Judgment · High Court · 2012

Nos. 6 and 7 as Ex-Officio Members of the Town Committee and further, the respo ndent No. 6 was yet to take oath as required under Section 25 of the Act. Yet, t he notice dated 11-11-2011 was signed, amongst others, by the respondent No.6. An affidavit-in-opposition is filed on behalf of the respondent 5. Nos. 4 to 7. In the said affidavit, the statements made in paragraphs 8 and 9 of the writ petition regarding requisition notice dated 10-10-2011 were branded a s a pack of lies. It is stated that the respondent No. 4, 5 and 6 had personall y tendered the notice dated 10-10-2011 to the petitioners and they had refused t o accept the same and thereafter, the notice was served upon the Head Assistant of the Town Committee and on receipt of the same, she had put her signature and seal on the office copy of the notice dated 10-10-2011. As the petitioner did no t call the special meeting for consideration of the No Confidence Motion, the re spondent Nos. 4,5 and 6 had issued two notices dated 11-11-2011 to the petitione rs and other members calling a requisition meeting of the Board at 11:00 A.M on 14-11-2011 in the office of the Town Committee to transact agenda, amongst othe rs, relating to consideration of the No Confidence Motion against the Chairman a nd Vice-Chairman of the Town Committee. The said notice dated 11-11-2011 was rec eived by the petitioners personally by putting their signature and seal. On 14-1 1-2011, a meeting was held in the office of the Town Committee. While asserting that a no-confidence resolution was adopted against the petitioners in the speci al meeting held on 14-11-2011, it is denied that the said meeting was held in th e residence of respondent No.6 and that resolution was adopted expressing No Con fidence Motion against the petitioners on the basis of the earlier requisition n otice dated 25-07-2011. The letter dated 15-11-2011 issued by the respondent No. 5 was sent to the present petitioners by Regd. Post with A/D as well as by Spee d Post and on inquiry with the Post Office, it was learnt that letters were duly served upon the addressees. It is also pleaded that respondent Nos. 4 and 5 had attempted to serve a copy of the resolution dated 14-11-2011 but as the petitio ners had refused to accept the copy of the resolution, through the intervention of the Deputy Commissioner, Sonitpur, the letter dated 15-11-2011 and the proce eding of the meeting dated 14-11-2011 were served through Rangapara Police Stat ion upon the petitioners on 16-11-2011. They, however, put the date as 16-12-20 11 and the petitioner No. 2 had done so through over writing after changing the figure ’11’ to ’12’. The Assistant Police Inspector who served the letters, subm itted a report to the Officer-in-Charge of the Rangapara Police Station stating that letters were served on 16-11-2011. It is also stated that the allegation of the respondent No. 6 not taking oath is a false statement inasmuch he had take n oath on 02-07-2011 and the proceeding bears the signature and seal of the pet itioner No.1. 6. An affidavit-in-reply is filed by the petitioner to the affidavi t-in-opposition filed by the respondent Nos. 4,5,6 and 7. In the said affidavit, it is reaffirmed that the notice dated 10-10-2011 was never served on the petit ioners either personally or in any other manner. The service of notice upon the Head Assistant is proclaimed as hardly believable as the same was not recorded in the Office Receipt Register. It is reiterated that the meeting dated 14-11 -2011 was held in the residence of respondent No.6 and it is stated that there w as a local ’Bandh’ on 14-11-2011 and no one turned up in the office of the Town Committee. The allegation of the petitioners refusing to accept the copy of the resolution dated 14-11-2011 is also denied. However, writing of the date as 16- 12-2011 is admitted and is sought to be explained by saying that it was due to inadvertence and not intended. It is stated that the respondent No.6 had not ta ken oath in the manner prescribed. 7. Heard Mr. D.K. Misra, learned senior counsel for the petitioner s. Also heard Mr. S.P.Roy, learned counsel for the respondent Nos. 4 to 8 and Mr . B.J. Ghosh, learned Government Advocate appearing for the respondent Nos. 1, 2 and 3.

#8. Mr. D.K. Misra, learned senior counsel for the petitioner, drawi ng attention of the Court to the Annexure-B letter dated 11-11-2011, submits tha t the clear and categorical stand in the said notice is that the respondent Nos. 4, 5 and 6 had served upon the petitioners the letter dated 10-10-2011 requesti ng them to call a meeting of the Board to consider the No Confidence Motion. He submits that in the writ petition, a categorical stand is taken by the petitione rs that the notice dated 10-10-2011 was not served upon the petitioners and not ice was also not received in the office of the Town Committee as per record. The learned senior counsel submits that as the respondent Nos. 4 to 6 had not even attempted to serve a copy of the notice dated 10-10-2011, now concocted the stor y of refusal by the petitioners to accept the notice and the service of notice dated 10-10-2011 upon the Head Assistant. Learned senior counsel wonders what p revented the requisitionists to bring to the notice of the petitioners letter da ted 10-10-2011 by Regd. Post with A/D or by Speed Post, when they had gone to th e extraordinary length of serving the petitioners the notice dated 15-11-2011 not only by Speed Post and Regd. Post but through the Rangapara Police Station. The learned senior counsel submits that as the notice was not admittedly served on the petitioners by the requisitionists, the notice dated 11-11-2011, resoluti on expressing No Confidence Motion against the petitioners on 14-11-2011, notice dated 15-11-2011 and the election of the respondent No.4 as the Chairman of the Town Committee on 18-11-2011 are liable to be adjudged illegal and void.

#9. Referring to Section 44 (2) (c) of the Act, without prejudice to his contention that all subsequent actions beginning from the issuance of the letter from 11-11-2011 are illegal and not sustainable in law, the notice dated 10-10-2011 having not been served upon the petitioners, it is submitted by him that Smti. M. Deka, respondent No.5, who presided over the meeting dated 14-11-2 011, was not duly elected to preside over the said meeting as enjoined by Sectio n 44 (2) (c) as the meeting was for simultaneous removal of both the Chairman a nd the Vice-Chairman of the Town Committee. He submits that there was no electio n electing the respondent No.5 to preside over the meeting as would be demonst rated by the proceeding of the meeting dated 14-11-2011 but her name was only p roposed by the respondent No.4 and seconded by the respondent No.6. As such, the entire proceeding of the meeting dated 14-11-2011 is liable to be set aside.

#10. The third ground urged by Mr. Mishra is that having regard to t he provisions of Section 33 (2), 41 (1), 41 (2), 41 (3) and 41 (4), the casual v acancies arising out of the alleged removal of the petitioners under Section 28 (2) could have been filled up only in a meeting convened by the Deputy Commissio ner or the Sub-Divisional Officer and in the instant case, meeting was convened on 18-11-2011 by a notice dated 15-11-2011 signed by the respondent No.5 as Conv ener and the same being, per se, illegal, election of the respondent No.4 as Cha irman in the said meeting dated 18-11-2011 is void and non-est in law. Mr. Mishr a relies upon the case of Surprakash Sarkar and Others -vs- State of Assam and O thers, reported in 2009 (1) GLT 297 to impress upon the Court that the provision s of the Act have to be strictly complied with for safeguarding the protection o f democratic institutions and democratically elected members. Mr. Mishra has not made any other submission including in respect of alleged inability of responde nt Nos. 6 and 7 to participate in the proceedings of No Confidence Motion on the grounds of non-issuance of a Notification to include them as Ex-Officio Members of the Town Committee or for not taking oath. Mr. S.P. Roy, learned counsel appearing for the respondent Nos. 11. 4 to 8, submits that the case of the petitioner is based on falsehood. He submi ts that the letter dated 10-10-2011 was served on the Head Assistant and she has committed mischief. He submits that if really the petitioners had not received the notice dated 10-10-2011, it would have been only logical and reasonable to e xpect some reaction from the petitioners when the letter dated 11-11-2011 was se rved. However, the petitioners did not react at all and according to him, it i s a very unusual circumstance. It is submitted by him that the writ petition is totally silent with regard to service of notice on the Head Assistant and t here is collusion between the petitioners and the Head Assistant and submits tha t the meeting was held in the office of the Town Committee on14-11-2011. 12. Mr. Roy submits that though Section 43 (2) does not provide for personal service of notice, the notice was, nevertheless, personally tendered to the petitioners, who refused to accept the same and accordingly, notice dated 10-10-2011 was served upon the Head Assistant. He relies on Order 29 and Order 5 CPC to contend that service upon the Head Assistant will amount to service up on the petitioner. He also submits that the Act having not provided for any mode of service, provision of CPC will apply. According to him, removal by way of No Confidence Motion does not result in a casual vacancy, and as such, contentions advanced on behalf of the petitioners in connection with election of respondent No.4 is ill founded. He further submits that there could not have been any occa sion for suppression of notice dated 10-10-2011 when the requisitionists had a c lear majority. Lastly, he submits that even if there is any irregularity in the proceedings of the meeting dated 14-11-2011 and 18-11-2011, such irregularity w ill not invalidate the proceedings. He relies on the following judgements : (1) Moran Mar Basselios Catholicos -vs- Thukalan Paulo Avira & Ors, reported in AIR 1959 SC 31, (2) Nilkantha Sidramappa Ningashetti -vs- Kashinath Somanna Ningashetti and Others, reported in AIR 1962 SC 666, (3) K. Narashimhiah -vs- H.C. Singri Gowda, reported in AIR 1966 SC 330, (4) Rai Vimal Krishna and Othe rs -vs- State of Bihar and Others, reported in AIR 2003 SC 2676, (5) MCD -vs- State of Delhi and Another, reported in (2005) 4 SCC 605, (6) Uttar Pradesh Re si. Emp. Co-Op. House B. Society -vs- N.O.I.D.A, reported in 2003 AIR SCW 3304, (7) Subal Rabha and Others -vs- State of Assam, reported in 2012 (2) GLT 505 (8) The Management of Maijan Tea Estate -vs- K.C. Das, reported in 1974 ALR 46, (9 ) Puran Singh and Others -vs- State of Punjab and Others, reported in AIR 1996 S C 1092, (10) Teja Singh -vs- U.T. of Chandigarh and Others, reported in AIR 198 2 P & H 169, (11) Dilip Singh -vs- State of Assam and Others, reported in (2008) 1 GLR 715, (12) AIR 2012 SCW 3017 and (13) Raees Ahmad -vs- State of Uttar P radesh and Others, reported in (2000) 1 SCC 432. In reply, it is submitted that provision of CPC is not applicabl 13. e in a proceeding of the Board in view of the Section 141 CPC. It is also conte nded that the proceeding of the meetings dated 14-11-2011 and 18-11-2011 go to the root of the matter and the irregularity committed in holding the said meetin gs invalidates the proceedings as a whole. 14. Removal of Chairman and Vice-Chairman provided in Section 28 (2) of the Act reads as follows : (cid:28) An elected Chairman or Vice-Chairman may be removed from his office by a resol ution of the Board in favour of which not less than half of the whole number of Commissioners shall have given their votes at a meeting specially convened for t he purpose. (cid:29) 15. The aforesaid provision, thus, provides that the elected Chairma n or Vice-Chairman may be removed from the office by resolution of the Board in favour of which not less half of the whole number of Commissioners shall have gi ven their votes in a meeting specially convened for the purpose. This takes us to Section 43 (2) and Section 43 (3) of the Act. Section 43 (2) and Section 43 (3) read as follows : (cid:28) 43 (2) The Chairman, or in his absence, the Vice-Chairman may call a special m eeting whenever he thinks fit and shall call one on a requisition signed by not less than three of the Commissioners. 43 (3) If the Chairman or the Vice-Chairman fails to call special meeting to m eet within twenty days after any such requisition has been made, the meeting may be called by the persons who signed the requisition. (cid:29)

#16. A perusal of Section 28 and Section 43 (2) goes to show that f or the purpose of convening a special meeting in which votes are to be given for the removal of an elected Chairman or Vice-Chairman, a requisition signed by no t less than three of the Commissioners shall have to be given and when such a re quisition is given, the Chairman shall call a special meeting. Section 43 (3) pr ovides that if a Chairman or Vice-Chairman fails to call a special meeting withi n 20 days after such requisition is made, the meeting may be called by the pers ons who signed the requisition. Noticeably, the provisions are silent with regar d to how the requisition is to be served or on whom. 17. In Rai Vimal Krishna (Supra), the Supreme Court had laid down t hat the object of giving notice is to draw the attention of the persons sought t o be affected to the matter notified. Purpose of specifying a particular mode o f giving notice is to raise a legal presumption against such person of knowledg e of the subject of the notice. 18. In Nilakantha (Supra), taking note of the difference of the lang uage in Sub-section 1 of Section 14 of the Arbitration Act, 1940 requiring the A rbitrator or Empire to give notice in writing to the parties making and signing of the award with Sub-section 2 thereof requiring the Court, after filing of th e award, to give notice to the parties of the filing of the award, the Supreme C ourt stated that giving of a notice orally is also sufficient compliance with th e requirement of Sub-section 2 of Section 14. 19. Relying upon Moran (Supra), as noted in the said judgement, subm ission was advanced by Mr. Roy that there was no incentive on the part of the de fendants to suppress the notice. The Supreme Court had laid down that in absence of any particular mode of service for a meeting in the proceeding of the consti tution of the association, the mode of service determined by the Managing Commit tee should prevail. Supreme Court also recorded that advertisement in newspaper in the said case negated the allegation of attempt of suppression of notice.

#20. In K. Narashimhiah (Supra), the question that fell for considera tion was as to whether requirement of three clear days’ notice for the holding of a general meeting as embodied in Section 27 (3) of the Mysore Town Municipali ty Act 1951 is a mandatory provision?. In the said case, a request was made to the president of Holanaksipur Municipality consisting of 20 Councilors by 13 Cou ncilors to convene a special general meeting to discuss resolution expressing no confidence against him on 25-09-1963. He having not convened the meeting, a m eeting was convened on 14-10-1963 by a notice dated 10-10-1963. The notice was s erved on three Councilors on 13-10-1963, 12-10-1963 and 11-10-1963. In the meet ing held on 14-10-1963, the President was voted out and it is in these circumsta nces the aforesaid question had fallen into consideration. The Apex Court, takin g note of Section 36 of the Act which provided that no resolution shall be deeme d invalid on account of any irregularity in the service of notice upon any Counc ilors, held that provision of notice in Section 27 (3) is only directory. 21. In Maijan Tea Estate (Supra), this Court had held that although provision of CPC in terms may not apply in full vigour to the writ proceeding, nonetheless, it would be governed by the principles analogous to those containe d in CPC so far as they are not inconsistent with the Rules made by the High Cou rt on the subject. Accordingly, it was held that an application under Order 9 Ru le 13 CPC for setting aside an ex-parte judgement in a writ petition may not be said to be not maintainable at all. In Teja Singh (Supra), a similar view was taken by the Punjab an 22. d Haryana High Court that in the matters which have not been specifically dealt with by the Writ Rules, the provisions of CPC, so far as they can be made appli cable, would apply to the proceedings under Article 226 of the Constitution. 23. In Puran Singh (Supra), the Apex Court held that after the amen dment of CPC, by the CPC Amendment Act, 1976 introducing the explanation to Se ction 141 of the Code, the procedure provided in the Code does not include a pr oceeding under Article 226 of the Constitution. The explanation of Section 141 w as construed to be more or less in the nature of a proviso. The Apex Court, howe ver, laid down that on many questions the provision and procedure prescribed un der the Code can be taken up as a guide while exercising the powers under Articl es 226 and 227 of the Constitution of India. 24. The aforesaid three cases are in connection with applicability o f the CPC to the writ proceeding and the same do not in any way advance the case of the respondents that provision of CPC will have to be made applicable with r egard to service of notice in the instant case in view of there being no provis ion for effecting service in the Act. 25. Dilip Singh (Supra), relied upon by Mr. Roy is a case where this Court was considering the meaning of expression ’given their votes’ as appearin g in Section 28 (2) of the Act, which is of no relevance in the instant case. Th e other aspect considered in the said case was as to what would be the effect if in a meeting to discuss a vote of No Confidence Motion against a person, he hi mself had presided over the meeting. This Court held that such an act may be imp roper but the same cannot have the effect of invalidating or nullifying the pro ceeding of the meeting. 26. Subal Rabha (Supra), another case relied upon by Mr. Roy, deals with a question as to whether the Ex-Officio Member of the Town Committee has r ight to issue requisition and vote in a no confidence proceeding against the Cha irman and Vice-Chairman of the Town Committee. That is not a question posed in t his petition. 27. Same is the position with the decision in Raees Ahmed (Supra), which deals with a question as to whether the number of the nominated members o f the Municipality, who are not entitled to vote, can be taken into considerati on for the purpose of composition of a Municipality with reference to a No Confi dence Motion. 28. Section 43 (2) does not provide to whom the requisition shall be given. There is no requirement of service of notice personally to the Chairman and therefore, it is not necessary that the requisition has to be personally se rved on the Chairman or Vice-Chairman as the case may be. As Section 43 (2) warr ants calling of a special meeting on a requisition signed by not less than th ree Commissioners, the Chairman or the Vice-Chairman must have information of the requisition so as to enable them to call a meeting within the outer limit of 20 days. The Chairman and the Vice-Chairman are elected by the Commissioners, which in ot her words, signifies that they had the majority support at the time of election. They may lose confidence of their electors with the passage of time and if in terms of the provisions of the Act, requisition is given complying with the req uired formalities to hold a special meeting to discuss a No Confidence Motion, i t is imperative that a special meeting is to be held to discuss the No Confidenc e Motion. Section 43 (3) is a safeguard given to the requisitionists because a C hairman or a Vice-Chairman can ignore a requisition and not hold a meeting to fr ustrate the requisitionists. It is equally possible, to checkmate the Chairman or the Vice-Chairman, the requisitionists may profess to have brought the requis ition to the notice of the Chairman without really doing so. There is time limi t of 20 days for holding a meeting from the date of requisition made. On failur e of Chairman to hold a special meeting within the specified time, as it appear s, the requisitionists can hold a meeting immediately thereafter. This is of som e moment and importance. On a reading of Section 43 (2) and 43 (3) together, th is Court is of the opinion that the legislative mandate demands that the requisi tion must be brought to the notice of the Chairman or Vice-Chairman and there mu st be some evidence and/or material to show that a conclusion can be arrived at that the requisition was so brought to the notice of the Chairman and/or the Vi ce-Chairman. Since a right has been conferred upon the requisitionists to conven e a meeting after 20 days of the requisition made, in order to enable them to ex ercise that right, the requisitionists must be able to show some acceptable mate rial that the Chairman and/or the Vice-Chairman was served personally or throu gh any other method or that the requisition was brought to the notice of the Cha irman and/or Vice-Chairman through the intervention of any authority in an off icial manner. If any functionary within the Town Committee establishment is tryi ng to play truant and cause mischief by trying to side with either of the two ca mps, as alleged in this case, appropriate steps can surely be taken to ensure th e imperative of Section 43 (2) and 43 (3). 29. In the instant case, the notice dated 11-11-2011 is clear and ca tegorical that letter dated 10-10-2011 was served upon the petitioners to call a meeting of the Board to consider the No Confidence Motion against them. The as sertion is unequivocal and emphatic admitting of no other possible interpretatio n. This assertion is repudiated by the petitioners in the writ petition in no uncertain terms. If the notice dated 10-10-2011 was actually refused by the peti tioners and on such refusal, the notice was delivered to the Head Assistant, it would be reasonable to expect that when the requisitionists had broached the sub ject of the letter dated 10-10-2011 in the letter dated 11-11-2011, it ought to have reflected the most vital and significant aspect of refusal of notice by the petitioners and also of subsequent delivery of the notice to the Head Assistant . In such a scenario, assertion in the notice dated 11-11-2011 that notice dated 10-10-2011 was served upon the petitioners is quite misplaced and incongruous a nd cannot be reconciled. 30. I have perused the Peon Book, two in number-one containing from page 1 to 122 and the other containing page 1 to 121. In the first one, there i s no entry from 30-09-2011 to 20-10-2011 and in the second one, after 07-10-2011 , the next entry is on 21-10-2011. The Receipt Register begins with the date 0 4-04-2000. Sl. No. 871 reflects receipt of a letter from the Director, Municipal Administration on 26-09-2011. Next Sl. No. 872 is receipt of a letter from the same authority on 09-11-2011. From the aforesaid, it is, at least, clear that the requisition was not made part of Town Committee records. It is another matte r whether the same was deliberately not done. The respondent Nos 4 to 7 in their affidavit had enclosed copy of the letter dated 10-10-2011 received by the Head Assistant of Town Committee. This Court will not hazard a guess as to which ver sion is correct - one given by the petitioners that even if the same was receive d by the Head Assistant, the same was not brought to the notice of the Chairman and Vice- Chairman or the version of the respondent Nos. 4 to 7 that there is a collusion between the petitioners and the Head Assistant. The requisitionists being Commissioners of the Town Committee, demanding a special meeting, in ord er to get the benefit of Section 43 (2) of the Act, it was incumbent on their p art to have ensured that the requisition was made part of the Town Committee rec ords so that there are contemporaneous record establishing delivery of requisiti on on that date. This Court cannot also be oblivious of the efforts made by the respondent Nos. 4 to 7 to ensure service of notice for the special meeting to be held on 18-11-2011, which may not have been of that importance and significance to the petitioners, by ensuring service through Police Authority after taking assistance from the Deputy Commissioner. 31. In view of the aforesaid discussions, this Court is of the opini on that the requisitionists have failed to discharge the imperative of establish ing that the requisition was either served or was brought to the notice of the petitioners and that they had failed to hold a meeting within a period of 20 day s thereafter. If that be so, the requisitionists could not have issued the noti ce dated 11-11-2011 for considering the No Confidence Motion against the petitio ners. Accordingly, the notice dated 11-11-2011 is set aside and quashed and cons equently, the resolutions taken in the meeting dated 14-11-2011 and 18-11-2011 are adjudged illegal and void. It is further directed that the writ petitioners shall function as the Chairman and the Vice-Chairman. Since the writ petition has been answered in favour of the petit

#32. ioners on the first ground argued by Mr. Mishra, this Court considers it inappropriate to dilate upon the other grounds raised b y Mr. Mishra. Such questions raised by Mr. Mishra are left to be decided in a more appropriate case. In view of the aforesaid adjudication, this Court does n ot also consider it necessary to discuss other cases relied upon by Mr. Roy as t hey are, primarily, related to cases based on falsehood. 33. This Court in W.P.(C) No. 4526 of 2011, by the judgement and ord er dated 19-06-2012, had sustained the plea of the petitioners that the earlier requisition dated 25-07-2011 was not valid, having been given by two Commissione rs instead of three as required under Section 43 (2) of the Act. In this petitio n, the plea of the petitioners has been sustained on the ground of requisition d ated 10-10-2011 not being served or brought to the notice of the petitioners t o enable them to call a special meeting to discuss the No Confidence Motion w ithin the time framed as enjoined by Section 43 (2) of the Act. This Court has noticed the allegations and counter allegations involving staff of the office of the Town Committee. In view of the aforesaid, if any fresh requisition is made in terms of Section 43 (2) of the Act, it will be open for the requisitionists t o take the assistance of the Deputy Commissioner for service of the requisition upon the petitioners. In case such assistance is sought, the concerned Deputy Co mmissioner will ensure that the notice is personally served upon the petitioners with acceptable evidence of such service.

#34. allowed. With the aforesaid observations and directions, writ petition is

#35. No costs.