will apply on account of

non-filing of the reply by the petitioners to the affidavit-in-opposition filed by the

respondents. The same implies that the petitioners have accepted the contentions of

the respondents.

It has been prayed that there is no requirement of interfering in the matter as

rights of none of the parties will be prejudiced as immediate steps shall be taken for

election of a new Chairman and Vice-Chairman.

The learned Government pleader relies upon the judgment delivered by this

Court on 8th February, 2008 in WP 2349(W) of 2008 in the matter of Pemba

Tshering Vs. State of West Bengal & Ors.; MANU/WB/0214/2008 paragraph 4.

The respondents pray for dismissal of the writ petition.

I have heard and considered the detailed rival submissions made on behalf of

all the parties.

It has been admitted by all the parties that the Chairman had been removed on

21st November, 2022. For reasons best known, the Vice-Chairman of the

municipality, who was supposed to act as Chairman in the absence of the

Chairman, tendered his resignation on 28th November, 2022.

According to Section 21(b) of the Act, the Vice-Chairman holds office until he

resigns his office by writing under his hand addressed to the Chairman, in which

case, the resignation takes effect from the date of its acceptance.

In the present case, though the Vice-Chairman tendered his resignation before

the Sub-Divisional Officer, but the same is yet to be formally accepted by the

competent authority. The State Government acted upon the resignation and

concluded that there is vacancy both in the post of the Chairman and the Vice-

Chairman.

The contention of the Vice-Chairman is that his nomination is at the pleasure

of the Chairman and as the Chairman stood removed, accordingly, he tendered his

resignation. No explanation has however been forwarded as to why resignation was

tendered on the 28th November, 2022 even though the Chairman stood removed on

21st November, 2022.

The Vice-Chairman failed to appreciate that he was holding a statutory post

with huge responsibility. The Vice-Chairman acts as the Chairman in the absence of

the Chairman.

According to Section 15 of the Act, every municipality shall have a Chairman in

Council consisting of the Chairman, Vice-Chairman and other members. The

Chairman and the other members are nominated by the Chairman from amongst

the councillors of the municipality.

According to Section 19 of the Act, the Vice-Chairman shall exercise the

powers, perform the functions and discharge the duties of the Chairman until a

Chairman is elected and assumes office or until the Chairman resume duties.

According to Section 19A, if the office of the Chairman falls vacant, the Vice-

Chairman performing the functions and discharging the duties of the Chairman,

shall, on the election of the Chairman, make over the cash, assets, documents,

registers and seals which he may have in his possession, custody or control soon

thereafter to the newly elected Chairman.

According to Rule 5 of the Rules, it is the statutory duty of the Vice-Chairman

to report such vacancy not later than seven days from the date of such vacancy.

According to Rule 6, the Vice-Chairman within seven days of removal of the

Chairman, is required to convene a meeting for the purpose of election of Chairman

and the Vice-Chairman is to conduct the election of the Chairman.

The Vice-Chairman either miserably failed or deliberately refused to take steps

in accordance with the statutory provisions and on the seventh day after removal of

the Chairman, tendered his resignation. As the Vice-Chairman was unsuccessful to

perform his statutory duties, three councillors of the municipality issued a notice on

29th November, 2022 to convene the meeting on 3rd December, 2022, for election of

Chairman. Copy of the said notice was forwarded to the District Magistrate, Sub-

Divisional Officer and Executive Officer of the Jhalda municipality.

The State, having knowledge of the fact that the meeting to elect new Chairman

was scheduled on 3rd December, 2022, in hot haste, issued the impugned order on

2nd December, 2022 and appointed the respondent no. 13 to hold the office of

Chairman till a new Chairman is elected and enters office. Had the State waited for

a single day, the election of new Chairman would have been complete by 3rd

December, 2022, which, in any case, the petitioners claim to be complete.

The choice of the respondent no. 13 is very significant and surprising. The

State, being completely aware of the fact that the respondent no. 13 belongs to the

party which does not have the majority membership, appointed the said respondent

to act as the Chairman. The State, for obvious reasons, did not appoint any

councillor enjoying majority membership as the acting Chairman.

The lightning speed in which the State acted, also cannot be lost sight of. The

District Magistrate, by a communication dated 2nd December, 2022, intimated the

Principal Secretary of the department about tendering of resignation of the Vice

Chairman and solicited instruction for the next course of action. The State, without

being properly apprised of the facts and the law governing the field, in an absolute

mechanical manner, invoked Section 17(4) and appointed a member from the

minority party, to act as Chairman.

It is noteworthy that on 2nd December, 2022, this Court in a writ petition filed

by the present petitioners being WPA 25187 of 2022, took note of the fact that the

newly constituted board has convened a sitting of the municipal body on 3rd

December, 2022. Despite the fact that it was well within the knowledge of the State

respondents that the meeting for election of Chairman is scheduled on 3rd

December, 2022, the State, in desperate attempt to hold on to the municipality,

invoked the clause to appoint Chairman in charge, completely ignoring the fact, that

steps had already been initiated by three members of the municipality in terms of

Rule 6(2)(b). The State failed to realise that over-speeding may be fatal at times.

Had the meeting not been convened within seven days of the Vice Chairman

not convening the meeting, then the issue would have been otherwise. The moment

the ball is set in motion under section 17(3), it was not only improper, but also

highly illegal to thwart the same and literally impose a member of the minority party

to remain in power in a circuitous manner for a couple of more weeks.

The petitioners are rightly aggrieved as the State attempted to exercise control

over the municipality even though the earlier Chairman who lost confidence, was

removed. The petitioners, presently, having majority membership, legitimately

expect that the Chairman will be elected from amongst the members enjoying

majority and not from the members having minority membership.

The sequence of events as laid down in Section 17 of the Act suggests that in

case of casual vacancy in the office of the Chairman, the Board of Councillors shall

elect one of the councillors to fill up the vacancy. Here, three councillors of the

municipality already initiated proceeding for filling up the vacancy on 29th

November, 2022; but before conclusion of the said proceeding, the State jumped

into action.

The State ought to have waited to know the outcome of the meeting scheduled

on 3rd December, for election of Chairman. The State simply interdicted the ongoing

process of election of Chairman and hand-picked a councillor, from the party who

does not have majority membership, to act as Chairman. The same has given rise to

several legal complications and the worst sufferers are the people of the

municipality who are deprived of proper service from the municipality as the Board

itself is in doldrums.

It appears from the action of the parties that they are more interested in their

personal affairs rather than devoting time for the benefit and overall upliftment of

the people of the municipality. Social cause is thrown in the back foot while private

issues hold the stage.

Whether the resignation of the Vice-Chairman was proper or not, is not an

issue to be decided in the present writ petition; but as the impugned order appears

to have been triggered by the resignation of the Vice-Chairman, accordingly, the

same is required to be addressed herein.

The State has argued that irrespective of the fact whether the resignation of the

Vice-Chairman was proper or not, as the Vice-Chairman expressed his desire not to

function as the Vice-Chairman, accordingly, he cannot be compelled to act as such.

The submission of the State is, in my opinion, contrary to the reason mentioned for

invoking the provision of Section 17(4) of the Act.

The impugned order clearly takes into consideration the vacancy in the post of

Chairman on account of his removal and the vacancy in the post of Vice-Chairman

on account of resignation. Apart from the above two grounds, no other reason has

been mentioned for invoking the aforesaid provision. The State, at this stage, cannot

rely upon other grounds for invoking the provision of Section 17(4) of the Act. The

same is contrary to the law laid down by the Hon'ble Supreme Court in the matter

of Mohinder Singh Gill (supra).

In Moti Ram (supra) the Hon'ble Supreme Court laid down that the act of

relinquishment of office may take different forms or assume a unilateral or bilateral

character, depending upon the nature of the office and the conditions governing it.

In cases where the act of relinquishment is of a bilateral character, the

communication of the intention to relinquish, by itself, would not be sufficient and

acceptance of such request to relinquish the office is required. The relinquishment

does not become effective or operative till such action is taken.

The Hon'ble Supreme Court in Vedpethi Dinesh Kumar (supra) and Lalit

Mohan Upadhyay (supra) reiterated the principle that resignation becomes effective

only after the same is accepted by the appropriate authority.

According to the provision of Section 21 of the Act, resignation of the Vice-

Chairman shall take effect from the date of its acceptance.

The Vice-Chairman, instead of holding the field in the absence of the

Chairman, merely gave a walkover and stepped out of the scene. The Vice-Chairman

fell back upon the decision delivered by this Court in the matter of Swapan Kumar

Nayak (supra).

In the said case, legality of removal of the Vice-Chairman by the Chairman

without any prior notice, was the issue to be decided by the Court. In such a

situation the Court decided that, as the Vice-Chairman is nominated by the

Chairman, accordingly, the Vice-Chairman functions during the pleasure of the

Chairman.

The facts of the said case are completely different and the ratio laid down in

Swapan Kumar Nayak (supra) cannot be made applicable in the present case where

the Vice-Chairman was not removed by the Chairman. The Vice-Chairman tendered

his resignation on the seventh day after removal of the Chairman. The Vice-

Chairman ought to have understood the onerous duty which he was required to

perform in the absence of the Chairman and ought not to have washed his hands off

leaving the municipality in a quandary.

The State has submitted that the authority, in case of any difficulty in giving

effect to the provisions of the Act, if occasion so arise, may do or cause to be done

anything which may be necessary for removing the difficulty. As a difficult situation

arose on account of casual vacancy in the post of Chairman and Vice-Chairman, the

State, for bona fide reasons, invoked the provision of Section 17(4) of the Act. In

support of the said submission the State relied upon the decision delivered by this

Court in Pemba Tshering (supra).

The Court is not inclined to accept the said submission of the State. It appears

that the State simply assumed that there existed a difficulty, when in fact, there

was none.

Section 442 of the Act lay down that the said provision can be invoked by an

order. In Pemba Tshering (supra) a formal order under Section 442 of the Act was

under challenge. In the present case, no order under Section 442 was passed prior

to passing the impugned order. Accordingly, the ratio laid down in Pemba Tshering

(supra) cannot be made applicable in the facts and circumstances of the present

case.

The alleged difficult situation would not have arisen had the executives of the

State would have acted in an independent, unbiased manner and upon proper

application of mind. The Chairman had been removed by way of a democratic

process, and the new Chairman would also be elected in the manner as mentioned

in the Act. The process of election of Chairman had already begun and no plausible

reason has been put forth not to give effect to the result of the said election. The

State ought not to have jumped into the scene and passed on the baton to a

member of the minority party thus creating a stalemate situation. The Chairman in

charge has a month to hold election for electing the Chairman. By this manner and

in the meantime, the party that lost majority, gets a chance to run the show.

The Constitution of India affirms India to be a democratic country. Everybody

should strive for a healthy democracy. Any step to derail the democratic process

ought not to be supported and step in the right direction is always welcome.

In any case, the post of Chairman is to be filled up by election. The impugned

order under Section 17(4) practically loses its force by thirty days, within which new

Chairman is to be elected. The said period is also over. All the parties, by now, are

aware that a meeting was convened for election of the Chairman. It appears from

the documents available before the Court that none, but the petitioners,

participated in the said meeting. Others may not have come forward in view of the

impugned order dated 2nd December, 2022.

The respondent no. 13 alleges that the notice of meeting was not served upon

her, though there is a postal receipt showing that an article was put to post in her

favour at the same time and in the same manner as the other articles were posted

in favour of all the other members. The petitioners apparently did not have any

mala fide intension to keep the respondent no. 13 away from the election process.

The fact that the notice, attempted to be served, returned with the remark

'addressee moved', makes it evidently clear that service was sought to be made. It is

for this reason, that the Court is not inclined to accept the argument of the

respondent no. 13 praying for dismissal of the writ petition on the ground of fraud

and misrepresentation.

In view of the discussions made herein above, the impugned order dated 2nd

December, 2022 is liable to be set aside and is accordingly set aside.

As doubt has been raised with regard to the election held on 3rd December,

2022, accordingly, for ends of justice, let fresh meeting be held for election of

Chairman.

To prevent any further delay in filling up the post of Chairman, the Court in

the presence of all the appearing parties, fixes the date of meeting for election of

Chairman on 16th January 2023 at 11 a.m. in the municipal office premises. The

District Magistrate, who is in charge of managing the day to day affairs of the

municipality by virtue of the interim order passed by the Court on 5th December,

2022, is directed to serve notice and intimate the date, time and venue of the

meeting to the non-appearing councillors, i.e, the respondent nos. 12 & 14 by 14th

January, 2023 so that all the councillors have the knowledge of the meeting

scheduled on 16th January, 2023. Should any of the non-appearing councillors

refuse to accept service of the notice, copy of the same shall be affixed at

conspicuous places of the municipal office and the same shall be treated as good

service of notice for this purpose.

Though none appeared or represented the respondent no. 10 at the time of

hearing of the writ petition, but today at the time of pronouncement of judgment,

one Mr. Tapas Kumar Maity, learned advocate claims to represent the respondent

no. 10.

The election shall be held under the strict supervision of the District

Magistrate but the charge of the municipality shall not be handed over to the newly

elected Chairman without the leave of the Court. It will be open for the District

Magistrate to seek necessary police protection, if required, at the time of holding the

election. If a request is made by the District Magistrate, then the concerned

Superintendent of Police shall provide necessary assistance to ensure that no

untoward incident takes place at the time of election. The election process shall be

video recorded and safely preserved for future reference. A status report shall be

filed by the District Magistrate in a sealed cover on the next date.

The Court hopes and trusts that the District Magistrate will be able to live up

to the expectation of the high post that he is holding.

List the matter on 17th January, 2023 marked "to be mentioned".

Urgent certified photocopy of this judgment, if applied for, be supplied to

the parties or their advocates on record expeditiously on compliance of usual

legal formalities.

( Amrita Sinha, J. )