Diptendu Bikash Bairagi & Ors vs State Of West Bengal & Others

Samapti Chatterjee, J

The petitioners filed this writ petition for the following reliefs :

(a) A declaration declaring the resolution adopted by the eleven councillors being the petitioners and submitted to the Election Officer of the Bongaon Municipality is valid and the petitioners have a right to form a Board having passed their majority;

(b) A writ in the nature of mandamus, commanding the respondent authority and their men/agents/subordinates to give effect to the resolution adopted by the petitioners pursuant to the Order dated 11.07.2019 by the Hon'ble High Court in accordance to the law;

(c) A writ of in ordering nature of Certiorari commanding the respondents, their men, agents subordinates to produce and transmit all relevant resolutions and records relating to the instant case before this Hon'ble Court within a particular period to be decided by this Hon'ble Court, so that the conscionable justice may be rendered upon considering the same;

(d) A writ in the nature of prohibition directing the respondent their men/agents/subordinates not to give any effect or any further effect to any other resolution taken in violation of the orders of the Hon'ble High Court dated 11.07.2019 and not to proceed any further with any purported malafide decision;

(e) Issue a Rule Nisi in terms of the prayer (a), (b) (c) and (d) above;

(f) An interim order of injunction restraining the respondents and their men, agents, subordinates not to disturb in the functioning of the petitioners in the further proceeding of the said Bongaon Municipality in forming new board of councillors pursuant to the resolution adopted by them dated 16.07.2019;

(g) An interim order be passed directing the respondents, their men an agents and subordinates (Superintendent of Police/Sub-Divisional Officer/ District Magistrate) to provide with police assistance to the petitioners in smooth functioning of works of the municipality by the present petitioners who are in majority to proceed with the day to day affair of the municipality;

(h) To pass an interim order as there is an extreme urgency involved in this matter and accordingly leave may be granted to move this application exparte after dispensing with relevant rules of the appellate side framed by this Hon'ble Court;

(i) To pass any other order or orders as Your Lordship may deem fit and proper.

The petitioners case in a nutshell is as follows:

That the petitioners (11 in number) lost their confidence upon the Chairman of Bongaon Municipality and adopted a "No-Confidence Motion" against the Chairman and sent statutory notice on 7th June, 2019 to him by registered speed post dated 12th June, 2019 and a copy to the Sub-Divisional Officer at Bongaon. Since no step was taken by the Chairman to hold a special meeting on the basis of the no confidence motion under Rule 9 (3) (b) (I) and (II) the petitioners earlier filed writ petition being W.P No.12478(W) of 2019 for direction upon the Chairman to hold special meeting under Rule 9 Sub Rule 3 (b) (1) of West Bengal Municipalities (Procedure and Conduct of Business) Rule, 1995 on the basis of "No-Confidence Motion."

Opposing the said writ petition the Chairman contended that notice was not properly served upon him by the petitioners and the Vice Chairman took a point that "No-Confidence Motion" has not been filed in proper form. The said writ petition was disposed of by the Court giving liberty to the petitioners to take steps in accordance with law as laid down under West Bengal Municipalities Act 1993 and the West Bengal Municipalities (Procedure and Conduct of Busuness) Rules 1995 forthwith.

Accordingly on 12th July, 2019 three councillors wrote to all councillors including the Chairman, Vice Chairman for holding an extraordinary meeting under Rule 9 (3) (b) (iii) of the West Bengal Municipalities (Procedure and Conduct of Business) Rules, 1995. By the said letter the councillors were requested to be present at the Bibhuti Bhushan Bandopadhyay Adhibesab Kakshya at Bongaon Municipality on 16th July, 2019 at 3 P.M. to vote against or in favour of "No-Confidence Motion" under Presidentship of 3 councillors viz. Himadri Mondal, Manatosh Nath and Diptendu Bikash Bairagi. Accordingly on 16th July, 2019 under the Presidentship of Himadri Mondal meeting for "No-Confidence Motion" was conducted at about 3:45 P.M. at the office of the Executive Officer and not at Adhibeshan Kakshya. It was recorded in the resolution book that although the petitioners came within time to participate in the meeting but the petitioners were prevented by the police personnels to attend the meeting and were detained for about 40 minutes whereafter they were allowed to enter the Municipal premises. As the Adhibesan Kakshya was under lock and key, the petitioners were compelled to conduct the meeting at the office of the Executive Officer where all the 11 councillors by raising their hands suported the 'No-Confidence Motion'. Accordingly 'No-Confidence Motion' was passed and as there was no other Agenda, save and except the 'No-Confidence Motion', the meeting was concluded. Thereafter SDO, Bongaon, North 24-Parganas was informed by 11 councillors vide letter dated 16.7.2019 as to the passing of the 'No-Confidence Motion'.

On the same day, 10 councillors held a meeting on the said 'No-Confidence Motion' at 3 P.M. in absence of the 11 petitioners, who propounded the said Motion and passed a 'trust vote' in favour of the Chairman under the Presidentship of Sambhu Das of TMC and resultantly the 'No-Confidence Motion' against the Chairman requisitioned by the majority councillors being the petitioners failed. Executive Officer and Finance Officer were preent in the said meeting.

In the facts of this case, the issue to be determined as to which of the two resolutions taken by the majority and minority group of councillors respectively would prevail and is sustainable in law.

Submissions of the Learned Advocates

Mr. Chakraborty learned Advocate appearing for the petitioners submitted that earlier order of the Court direct the petitioners to take steps in accordance with law has attained finality as no appeal being preferred against that order. Accordingly petitioners conducted no confidence meeting at 3 :45 P.M. at the office of the Executive Officer in presence of the 11 councillors and no confidence motion was allowed. The Chairman and other respondents had no authority to hold any meeting on the basis of the resolution adopted by three councillors out of 11 councillors who have taken "No-Confidence Motion".

Mr. Chakraborty further contended that the executive officer has no authority to be present in any meeting. It is also strongly submitted that one Sambhu Das of the TMC party has no authority to be a President to conduct and hold the meeting for "No-Confidence Motion" as out of 11 councillors three councillors who have given notice on 16th July, 2019 for holding no-confidence meeting. As the councillors have no authority to conduct meeting and given trust vote in favour of the Chairman. It is also urged that one Himadri Mondal was already appointedas President to conduct the meeting on the "No-Confidence Motion". Mr. Chakraborty further drew Courts attention to Paragraph-21 to 27 of the writ petition and thereafter emphasized that how the petitioners have been prevented from entering into the premises of the Bongaon Municipality on the said date. Mr. Chakraborty also drew Court's attention to the letter given by three councillors appears at Page-45-46 and also minutes book resolution appears at Page 94-95 and also the paper publication on 17th July at Bartaman daily newspaper appears at Page-98-101 of the writ petition.

It is further submitted that one additional or different fact may make a world of difference between the conclusions in two cases In support of his contention Mr. Chakraborty relied two Hon'ble Apex Court decision reported in 2011 (7) SCC Page-639 (State of Madhya Pradesh vs Narmada Bachao Andolan And Another) Para-64 and (1976) 3 SCC Page-334 Para-7 (The Regional Manager And Another vs Pawan Kumar Dubey) of the latter decision is quoted below :-

"Para-7-We think that the principles involved in applying Article 311(2) having been sufficiently explained in Shamsher Singh's case it should no longer be possible to urge that Sughar Singh's case could give rise to some misapprehension of the law. Indeed, we do not think that theprinciples of law declared and applied so often have really changed. But, the application of the same law to the differing circumstances and facts of various cases which have come up to this Court could create the impression sometimes that there is some conflict between different decisions of this Court. Even where there appears to be some conflict, it would we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts."

Mr. Chakraborty also relied on Sections 4, 32 and 35 of the Evidence Act, 1872 to say as to when a fact is proved, relevancy of facts and relevancy of entry in public records.

It is strongly submitted that the Advocate General of the State should not appear to support the illegality committed by the Chairman and his supporters.

In conclusion Mr. Chakraborty submitted that Court should quash the trust meeting held by the 10 councillors on 16th July, 2019 under the Presidentship of Sambhu Das and direct the S.D.O to accept the resolution dated 16th July, 2019 adopted by the majority councillors under the Presidentship of Sri Himadri Mondal at the office of the executive officer and direct the Chairman to vacate his office.

Mr. Bikash Ranjan Bhattacharjee learned senior counsel appearing for councillors submitted that out of 11 councillors three councillors had given a requisition on 12th July, 2019 inviting all councillors to discuss no-confidence motion against Chairman in the meeting on 16th July, 2019 at Bibhuti Bhusan Bandopadhyay Adhibesan Kakshya.

It is submitted that it is evident from Page-45 of the petition that notice was given by three councillors and it is further evident from resolution appearing at Pages-94-95 thereof that the petitioners conducted the "No-Confidence Motion" on 16th July, 2019 at 3:45 P.M. at the office of the Executive Officer which has duly signed by the Executive Officer and that three appointed Sri Himadri Mondal as the President to conduct the meeting which was duly done. Other than the petitioners no one else could hold meeting on the basis of the said no-confidence motion when the President so appointed by two other councillors was absent. The 10 other TMC party councillors who are in minority had no authority to hold any meeting appointing Sri Sambhu Das as the President of the meeting convened by the three out of 11 majority councillors on 16th July, 2019.

Therefore, apropos of the notice dated 12th July, 2019 the petitioners had the right and authority to hold the meetig which was duly held by them on the same date i.e. 16th July, 2019 at 3:45 p.m. wherein no- confidence motion against the Chairman was passed. Therefore, the Court should direct the Chairman to vacate the chair on the basis of the resolution adopted in the said no-confidence meeting held by the 11 councillors under the Presidentship of Himadri Mondal and set aside or quash the alleged trust vote cast in favour of the Chairman in the illegally conducted meeting of the minority group of councillors chaired by Sri Sambhu Das as President.

It is emphatically submitted by Mr. Bhattacharjee that statute never contemplated any trust meeting under Section 18 (3) as well as Rule 9 (3) (b) of Municipal Act, 1995. Therefore, any meeting held by 10 councillors of the TMC contrary to the statute is void and liable to be quashed by this Hon'ble Court.

It is also submitted that learned Advocate General cannot support the illegality committed by the Chairman and his supporters. Mr. Bhattacharjee also drew Court's attention at Page 5 and 6 of the affidavit affirmed by the Chairman (respondent no.3 herein) and emphsized that nowhere in the resolution book the place is mentioned where the purported meeting of the minority group of councillors was held.

Mr. Bhattacharjee strongly submitted that TMC councillors who were in minority never gave notice convening extraordinary meeting to discuss no-confidence motion. Therefore, holding of such meeting by them is contrary to statute. Mr. Bhattacharjee also drew Court's attention to some portion of the minutes of said meeting dated 16th July, 2019 held by those 10 TMC Councillors to show that the Executive Officer and Finance Officer were present in the meeting, who were not authorised in law to conduct the extraordinary meeting like removal of Chairman. Mr. Bhattcharjee also drew Court's attention to the complaint lodged by the Executive Officer before the Inspector-in-charge, Bongaon Police Station to show that all along the Executive Officer signed in english but in that particular document he signed in Bengali.

He submitted that it is not believable when a responsible officer is requested to sign any document he would sign in english not in Bengali as has been done in the complaint lodged by the Sri Gouranga Biswas.

Mr. Bhattacharjee relied on Chapter 3 of Rule 7 (2) a, b, c, d and Rule 9 a, b, 3(b) to show the illegality committed by the minority group of TMC councillors to pass the alleged trust vote in favour of the Chairman. Those rules are quoted below :-

"Rule 7 (2) A meeting of the Municipality shall be deemed to have been duly held whe,-

(a) the meeting is duly convened;

(b) there is necessary quorum;

( c ) the meeting is held within the municipal premises;

(d) the meeting is presided over by a person authorized under the Act and these rules ;

Extraordinary meeting.-(1) In an extraordinry meeting, no matter, other than the one for which the meeting has been convened, shall be discussed. Such meetings may be-

(a) an emergent meeting; or

(b) a special meeting.

(2) An emergent meeting for transaction of business of an emergent nature, may be convened, at any time, by the Chairman or in his absence, the Vice-Chairman, after twenty-four hours' notice to the members.

(3) (a) A special meeting may be convened by the Chairman or, in his absence, by the Vice-Chairman suo motu after giving not less than three days' notice to the members.

(b) A special meeting may also be convened after giving not less than three days' notice to the members, on a requistion containing specifically the agenda and signed by not less than one-third 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, of his failure to do so,

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

(iii) any three of the Councillors of the Municipality within further seven days thereafter.

(c) NOtwithstanding anything contained in these rules, if the situation so demands owing to stalemate condition prevailing in the functioning of the Municipality the officer may, in the interest of public service convene a special meeting of the Municipality with at

least three days' notice to the members specifying the agenda and venue of the meeting."

Mr. Bhattacharjee also relied on Chapter 3 Rule 13 (1) (2) (3) of the said Rules which are quoted below :-

"13-Persons to preside at meetings.-(1) Save as otherwise provided in these rules, meetings of the Municipality shall be presided over normally by the Chairman or, in his absence, by the Vice-Chairman.

(2) In the case of a special meeting for removal of the Chairman, the meeting shall be presided over by a Councillor, elected by the Councillors present in the meeting.

(3) In the case of special meeting as referred to in clause (c) of sub- rule (3) of rule 9 the officer shall conduct the proceedings of the meeting.

He shall, at the very commencement of the meeting, record the attendance of the members present in the meeting and shall, for presiding over the meeting, invite the Chairman of the Municipality or, in his absence or failure to do so, the Vice-Chairman of the Municipality for the purpose. In the case of absence of the Vice-Chairman or, his failure to preside over the meeting, the officer shall invite the Councillors present in the meeting to elect a President for that meeting only :

Provided that the proceedings of the meeting shall, till the Chairman or the Vice-Chairman or the President so elected, as the case may be, takes over, be recorded by the officer in the Minute Book of the Municipality and thereafter by the person presiding over the meeting. A copy of the proceedings of the meeting so held shall be sent to the District Magistrate and the Director of Local Bodies, West Bengal, by the officer and the person presiding over the meeting respectively."

Mr. Bhattachrjee reiterated that extraordinary meeting cannot be conducted by the Executive Officer not being legally authorised to do so.

Mr. Bhattacharjee also contended that after the amendment of this Act the Government is now a three tier body.

It is strongly submitted that the impugned action is not a fraud or mala fide committed between two individuals, it is a fraud on statute. In support of his contention Mr. Bhattachrjee relied on an Apex Court decision reported in (2012) 4 SCC Page-407 Paras-22, 23, 24, 31, 32,

47 and 62 ( Ravi Yashwant Bhoir vs District Collector, Rigad And Others) those are quoted below :-

"22-Amendment in the Constitution by adding Parts IX and IX-A confers upon the local self-government a complete autonomy on the basic democratic unit unshackled from official control. Thus, exercise of any power having effect of destroying the Constitutional institution besides being outrageous is dangerous to the democratic set-up of this country. Therefore, an elected official cannot be permitted to be removed unceremoniusly without following the procedure prescribed by law, in violation of the provisions of Article 21 of the Constitution, by the Stte by adotig a casual approach and resorting to manipulatins to achieve ulterior purpose. The Court being the custodian of law cannot tolerate any attempt to thwart the institution.

23-The democratic set-up of the country has always been recognised as a basic feature of the Constitution, like ther features e.g. supremacy of the Constitution, rule of law, principle of separation of powers, power of judicial review under Articles 32, 226 and 227 of the Constitution etc.

24-It is not permissible to destroy any of the basic features of the Constitution even by any form of amendment, and therefore, it is beyond imagination that it can be eroded by the executive on its whims without any reason. The Constitution accords full faith and credit to the act done by the executive in exercise of its statutory powers, but they have a primary responsibility to serve the nation and enlighten the citizens to further strengthen a democratic State.

31-Undoubtedly, any elected official in loca self-government has to be put on a higher pedestal as against a government servant. If a temporary government employee cannot be removed on the ground of misconduct without holding a full-fledged inquiry, it is difficult to imagine how an elected office-bearer can ber emoved without holding a full-fledged inquiry.

32.-In service jurisprudence, minor punishment is permissible to the imposed while holding the inquiry as per the procedure prescribed for it but for removal, termination or reduction in rank, a full- fledged inquiry is required otherwise it will be violative of the provisions of Article 311 of the Constitution of India. The case is to be understood in an entirely different context as compared to the government employees, for the reason, that for the removal of the elected officials, a more stringent procedure and standard of proof is required.

47-This Court has consistently held that the State is under an obligation to act fairly without ill will or malice in fact or in law. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. "Legal malice" or "malice in law" means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is tken with an oblique or indirect object. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite.

62-Not calling the meeting of the general body of the House may be merely a technical misconduct committed inadvertently in ignorance of statutory requirements. It is nobody's case that the appellant had done it intentionally/purposely in order to avoid some unpleasant resolution/demand of the Council. No findig of fact has been recorded either by the competent authority or by the High Court that some urgent/important work could not be carried out for want of general body meeting of the Council."

Mr. Bhattacharjee also relied on Hon'ble Apex Court decision reported in (2012) 5 SCC Page-370 Paras-49 & 50 (Maria Margarida Sequeira Fernandes And Others vs Erasmo Jack DeSequeira (Dead) Through LRS) which are quoted below :-

"Para-49-Justice Cardozo in his widely read and appreciated book The Nature of the Judicial Process discusses the role of the Judges. The relevant part is reproduced as under :

"There has been a certain lack of candour, in much of the discussion of the theme of Judges' humanity, or rather perhaps in the refusal to discuss it, as if Judges must lose respect and confidence by the reminder that they are subject to human limitations. I do not doubt the grandeur of conception which lifts them into the realm of pure reason, above and beyond the sweep of perturbing and deflecting forces. Nonetheless, if there is anything of reality in my analysis of the judicia process, they do not stand aloof on these chill and distant heights, and we shall not help the cause of truth by acting and speaking as if they do".

50-Aharon Barak, President of the Israeli Supreme Court from 1995 to 2006 takes the position that :

"For issues in which stability is actually more important than the substance of the solution- and there are many such cases-I will join the majority without restating amy dissent each time. Only when my dissenting opinion reflects an issue that is central for me-that goes to the core of my role as a Judge- will I not capitulate, and will I continue to restate my dissenting opinion : 'Truth or stability-truth is preferable'.

On the contrary, public confidence means ruling according to the law and according to the Judge's conscience, whatever the attitude of the public may be. Public confidence means giving expression to history, not to hysteria. Public confidence is ensured by the recognition that the Judge is doing justice within the framework of the law and its provisions. Judges must act-inside and outside the court-in a manner that preserves public confidence in them. They must understand that judging is not merely a job but a way of life. It is a way of life that does not include the pursuit of material wealth or publicity; it is a way of life based on spiritual wealth; it is a way of life that includes an objective and impartial search for truth."

Mr. Bhattacharjee further vehementy argued that to take wrongful advantage of Proviso of Section 18 (3) the meeting was conducted by the minority group of councillors who are the supporters of the Chairman passing alleged trust vote in favour of the Chairman to prempt the petitioners who are majority in nature to move any no- confidence motion against the Chairman before expiry of 6 months. Proviso of Section 18 (3) is quoted below :-

"Terms of office of Chairman.- (3) The Chairman may be removed from office by a resolution carried by a majority of the total mumber 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 :

Provided that no such resolution shall be moved before the expiry of six months from the date of assumption of office by a Chairman, and if such resolution is not carried by a majority of the total number of elected members no further resolution for such purpose shall be moved before the expiry of a period of six months from the date on which the former resolution was moved."

Mr. Bhattacharjee further contended that if it is the case of the Chairman that notice dated 12th July, 2019 is bad then no meeting should have been held by the Executive Officer under the Presidentship of one Sambhu Das . The illegal meeting was held and the alleged trust vote was cast in favour of the Chairman to allow him to continue in his office and moving of any resolution for his ouster before expiry of six months from the date of the alleged resolution of trust vote.

It is submitted that the Executive Officer has no right to dilute the essence of the Statute just to allow the Chairman to avail of the benefit of proviso of Section 18 (3) to remain as Chairman for further six months, although the chairman lost the confidence of the majority councillors.

Therefore, the Court should allow the writ petition thereby directing the respondent authority to accept the resolution of the meeting conducted under the Presidentship of Himadri Mondal and direct the Chairman to vacate his office forthwith.

Per contra, learned Advocate General appearing for the respondent state authority submitted that Section 51 (3) and 51 (A) have been inserted in the year 1994 and laid stress upon Section 51 (A) (1) , (2), (3) & (4), which are quoted below for proper appreciation:

"Section-51-Meeting of the Board of Councillors-(3) All matters required to be decided at a meeting shall be determined by the Majority of votes of the Councillors present and voting.

Section 51A.Quorum.-(1) The quorum necessary for the transaction of business at any meeting of a Municipality under this Act shall be one-third of the total number of Councillors of the Municipality.

(2) If at any time during a meeting of the Municipality there is no quorum, it shall be the duty of the Chairman or the person presiding over such meeting either to adjourn the meeting or to suspend it till there is a quorum.

(3) Where a meeting has been adjourned under sub-section(2), the business which would have been brought before such meeting if there had been a quorum, shall be brought before, and may be tansacted at, an adjourned meeting, whether there is a quorum or not.

(4) All matters required to be decided by the Municipality at a meeting shall, save as otherwise provided in this Act, be determined by a majority of the Councillors of the Municipality present and voting at such meeting."

Learned Advocate General relied on Rule 9 (1) Sub Rule (3) (supra) and Section 18 (3) proviso (supra) .

Learned Advocate General strongly submitted that the quorum was formed on 16.07.2019. Therefore, resolution taken in the meeting held under the Presidentship of Sri Sambhu Das should be upheld. In support of his submission he relied upon a Single Bench decision of this Court reported in 2012 (5) CHN 437 (Deepak Chakraborty-vs-Board of Councillors), wherein 9 out of 20 councillors issued notice of removal of the Chairman and the Chairman was removed by the resolution adopted by 10 councillors participating in the said meeting, 9 councillors voted against the resolution and 2 councillors absented from voting, and the Court held that the words "Majority of the total members present and voting" appearing in Section 18 (3) would mean that majority of the Members present and voting in the meeting and thus resolution adopted by 10 councillors present in the meeting being in majority, was upheld by the Court. It is further urged by learned Advocate General that fraud must be proved by document/evidence and pleading alone is not enough and placed paragraph 23 of the writ petition to say that there is no evidence of fraud. In support of his contention, he placed reliance on a Supreme Court decision reported in 2005 (5) SCC Page-527 Para-16 ( Gayatri Devi And Others vs Shashi Pal Singh) which is quoted below :-

"Para-16-In our view these observations aptly apply to the case before us. The learned counsel for the respondent relied upon the judgment of this Court in S.P. Chengalvaraya Naidu v. Jagannath and United India Insurance Co. Ltd. v. Rajendra Singh to contend that there was a fraud played upon the court and the fraud unravels everything. As a general proposition, the propositition is right. But fraud must necessarily be pleaded and proved. In the entire history of litigation nothing was pleaded, much less proved, as fraud. We cannot countenance the plea of fraud without any basis."

Reliance was also placed on another Hon'ble Apex Court decision reported in 1988 (8) SCC Page-534 Para-13 (Bharat Singh And Others vs State of Haryana And Others) which is quoted below :-

"Para-13-As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions, or in any affidavit, but the point has been sought to be substntiated at the time of hearing by referring to certain facts stated in the said appliction by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be susbtantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writpetition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the fats and not evidence are required to be pleaded, in a writ petition or in of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show tht it is devoid of any merit."

Learned Advocate General also distinguish the decisions relied on by Mr. Chakraborty and Mr.Bhattacharjee and submitted that Ravi Jyashwant Bhoir's case (supra) is a case of disqualified councillors under earlier Section 55 (b) and now 21 (AA) which was omitted in the year 2004. Therefore, the said case has no manner of application in the present case. Regarding Maria Margarida Sequeira's case (supra), it is submitted that the case relates to a suit for mandatory injunction for possession wherein the court explained nature of possession and stated that details of possession should be pleaded; he however, did not dispute the legal porpositions discussed in paras 49 and 50 of the report. On the case of State of Madhya Pradesh (supra), it is submitted that the case is in respect of a PIL matter and he referred to Paras 156 to 160 to say that this case also has no manner of application in the present case.

In conclusion learned Advocate General submitted that on 16th July, 2019 quoram of the meeting was formed and 11 councillors being the petitioners choose not to appear, therefore, in the presence of Executive Officer and Finance Officer under the Presidentship of Sri Sambhu Das meeting was conducted and the resolution was adopted which should be held to be valid and binding and, therefore, Court should dismiss the writ petition.

Mr. Kar learned Advocate appearing for the Chairman after adopting and endorsing the submissions advanced by learned Advocate General emphasized that prayers for mandamus cannot be granted. Mr. Kar further contended that quoram was formed according to rule and following all procedures meeting was conducted. It is also submitted by Mr. Kar that only fraud has been pleaded in the body of the writ petition but without any documents supporting those pleadings the fraud cannot be establshed. He also relied on Order 6 Rule 4 of the Code of Civil Procedure. It is also submitted that meeting was duly called by three councillors pursuant to Hon'ble Court's order and since 11 councillors failed to attened the meeting on scheduled date, they cannot challenge the resolution taken in such meeting.

Mr. Kar further emphasized that in the notice of the meeting name of the President cannot be mentioned but in the notice dated 12th July, 2019 given by the three councillors it is mentioned that under Presidentship of the undersigned the no-confidence meeting would be held for removal of the Chairman. The three councillors cannot decide in the notice that under whose presidentship meeting would be conducted. Therefore, Mr. Kar vehemently urged that notice dated 12th July, 2019 is bad in law. Mr. Kar also referred Rule 13 (2) of the Municipalities (Procedure and Conduct of Business) Rules, 1995.

It is further reiterated that as per the notice the meeting was held and the 11 councillors choose not to attend the meeting, therefore in presence of 10 councillors after formation of quoram the meeting was called by the Executive Officer and under the Presidentship of Sambhu Das the meeting was conducted and 10 councillors had cast their trust vote in favour of the Chairman. Accordingly Mr. Kar submitted that there is no illegality in the meeting dated 16th July, 2019 called by the Executive Officer and presided over by Sambhu Das.

Mr. Sengupta learned senior Counsel appearing for the some councillors after endorsing and adopting the submissions of Advocate General and Mr. Kar submitted that the TMC councillors went to the venue at the fixed time as requisioned by the three councillors of BJP. The Executive Officer was also present in that meeting and the meeting was duly held which the petitioners choose not to attend.

Mr. Sengupta drew Court's attention to para-25 to 27 of the affidavit and contended that it is revealed from the verification portion that all those pleading are based on records. But unfortunately no record in support of those paragraphs have been annexed to the petition or even submitted before this Court.

Mr. Sengupta also contended that mere pleading regarding fraud will not be sufficient but fraud should be established with evidence. In support of his contention Mr. Sengupta relied on a decision reported in 1988 (4) SCC Page-534, Para-13 (Bharat Singh And Others vs State of Haryana And Others) which is quoted below :

"Para-13-As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit."

It is further submitted that notice of three councillors dated 12th July, 2019 and also resolution dated 16th July, 2019 as well as the meeting dated 16th July, 2019 appears at page-94 of the writ petition as well as the resolution taken on 16th July, 2019 by the 10 councillors were sent to the SDO as appears at pages-94-96 of the writ petition. Mr. Sengupta also relied on Rule 13 Sub-Rule 3.

Mr. Sengupta argued that the affidavit is no evidence under Evidence Act. In support of his contention Mr. Sengupta relied on one Hon'ble Apex Court decision reported in 2013 (4) SCC Page-465 Para-31 (Ayaabubkhan Noorkhan Pathan vs State of Maharashtra And Others). Para-31 is quoted below :-

"Para-31-It is a settled legal proposition that an affidavit is not "evidence" within the meaning of Section 3 of the Evidence Act, 1872 (hereinafter referred to as "the Evidence Act") . Affidavits are, therefore, not included within the purview of the definition of "evidence" as has been given in Section 3 of the Evidence Act, and the same can be used as "evidence" only if, for sufficient reasons, the court passes an order under Order 19 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC"). Thus, the filing of an affidavit of one's own statement, in one's own favour, cannot be regarded as sufficient evidence for any court of tribunal, on the basis of which it can come to a conclusion as regards a particular fact situation."

In conclusion Mr. Sengupta submitted that there is no illegality or infirmity in the meeting dated 16th July, 2016 thus retaining the Chiarman by casting trust votes in favour of the Chairman.

Decision with Reasons

Considering the rival submissions advanced by the learned Advocates appearing for the respective parties and after meticulously perusing the records I find that petitioners earlier approached before this Court by filing a writ petition for direction upon the Chairman to conduct extraordinary meeting on the "No-Confidence Motion" adopted by 11 elected councillors against the Chairman on 7th June, 2019. In the said writ petition the learned Advocate appearing for the Chairman submitted that notice was not properly served upon the Chairman therefore the petitioners cannot compel the Chairman to hold extraordinary meeting under Rule 9 (3) (b) (I). It was also contended that Vice Chairman also refused to act on the basis of Rule 9 (3) (b) (ii) on the plea that the "No-Confidence Motion" is not in proper form. Since the third provision under Rule 9 (3) (b) (iii) was not complied by the petitioners as noticed therefore, the writ petition was disposed of with direction upon the petitioners to comply with the provisions to take step in accordance with law under the Municipalities Act, 1993 and the West Bengal Municipalities (Procedure and Conduct of Business) Rules, 1995 forthwith. Accordingly in terms of Rule 9 (3) (b) (iii) three elected councillors issued a notice on 12th July, 2019 to all councillors to the effect that on 16th July, 2019 at 3 p.m. to vote against or in favour of "No-Confidence Motion" under Presidentship of three councillors. Accordingly all the elected councillors proceeded to Bibhuti Bhushan Bandopadhyay Adhibesan Kakshya of Bongaon Municipality on 16th July, 2019. But as the petitioners were prevented and obstructed by police personnels and several other persons, they could not enter the kakshya and therefore, at 3 :45 p.m. under the Presidentship of Himadri Mondal the no-confidence meeting was conducted at the office of the Executive Officer instead of the Bibhuti Bhushan Bandopadhyay Adhibesan Kakshya which was under lock and key and no-confidence motion against the Chairman was passed. Accordingly minutes of the meeting was forwarded to the SDO Bongaon on 16th July, 2019.

I find that the case of the 10 councillors who are in minority is that on the same date and time those councillors went to the venue at Bibhuti Bhushan Bandopadhyay Adhibesan Kakshya at 3 p.m. in terms of the notice issued by three councillors out of 11 petitioners/councillors and since those 11 councillors who are in majority failed to attend the meeting, the meeting was duly conducted in presence of Executive Officer and the Finance Officer under the Presidentship of one Sri Sambhu Das and the meeting was concluded at 3 :40 p.m. In the meeting, those 10 councillors who are in minority had cast their trust vote in favour of the Chairman.

It is not in dispute that two meetings were held on 16.07.2019 at different time. The first meeting was held at 3:40 p.m. at the appointed place by 10 councillors who are in minority, where they cast their trust votes in favour of the Chairman and the other meeting was held by 11 councillors who are in majority, at 3 :45 p.m. and passed the 'No-Confidence Motion' against the Chairman. It is, therefore, an admitted position that both the said meetings were held pursuant to notice dated 12.07.2019 issued by the 3 councillors of the majority group of the councillors in terms of Rule 9 (3) (b) (iii). Consequently the contentions that the said notice was invalid and/or improper advanced by the contesting respondents cannot be accepted.

Section 18 (3) empowered the majority of the total number of elected councillors to take resolution against the Chairman for his removal and to hold a special meeting for the purpose preceded by requisition made by majority of the total elected members. The proviso to the said section says that "if such resolution is not carried by a majority of the total elected members, no further resolution for such purpose shall be moved before expiry of six months from the date on which the former resolution was moved." Nowhere in the said section and the proviso thereto provide for casting of trust vote in favour of the Chairman against whom 11 councillors in majority issued the notice dated 12.07.2019 to pass 'No-Confidence Motion' . Therefore, the entire exercise in taking the resolution by the minority group of councillors casting the trust vote in favour of the Chairman is patently illegal being beyond the statute. It is also noticed that in the resolution book, the place where the meeting of the minority group of councillors was held is not mentioned. Furthermore, the statute did not provide supervision of the said meeting held by the minority group of councillors by the Executive Officer and the Finance Officer who were present in the said meeting. The entire illegal exercise was undertaken by the minority group of councillors to ensure that the Chairman who has lost confidence of the majority group of councillors could continue in his office at least for a further period of six months taking advantage of the proviso of Section 18 (3).

The majority group of the councillors who issued notice dated 12.07.2019 in terms of the order passed by this court on the earlier writ petition referred above, held the meeting at 3:45 p.m. at the office of the Executive Officer on the said date under Presidentship of Sri Himadri Mondal and pass the "No-Confidence Motion' against the Chairman. The reason for holding the said meeting by the petitioners after the appointed time although on the scheduled date, are that they were prevented from entering into the said Kakshya on the said date at the appointed time. Learned Advocate General, Mr. Kar and Mr. Sengupta in a chorus submitted that the petitioners failed to furnish any particulars in support of the allegation of fraud committed on statute and relied upon the decisions above referred and strongly submitted that in absence of any proof in support of the fraud as pleaded, this court should not take any cognizance of the allegation of fraud. I think there is a fundamental difference between fraud committed on statute and fraud committed on any individual, while the former could be proved by the action impugned through which a benefit is obtained by passing and/or scuttling the mandate of the statute, in case of the later, the particulars of fraud committed upon the individual need to be pleaded in details as provided in Order 6 Rule 4 of the Code of Civil Procedure relied upon by Mr. Kar. While the proposition contained in the decisions cited by the Advocate General, Mr. Kar and Mr. Sengupta are settled law but the application of the same in the present case is perhaps not apposite, the reason is that the case of the petitioners are that fraud had been committed on the statute culminated in the action of the respondents complained of and having gone though the averments made in the writ petition, I am satisfied that the petitioners had been able to make out a case of fraud on statute. Therefore, the contentions of the contesting respondents are rejected.

It is noticed from Rule 9 (3) (b) (I), (ii) and (iii) quoted above that extra ordinary meeting for 'No-Confidence' could be called by the Chairman failing him, the Vice-Chairman and if Vice-Chairman also fails, any 3 elected members of the councillors of the Municipality could convene the special meeting and clause (c) of Rule 9 (3) further provides that if the situation so demands owing to stalemate condition prevailing in the functioning of the Municipality, the office may in the interest of public service convene the special meeting of the Municipality with at least 3 days' notice to the members specifying the agenda and convening the meeting. Rule nowhere provides for the supervision of the extra ordinary meeting by the Executive Officer and the Finance Officer as has been done in the meeting held by the minority group of councillors. This is another galring illegality which cannot be justified in the Court of law.

The minority group of councillors in their purported meeting could only vote against the proposed motion for removal of the Chairman and thereby defeat it but could not cast trust vote in favour of the Chairman, who lost confidence of the majority group of councillors. The action per se to say the least, is illegal and constituted fraud on statute. It is indeed unfortunate that such action is being stoutly defended by the contesting respondents.

In the upshot of the discussions it is appropriate to quote the repeated statements of and cautions sounded by the Hon'ble Supreme Court in the decisions reported in AIR 1964 SC 358 (State of U.P vs Singhara Singh) Para-8 and AIR 1975 SC 1012 (Dhoom Singh-vs-Prakash Ch. Sethi & Ors) Para-9, and till date consistently followed vide AIR 2016 SC 1817 (State of Kerala & Ors-vs-M/s. Kerala Rare Earth & Minerals Ltd. & Ors), Para-16.

"Para-8 of AIR 1964 SC 358 :

The principle that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that the other methods of performance are necessarily forbidden.

Para-9 of AIR 1975 SC 1012:

A statute, even more than a contract must be construed, ut res magis valeat quam pereat, so that the intentions of the legislature may not be treated as vain or left to operate in the air. A statute may not be extended to meeting a case for which provision has clearly and undoubtedly not been made.

Para-16 of AIR 2016 SC 1817 :

It is well settled that if the law requires a particular thing to be done in a particular manner, then, in order to be valid the act must be done in the prescribed manner alone."

(Emphasis supplied)

In my considered view the posts of the Chairman, Vice-Chairman and the councillors are not of any selected or appointed or promotional posts. They are elected by the people's mandate and they are the peoples representative. Their acts and conducts therefore, must be fair, transparent and in accordance with law. They owe an obligation to the statute and Rules to follow thereby instill confidence of the electorate. Any action by passing the statute and the Rules adopted members would only send wrong signal to the society which must be interfered with end nipped in the bud the moment it is brought to the notice of the Court.

Mr. Chakraborty and Mr. Bhattacharyya supporting the case of the petitioners vehemently submitted that the court should hold that the resolution taken by the majority group of the councillors (the petitioners) in the meeting held on 17.07.2019 at 3 :45 p.m. at the office of the Executive Officer should be held valid and binding upon the parties ad accordingly he /SDO should be directed to act on the basis of such resolution taken in the said meeting forthwith and quash the purported resolution of trust vote in favour of the Chairman in the meeting purportedly held by the minority group of councillors on the same day but at 3:40 p.m. at the scheduled venue.

It is a matter of record that on 16.07.2019 at different time two meetings were held-one by the minority group of councillors earlier and the other by the majority group of councillors being the petitioners herein, on the basis of the notice dated 12.07.2019 issued in terms of the order passed by the court on a writ petition filed earlier. Therefore, the issue is which of the meeting should be held valid and the resolution taken therein be directed to be carried forward. In my considered view, when these meetings are conducted by the peoples' representatives elected as councillors of the concerned Municipality, their conduct must not only be fair and transparent but should be seen to be fair and transparent. Undoubtedly there are two warring groups of councillors, one group trying to invalidate the decision taken by the other and thereby take control of the concerned Municipality. Such being the scenario, in my considered view both the meetings held by the respective group of councillors should be quashed and are hereby quashed and set aside.

Therefore, I direct the District Magistrate to conduct a fresh meeting at his office premises on the basis of "No-Confidence Motion" taken out by the petitioners, the majority group of councillors against the Chairman apropos of statutory notice dated 12.06.2019 within a fortnight from the date of this judgment positively. I also direct the SP, North 24-Parganas (Respondent No.6 herein) to render all cooperation and assistance to the 21 elected councillors and ensure that they could peacefully without any obstruction or hindrance of any nature whatsoever, attend the meeting at the office premises of the District Magistrate on the scheduled date and time as fixed by the District Magistrate and also to maintain law and order thereat by deploying appropriate force until the proceeding is declared complete by the District Magistrate.

Until the meeting is held and complete as directed above, the Sub-Divisional Magistrate or the District Municipal Development Officer is directed to look after the day to day affairs and business of the Bongaon Municipality in accordance with Section 426 of the Act. Needless to mention that any steps taken by any of the parties subsequent to the meeting held on 16.07.2019 as quashed and set aside herein, is or are to be treated as cancelled, quashed and of no effect.

With these directions, this writ petition is disposed of without any order as to costs.

Any violation, deviation or non-compliance of the above directions in any manner would be regarded as Contempt of Court.

Urgent photostat certified copy of this judgement, if applied for, be supplied to the parties after fulfilling all formalities on priority basis.