Gauhati High Court
Labanya Pait Doley vs The State Of Assam And 11 Ors on 23 July, 2024
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/17
GAHC010109432024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2868/2024
LABANYA PAIT DOLEY
W/O- SRI PUSPA DOLEY, ADDRESS- SILAPATHAR NATUN MISHING GAON,
WARD NO. 06, P.O. AND P.S. SILAPATHAR, PIN- 787059, P.O. AND P.S.
SILAPATHAR, DIST. DHEMAJI, ASSAM
VERSUS
THE STATE OF ASSAM AND 11 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY, GOVT. OF
ASSAM, DEPARTMENT OF HOUSING AND URBAN AFFAIRS, DISPUR,
GUWAHATI.
2:THE DIRECTORATE OF MUNICIPAL ADMINISTRATION
GOVT. OF ASSAM
REPRESENTED BY ITS DIRECTOR
DISPUR
GUWAHATI
PIN- 781006
ASSAM
3:THE DEPUTY COMMISSIONER
DHEMAJI
P.O.
P.S. AND DIST. DHEMAJI
ASSAM
4:THE EXECUTIVE ENGINEER
SILAPATHAR MUNICIPAL BOARD
DHEMAJI.
5:THE VICE-CHAIRPERSON
Page No.# 2/17
SILAPATHAR MUNICIPAL CORPORATION
P.O. AND P.S. SILAPATHAR
DIST. DHEMAJI
ASSAM
PIN- 787059.
6:SARMISTHA DEB
WARD COMMISSIONER OF WARD NO. 07
W/O- SHRI BENU DEB
WARD NO. 07
SILAPATHAR TOWN
NATUN GAON
P.O. AND P.S. SILAPATHAR
DIST. DHEMAJI
ASSAM
PIN- 787059.
7:RATUL GOGOI
WARD COMMISSIONER OF WARD NO. 01
S/O- LATE PRODIP GOGOI
WARD NO. 01
SILAPATHAR TOWN
MAJGAON
P.O. AND P.S. SILAPATHAR
DIST. DHEMAJI
PIN- 787059.
8:TARUNIMA DUTTA ROY
WARD COMMISSIONER OF WARD NO. 02
D/O- SRI MANIK DUTTA
WARD NO. 02 SILAPATHAR TOWN
GANDHINAGAR
P.O. AND PS.. SILAPATHAR
DIST. DHEMAJI
PIN- 787059.
9:SHILPI CHOWDHURY
WARD COMMISSIONER OF WARD NO. 04
D/O- SHRI SIBU CHOUDHURY
WARD NO. 04
SILAPATHAR TOWN
AMRITPUR
P.O. AND P.S. SILAPATHAR
DIST. DHEMAJI
ASSAM
PIN- 787059.
10:ADITYA SONOWAL
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WARD COMMISSIONER OF WARD NO. 08
S/O- LATE PADMA SONOWAL
WARD NO. 08 SILAPATHAR TOWN
SONOWAL PATHAR
P.O. AND PS. SILAPATHAR
DIST. DHEMAJI
PIN- 787059.
11:JITENDRA KUTUM
WARD COMMISSIONER OF WARD NO. 09
S/O- SHRI JUGESWAR KUTUM
WARD NO. 09 SILAPATHAR TOWN
KANGKAN NAGAR
P.O. AND P.S. SILAPATHAR
DIST.- DHEMAJI
ASSAM
PIN- 787059.
12:DINESH DAS
WARD COMMISSIONER OF WARD NO. 10
S/O- SRI NARESH DAS
WARD NO. 10 SILAPATHAR TOWN
LACHIT NAGAR
P.O. AND P.S. SILAPATHAR
DIST. DHEMAJI
PIN- 787059
Advocate for the Petitioner : Mr. M. Biswas, Advocate
Advocate for the Respondents : Mr. N. Goswami, Govt. Advocate
Mr. R. P. Sharma, Sr. Advocate
Mr. D. Doley, Advocate
Mr. A. Deka, Advocate
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
Date of Hearing : 23.07.2024
Date of Judgment : 23.07.2024
JUDGMENT AND ORDER (ORAL)
Heard Mr. M. Biswas, the learned counsel appearing on behalf of the
petitioner. Also heard Mr. N. Goswami, the learned Government Advocate
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appearing on behalf of the respondent Nos.1 to 4 as well as Mr. R. P.
Sharma, the learned senior counsel assisted by Mr. D. Doley, the learned
counsel appearing on behalf of the private respondents.
2. The instant writ petition has been filed challenging the minutes of
the special meeting held on 29.05.2024 at 10:30 AM whereby the
petitioner who was the Chairperson of the Silapathar Municipal Board was
removed.
3. The facts leading to the filing of the instant writ petition is that the
petitioner herein was elected as the Chairperson of the Silapathar
Municipal Board on 12.04.2022. It is relevant to take note of that the
Silapathar Municipal Board constituted of 12 elected Ward Commissioners,
2 Ex-Officio members who are the concerned MLA and the MP. It is an
admitted fact that out of the 12 elected Ward Commissioners, one elected
Ward Commissioner had resigned.
4. A letter was issued on 01.12.2023 by 7 Ward Commissioners
requesting the District Commissioner, Dhemaji Town to terminate the
petitioner from the post of the Chairperson. In pursuance to the said
communication, the District Commissioner, Dhemaji vide an email dated
12.12.2023 directed the petitioner to convene a Board meeting within 15
days from the receipt of the said letter. Pursuant thereto, a meeting was
called on 05.01.2024 at 2:30 PM. The said meeting was decided in favour
of the petitioner. Being aggrieved, the private respondents filed a writ
petition which was registered and numbered as WP(C) No.168/2024. The
said writ petition was disposed of vide the judgment and order dated
29.04.2024 holding inter-alia that the District Commissioner has no
jurisdiction or authority to issue direction to call for the meeting. However,
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taking into account the provisions of the Assam Municipal Act, 1956 (for
short, 'the Act of 1956'), this Court left it open to the private respondents
to take steps for calling for a special meeting in accordance with the
provision of the Act of 1956 for a No Confidence Motion against the
Chairperson or the Vice-Chairperson, if so desired.
5. Pursuant thereto, the private respondents who were 7 in numbers
submitted a request for convening a special meeting under Section 28 of
the Act of 1956 for discussion of No Confidence Motion against the
Chairperson. The petitioner upon receipt of the said communication
informed the Executive Officer of the Silapathar Municipal Board vide a
communication dated 17.05.2024 that he has called the meeting at 11:00
AM on 24.05.2024 pursuant to the said request so made. The Executive
Officer on receipt of the said communication issued by the petitioner
informed the petitioner vide the communication dated 20.05.2024 that in
view of the Lok Sabha election, 2024 and the Model Code of Conduct
being operational, the meeting should be withheld till 04.06.2024 and the
petitioner was accordingly directed to cancel/withdraw the special meeting
which was scheduled to be held on 24.05.2024. Immediately on receiving
the said communication from the Executive Officer of the Silapathar
Municipal Board, the petitioner vide the communication informed the
various Ward Commissioners about the cancellation of the said meeting.
6. It is also seen that on 23.05.2024, the Executive Officer of Silapathar
Municipal Board also informed the Chairperson, the Vice-Chairperson as
well as Ward Commissioners of Silapathar Municipal Board that he advised
against the convening of the special meeting on account of the Model
Code of Conduct and that he would not be able to join the meeting in
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connection with Silapathar Municipal Board. The private respondents
thereupon on 27.05.2024 requisitioned another meeting on account of the
failure on the part of the petitioner to hold the meeting as per the
requisition and fixed 29.05.2024 at 10:30 AM to discuss about the No
Confidence Motion against the Chairperson, Silapathar Municipal Board.
This aspect of the matter was also duly informed by the Vice-Chairperson
of the Silapathar Municipal Board to the petitioner vide the communication
dated 27.05.2024. On 29.05.2024 at 10:30 AM, the special meeting was
convened wherein the private respondents herein had duly participated. In
the said meeting, it was decided by the 7 Ward Commissioners present
that the petitioner be removed from the Office of the Chairperson of
Silapathar Municipal Board. Being aggrieved by the said resolution so
taken in the special meeting held on 29.05.2024 at 10:30 AM whereby the
petitioner was removed from the pot of Chairperson of the Silapathar
Municipal Board, the petitioner approached this Court by filing the present
writ petition.
7. This Court vide an order dated 31.05.2024 issued notice and further
stayed the said resolution dated 29.05.2024 in so far as the termination of
the petitioner as Chairman/Chairperson and directed that the same shall
be implemented without the leave of the Court. It was also made clear
vide the said order that the petitioner will not assume the Office of the
Chairperson to take any policy decision in any meeting or in any financial
matter save and except when the participation of the petitioner is
necessary as a joint signatory along with Executive Officer of the
Silapathar Municipal Board.
8. The record reveals that the private respondents have filed their
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affidavit-in-opposition thereby supporting the meeting held on 29.05.2024
at 10:30 AM and justifying that there was no bar in holding the said
meeting. It was also brought to the notice of this Court by filing the said
affidavit that on the same day at 2:30 PM, another meeting was held
whereby one Sri Jitendra Kutum was elected as the new Chairperson of
the Silapathar Municipal Board. The said affidavit was filed on 12.06.2024.
However, no reply to the said affidavit was filed by the petitioner.
9. The record further reveals that on 19.07.2024, an affidavit was filed
by the District Commissioner, Dhemaji wherein it was mentioned that in
terms with Section 11 (3 a) of the Act of 1956, the Members of the House
of people and the Legislative Assembly of the State of Assam representing
the constituencies which comprise fully or partly the Municipal Area shall
be the Ex-Officio Members of the Board and under Section 25 of the Act of
Act of 1956, both MP and MLA were also considered as Commissioners of
the Board. It was also mentioned that in view of the Model Code of
Conduct, the Chairperson of the Silapathar Municipal Board was requested
to cancel/withdraw the special meeting by the Executive Officer, Dhemaji.
10. This Court duly takes note of that an Interlocutory Application was
filed by the private respondents for vacation and modification of the order
passed by this Court on 31.05.2024. However, the said application was
withdrawn on 18.07.2024.
11. I have heard the learned counsel for the petitioner as well as the
learned counsels appearing on behalf of the respondents.
12. Mr. M. Biswas, the learned counsel appearing on behalf of the
petitioner submitted that in the instant case, the petitioner being the
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Chairperson was not adverse to calling for the special meeting as per the
requisition. However, it was on account of the directions issued by the
Executive Officer, Silapathar Municipal Board as would be seen from the
affidavit filed by the respondent No.3 and the communication dated
20.05.2024 that the petitioner had to cancel the meeting which was
scheduled to be held on 24.05.2024. The learned counsel for the
petitioner further submitted that the Election Commission of India had
also issued a communication on 02.01.2024 in respect to the meeting of
the Municipalities and Panchayats and decided that there would be no
objection on the part to holding of the statutory meeting which cannot be
avoided by the Municipalities and the Panchayats and other local bodies
subject to the condition that no new policy decision and announcement
shall be made in such meeting till the elections are over and only the
decision relating to routine day-to-day management issues and on
emergency issues may be taken in such meeting. The learned counsel for
the petitioner further submitted that this is a case which would not fall
within the exception to hold the meeting during the period of Model Code
of Conduct was in force.
13. On the other hand, Mr. R. P. Sarma, the learned senior counsel
appearing on behalf of the private respondents submitted that the
petitioner was issued the requisition on 06.05.2024 for calling the meeting
in question. The petitioner though called for the meeting on 24.05.2024
but subsequently cancelled. It was under such circumstances the meeting
was called in terms with Section 43 (3) of the Act of 1956 and as more
than the majority had voted in favour of the No Confidence Motion and
against the petitioner, the question of interference with the minutes of the
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meeting dated 29.05.2024 at 10:30 AM ought not to be made. The
learned senior counsel for the private respondents further submitted that
on the very date at 2:30 PM, another meeting was held whereby one Sri
Jitendra Kutum was appointed as the Chairperson of the Silapathar
Municipal Board and in that regard has referred to the said minutes which
have been enclosed to the affidavit-in-opposition as Annexure-B. the
learned senior counsel further submitted that it is no longer res integra
that the Model Code of Conduct would have no role to play in respect to
the meeting of the present nature and referred to the judgment of the
Coordinate Bench of this Court in the case of Himangshu Roy vs. The State
of Assam & 12 Others, reported in 2019 (5) GLT 796. The learned senior
counsel further submitted that the Division Bench of this Court had also
approved the said judgment.
14. Mr. M. Biswas, the learned counsel appearing on behalf of the
petitioner rejoining his earlier submission submitted that the meeting
dated 29.05.2024 at 2:30 PM on the face of it is nonest and it is
completely contrary to the provisions of the Act of 1956. The learned
counsel for the petitioner drew the attention of this Court to Section 41
(2) of the Act of 1956 which stipulates that for calling for a meeting for
election of Chairperson, such meeting has to be called within 45 days of
the occurrence of the vacancy. He submitted that there was no notice
whatsoever issued and the same would be apparent from the perusal of
the materials on record. The learned counsel for the petitioner submitted
that the said meeting which was held at 2:30 PM on 29.05.2024 was
nothing but an afterthought and as such is to be rendered as nonest.
15. This Court before deciding the respective contentions found it
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relevant to make a query upon Mr. R. P. Sarma, the learned senior counsel
appearing on behalf of the private respondents as to whether the meeting
dated 29.05.2024 at 2:30 PM was preceded by any notice or whether
there was any agenda for appointment of a Chairperson by issuing any
notice. The learned senior counsel for the private respondents fairly on
instructions submitted that the meeting which was held on 29.05.2024 at
2:30 PM was neither preceded by any notice nor there was any agenda for
appointment of a fresh Chairman.
16. In the backdrop of the above, the following points for determination
arise for consideration:-
(i) Whether the impugned minutes of the Special Board Meeting held
on 29.05.2024 at 10.30 AM requires any interference?
(ii) Whether the minutes of the Special Board Meeting held on
29.05.2024 at 2:30 PM requires any interference is nonest and void
ab initio calling for interference?
(iii) What relief/reliefs the parties herein would entitle to?
17. The first point for determination which has been formulated herein
above is in respect to the minutes of the Special Board Meeting which was
held on 29.05.2024 at 10:30 AM. It is seen that on 06.05.2024, the
private respondents who were 7 in numbers had made a requisition to the
petitioner for calling for a meeting to discuss the No Confidence of the
Silapathar Municipal Board. The petitioner herein though convened the
meeting on 24.05.2024 at 11:00 AM as would be seen from the records,
but subsequently on the instructions issued by the Executive Officer, the
same was cancelled. The question arises as to whether the petitioner on
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the instruction of the Executive Officer could have cancelled a statutory
meeting. The reason assigned by the petitioner is two folds. First, that
there was a direction issued by the Executive Officer of Silapathar
Municipal Board and the second that there was the Model Code of
Conduct was operational till 04.06.2024.
18. This Court has duly taken note of the provisions of the Act of 1956
which have been amended vide the amendment carried out by the Assam
Municipal (Amendment Act), 2024 which came into effect from
14.03.2024. A conjoint reading of the Act of 1956 as well as the
amendment so carried out, nowhere shows that the Executive Officer has
the authority to intermeddle with the proceedings for removal of the
Chairman or the Vice-Chairman in question. In this regard, this Court finds
it very relevant to take note of the observations so made by the
Coordinate Bench of this Court in its judgment dated 29.04.2024 passed in
WP(C) No.168/2024. Paragraph Nos.11 & 12 of the said judgment being
relevant, are reproduced herein under:-
"11. The learned senior counsel for the petitioners contend that in view of the
provisions of Section 296 of the Assam Municipal Act, 1956 the District
Commissioner has the supervisory power over the Municipal Board constituted
under the Assam Municipal Act, 1956 and therefore, the said authority had the
sanction of law for issuing letters to the Chairperson and Vice-Chairperson of
the Silapathar Municipal Board to hold Special Board Meeting for no-confidence
motion. We are unable to accept the said submission in view of the provisions
of Section 296 of the Assam Municipal Act, which does not grant any power to
the District Commissioner to issue directions to either the Chairperson or the
Vice Chairperson to hold the meeting to discuss the no-confidence motion
against the Chairperson or Vice-Chairperson. The provision for removal of
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Chairperson and Vice-Chairperson is contained in Section 28 has been quoted
hereinbefore. It is been stated at the Bar by the learned counsel for all sides
that vide Assam Municipal (Amendment) Act, 2011, the words "not less"
appearing in subsection (2) of Section 28 has been deleted and substituted by
the word "more".
12. From the scheme of sub-section (2) of Section 43 of the Assam Municipal
Act, 1956, the Chairperson and in his/ her absence, the Vice Chairperson is
required to call for Special Meeting. As per Section 28(2), the removal of the
Chairperson/Vice-Chairperson is to be through a specially convened meeting.
Therefore, as per the Assam Municipal Act, 1956, such a meeting is only
required to be called on a requisition made by not less than three Ward
Commissioners. The learned senior counsel for the petitioners and the learned
counsel for the appearing respondents could not show any provision in the
Assam Municipal Act, 1956 which empowers a District Commissioner of any
District to entertain any application made by any Ward Commissioners in
respect of removal of Chairperson or Vice-Chairperson. Therefore, the District
Commissioner shall also not have any power even to make a request to the
Chairperson or Vice-Chairperson to convene a Special Meeting for the removal
of Chairperson or Vice-Chairperson."
19. From a perusal of the observations so made by the Coordinate
Bench of this Court, it is apparent that the District Administration has no
power to interfere with the proceedings for removal of a Chairperson of
Vice-Chairperson. The same analogy duly applies also to the case of the
Executive Officer in as much as the provisions of the Act of 1956 as
amended upto date also do not show that the Executive Officer of the
Municipal Board had any control over the removal of the Chairperson or
the Vice-Chairperson or holding of such meeting.
20. The next point which arises therefore is as to whether the Model
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Code of Conduct which was operating till 04.06.2024 acted as a bar to
hold the Special Body Meeting. Mr. R. P. Sarma, the learned senior counsel
referring to the judgment of the Coordinate Bench of this Court in the
case of Himangshu Roy (supra) and placed reliance to paragraph No.8 of
the said judgment. The learned senior counsel for the private respondents
further submitted that the said judgment passed by the Coordinate Bench
of this Court was also upheld by the Division Bench of this Court in its
judgment and order dated 30.09.2019 in WA No.182/2019.
21. This Court has perused the instruction issued by the Election
Commission of India dated 02.01.2024 on which reliance was placed by
the learned counsel for the petitioner and more particularly to Clause (vii)
of the said instructions. It is seen that the Coordinate Bench of this Court
had also taken a parimateria instructions which was issued on 05.04.2011
and held that a meeting to discuss the No Confidence against the
Chairman is not prohibited during the Model Code of Conduct was in force.
Paragraph No.8 of the said judgment passed by the Coordinate Bench in
the case of Himangshu Roy (supra) is reproduced herein under:-
"8. Let us now deal with the objections raised by the petitioner, first one
being holding of special meeting when model code of conduct was in force;
second, as noted in the order dated 03.05.2019 i.e., non presence of the
officials; and the third one raised in the course of the hearing i.e., voting.
Regarding holding of special meeting to discuss no confidence motion when the
model code of conduct was in force, Election Commission of India vide its letter
dated 05.04.2011 had clarified that there would be no objection on its part to
the holding of statutory meetings by municipalities and panchayats during the
period when model code of conduct is in force subject to the condition that no
policy decision should be taken and announced in such meeting. Calling of the
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special meeting is provided under the statute. It was a meeting to discuss no
confidence motion against the Chairman. Question of discussing any policy did
not arise. Therefore, such meeting was not prohibited during the period when
the model code of conduct was in force as clarified by the Election Commission
itself. Coming to the second ground of assailment, it is seen that calling for
special meeting is provided under Sub-sections (2) and (3) of Section 43.
Manner of removal of Chairman and Vice Chairman is provided in Sub-section
(2) of Section 28. In none of these provisions there is any requirement that the
Deputy Commissioner or his representative and the Chief Executive Officer
should be present. This special meeting is only for the purpose of deciding no
confidence against the Chairman. Only the elected Ward Commissioners and ex-
officio members are eligible to participate in such meeting. Therefore, question
of the Deputy Commissioner or Chief Executive Officer remaining present in
such meeting does not arise."
22. In view of the above law as settled by the Coordinate Bench of this
Court which has been upheld by the Division Bench, it is clear that the
Model Code of Conduct would not come into play for deferring/cancelling
of the meeting which was requisitioned. The entire edifice of the direction
of the Executive Officer was also on the basis of the Model Code of
Conduct. The affidavit which has been filed by the respondent No.3 is also
on the Model Code of Conduct. Therefore, the justification for not holding
the meeting by the petitioner on the basis of the Model Code of Conduct
was misconceived and was not at all tenable. The consequential effect of
the above observations and findings is that the meeting which was held
on 29.05.2024 at 10:30 AM cannot be said that it was in consonance with
the Act of 1956. Moreover, nothing else was shown during the course of
hearing which would render the Special Body Meeting held on 29.05.2024
at 10:30 Am liable for interference. Under such circumstances, the first
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point for determination is decided thereby holding that the impugned
Special Board Meeting held on 29.05.2024 at 10:30 AM does not require
any interference.
23. The second point for determination arises as to whether the Special
Board Meeting held on 29.05.2024 at 2:30 PM requires any interference. It
is seen from the reading of Section 41 (2) of the Act of 1956 that upon
the removal of the Chairman, the Vice-Chairman is required to call for a
meeting to complete the election within 45 days of the occurrence of the
vacancy. For calling for a meeting, it is the requirement that notice has to
be issued. Admittedly, there was no notice issued. Even a perusal of the
minutes of the Special Board Meeting held on 29.05.2024 at 10:30 AM
also not show that there was a deferment of the said meeting to discuss
as regards the election of the Chairperson. There was also no agenda for
doing so. It is seen that the second meeting which was held on
29.05.2024 at 2:30 PM is completely contrary to Section 41 (2) of the Act
of 1956 seems to be an afterthought which renders this Court to opine
that the Special Body Meeting held on 29.05.2024 at 2:30 PM is nonest
and void ab initia.
24. This leads this Court to the third point for determination as to what
relief/reliefs the parties herein would be entitled to. Taking into account
that this Court has not interfered with the minutes of the meeting held on
29.05.2024 at 2:30 PM, the removal of the petitioner from the post of
Chairperson of the Silapathar Municipal Board is not interfered with.
Secondly, in view of holding that the Special Body Meeting dated
29.05.2024 at 2:30 PM was nonest and void ab initio, the appointment of
Shri Jitendra Kutum as Chairperson of Silapathar Municipal Board is
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interfered with.
25. It is seen that the Vice-Chairperson is required to fill up the vacancy
of the Chairperson in accordance with Section 41 (2) of the Act of 1956.
The same is required to be done within a period of 45 days from the date
on which the vacancy has arisen.
26. This Court has also taken note of that the vacancy arose on
29.05.2024 and more than 45 days had passed. However, in view of the
interim order passed, the said resolution dated 29.05.2024 at 10: 30 AM
was not to effect. Be that as it may, the Silapathar Municipal Board was
not functioning with a full fledged proper Chairperson all this while in view
of the stipulation contained in the interim order dated 21.05.2024. Under
such circumstances, though it is the mandate of Section 41 (2) of the Act
of 1956 for filling up the vacancies within 45 days, this Court directs the
Vice-Chairperson of the Silapathar Municipal Board to fill up the vacancy
by calling for a meeting on or before 21.08.2024.
27. This Court further observes that during this period, in terms with
Section 39 of the Act of 1956, the Vice-Chairperson would be in a position
to exercise the power of the Chairperson. However, as there are various
disputes, this Court for the ends of justice observes that though the Vice-
Chairperson will be performing the function of the Chairperson, but the
same being temporary, no major decision should be taken which would
have any impact on the policy as well as the finance of the Silapathar
Municipal Board.
28. It is made clear that the non-interference to the minutes of the
meeting dated 29.05.2024 at 10:30 AM by this Court would not act as a
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bar for the petitioner to contest in the election to the Chairperson of the
Silapathar Municipal Board.
29. In view of the above observations and directions, the instant writ
petition stands disposed of.
JUDGE
Comparing Assistant
