High Court
Case Details
WP(C) 3437/2012 PRESENT HON’BLE MR JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (CAV) By way of this petition under Article 226 of the Constitution of India, petitioner seeks quashing of resolution dated 21.7.2010 passed by the Rah a Town Committee removing her from the office of Chairperson and order dated 5. 8.2010 passed by the Under Secretary to the Government of Assam, Urban Developme nt Department revoking order dated 31.7.2010 whereby the aforesaid resolution of the Raha Town Committee was suspended. Petitioner further seeks a direction to the Raha Town Committee to call and allow her to participate in each and every meeting of Raha Town Committee.
Legal Reasoning
2. Facts of the case may be briefly noted. 3. Petitioner is an active member of Indian National Congress Party. She c ontested the election to Raha Town Committee from Ward No.5, which was exclusi vely reserved for Scheduled Caste(SC) (Women). Result was declared on 4.8.2009. Petitioner was declared elected.
Legal Reasoning
4. In all, there are 7 elected Commissioners of Raha Town Committee. In add ition, there are 2 ex- officio members. Petitioner was elected as Chairperson of Raha Town Committee on 14.9.2009 and respondent No.6 Sri Manjyoti Bora was ele cted as Vice-Chairman. Respondent Nos. 7 to 10 are the elected Ward Commission ers of Raha Town Committee. 5. Some of the Ward Commissioners including the Vice-Chairman refused t o extend help and cooperation to the petitioner. As a matter of fact, responden t Nos. 6 to 9 did not attend 5 consecutive meetings of the Raha Town Committee. This fact was brought to the notice of the Secretary to the Government of Assam , Municipal Administration Department by the petitioner vide letter dated 9.7.2 010. Deputy Secretary to the Government of Assam, Urban Development Department v ide his W.T. message dated 19.7.2010 informed the Ward Commissioners that as t hey remained absent in 5 consecutive meetings of the Raha Town Committee, they w ere liable to be removed from their Commissioner-ships under Section 29(2)( c) o f the Assam Municipal Act, 1956 (Act). They were directed to appear before the P rincipal Secretary of the Urban Development Department and to explain as to why their Commissionerships of Raha Town Committee should not be terminated. The sai d W.T. message was duly served on the said respondents on 21.7.2010. 6. However, a resolution was passed on 21.7.2010 under Section 28(2) o f the Act at a special meeting of the Raha Town Committee convened under Section 43(3) of the Act. By the said resolution, petitioner was removed from the offic e of Chairperson of Raha Town Committee. In the subsequent meeting held on 22.7. 2010, respondent No.6 was elected as Chairman of the Raha Town Committee in plac e of the petitioner. 7. Petitioner submitted representation before the Secretary to the Gov ernment of Assam, Municipal Administration Department seeking intervention of t he said authority against the alleged illegal usurpation of authority of Raha To wn Committee by the Vice-Chairman and the Ward Commissioners. 8. Under Secretary to the Government of Assam, Urban Development Department issued order dated 31.7.2010 under Section 296 of the Act suspending the resolu tion of the Raha Town Committee dated 21.7.2010. Raha Town Committee was asked t o explain as to why its resolution dated 21.7.2010 should not be annulled. 9. It appears that Chairman of the Raha Town Committee submitted explanat ion pursuant to said order dated 31.7.2010. Thereafter, order dated 5.8.2010 wa s passed by the Under Secretary to the Government of Assam, Urban Development D epartment, revoking the suspension order dated 31.7.2010. 10. Aggrieved, petitioner has filed the present writ petition questioning t he legality and validity of the resolution of the Raha Town Committee dated 21. 7.2010 and the Government decision dated 5.8.2010. Additionally, she has complai ned that after her removal from Chairmanship, she has neither been invited nor a llowed to participate in the meetings of Raha Town Committee and seeks a direct ion in this regard. 11. Though the State respondents have not filed affidavit, learned Gover nment Advocate has produced the relevant record. 12. Respondent Nos.5 to 10, who are the Raha Town Committee, Chairman a nd Ward Commissioners, have filed a common affidavit. At the out set, they hav e alleged suppression of material facts by the petitioner. It is stated that on e Smti. Tilu Das had filed Election Petition No.3/2009 before the District Judge , Nagaon challenging the process of election of Ward Commissioner of Ward No.5 o f Raha Town Committee from where petitioner was elected. By order dated 8.6.2012 , learned District Judge allowed the Election Petition and passed order for rec ounting of ballot papers. Against this order, petitioner had filed Civil Revisio n No.295/2012 before this Court, which is pending for disposal. Filing and pende ncy of this petition has not been disclosed by the petitioner in the present wr it petition. Moreover, an enquiry was conducted by the Municipal Administration Department, Government of Assam into the affairs of the Raha Town Committee. As per enquiry report, allegation of the petitioner that she was not allowed to att end meetings of the Raha Town Committee was found to be not correct. 13. Heard Mr. K.P.Sarma, learned senior counsel for the petitioner and Ms .B.Dutta, learned Govt. Advocate, Assam, who has produced the record. Also hear d Mr. N.Dutta, learned senior counsel assisted by Ms. B. Bhuyan, learned counsel for Raha Town Committee and the Ward Commissioners. 14. Mr.Sarma, learned senior counsel has argued that when the Ward Comm issioners were put on notice by the Government as to why they should not be remo ved from their Commissionerships on the ground of absenting themselves without any excuse from 4 consecutive meetings of the Town Committee, it was highly imp roper on their part to have convened and hold the meeting of the Raha Town Commi ttee on 21.7.2010 and adopting resolution therein removing the petitioner from t he office of Chairperson. Their participation had vitiated the proceedings of t he meeting held on 21.7.2010 wherein the No Confidence Motion against the peti tioner was adopted, which should, therefore, be declared as null and void. When the petitioner informed the Government about the aforesaid illegal action of th e private respondents, the State Government rightly suspended the resolution of the Raha Town Committee dated 21.7.2010. However, without issuing notice to the petitioner or without giving any opportunity of hearing to the petitioner, impu gned order dated 5.8.2010 was passed revoking suspension of the resolution da ted 21.7.2010 . Impugned decision dated 5.8.2010 is not informed of any reason and was passed in a most whimsical manner. Moreover, such action, Mr. Sarma cont ends, has to be fair, just and reasonable, conforming to the requirements of nat ural justice. Impugned order dated 5.8.2010 is, therefore, liable to be set asi de and quashed. 15. Ms. Dutta, learned Government Advocate on the other hand submits t hat since the petitioner has lost confidence of the majority of the Ward Commiss ioners, she cannot continue in office by taking resort to litigation. Similar is the view expressed by Mr. N.Dutta, learned senior counsel and Ms.B.Bhuyan, lear ned counsel for the private respondents, who submitted that since petitioner no longer enjoys the confidence of the Ward Commissioners, she cannot continue as t he Chairperson by taking recourse to technicalities. Additionally, they have c ontended that petitioner has not approached this Court with clean hands as she h as suppressed the fact of filing of the revision petition by her in the present proceeding. Writ petition should therefore be dismissed, they submit. 16. Submissions made have been considered. 17. Before proceeding further, it may be necessary to briefly notice the relevant provisions of the Act. 18. Section 28 deals with removal of Chairman and Vice-Chairman.As per sub- section(2), an elected Chairman or Vice Chairman may be removed from his office by a resolution of the Municipal Board in favour of which not less than half of the whole number of Commissioners shall have given their votes at a meeting sp ecially convened for the purpose. Section 29 deals with removal of Commissioners . Under sub-section 2( c ), the State Government may remove any Commissioner i f he absents himself from 4 consecutive meetings of the Municipal Board without any sufficient excuse. Under Section 43(2), the Chairman, or in his absence, th e 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. As pe r sub -section (3), if the Chairman or the Vice-Chairman fails to call the s pecial meeting to meet within twenty days after any such requisition has been m ade, the meeting may be called by the persons who signed the requisition. 19. Having noticed the relevant legal provisions as briefly outlined above, we may now refer to the facts of the case. 20. Admittedly, there are 7 elected Commissioners and 2 ex-officio Co mmissioners in Raha Town Committee. On allegation by the petitioner that 3 of t he elected Commissioners were absent in 5 consecutive meetings of the Town Commi ttee, they were show caused by the Government to explain why action under Secti on 29(2)( c ) of the Act should not be taken against them. At that stage, a spec ial meeting of the Raha Town Committee was held on 21.7.2010 to discuss No Confi dence Motion against the Chairman i.e., the petitioner. From the proceedings of the meeting held on 21.7.2010, it appears that notice was given to the petition er on 29.6.2010 to call a meeting of the Town Committee under Section 43(2) of the Act. The requisition was signed by 5 Ward Commissioners. Petitioner failed to convene the meeting within twenty days after receipt of the requisition. Acc ordingly, special meeting was held on 21.7.2010 at the instance of the requisiti onists. In the said meeting, out of 7 elected Commissioners, barring the petit ioner, all the others were present. They adopted resolution under Section 28(2) of the Act removing the petitioner from the office of Chairperson. 21. A perusal of the WT message dated 19.7.2010 would show that notice was given to 3 Ward Commissioners for having remained absent in 5 consecutive m eetings of the Town Committee to explain as to why their Commissionerships shoul d not be cancelled. While the Government was examining the viability of initiati ng action under Section 29(2 )( c) of the Act, the 3 Ward Commissioners, in turn , alongwith other Ward Commissioners had send notice to the petitioner to hold s pecial meeting expressing No Confidence Motion in her. As a matter of fact, the aforesaid requisition was sent earlier to the WT message on 29.6.2010. There wa s no bar or restriction imposed on the 3 Ward Commissioners prohibiting them fro m functioning as Ward Commissioners. If that be so, there was thus no impediment on the said Ward Commissioners to hold requisition meeting under Section 43(3) of the Act after the petitioner failed to call the special meeting on the requis ition made within twenty days. As is evident, in the special meeting held on 21.7.2010, out of 7 elected Ward Commissioners and a total of 9 Ward Commissione rs, 6 had attended and all of them had expressed their no confidence in the pet itioner functioning as Chairperson. 22. It requires no re-statement that a Chairman of a Town Committee or M unicipal Board or for that matter an elected functionary of any democratically elected body can remain in office till such time he enjoys the confidence of the majority. Once majority support is lost, he cannot hold on to his office. In the present case, petitioner had clearly lost the confidence of the majority. Moreover, the procedure prescribed under the statute has been followed while adopting the resolution of No Confidence Motion against the petitioner. 23. Coming to the other impugned order dated 5.8.2010, it is seen that initially, the Government in the Urban Development Department had issued order d ated 31.7.2010 suspending the resolution of the Raha Town Committee dated 21.7.2 010. The said order was passed under Section 296 of the Act on the ground that t he Ward Commissioners who were show caused for remaining absent in 5 consecutive meetings of the Town Committee were present and participated in the special mee ting held on 21.7.2010 wherein resolution of No Confidence Motion against the pe titioner was adopted. Subsequently, another order was passed on 5.8.2010 whereby the Government in the Urban Development Department accepted explanation furnish ed by the Ward Commissioners for their absence in the meetings of the Raha Town Committee. Thereafter the impugned order dated 5.8.2010 was passed revoking the suspension order. 24. A perusal of Section 296 of the Act would show that the State Gover nment, Commissioner of Division, Deputy Commissioner, Director of Municipal Admi nistration, Additional Deputy Commissioner or Sub Divisional Officer may by orde r in writing suspend the execution of any resolution or order of the Municipal B oard or prohibit doing of any act if in its opinion, such resolution, order or a ct militates against the fundamental rights conferred by the Constitution or the Directive Principles of State Policy, is in excess of the power conferred by law or the execution of the resolution or order or doing of the act is likely to lead to a serious breach of peace or to cause serious injury or annoyance to the public or to any class or body or person. It is, thus, clear that the powe r under Section 296 of the Act has to be exercised sparingly for the reasons men tioned in the section itself and not for any other purpose. Before exercising th e power under Section 296 of the Act, the competent authority must be of the opi nion and must satisfy itself that action of the Municipal Board or the Town Com mittee violated the fundamental rights or the Directive Principles of State Pol icy or is in excess of power or the same is likely to result in breach of peac e or injury to the public. 25. Upon consideration of the explanation furnished by the elected W ard Commissioners, the State Government was satisfied that the said Ward Commiss ioners were absent from 4 consecutive meetings of the Town Committee because of sufficient excuse. This is a matter between the State Government and the affecte d Ward Commissioners. Petitioner cannot claim as a matter of right that she sho uld be heard before any decision is taken by the State Government not to invoke the provisions of Section 29(2) ( c ) of the Act. Contention of the petitioner that impugned order dated 5.8.2010 was in violation of the principles of natura l justice and fair play cannot therefore be accepted. Had the elected Ward Comm issioners been adversely affected by any order passed by the State Government un der the aforesaid provision, certainly such decision would be examined on the t ouch-stone of Article 14 of the Constitution of India but not at the instance of the petitioner. Challenge to the order dated 5.8.2010 therefore fails and is a s such rejected. 26. For the aforesaid reasons, this Court finds no merit in the writ p etition, which is accordingly dismissed. No cost.