Kumar Dutta vs State of West Bengal

Sinha, J.—This application relates to the affairs of the Corporation of Calcutta. The Petitioner No. 1 is a sitting Councillor of the Corporation and the second Petitioner is a ratepayer. According to Sub-section (1) of Section 10 of the Calcutta Municipal Act, 1951 (hereinafter referred to as the "Act") the Corporation shall, at its first meeting in each year, elect one of its members to be the Mayor and another to be the Deputy Mayor. The procedure that is to be adopted at such an election is laid down in Section 93 of the said Act and runs as follows:

Notwithstanding anything contained in Section 92, Councillors and Aldermen present at a meeting for the election of the Mayor shall elect one of their numbers who is not a candidate for election as Mayor, to preside over the meeting. If equality of votes is found to exist between any candidates for election as Mayor, the determination of the person to whom the additional vote shall be deemed to have been given shall be made by lot to be drawn in the presence of the candidates and in such manner as the Presiding Officer of the meeting may determine.

On April 5, 1960 notice was issued for the first meeting in 1960 u/s 88 of the said Act, to be held on April 11, 1960. There were three items in the agenda, the first being to elect a President u/s 93 of the said Act, to preside over the transaction of business, in the event of the outgoing Mayor, Shri B.K. Banerjee being proposed for re-election. The second item was to elect u/s 10(1) of the said Act, a member of the Corporation to be the Mayor. The third and the last item was to elect tinder Section 10(1) of the said Act. a member of the Corporation to be the Deputy Mayor. On April 11, 1900 the Councillors and the Aldermen of the Corporation met at a stormy meeting at which several astonishing things happened. Two Mayors and two Deputy Mayors were said to have been elected, as also a President. In this application, the election of the Mayor has not been made the matter of contest. It. is claimed that the election of Shri Satyananda Bhattacharjee as the President, and that of Sri Anil Moitra as the Deputy Mayor are invalid. The immediate reason for the making of this application is the receipt of a letter from the State of West Bengal dated April 19, 1960 written in exercise of powers granted to Government u/s 47 of the said Act. The provision runs as follows:

The State Government may. after consideration of any representation which may be made by the Corporation, by written order, annul or omit from the records any proceeding of the Corporation which it considers not to be in conformity with this Act or any rules, by-laws or regulations made thereunder or with any other law. and may do all things necessary to secure such conformity.

In the said letter which has been addressed to the Commissioner, it has been stated that it appeared from the minutes as recorded, of the meeting held on April 11, 1900 that

Since amended by Section 3 of the Calcutta Municipal (Second Amendment) Act (West Beng. Act XIV of 1960). the proceedings were not conducted in accordance with the law for the following reasons: (1) That the proceedings show that two names were proposed and seconded for the election of the President for the meeting. Votes were not however taken, and the person whose name was first proposed occupied the chair on the ground that the outgoing Mayor had allowed him to take the chair and that he had been unanimously elected as president. It appeared, therefore, that there was no valid election of a presiding officer for the meeting, and that the entire proceedings relating to the meeting were void. (2) That two names were duly-proposed and seconded for election as Mayor. No voting was however allowed on the ground that since the first name was that of the outgoing Mayor, in respect of whom a vote of confidence had been passed by the Corporation within the last six months, and since under Rule 17(G)(1) of the Rules of Business, a resolution passed within the preceding six months could not be altered unless it had first been rescinded, no other name except the name of Shri B.K. Banerjee could be proposed. It appeared that the rule referred to, had no manner of application to the election of a Mayor which was required to be held according to the provisions of the Act and consequently, the election of the Mayor was not held in accordance with the law. (3) That the election of the Deputy Mayor was not also valid as it appears that as soon as one name was proposed and seconded, the presiding officer, without trying to ascertain whether there was any other proposal, declared the person proposed as elected, observing that there being no other name proposed, the said person was declared to be the Deputy Mayor of the Calcutta Corporation. The Corporation, was called upon to make any representation which it may make, within April 30, 1960 on the above question and upon the further question as to why the proceedings not being in accordance with the law should not be annulled and declared void and why the State Government should not take such action or give such directions as may be necessary to secure compliance with the provisions of the said Act, in the matter of the election of Mayor or Deputy Mayor for the current year. It was finally added that should no representation, be received by the date aforesaid, the State Government would consider itself free to take such action or to issue such directions as it may consider necessary.

The first point that has been taken by Mr. Choudhury appearing on behalf of the Petitioners is that u/s 47 the State Government should not act suo motu, but can only act upon a representation or a request made by the Corporation. In other words, it is stated that one of the conditions precedent for the exercise of jurisdiction by the State Government u/s 47 is, that the Corporation should make a representation or request to the State Government to interfere in the matter. Even at first sight, this argument seems curious. It is only when the Corporation does not act in conformity with the Act, rules, by-laws or regulations or any other law that the State Government can interfere, to compel it to do so. It is extremely unlikely that if the Corporation is guilty of acting in violation of the said Act, rules, etc., that it would ever make a representation or a request to the State Government to interfere and compel it to mend its own ways. However, this contention is wholly unfounded and is now covered by authority. In Ashgar Alli v. Birendra Nath Dey (1945) 49 C.W.N. 658 a question arose about the interpretation of Section 10 of the Calcutta Municipal Act, 1923 which was couched in practically the same terms as Section 47 of the Act of 1951. What happened in that case was that the Respondent, Dr. B.N. Dey, formerly held the post of the Chief Engineer to the Calcutta Corporation from 1933. His appointment determined by defluxion of time on October 14, 1943. (By resolution No. 747, passed at a meeting of the Corporation on October 4, 1943, Dr. Dey was appointed the Corporation''s Special Officer in charge of several departments specified in the resolution, and to perform the duties of Engineering Adviser to the Corporation. The applicant as a relater questioned the legality of the appointment of Dr. Dey as Special Officer and inter alia made an application for the issue of a writ of quo warranto or an information in the nature of quo warranto to be issued against Dr. Dey to show cause as to by what authority he was functioning and acting as Special Officer and Engineering Advisor to the Corporation. Briefly put, the facts were that Dr. Dey bad been, appointed by the Corporation as the Chief Engineer for ten years. Upon the expiry of the term, the Corporation reappointed him as Chief Engineer and Special Officer and Engineering Adviser for a further period of 5 years and asked for the approval of the Government of Bengal. The Government of Bengal refused to accord approval to the re-appointment. The Corporation thereupon asked the Government to re-consider the case and if the Government approval was not forthcoming then Dr. Dey would be appointed as Special Officer in charge of most of the departments of the Corporation for a period of five years. The Government took the stand that the appointment of Dr. Dey under a different name, to discharge almost all the functions of the Chief Engineer was an obvious attempt on the part of the Corporation to evade the provisions of the statute. A notice was served u/s 19 of the Calcutta Municipal Act, 1923 which corresponds to Section 47 of the 1951 Act, to the effect that the relevant resolution passed at the meeting on October 4, 1943 appointing Dr. Dey as Special Officer was not in accordance with the law and Government proposed to annul it u/s 19. But before passing the final order, the Government was prepared to take into consideration any representation which the Corporation might like to make. Gentle, J. after considering many points put forward, in an exhaustive judgment held that the appointment of Dr. Dey was invalid. We are, however, concerned only with that aspect of the decision which relates to Section 19. The relevant part of the judgment runs as follows:

The question can now be examined as to the correctness of the Government''s action of purporting to annul Resolutions (II)(a) and (III) which were passed by the Corporation on 4th October, 1943. This action by Government was alleged to be in pursuance of the provisions of Section 19 of the Act which have been previously set out.

Before the power of annulment can be exercised an opportunity must be given to the Corporation to make a representation, i.e., an explanation or a contention regarding the proceeding which it is proposed to annul. This opportunity was afforded by the Government''s letter, dated 16th October, 1943.

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A further contention was raised that the provisions of Section 19 can only be invoked by the Government when a request to do so is made by the Corporation.

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I can not find any provision, either express or implied, in Section 19 which requires the Corporation to request it to he invoked before the Government can exercise the powers given by it. The Government can invoke the section, in proper cases, of their own initiative. The section enables the Government to annul proceedings, which include a resolution, which it considers not to be in conformity with law.

I respectfully agree with the findings of Gentle, J., on this point, which completely disposes of the argument advanced by Mr. CHOUDHURY, so far as this point is concerned. Mr. Choudhury argues that where a statutory provision lays down a condition for the exercise of a special jurisdiction created by the statute, that condition must be strictly fulfilled. This is a well-established principle and need not be disputed. The question, however, is as to what the condition is. Mr. Choudhury argues that whenever it was intended by statute to give power to the State Government to act of its own accord, the statutory provision clearly provided for it. For example, u/s 43 of the said Act, it has been provided that the State Government may at any time require any municipal authority to produce any record etc., or to furnish any return etc., and the municipal authority shall comply with such requisition. u/s 44, the State Government may depute any officer of Government to inspect or examine any municipal department, office, etc., and report thereon. Mr. Choudhury argues that in these provisions there is no mention of any representation by the Corporation. similarly he says that u/s 6 of the Bengal Municipal Act, 1923 the State Government may by notification, etc., determine and declare its intention to constitute a Municipality. There again, the statutory provision is clearly whose Mr. Choudhury next draws my attention to Sub-section (1) of Section 548 of the Bengal Municipal Act, 1932. ft is provided there that the State Government may by order in writing annual any proceeding which it considers not to be in conformity with law and with the rules in force thereunder and may do all things necessary to secure such conformity, or may suspend any resolution which it considers likely to lead to a serious breach of the peace, or to cause serious injury or annoyance to the public, or to any class or body of persons. Mr. Choudhury points out that there is no provision there, about the making of any representation by the Municipality. In my opinion, it is of no use to consider the provisions of a different Act. So far as the Calcutta Municipal Act, 1951 is concerned, there are provisions under which the State Government may act without any reference to any representation or request made by the Corporation. In Section 47, however, the State Government may take'' action, but "after" considering any representation which may be made by the Corporation. The word used is "after" and not "upon". Thus, while the Corporation is given power to make a representation, it is not made a condition-precedent to the exercise of power by the State Government. As I have pointed out above, it is extremely unlikely that the Corporation would make such a representation upon its own accord. Hence, the procedure adopted by the State Government is the one which is not. only correct, but accords with common sense. The correct procedure is for the Stale to point out to the Corporation the particulars of any proceeding which it considers not to be in conformity with the Act or any rules, by-laws or regulations made thereunder or with any other law, and call upon it to make its representation. If the Corporation chooses to make such a representation it must be considered by Government before it arrives at a decision and takes action to annul or omit from the records any such proceedings. In the section there is, of course, no time limit prescribed for making a representation. But it is equally obvious that the Corporation would be entitled to a reasonable time and no more. I hold, therefore, that u/s 47, the State Government can act suo motu and not. necessarily at the request of the Corporation. The action taken by the Government, therefore, in this case, must be upheld. I now come to the various points taken in the letter of Government issued u/s 47. As I have stated above, I am concerned in this case with the election of the President Shri Satyananda Bhattacharjee and of the Deputy Mayor, Shri Anil Moitra. The proceedings of the Corporation on the relevant date have been recorded the minutes. It is necessary to say a few words about the minutes. The minutes of the meeting were taken down in shorthand by the Corporation Reporters and thereafter transcribed. This was done on April 11,. 1960. On April 12, 1960 Shri Amitava Niyogi, Joint Secretary to the Government of West Bengal wrote to the Commissioner of the Corporation asking for a copy of the minutes as actually recorded in the meeting. On the. same day Shri P.C. Majumdar, Commissioner of the Corporation, forwarded a copy, of the minutes, mentioning that the copy was the transcription of the shorthand notes taken by the Corporation reporters and had not yet been confirmed and signed by the Presiding Officer. It appears from the affidavit of the Commissioner affirmed on May 13, 1960 that subsequently Shri B.K. Banerjee who presided over the earlier stages of the meeting as Mayor, inserted in his own handwriting between the tenth and eleventh lines of page 1 of the copy of the minutes, a certain sentence. As this particular sentence is of great importance in connection with the election, of the President, it is necessary to set out the same. The relevant portion is set out below:

Shri S.K. Sen: I propose the name of Shri Satyananda Bhattacharjee to preside over the meeting.

Shri. N.R. Sinha: I second.

Mr. Mayor: As there is only one name of Shri S. Bhattacharjee duly proposed and seconded I invite him to preside.

Shri D.K. Mukherjee: I propose the name of Dr. Sukhabehari Mukherjee to preside over this meeting.

Shri D.N. Bose: I second.

The sentence which has been underlined above, is the sentence which has been put in by Shri B.K. Banerjee in his own handwriting and does not appear in the transcribed copy of the minutes which was forwarded to Government. At the hearing, Mr. Ghorai requested me to call for the original shorthand notes and to see whether this sentence is to be found therein. The original shorthand notes were produced in Court and does not contain the sentence.

The relevance of the sentence which has been subsequently-put in, will appear from the stand taken by the Petitioners in this application. Mr. Choudhury argues that there was only one name proposed and seconded for the election of a person to preside over the meeting, and as there was no other name excepting that of Shri Satyananda Bhattacharjee, he was declared by the Mayor to have been elected as President. If the sentence which has been added did not appear in the minutes, it is obvious that this argument would fail, and that two names were proposed and seconded. It is rather unfortunate that this sentence was introduced into the minutes although it finds no place in the original notes taken by shorthand. It is quite true that the person presiding at a meeting is not necessarily bound by the shorthand notes, and if he considers the notes to be defective, it would be open to him to make necessary corrections before signing the minutes. In this case, however a sentence has been introduced which completely alters the complexion of the matter, and Shri Banerjee would have been better advised to have left the minutes as taken down by the shorthand notes. Before me, there is an affidavit of the Commissioner of the Corporation, who states on oath that he was present at the meeting and that the original transcription was the correct record of the proceeding. Before me, this writing by Shri Banerjee has been called an "interpolation". I do not think that this is justified. Shri Banerjee might have quite honestly considered that the transcription was incorrect. However, it is the particular nature of this entry read in the context of what happened at the meeting which has invited uncharitable comments. On the materials before me, however, I am not in a position to decide finally as to whether such comment is justified or not. In my opinion, however, it is unnecessary to dwell on this point any further. Even assuming that the facts were as stated in the minutes, as corrected by Shri Banerjee, even then I am of the opinion that there was no election at all of the President. At best, what happened was that the name of Shri Bhattacharjee was proposed and seconded and forthwith Shri Banerjee declared that there being only one name, Shri Bhattacharjee should be "invited to preside". Immediately, thereafter, a second name was proposed and seconded but this was completely ignored. Upon Shri Bhattacharjee taking the chair, Shri D.C. Mukherjee at once protested and drew his attention to Section 93 of the Act, and put emphasis upon the words "shall elect". He, therefore, requested and appealed to Shri Bhattacharjee that in all fairness he should allow the election of the President to take place, is contemplated u/s 93. Shri Bhattacharjee however took the stand that the outgoing Mayor had allowed him to take the chair and that he had unanimously been elected as President. He, therefore, refused to vacate the chair or to hold any further election of the President. In my opinion, the objection taken by Shri Mukherjee was justified and that the stand taken by Shri Bhattacharjee is not warranted in law. Section 93 of the said Act clearly lays down that the Councillors and Aldermen present at the meeting "shall elect" one of their number who is not a candidate for election as Mayor, to preside over the meeting. "Election" means the deliberate choosing of the representative, and the operative part of an election is not the mere proposing or seconding of a name. A name when proposed and seconded merely signifies that a candidate for the election has been duly put forward by one person and approved by another and placed before the Councillors and Aldermen present at the meeting, for exercising their right of franchise. If there is only one name proposed usually he is the person ultimately elected. It may so happen, however, that the electors present at the meeting might not approve of the name and may turn it down. Every individual voter has the right to express his opinion about the name proposed, even if it is single name and without proposing any other name. A single name when proposed and seconded has to be put to the vote, and the votes recorded. It is only thereafter that the result can be declared. The method by which an election is to be conducted may either be laid down by statute or governed by the common law of meetings. In the present case, the method to be adopted is indicated in Section 91 of the Act. This section lays down that all matters to be decided by the Corporation shall be determined by a majority of the Councillors and Aldermen voting at the meeting before which the matter is brought. The voting is to take place by show of hands, provided that rules may be made for balloting in any particular case. There is also provision for taking poll if demanded. Thus, in an election u/s 93. if there is more than one candidate, the result will be determined by the number of votes cast in favour of each candidate. In other words, he who gets more votes in his favour wins. When it is a single candidate, it will have to be ascertained how many are in his favour and how many against. A candidate can only succeed if the approval preponderates. Where the votes balance, the procedure laid down in Section 93 should be followed. It is for this reason that where it is contemplated that the mere proposal or seconding of a name, or a nomination, as the case may be, should, without any further action, result in the person being declared as elected, it is necessary to have a special provision in the statute creating the franchise. For example, in Section 53 of the Representation of the People Act, 1951 it has been laid down that if the number of contesting candidates is equal to the number of seats to be filled, the returning officer shall forthwith declare all such candidates to be duly elected. u/s 68 of the Calcutta Municipal Act, 1951 being the very Act we ore considering, there is similar provision with regard to election of councillors. That section provides that if in a constituency there is only one duly nominated candidate who has not withdrawn his candidature, he shall be declared to be duly elected. So far as Section 93 of the said Act is concerned, there is no provision a single candidate who has been proposed and seconded lie should forthwith be declared as. elected. Therefore, the outgoing Mayor was in error in treating the mere, proposal and seconding of Shri Bhattacharjee to be sufficient to constitute his election, and he had therefore no right to invite him to preside, nor had Shri Bhattacharjee, without a proper election, any right to take the chair and consider himself to have-been elected as President, unanimously. Immediately after the proposing and seconding of the name of Shri Bhattacharjee, another name was proposed and seconded, and it would have been right and proper to have called upon the Councillors and Alderman present to proceed to elect one of the two names proposed as President. This not having been done, I must hold that Shri Bhattacharjee had not been elected as President of the meeting in terms of Section 93 of the said Act. Mr. Choudhury then argues that assuming that the election had not taken place in accordance with the rules, the election of Shri Bhattacharjee must be held to be valid because of acquiescence on the part of the Councillors and Aldermen who took part in the meeting. He argues that after Shri Bhattacharjee occupied the chair, the Councillors and Aldermen addressed him and then proceeded with the election of the Mayor and the Deputy Mayor, and consequently the persons present must be taken to have acquiesced in the election of the President. In my opinion, this argument is entirely without any foundation. Not only was there an immediate protest pointing out the provisions of Section 93. but there were continuous protests throughout the meeting. Indeed, the protests at times exceeded the bounds of decency and became vituperative. To say that there was no objection would be to misread the minutes. Mr. Choudhury suggests that if the persons present did not approve of the election they should have walked out and refused to take part in the deliberations any further. That is a counsel of perfection. It does not always find favour at. such meetings. Since Shri Bhattacharjee refused to vacate the chair it may well have been thought that no useful purpose would be gained by withdrawing from the battle-field, leaving the other party in possession. On the facts and circumstances of this case I hold that there was no acquiescence and it does not affect the result of the election.

The result is that the elections that subsequently took place! are all invalid. I am, however, concerned in this case with the election of the Deputy Mayor, Shri Anil Moitra. In his case again, the position appears to be identical and the defect is obvious. The election of the Deputy Mayor took place in the following manner: After Shri Bhattacharjee occupied the chair, and refused to vacate it, there was a long stream of objections and counter objections and ultimately Shree S.K. Sen proposed the name of Shri Anil Moitra as the Deputy Mayor and Shri S.K. Sen Sarma seconded it. Thereupon, at once, and without waiting for any other name to he proposed, Shri Bhattacharjee said that there being no other name, he declared Shri Anil Moitra as Deputy Mayor of the Calcutta Corporation. Immediately thereafter Shri D.C. Mukherjee proposed the name of Mr. Ismail Ibrahim as Deputy Mayor which was seconded by Dr. S.K. Sen. Thereupon Shri N.L. Banerjee made a declaration that Mr. Ismail Ibrahim had been duly elected as the Deputy Mayor, although it is not clear how Shri N.L. Banerjee could make such a declaration. However, in this case I am not concerned with the case of Mr. Ismail Ibrahim. With regard to Shri A. Moitra, however, the election is vitiated by the same defect as observed above, in the case of the President of the meeting. All that happened was that the name of Shri Moitra was proposed and seconded. That by itself cannot constitute an election. To be validly elected, the name will have to be put to vote, even assuming that it was the only name proposed. That, not being done, the election is invalid. In fact, there has been no election.

As regards the meeting held by the Corporation on the fateful day, many hard things could be said. It is, however, unnecessary to waste time over it. as no real improvement can he expected unless there is inculcated in our city-fathers, a greater sense of civic responsibility. Much of what happened at the meeting can be ascribed to spheres other than municipal. The best interests of the rate-payers of the city did not motivate those who contributed to the dramatics of the occasion, but a mere scramble for power. Otherwise it cannot be explained how so many sensible and worthy men could solemnly sit together and waste public time and money on debating the most ridiculous propositions, viz., that there being a vote of confidence within the previous six months, in the Mayor. he needed not get himself re-elected, or about the application of Rule 17(g)(1) of the rules of business, which has not the remotest application to the facts of the case.

For the reasons stated above, I am of the opinion that the election of Shri Satyananda Bhattacharjee as President of the meeting held on April 11. 1900 and Shri Anil Moitra. as the Deputy Mayor arc invalid and that the meeting was not conducted in accordance with the law. Consequently, the State of West Bengal appropriately exercised its jurisdiction u/s 47 of the Act and that the grounds set out in its letter, dated April 19, 1960, are all tenable grounds and this Court sees no reason to interfere.

Accordingly this Rule is discharged. Interim orders, if any. are vacated. There will be no order as to costs.