WP(C) 5974/2007 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA The petitioners who are the Ward Commissioners of the Municipal Board in question are aggrieved by the decision conveyed by the Govt. of Assam in the Ur ban Development Department to the effect that the Chairman and Vice Chairman of the Municipal Board have been voted out by a majority of the Ward Commissioners in the no-confidence motion initiated against them and the appointment of the pa rticular Ward Commissioner as the Chairman of the Board till election of a new C hairman. 2. The election of the Municipal Board, namely Dhekiajuli Municipal Board w as held in the month of December, 2003 for election of Ward Commissioners and W ard Councilors results of which were declared in the last week of December, 200 3. In the election, the petitioners were elected as Ward Commissioners. The firs t meeting of the Municipal board was convened by the Deputy Commissioner of the District on 27.11.04 for taking oath of allegiance and for election of the Chair man and Vice-Chairman. The meeting was so convened under Rule 1 of the Second Sc hedule of the Assam Municipal Act, 1956. 3. In the meeting the petitioners No. 1 and 2 were elected uncontested as C hairman and Vice-Chairman of the Board. It will be pertinent to mention here tha t there are 10 elected Ward Commissioners and the MP and MLA of the area are th e Ex-Officio members of the Board, totaling the number of Ward Commissioners to 12. According to the petitioners in the house of 10 elected Ward Commissioners, their strength is 7. 4. Earlier the Ward Commissioners opposed to the petitioners No. 1 and 2, b rought a no-confidence motion against them but the same was defeated in the meet ing held on 20.04.05. The Circle Officer, Dhekiajuli Revenue Circle visited the office of the Municipal Board on 28.09.2007 to make an enquiry as to whether th e letter of requisitioning special meeting to discuss no-confidence motion again st the petitioners No. 1 and 2, was received by the one Shri Bishnuja Daimari, a Grade-IV employee of the Board or in fact, the same was handed over and/or serv ed on the petitioners No. 1 and 2. According to the petitioners, said Shri Daima ri revealed to the Circle Officer and others that in the month of August, 2007, the present Chairman of the Board, i.e. respondent No. 4, handed over to him a letter asking him to sing on it without putting any date and to hand over the s ame to the petitioner No. 1. However, said Shri Daimari never handed over the sa me to the petitioners. 5. Above aspect of the matter was stated by Shri Daimari by his Annexure-B letter dated 28.09.07 addressed to the petitioner No.1. The petitioner No. 1 lod ged Annexure-C FIR of the same date with Dhekiajuli P.S. to take appropriate act ion in the matter relating to the said incident. 6. It is the definite case of the petitioners that till the date of filing of the writ petition, no notice requisitioning special meeting to discuss no-c onfidence motion against the petitioner No. 1 was served and that private respon dents adopted manufactured resolution of no-confidence motion against the petiti oner No. 1 assembling at Circuit House, Dhekiajuli. According to the petitioners even if the special meeting was held, there was no requisite number of members to oust the petitioners No. 1 and 2 from the office as required U/s. 28 of the A ct. 7. The petitioner No. 1 visited the office of the Deputy Commissioner, Soni tpur on 16.11.07 in connection with a meeting conveyed to him and in the said me eting he came to know about the issuance of impugned notification dated 16.11.07 (Annexure-D) by which the respondent No. 4 was allowed to hold the office of th e Chairman of the Board till election of a new Chairman. The notification indica ted that the Chairman and the Vice-Chairman of the Board had been voted out by a majority of Ward Commissioners in the no-confidence motion initiated against th em. 8. According to the petitioner No. 1, he was caught by surprise when he cam e across the notification. He lodged a complaint with the Govt. of Assam on 19 .11.07. While lodging the said complaint, he also sought for a copy of the no-co nfidence motion resolution. However, he was not furnished with the same. Accordi ng to the petitioners, entire exercise has been carried out in complete violati on of the provisions of the Act and is politically motivated. The petitioners ha ve asserted that they being in the majority group with 7 Ward Commissioner (6 el ected and 1 ex-officio, i.e. local MLA), they could not have been ousted from po wer as has been done by so called no-confidence motion. According to the petitio ners, the Govt. in the Urban Development Department has issued the impugned not ification dated 16.11.07 without ascertaining the real position solely on the b asis of the political pressure. 9. The respondent No. 4 who has been allowed to hold office of the Chairman on temporary basis, has filed the affidavit in opposition justifying the action towards passing the no-confidence resolution and the issuance of the impugned n otification. Certain allegations have been made against the petitioners. Accordi ng to him when no action was taken against the petitioners No. and 2 in respect of their illegal activities, the respondent No. 4 alongwith others addressed the letter dated 23.07.07 to the petitioner No. 1 requisitioning special meeting to discuss on no-confidence motion against him and the petitioner No. 2. It has be en admitted in the affidavit that the letter dated 23.07.07 was served on said S hri Daimari, an office peon in the office of the Chairman. The copies of the let ter were also sent to the Secretary to the Govt. of Assam in the Municipal Admin istration Department, Deputy Commissioner, Sonitpur and the Director of Municipa l Administration. 10. According to the respondent No. 4, a notice U/s. 43 (3) of the Act was also sent to the petitioners No. 1 and 2 and other members indicating that a spe cial meeting to discuss the no-confidence motion had been requisitioned by lette r dated 23.07.07. It has been stated in the affidavit that inspite of receipt of the notice, the petitioner No. 1 failed to convene the meeting within 20 days o f receipt of the same as required, and consequently the special meeting was ca lled on 15.09.07 by the requisitionists. The stand of the respondent No. 4 is t hat the notice for the meeting was sent to all the members including the petiti oners No. 1 and 2 through Dak Book, but they refused to acknowledge the same by putting their signatures. The copy of the notice dated 10.09.07 convening the sp ecial meeting on 15.09.07 has been annexed to the counter affidavit as Annexure- 10. 11. Further stand of the respondent No. 4 is that in the special meeting hel d on 15.09.07, no-confidence motion was passed against the petitioners No. 1 and 2 and the respondent No. 6 by his letter dated 17.09.07 forwarded the proceedin gs of the meeting and other related documents to the Deputy Commissioner of the District for his necessary action. Thereafter the impugned notification dated 1 6.11.07 was issued. 12. Dealing with the special plea of the petitioners that the copy of the le tter dated 23.07.07 requisitioning the no-confidence motion against the petition ers No. 1 and 2 was never served on them and the same was only furnished to the office peon who in turn never placed the same before the petitioners No. 1 and 2 , the respondent No. 4 has admitted in paragraphs 21-22 of the counter affidavi t that the copy of the letter of requisition was received by the peon. Placing r eliance on Annexure-16 letter dated 02.10.07 purportedly addressed to the Dhekia juli P.S. by said Shri Daimari, it is the stand of the respondent No. 4 that the letter dated 28.09.07 (Annexure-B) about which mention has been made above, is a manufactured one and said Shri Daimari only signed on the blank paper being pu t to scare by the petitioner No. 1. 13. The petitioners have filed their affidavit in reply denying the contenti ons raised in the affidavit in opposition filed by the respondent No. 4. The pet itioners have referred to Dhekiajuli P.S. Case No. 308/07 under Section 302 IPC read with Section 7 of Cinematography Act, 1952 in which the respondent No. 4 ha s obtained bail. It has been stated that the requisition notice dated 23.07.07 w as never served on the writ petitioners. It has been reiterated that since the r equisition notice was never served on the petitioner No. 1, he could not convene the special meeting and thus there is no question of failure on his part to con vene the meeting so as to give rise to a situation in which the members could ho ld the special meeting. As regards the plea of the respondent No. 4 that the sub sequent notice was sent through Dak Book, the stand of the petitioners is that there is no question of sending notice through the Dak Book as the same was in the office in which the petitioners continued till their illegal removal. The pe titioners have also referred to the earlier writ proceeding in W.P.(C) No. 7398/ 04 which arose pursuant to the no-confidence motion brought against the petition ers and as to how after the decision in the said case they had been continuing i n the office till their ouster allegedly by way of illegal no-confidence motion . 14. I have considered the submissions made by Mr. R.P. Sharma, learned Sr. c ounsel assisted by Mr. K.D. Singh, learned counsel for the petitioners as well a s Ms. R. Chokraborty, learned counsel for the official respondents. I have also considered the submissions made by Mr. P.K. Goswami, learned Sr. counsel assiste d by Mr. J. N. Phukan, learned counsel for the respondent No. 4. Learned State c ounsel has produced the records. On perusal of the records in file No. UDD(M)/62 /2004, it was revealed that the file contained pages 1 to 12 with official notes and documents from serial No. 1 to 82. However, the document at page No. 36 was found missing. Noticing the same and that there was discussion of the contents of the said page in the note sheet, learned State counsel was requested to produ ce the said page No. 36. The particulars page has been produced subsequently. 15. The first question which comes for determination is as to whether the fi rst requisition letter dated 23.07.07 (Anenxure-9 to the counter affidavit filed by the respondent No. 4) was served on the petitioners, more particularly the p etitioner No. 1. By the said letter the petitioner No. 1 was requested by 5 Ward Commissioners to convene the special meeting to discuss the no-confidence motio n. There is no manner of doubt that the letter was never personally served on th e petitioner No. 1, but was served on said Bishuram Daimari. This aspect of the matter has been admitted by the respondent No. 4 in his counter affidavit. It is also an admitted position that the letter was never handed over to the petition er No. 1 or anyone else of the petitioners by said Shri Daimari. That being the position, there was no question and/or occasion for the petitioner No. 1 to co nvene the special meeting as envisaged under the rules. 16. Although a faint effort has been made by the respondent No. 4 to contend that the letter dated 23.07.07 was served on the petitioner No. 1 through Dak B ook, and he refused to accept the same, but on perusal of the pleading to that e ffect (paragraph-10 of the counter affidavit), it is seen that what was sent to the petitioner No. 1 was the Annexure-10 undated letter in the form of notice un der Section 43(3) of the Act intimating convening of the special meeting on 15.0 9.07 at 5 P.M. It will be pertinent to mention here that the notice did not indi cate any venue of the meeting. The respondent No. 4 has also not annexed the cop y of the notice meant for the petitioners but has annexed the copy of the same a ddressed in his name. 17. Section 43(3) of the Act emphasizes a subsequent action on the part of the person signing the requisition which according to the respondent No. 4 was o n 23.07.07. Admittedly, the said letter dated 23.07.07 was never served on the p etitioners, more particularly the petitioner No. 1. The statements made in parag raph-10 of the counter affidavit on which much reliance was placed by the learne d counsel for the respondent No. 4, are relating to subsequent notice U/s 43 (3) of the Act . It was purportedly sent to the petitioners No. 1 and 2 through Dak Book. 18. During the course of hearing, learned counsel for the respondent No. 4 p roduced the purported Dak Book which is not official. As contended by the petiti oners, the official Dak Book was in the office and thus there could not have occ asion for the private respondents to send notice through the said official Dak Book. Similarly, the Note Book, which has been produced as Dak Book cannot be said to be Dak Book. The Note Book shows use of the same only for the purpose of providing endorsement in respect of the meeting held on 15.09.07 and not in res pect of service of requisition letter dated 23.07.07. Although the Note Dak Book mentions about the special meeting, but no specified date is discernible. 19. Apart from the above, there is nothing to indicate in the Note Book that there was refusal on the part of the petitioners to put their signatures in the said Book. There is no endorsement to that effect by any authority in presence of witnesses as is required under the procedure relating to service of notice. 20. The record produced by the Municipal Board only contains the said Note Book stated to be Dak Book, the requisition letter dated 23.07.07 with the endor sement of office peon, namely Shri Daimari, the intimation to the Deputy Commiss ioner, Sonitpur by the respondent No. 6, a Ward Commissioner, intimating about n o-confidence motion passed against the petitioners No. 1 and 2 and the format U /s. 43 (3) of the Act signed by 5 Ward Commissioners. It also contains the minut es of the meeting held on 15.09.07 recorded in particular Register. As per the s aid minutes of the meeting, same was held in the Inspection Bunglow of Dhekiajul i on 15.09.07 at 5 P.M. As indicated above, the notice U/s. 43 (3),of the Act di d not specify the venue of the meeting. 21. The Govt. record/file produced by the learned State counsel has been men tioned above. The file indicates that when the matter relating to no-confidence motion purportedly passed against the petitioners was processed, it was pointed out that the matter should have been dealt with U/s. 28 (2) of the Act. The venu e of the meeting was also questioned in the note. It was also indicated that sec tion 43(3) of the Act is not attracted without following the procedure laid down in U/s. 28 (2) of the Act. 22. The office note also indicates that the petitioners lodged complaint abo ut non-receipt of the copy of the no-confidence motion. The note dated 03.10.07 was put up before the Commissioner and Secretary indicating that the requisition letter was not received by the petitioner No. 1 but was received by the office peon who kept the same at his residence without bringing it to the notice of the petitioner No. 1. 23. The office note dated 12.10.07 put up before the Commissioner and Secret ary indicates about the inquiry conducted by the Circle Officer and his finding that the letter of requisition was served on a Grade-IV employee. On 15.10.07 a note was put up indicating the order of the Minister of Urban Development Depart ment at page No. 36. It is this particular page which was missing from the file which, however, later on was produced by the learned State counsel. 24. The letter id dated 03.10.07 addressed to the Minister of Labour and Urb an Development by one Shri Hiranya Bora, Ex-MLA and Chairman, AIDC. The letter s peaks of the no-confidence motion on party line and non-attendance of any of the Ward Commissioner from a particular political party. By the letter, a recommend ation was made for appointment of the respondent No. 4 as the Chairman. On the b ody of the letter, there is endorsement of the Minister and the Commissioner & S ecretary of the Department. 25. The Commissioner and Secretary by his note dated 06.11.07 intimated the Minister, UDD that the notice of requisition was received by a Grade-IV employee and the same was not brought to the notice of the Chairman. Thereafter legal op inion was obtained followed by the impugned notification. 26. Apart from the revelations made from the records and the pleadings of th e parties, there was no manner of doubt that the requisition letter dated 23.07. 07 was never served on the petitioner No. 1 enabling him to take action as per t he provisions of the Act. Subsequent action on the part of the requisitionists a nd their unanimous action in passing the no-confidence motion by holding a meeti ng in a place other than the office of the Board is inconsequential. 27. Section 28 (2) of the Act makes the provision for removal of elected Cha irman or Vice-Chairman by a resolution of the Board in favour of which not less than half of the whole number of Commissioners shall have to give their votes at a meeting specially convened for the purpose. It was submitted by the learned c ounsel for the parties that in the instant case, whole number of Commissioners m eans 10 elected Ward Commissioners, and half of the said numbers constitutes th e quorum to pass the no-confidence motion. Thus, so far as number game is concer ned, there is no dispute, but the question which arises for consideration is as to whether the special meeting was convened and the no-confidence motion was pas sed as per the prescription provided in the Act. 28. Section 33 of the Act makes provision for appointment or election of Cha irman and Vice-Chairman. The petitioners No. 1 and 2 were elected as Chairman an d Vice-Chairman of the Board in the first meeting held for the purpose. Section 36 empowers the State Govt. to appoint anyone from amongst the Commissioners as the Chairman to hold the office as such temporarily till a Chairman is elected. Such a course of action can be taken when the posts of both Chairman and Vice-Ch airman are vacant. 29. Section 41 of the Act makes provision for filling of casual vacancies of Chairman and Vice-Chairman. As per requirement, such vacancies are to be filled up by election by way of calling a meeting within 45 days of occurrence of vaca ncies. Upon failure to call such meeting duty lies on the Deputy Commissioner or the Sub-Divisional Officer as the case may be, to call the meeting. Thus, even otherwise also by efflux of time and upon failure to call the meeting within the specified period of 45 days of occurrence of the vacancies of Chairman and Vice -Chairman, the impugned notification dated 16.11.07 has spent its force. By now and even at the time of hearing of the writ petition, the stipulated period of 4 5 days had expired and yet the meeting has not bee called by the authorities spe cified U/s. 41 of the Act. 30. Section 43 of the Act deals with ordinary and special meetings as per wh ich the Commissioners shall meet for the transaction of business at their office , at least once in every month, and as often as a meeting shall be called by the Chairman or, in his absence, by the Vice-Chairman. Section 43 (2) of the Act ma ndates that the Chairman, or in his absence, the Vice-Chairman may call a speci al meeting whenever he thinks fit and shall call one on a requisition signed by not less than three of the Commissioners. Section 43 (3) comes into play in the event of failure on the part of Chairman or Vice-Chairman to call the special me eting within 20 days after placing the requisition. Upon failure to call special meeting, the meeting may be called by the persons who signed the requisition. 31. In the instant case there was no failure on the part of the Chairman to call the special meeting on the basis of the requisition dated 23.07.07 inasmuch as the same was never placed before him. This position has been admitted by th e respondent No. 4 himself in the counter affidavit. If the requisition was not placed before him, there was no question of calling the special meeting. The oc casion for the persons signing the requisition to call and hold the meeting wou ld have arisen, had there been failure on the part of the Chairman, i.e. petitio ner No. 1, to do so. Thus, the action as contemplated U/s. 43 (3) of the Act bei ng only consequential to failure on the part of the Chairman to call the special meeting as contemplated in Section 43 (2) of the Act, unless the requirement of Section 43(2) is fulfilled, there is no question of taking any action U/s. 43 ( 3) of the Act. Everything was done in a hush hush manner. Firstly the requisit ion letter dated 23.07.07 was not served on the petitioner No. 1, but was served on the office peon. Secondly, even the special meeting notice was not served on the petitioners. The notice also did not indicate the venue of the meeting. Wha t happened in the case is that, since the requisitionists constitute 50% of the elected Ward Commissioner, they forming the group in opposition took the entire action towards removal of the elected Chairman and the Vice-Chairman in a cland estine manner and in the process the mandatory requirements of the provisions of the Act were merrily flouted. 32. Above being the position, the no-confidence motion passed against the pe titioners No. 1 and 2 is of no consequence. This is not to mean that the privat e respondents cannot bring no-confidence motion against the elected Chairman an d Vice-Chairman, but the same will have to be strictly in accordance with the pr ovisions of the Act and not in the manner and method in which they have done. 33. As noticed above, there being failure on the part of the authorities to call the meeting within 45 days of occurring the vacancies of Chairman and the V ice-Chairman, the impugned notification dated 16.11.07 has otherwise also spent its force. However, this aspect of the matter need not detain us in view of the finding that the entire action on the part of the private respondents towards pa ssing the no-confidence motion and the action of the official respondents to gi ve credence to the same being illegal and contrary to the provisions of the Act. 34. For the forgoing reasons, discussions and conclusions, this writ petitio n is allowed with the declaration that the no-confidence motion passed against t he petitioners on 15.09.07 is illegal and consequently, the notification dated 1 6.11.07 (Annexure-D) is also of no