W.P. (C) No. 5927 of 2011. Case: Shri Jyotirmoy Paul & Anr. Vs State of Assam & Ors.. Guwahati High Court
| Case Number | W.P. (C) No. 5927 of 2011 |
| Counsel | For Appellant: Mr. D.K. Mishra, Mr. R.P. Sarmah, Sr. Adv., Mr. M.R. Adhikari and Ms. H. Terangpi, Advs. and For Respondents: Mr. B.J. Ghosh, G.A. for the Respondent Nos. 1 to 3, Mr. S.P. Roy, Mr. N.N. Jha, Mr. K. Rajbongshi and Mr. P.K. Roy for the Respondent Nos. 4 to 8 |
| Judges | Arun Chandra Upadhyay, J. |
| Issue | Arbitration Act, 1940 [Repealed] - Section 14; Code of Civil Procedure, 1908 (CPC) - Order IX Rule 13; Order V Rule 5; Order XXIX Rule 29; Section 141; Constitution of India - Articles 226, 227 |
| Judgement Date | August 28, 2012 |
| Court | Guwahati High Court |
Judgment:
Arun Chandra Upadhyay, J.
1. This is an application under Article 226 of the Constitution of India calling in question the notice dated 11-11-2011 issued by the respondent Nos. 4, 5 and 6 on the basis of requisition notice dated 10-10-2011, proceeding of special meeting dated 14-11-2011 in which want of confidence was expressed against the petitioners and the proceeding of the meeting dated 38-11-2011 in which the respondent No. 4 was elected as Chairman of the Rangapara Town Committee, for short, the Town Committee. A prayer is also made in this petition to allow the petitioners to continue to function as Chairman and Vice-Chairman of the Town Committee, respectively. The basic facts as pleaded in the writ petition are that the Town Committee has four elected members and two Ex-officio Members, one of whom is a Member of the House of the People and the other a Member of the Legislative Assembly of the State of Assam. There are two members, nominated by the State Government in exercise of its powers under Section 11(2) of the Assam Municipal Act, 1956, for short, the Act. In the election that was held in the year 2009, the petitioners along with private respondent Nos. 4 and 5 were elected as Ward Commissioners of the Town Committee and in the first meeting of the newly elected members of the Town Committee held on 15-09-2009, newly elected Ward Commissioners were administrated oath and in the said meeting, the petitioner No. 1 was unanimously elected as the Chairman of the Town Committee. The petitioner No. 2 was elected as Vice-Chairman on 03-11-2009. On the basis of a requisition notice dated 25-07-2011, the petitioners were removed from the offices held by them through a No Confidence Motion in a meeting held on 23-08-2011, which was subsequently approved on 29-08-2011.
2. The said actions were under challenge in W.P. (C) No. 4526 of 2011 and this Court on 07-09-2011, had stayed the operation of the resolution of No Confidence Motion dated 23-08-2011 till the returnable date. On an application filed by the respondent Nos. 4, 5 and 6 for vacation of the said interim order, registered as Misc. Case No. 2871 of 2011, by an order dated 29-09-2011, this Court, while declining to alter, vacate or modify the order dated 07-09-2011, observed that the Ward Commissioners may bring fresh No Confidence Motion against the petitioners, if so advised.
3. While the petitioners were continuing as Chairman and Vice-Chairman, respectively of the Town Committee, notice dated 11-11-2011 was served upon the petitioners personally. By the said notice dated 11-11-2011, a requisition meeting was convened on 14-11-2011 to discuss the No Confidence Motion against the petitioners on the basis of the requisition dated 10-10-2011. It is pleaded that copy of the requisition notice dated 10-10-2011 was not personally served as required under Section 43(2) of the Act and that the same was also not received in the office as per record. It is also pleaded that no notice of any kind in connection with the issue of requisition notice prior to the notice dated 11-11-2011 was ever served upon the petitioners. A meeting was held on 14-11-2011 and on the basis of the earlier requisition notice dated 25-07-2011, a resolution was adopted expressing want of confidence against the present petitioners thereby removing them from the respective offices held by them. By notice dated 15-11-2011, a meeting was convened by the respondent No. 5 on 18-11-2011 for election of Chairman of the Town Committee and said meeting was presided over by her. In the said meeting, the respondent No. 6 proposed the name of respondent No. 4 for Chairman, which was supported by the respondent No. 5. It is pleaded that no Notification as required under the Act was issued indicating inclusion of respondent Nos. 6 and 7 as Ex-officio Members of the Town Committee and further, the respondent No. 6 was yet to take oath as required under Section 25 of the Act. Yet, the notice dated 11-11-2011 was signed, amongst others, by the respondent No. 6.
4. An affidavit-in-opposition is filed on behalf of the respondent Nos. 4 to 7. In the said affidavit, the statements made in paragraphs 8 and 9 of the writ petition regarding requisition notice dated 10-10-2011 were branded as a pack of lies. It is stated that the respondent No. 4, 5 and 6 had personally tendered the notice dated 10-10-2011 to the petitioners and they had refused to accept the same and thereafter, the notice was served upon the Head Assistant of the Town Committee and on receipt of the same, she had put her signature and seal on the office copy of the notice dated 10-10-2011. As the petitioner did not call the special meeting for consideration of the No Confidence Motion, the respondent Nos. 4, 5 and 6 had issued two notices dated 11-11-2011 to the petitioners and other members calling a requisition meeting of the Board at 11:00 a.m. on 14-11-2011 in the office of the Town Committee to transact agenda, amongst others, relating to consideration of the No Confidence Motion against the Chairman and Vice-Chairman of the Town Committee. The said notice dated 11-11-2011 was received by the petitioners personally by putting their signature and seal. On 14-11-2011, a meeting was held in the office of the Town Committee. While asserting that a no-confidence resolution was adopted against the petitioners in the special meeting held on 14-11-2011, it is denied that the said meeting was held in the residence of respondent No. 6 and that resolution was adopted expressing No Confidence Motion against the petitioners on the basis of the earlier requisition notice dated 25-07-2011. The letter dated 15-11-2011 issued by the respondent No. 5 was sent to the present petitioners by Regd. Post with A/D as well as by Speed Post and on inquiry with the Post office, it was learnt that letters were duly served upon the addressees. It is also pleaded that respondent Nos. 4 and 5 had attempted to serve a copy of the resolution dated 14-11-2011 but as the petitioners had refused to accept the copy of the resolution, through the intervention of the Deputy Commissioner, Sonitpur, the letter dated 15-11-2011 and the proceeding of the meeting dated 14-11-2011 were served through Rangapara Police Station upon the petitioners on 16-11-2011. They, however, put the date as 16-12-2011 and the petitioner No. 2 had done so through over writing...
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