Gauhati High Court
Page No.# 1/7 vs The State Of Assam And Ors Rep. By The ... on 10 March, 2025
Page No.# 1/7
GAHC010039382025
2025:GAU-AS:2496-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/76/2025
RUPA DUTTA SAIKIA
W/O- KUSHEWAR SAIKIA, R/O- VILLAGE- TANTI GAON, P.O- TITABOR ,
WARD NO-1 (PURANA TITABOR), DIST- JORHAT, PIN-785630
VERSUS
1: THE STATE OF ASSAM AND ORS REP. BY THE SECRETARY TO THE
GOVERNMENT OF ASSAM, URBAN DEVELOPMENT DEPARTMENT
DISPUR, GUWAHATI - 781006.
2:THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF ASSAM
URBAN DEVELOPMENT DEPARTMENT DISPUR GUWAHATI - 781006.
3:THE DIRECTOR MUNICIPAL ADMINISTRATION
ASSAM DISPUR GUWAHATI- 06.
4:THE DISTRICT COMMISSIONER DISTRICT- JORHAT ASSAM.
5:THE SUB DIVISIONAL OFFICER (C) TITABOR DISTRICT- JORHAT ASSAM.
6:THE TITABOR MUNICIPAL BOARD DISTRICT- JORHAT ASSAM.
7:THE EXECUTIVE OFFICER THE TITABOR MUNICIPAL BOARD
JORHAT ASSAM
8:RASHMI BHATTACHARYA KAKOTI
W/O- BICHITRA PRAN KAKOTI R/O- WARD NO-4 TITABOR TOWN
P.O AND P.S- TITABOR JORHAT ASSAM PIN-78563
For the Appellant(s) : Mr. P. Mahanta, Advocate.
Mr. B. Buragohain, Advocate.
Ms. V. Khakhlary, Advocate.
For the Respondent(s) : Mr. D.K. Sarmah, Additional Senior Govt. Advocate, Assam for
respondent Nos.1 to 5.
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-B E F O R E -
HON'BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
10.03.2025
(Vijay Bishnoi, CJ)
This writ appeal is preferred by the appellant being aggrieved with the
judgment & order dated 23.01.2025 passed by the learned Single Judge in
WP(C) No.6567/2024, whereby the writ petition filed by the appellant has been
dismissed.
The brief facts of the case are that the appellant was holding the post
of Chairperson of the Titabor Municipal Board. However, at the instance of the
Ward Commissioners of the Titabor Municipal Board, she was removed from the
post of Chairperson on 25.07.2024 vide a no confidence motion passed against
her in accordance with the provisions of the Assam Municipal Act, 1956.
After removal of the appellant from the post of Chairperson of the
Titabor Municipal Board, the Ward Commissioners again called for a meeting on
25.07.2024 and elected the respondent No.8 as Chairperson of the Titabor
Municipal Board.
The appellant, being aggrieved with the resolution dated 25.07.2024,
whereby she has been removed from the post of Chairperson, and the election
of the respondent No.8 as new Chairperson, preferred WP(C) No.3891/2024.
The said writ petition came to be disposed of by the Writ Court vide order dated
05.08.2024 without interfering with the removal of the appellant from the post
of Chairperson of the Titabor Municipal Board.
Against the order passed by the Writ Court dated 05.08.2024
dismissing the WP(C) No.3891/2024, a writ appeal, being Writ Appeal
No.295/2024, was preferred by the appellant. However, the said writ appeal was
also dismissed by the Division Bench of this Court vide order dated 12.09.2024.
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The appellant again preferred WP(C) No.4754/2024 challenging the
election of the respondent No.8 as Chairperson of the Titabor Municipal Board.
However, that writ petition also came to be dismissed by the learned Single
Judge vide order dated 21.11.2024 treating the same as infructuous in view of
the subsequent events.
The subsequent events, on the basis of which the learned Single Judge
has dismissed the writ petition, were that after the election of the respondent
No.8 as Chairperson of the Titabor Municipal Board on 25.07.2024, she resigned
from the said post on 21.10.2024 and thereafter the Vice-Chairperson of the
Titabor Municipal Board called for a meeting on 25.10.2024 vide notice dated
22.10.2024 for electing a new Chairperson. In the meeting dated 25.10.2024,
the respondent No.8 was again elected as Chairperson of the Titabor Municipal
Board.
The appellant has thereafter preferred WP(C) No.6567/2024, which
came to be dismissed by the impugned judgment & order dated 23.01.2025,
which is under challenge in this writ appeal. The learned Single Judge, after
hearing the parties concerned, has recorded the following findings:-
"14. It is in the above facts and circumstances, this writ petition has
been preferred with the prayers, mentioned above.
15. I have heard Mr. P.K. Gogoi, learned counsel for the petitioner; Ms.
S. Konwar, learned Junior Government Advocate, Assam for the respondent
nos. 1, 2, 3, 4 & 5; and Mr. J.K. Goswami, learned counsel for the
respondent nos. 6, 7 & 8.
16. Though Mr. Gogoi, learned counsel for the petitioner has made
submissions about the validity or otherwise of the Resolution adopted on
25.07.2024, in the first of two meetings of the Municipal Board regarding
removal of the petitioner from the post of Chairperson of Titabor Municipal
Board, it is found that the said issue is not open for any further
consideration. It has already been found from the discussion above that the
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petitioner had earlier challenged the Resolution taken on the motion of no
confidence on 25.07.2024 in a writ petition, W.P.[C] no. 3891/2024. The
Court, in its Order dated 05.08.2024, did not find any infirmity in the said
Resolution adopted on 25.07.2024 whereby the petitioner was removed
from the post of Chairperson of Titabor Municipal Board. The Order dated
05.08.2024 was challenged by the petitioner as a writ appellant in the intra-
court appeal, Writ Appeal no. 295/2024. The Division Bench had also
dismissed the intra-court appeal by an Order dated 02.09.2024 finding no
case for interference and dismissed the writ appeal. In such backdrop, it is
not open for the petitioner to make a challenge again to the Resolution
adopted on 25.07.2024 in the meeting of Titabor Municipal Board on the
motion of no confidence whereby the petitioner was removed from the post
of Chairperson of Titabor Municipal Board. It is pertinent to mention that in
the said meeting held on 25.07.2024, eight Ward Commissioners expressed
no confidence on the petitioner and decided against continuance of the
petitioner as a Chairperson of Titabor Municipal Board.
17. As per sub-section [2] of Section 28 of the Act, 1956, an elected
Chairperson can be removed from his office by a resolution of the Board in
favour of which more than half of the whole number of Commissioners give
their votes at a meeting specially convened for the purpose. The Titapur
Municipal Board, at the relevant time, had ten Ward Commissioners and out
of them, eight had voted in favour of the motion of no confidence against the
petitioner. There is no merit in the contention advanced on behalf of the
petitioner that there has to be an approval of the Government to the
Resolution adopted regarding removal of the Chairperson of a Municipal
Board. On a close reading of the provision in sub-section [2] of Section 28 of
the Act, 1956, it is discernible that a Chairperson stands removed from his
office as soon as a Resolution is passed by more than half of the whole
number of commissioners in favour of the motion of no confidence against
the Chairperson in a meeting of the Board specially convened for the
purpose. There is no statutory requirement of Government approval to such
a resolution.
18. Mr. Gogoi, learned counsel for the petitioner has further submitted
that in case of filling up of a vacancy in the office of the Chairperson of a
Municipal Board, there has to be approval of the Government.
19. Section 41 of the Act, 1956 contains the provisions for filling up of
casual vacancies of Chairperson and Vice-Chairperson of a Municipal
Board. As per sub-section [1] of Section 41, if any Chairperson or Vice-
Chairperson of a Board is unable to complete his full term of office or avails
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himself of leave granted under Section 40, the vacancy caused by his
resignation, removal, death or absence on leave shall be filled up by election
and the person to be elected shall fill such vacancy for the unexpired portion
of the term for which such Chairperson or as the case may be, Vice-
Chairperson would otherwise have continued in office, provided that no
person appointed under sub-section [2] of Section 11 shall be elected as the
Chairperson or Vice-Chairperson.
20. In case of removal of a Chairperson of a Board, the vacancy
resulting from such removal, is to be filled up by election and the person
elected to the office of the Chairperson can continue in the unexpired portion
of a term for which the removed Chairperson would otherwise have
continued in his office.
21. As per sub-section [2] of Section 41 of the Act, 1956, in case of
vacancy in the office of the Chairperson, the Vice-Chairperson has to call a
meeting so as to complete the election within forty-five days of the
occurrence of the vacancy. It has further provided that if the Vice-
Chairperson fails to call the meeting, the Deputy Commissioner or the Sub-
Divisional Officer, as the case may be, shall call the meeting. It is provided
in sub-section [3] of Section 41 to the effect that in case such a meeting for
election of a Chairperson, the ViceChairperson shall preside over the
meeting unless he is himself a candidate for election as Chairpeson or in
case he cannot preside over the meeting for other reasons, he has to
intimate the Deputy Commissioner or the Sub-Divisional Officer, as the case
may be, in writing about his inability to preside over the meeting.
22. The respondent no. 8 was earlier elected as the Chairperson of
Titabor Municipal Board in the second of the two meetings of the Board held
on 25.07.2024. In a meeting held subsequently on 21.10.2024, the
respondent no. 8 resigned as the Chairperson of Titabor Municipal Board
and a Resolution to that effect was also adopted in the same meeting that
the election of the respondent no. 8 as Chairperson on 25.07.2024 should be
treated as null and void. It was thereafter, the Vice-Chairperson of the
respondent Municipal Board issued a notice on 22.10.2024 calling for a
meeting on 25.10.2024 for election of a new Chairperson of the Municipal
Board.
23. From the minutes of meeting of the Municipal Board held on
25.10.2024, it is noticed that the said meeting was presided over by the
Vice-Chairperson of the Municipal Board and eight nos. of Ward
Commissioners were present in the said meeting. The petitioner in the writ
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petition has herself admitted that a notice dated 22.10.2024 was issued
under the hand of the Vice-Chairperson of the Municipal Board to all the
Ward Commissioners informing them that a meeting had been called on
25.10.2024 for election of a new Chairperson of the Board. The petitioner
did not attend the said meeting held on 25.10.2024. It is not the case of the
petitioner that the petitioner was not served with a Notice dated 22.10.2024,
meaning thereby, it was the petitioner who had chosen not to attend the
meeting of the Municipal Board called on 25.10.2024. The respondent no. 8
was elected as a Chairperson of the Municipal Board in the second meeting
held on 25.07.2024. Such election of the respondent no. 8 as the
Chairperson of the Municipal Board was not interdicted in any manner till
the meeting of the Board held on 21.10.2024. The meeting dated
21.10.2024 was called by the respondent no. 8 in the capacity of the
Chairperson of Titabor Municipal Board. In the said meeting held on
21.10.2024 tendered her resignation from the post of Chairperson of Titabor
Municipal Board. The Board vide Resolution no. 1 adopted in the said
meeting on 21.10.2024, decided to accept the resignation tendered by the
respondent no. 8 from the post of the Chairperson of the Municipal Board,
thereby, relieving the respondent no. 8 from the post of Chairperson.
Another Resolution was discussed in the said meeting to hold another
meeting of the Board to elect the Chairperson of the Municipal Board after
three days.
24. It is already found that the petitioner had challenged the
resolution adopted on 25.07.2024 in the second of two meetings on that day
in the writ petition, W.P.[C] no. 4754/2024 and the said writ petition, W.P.
[C] no. 4754/2024 was disposed of on 21.11.2024. Therefore, there cannot
be any further to the said resolution dated 25.07.2024.
25. Thereafter, on 22.10.2024, notices were issued to all the persons
who were authorized by the provisions of the Act, 1956, to attend such a
meeting and the said notice was issued under the hand of the Vice-
Chairperson of the Municipal Board. The Vice-Chairperson was not a
candidate for the post of Chairperson. By the notice, it was informed that a
special meeting would be held at 11-30 a.m. on 25.10.2024 for election of a
new Chairperson of Titabor Municipal Board. The provisions of sub-section
[2] of Section 41 requires that a meeting to elect a new Chairperson, after
removal of the previous Chairperson, is to be called within forty-five days of
the occurrence of the vacancy. In the case hand, the vacancy of the
Chairperson in the office of the Municipal Board, had occurred on and from
21.10.2024. In such view of the matter, the meeting called for and held for
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election of a new Chairperson of Titabor Municipal Board on 25.10.2024
cannot be said to have held in violation of the provisions containing sub-
section [1] of Section 41 of the Act, 1956.
26. In view of the above discussion and for the reasons assigned
therein, this Court finds no merit in the case of the petitioner. Consequently,
the writ petition is liable to be dismissed. It is accordingly, dismissed. There
shall, however, be no order as to cost."
Mr. P. Mahanta, learned counsel for the appellant has submitted that
since the election of the respondent No.8 on 25.07.2024 as Chairperson of the
Titabor Municipal Board itself was illegal, the appellant ought to have deemed to
be the elected Chairperson of the Titabor Municipal Board. However, the learned
Single Judge has not taken into consideration the said aspect in its true
perspective and has illegally dismissed the writ petition filed by the appellant.
We are unable to accept the said contention of the counsel for the
appellant because the issue of removal of the appellant from the post of
Chairperson of Titabar Municipal Board has already finally decided against the
appellant upto Division Bench of this Court, it is not open for the appellant to
raise the same issue again.
We are of the opinion that the views expressed by the learned Single
Judge in the impugned judgment are well reasoned and not liable to be
interfered with. Hence, there is no force in this writ appeal and the same is,
accordingly dismissed.
JUDGE CHIEF JUSTICE
Comparing Assistant
