Lalita Das Nandi vs The State Of West Bengal & Ors
2023 Latest Caselaw 6073 Cal

                   IN THE HIGH COURT AT CALCUTTA
                     Constitutional Writ Jurisdiction
                             Appellate Side

Present :- Hon'ble Justice Amrita Sinha

                           WPA 16094 of 2023


                            Lalita Das Nandi
                                    vs.
                     The State of West Bengal & Ors.

                                  With

                           WPA 16627 of 2023

                            Lalita Das Nandi
                                    vs.
                     The State of West Bengal & Ors.

                                  With

                           WPA 18443 of 2023

                            Sri Indrajit Dhar
                                   vs.
                       State of West Bengal & Ors.


For the petitioners          :    Mr. Kishore Dutta, Sr. Adv.
in WPA 16094 of 2023              Mr. Biswarup Biswas, Adv.
And WPA 16627 of 2023             Mr. L.R. Mondal, Adv.
                                  Mr. Nemai Ch. Saha, Adv.
                                  Mr. Probal Sarkar, Adv.


For the respondent          :     Mr. Kishore Dutta, Sr. Adv.

in WPA 18443 of 2023              Mr. Biswarup Biswas, Adv.
                                  Mr. L.R. Mondal, Adv.
                                  Mr. Nemai Ch. Saha, Adv.
                                  Mr. Probal Sarkar, Adv.

For the petitioner in
WPA 18443 of 2023 and
respondent nos. 6-14 in WPA
16094 of 2023 and respondent
Nos. 7-15 in WPA 16627 of
2023                       :      Mr. Saptangshu Basu, Sr. Adv.
                                  Mr. Partha Pratim Roy, Adv.
                                  Mr. Sarbananda Sanyal, Adv.

For the State               :     Mr. Wasim Ahmed, Adv.
in WPA 16627 of 2023              Mr. Sk. Md. Masud, Adv.



For the State               :     Mr. Santanu Kumar Mitra, Adv.
in WPA 16094 of 2023              Mr. Amartya Pal, Adv.




For the respondent no. 5       :     Mr. Subrata Ghosh, Adv.
in WPA 16627 of 2023

Hearing concluded on           :     08.09.2023

Judgment on                    :     12.09.2023


Amrita Sinha, J.:-

Lalita Das Nandi claiming herself to be the Chairman of the Murshidabad

Municipality filed writ petition being WPA No. 16094 of 2023 praying for setting

aside the notice dated 14th June, 2023 signed by nine councillors of the

Municipality calling special meeting under Section 18(3) of the West Bengal

Municipal Act, 1993 ('the said Act' for short) for removal of the Chairman.

The ground seeking setting aside of the impugned notice is that the same

suffers inherent lacunae as copy of the said notice was neither served upon the

Sub-Divisional Officer, Lalbagh, Murshidabad nor a copy of the same was served

upon the Vice Chairman of the Municipality.

As the legal obligation of serving copy of the aforesaid notice upon the Sub-

Divisional Officer and the Vice Chairman of the Municipality was not complied

with by the requisitionists, accordingly the petitioner, being the Chairman of the

Municipality, did not convene the special meeting.

During the pendency of the aforesaid writ petition the requisitionists

proceeded with the matter and adopted resolution for removal of Chairman in the

meeting held on 11th July, 2023, as such, Lalita Das Nandi filed the second writ

petition being WPA No. 16627 of 2023 praying for setting aside the impugned

resolution dated 11th July, 2023 and the subsequent impugned letter dated 12th

July, 2023 issued by the Vice Chairman of the Municipality. Prayer was made for

restraining the requisitionists from disturbing the petitioner from discharging her

duties as the Chairman of the Municipality.

The ground for filing the second writ petition was that as the initial step for

convening the meeting for removal of Chairman was not in accordance with the

provisions of the said Act, accordingly, the subsequent steps taken ought to fail

and the petitioner is liable to continue in the position of the Chairman of the

Municipality.

As the erstwhile Chairman failed to hand over charge despite resolution

adopted for her removal, a third writ petition being WPA No.18443 of 2023 was

filed by one of the councillors of the Municipality. Prayer was made for directing

the respondent authority to take step for handing over charge from the erstwhile

Chairman and further directing the erstwhile Chairman to hand over charge to

the Executive Officer of the Municipality.

Relevant provisions of the said Act and the Rules have been relied upon.

Specific contention of Lalita Das Nandi is that the initial notice for removal

of Chairman though addressed to the Chairman, but copy thereof was not served

either upon the Vice President or upon the Sub-Divisional Officer. As the same

was not served upon the Vice Chairman, accordingly, the same cannot be treated

as a valid notice for removal of the Chairman.

It has been contended that, on the failure of the Chairman to convene the

meeting within the time prescribed in law, it is the duty and responsibility of the

Vice Chairman to convene the meeting. Time to convene the meeting by the Vice

Chairman starts ticking immediately after the time to convene the meeting by the

Chairman expires. Till the Vice Chairman is made aware about the timeline in

accordance with which the meeting is required to be convened, the initial notice

is bound to fail.

It has been submitted that for all practical purposes, the second notice

dated 30th June, 2023, which is a photocopy of the earlier notice dated 14th June,

2023 barring the memo number and the signature of the Vice Chairman at the

bottom, has to be treated as the very first notice requesting the Chairman to

convene the meeting. If the notice dated 30th June, 2023 is treated as the first

notice to convene the meeting, then the subsequent notice dated 7th July, 2023

by three elected members of the Board of Councillors of the Municipality does not

follow the prescribed timeline and, accordingly, resolution adopted in the special

meeting scheduled on 11th July, 2023 does not have any legal validity and ought

not to be acted upon.

It has been submitted that the notice dated 7th July, 2023 does not

mention about the earlier notice dated 30th June, 2023, but mentions about the

preceding notice dated 14th June, 2023. It has been submitted it was not proper

for the three members of the Municipality to use the official letterhead of the

Municipality to issue the notice of special meeting. The members of the

Municipality lacked the legal authority to issue the notice for conducting special

meeting for removal of Chairman.

The petitioner Indrajit Dhar contends that as the Chairman and

subsequently the Vice Chairman failed to convene the meeting within the time as

stipulated in the said Rules, accordingly, the meeting was convened on the notice

of the three elected members of the Board of Councillors. On 11th July, 2023

resolution was adopted for removal of Chairman by the majority members of the

Municipality in presence of the Executive Officer and the Finance Officer.

The resolution of the special meeting was duly communicated by the Vice

Chairman of the Municipality to the District Magistrate and the Sub-Divisional

Officer, Lalbagh. Request was made to the District Magistrate for taking steps for

making over of charge.

It has been submitted that the procedure as laid down in the said Act and

the said Rules for removal of the Chairman was scrupulously followed and there

is no infraction of the legal provision. Indrajit Dhar prays for permitting the newly

elected Chairman to take over charge for the proper and smooth functioning of

the affairs of the Municipality.

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

parties. For the sake of convenience and for proper adjudication of the issues

raised, all the three writ petitions are heard and taken up for consideration

analogously and are being disposed of by this common judgment.

Section 18 of the said Act lays down the term of office of the Chairman of

the Municipality.

Section 18(3) mentions that 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.

Rule 9 of the West Bengal Municipalities (Procedure and Conduct of

Business) Rules, 1995 ('the said Rules' for short) speaks about special meeting.

Rule 9(3)(b) of the said Rules mentions that a special meeting may 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 1/3rd 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, on his failure to do so,

(ii) the Vice Chairman within seven days thereafter or, on his failure to do so, (iii)

any three of the councillors of the Municipality within further seven days

thereafter.

Law prescribes that the Chairman may be removed in a special meeting to

be called for that purpose by a resolution carried by a majority of the total

number of the elected members, present and voting. A requisition for conducting

the special meeting is to be made in writing by not less than one-third of the total

number of the elected members of the Board of Councillors.

There is total sixteen members in the Municipality. Nine of them submitted

requisition to the Chairman for conducting meeting for removal on 14th June,

2023. On receipt of the said requisition the Chairman was obliged to convene the

meeting within fifteen days i.e. the meeting ought to have been convened by 29th

June, 2023. As the meeting was not convened within the aforesaid time period,

requisition was submitted before the Vice Chairman of the Municipality to

convene the meeting.

It appears that the wordings of the requisition notices dated 14th June,

2023 and 30th June, 2023 are same. The first notice, however, does not bear the

endorsement of the Vice Chairman of the Municipality. The second notice dated

30th June, 2023 clearly mentions the provision of Rule 9(3)(b)(ii). However, it

appears that, though the specific Rule has been set out, but the nomenclature of

the Rule was wrongly mentioned. Instead of the Rules, the name of the Act has

been indicated.

The third notice of requisition dated 7th July, 2023 was on the letterhead of

the Municipality. It has been pointed out that the notice dated 7th July, 2023

does not mention about the second notice dated 30th June, 2023. Though using

the letterhead of the Municipality by the three members of the Municipality does

not appear to be proper, but the same cannot be held to be fatal so as to dislodge

the resolution of the special meeting.

Though it appears that, there is no mention of the second requisition notice

dated 30th June, 2023 in the third requisition notice dated 7th July, 2023, but

admittedly, the fact that both the Chairman and the Vice Chairman failed to take

steps pursuant to the requisition notices served upon them, was clearly

mentioned therein.

From the sequence of the three requisition notices it appears that, the

timeline matches the provisions of Rule 9(3)(b). On the failure of the Chairman to

act in response to the requisition notice dated 14th June, 2023, the second

requisition notice dated 30th June, 2023 was issued and on the failure of the Vice

Chairman to convene the meeting within the following seven days, the third

requisition notice dated 7th July, 2023 was issued. The meeting was ultimately

convened on 11th July, 2023 and resolution was adopted by as many as ten

elected members of the Board of Councillors to remove Lalita Das Nandi from the

post of Chairman of the Municipality. The resolution was duly communicated to

the District Magistrate and other officers.

The submission that the first requisition notice was not marked to the Vice

Chairman and as such the said notice cannot be treated as valid one, cannot be

accepted by the Court. The Rule prescribes that special meeting may be convened

on a requisition notice signed by not less than one-third of the total number of

the councillors of the Municipality, which appears to have been done in this case.

There is no specific provision which requires marking of the first requisition

notice upon the Vice Chairman.

The second requisition notice, though bears similar wordings as the first

one, but the same was specifically marked to the Vice Chairman with request to

convene the meeting as the Chairman failed to do so. Non-marking of the first

requisition notice to the Vice Chairman is not fatal. The first notice is specifically

meant for the Chairman. Only if the Chairman fails to act in response to the said

notice, the role of the Vice Chairman comes to play. Till the fifteen days' time

period within which the Chairman ought to convene the meeting does not expire,

the Vice Chairman does not have any function. The legal duty to convene the

meeting is of the Chairman till the fifteenth day. The Vice Chairman is required to

act only if the requisitionists file fresh requisition for removal of the Chairman on

expiry of the fifteen days' notice period.

Here, the Vice Chairman also failed to act in response to the requisition

notice dated 30th June, 2023 and, accordingly, the third and last step of Rule

9(3)(b)(iii) was invoked by three of the councillors of the Municipality.

A coordinate Bench of this Court in Sankar Mondal vs. State of West

Bengal and Ors. reported in 2017 SCC Online Cal 4208 held that it is not

necessary to serve fresh requisition notice upon the Vice Chairman on failure to

convene the meeting within the statutory time by the Chairman. The moment the

Chairman fails to convene the meeting within the stipulated time, such

requisition would invite the Vice Chairman to convene the meeting.

Parimal Sarkar vs. State of West Bengal and Ors. reported in 2017

SCC Online Cal 7899 laid down that the relevant Rule does not contemplate of a

fresh requisition notice to be issued directly to the Vice Chairman for the purpose

of convening the special meeting after the Chairman fails to convene such

meeting within the statutory time frame of fifteen days.

In the present case, the Vice Chairman was made aware of the inaction on

the part of the Chairman to convene the meeting within the stipulated time and,

accordingly, all the three requisition notices have to be taken as valid in the eye

of law.

In view of the discussions made herein above, it does not appear that there

was any infraction of the provisions of the Act and the Rules in removing the

Chairman of the Murshidabad Municipality.

Accordingly, the writ petitions filed by Lalita Das Nandi fails and are hereby

dismissed. The writ petition filed by Indrajit Dhar is allowed and disposed of. The

newly elected Chairman was rightly entitled to take charge of the Municipality

and charge has already been handed over.

There will be no order as to costs.

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.)