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High Court Of Calcutta
M. N. Roy
JNANENDRA NATH PRAMANICK - Appellant
Versus
DISTRICT MAGISTRATE, NADIA - Respondent
Civilrule 12616 (W) Of 1976
Decided On : 01/28/1977
BENGAL MUNICIPAL ACT, 1932 - SECTION 61 - REMOVAL OF CHAIRMAN - NOTICE - SERVICE - CLEAR DAYS - INTERPRETATION - DIRECTORY OR MANDATORY - PREJUDICE - MAINTAINABILITY OF PETITION.
Fact of the Case:
A notice was issued by the District Magistrate, Nadia, under Section 61(4) of the Bengal Municipal Act, 1932, convening a special meeting of the Commissioners for the purpose of moving a no-confidence resolution against the Chairman of the Santipur Municipality. The notice was served on some of the Commissioners on October 18, 1976, and on the rest on October 19, 1976. The meeting was scheduled to be held on November 3, 1976. The petitioner, an elected Commissioner of the Municipality, challenged the notice, contending that clear 15 days' notice was not given as required by Section 61(3) of the Act.
Finding of the Court:
The court held that the provisions of Section 61(3) of the Bengal Municipal Act, 1932, are directory and not mandatory. The court found that the meeting was not prejudicially affected by the irregularity in the service of notice because 18 out of 25 Commissioners were present and that apart, the persons who were actually interested in the proceedings, raised no objection at all on the ground of shortness of time in effecting service of notice on them and the more so when the petitioner himself was duly served with the notice.
Issues: 1. Whether the provisions of Section 61(3) of the Bengal Municipal Act, 1932, are directory or mandatory? 2. Whether the meeting was prejudicially affected by the irregularity in the service of notice? 3. Whether the petition is maintainable?
Ratio Decidendi: 1. The court held that the provisions of Section 61(3) of the Bengal Municipal Act, 1932, are directory and not mandatory. The court relied on the following factors: - The purpose of the notice is to inform the Commissioners about the meeting so that they can arrange their other business to attend the meeting. - The meeting was not prejudicially affected by the irregularity in the service of notice because 18 out of 25 Commissioners were present. - The persons who were actually interested in the proceedings, raised no objection at all on the ground of shortness of time in effecting service of notice on them. - The petitioner himself was duly served with the notice. 2. The court held that the meeting was not prejudicially affected by the irregularity in the service of notice because 18 out of 25 Commissioners were present and that apart, the persons who were actually interested in the proceedings, raised no objection at all on the ground of shortness of time in effecting service of notice on them and the more so when the petitioner himself was duly served with the notice. 3. The court held that the petition is not maintainable because it was filed by the petitioner, who was duly served with the notice, and not by the Chairman, who was sought to be removed.
Final Decision: The court dismissed the petition.
( 1 ) THE petitioner, an elected Commissioner of Santipur Municipality (hereinafter referred to as the said Municipality), has challenged a notice in Annexure "a," issued by the District Magistrate, Nadia in exercise of the powers under Sub-section (4) of Section 61 of the Bengal Municipal Act, 1932 (hereinafter referred to as the said Act ).
( 2 ) AT the time material to the Rule, Shri Pratap Chandra Saha (Respondent No. 5) was the Chairman of the said Municipality. A notice dated October 9. 1976 was signed by 16 out of the 18 Commissioners of the said Municipality and was served on the District Magistrate, Nadia (Respondent No. 1), informing her thereby that they have no confidence in the Chairman of the said Municipality and requesting the said respondent No. 1 to convene a special meeting of the Commissioners under Section 61 of the said Act for the purpose of moving the following resolution:. . (VERUNACULAR MATTER OMITTED ). . The original of the notice was produced by Mr. Ghosal appearing for the Respondents Nos. 1 to 4 and a copy of the same has also been annexed with the affidavit-in-opposition of Respondents Nos. 15 to 28. The receipt of the said notice has not been denied by the District Magistrate concerned in her return to the Rule and she has stated that on receipt of the said notice at about 10. 30 A. M. , she heard all the Commissioners, who were signatories to the said notice and thereafter she was convinced that a case was made out for convening a special meeting and as such in exercise of her powers under Section 61 (3) of the said Act she gave the impugned notice in Annexure "a" to all the Commissioners, The said notice was dated October 17, 1976 and it appears from the original of the same that the same was signed by the District Magistrate concerned. It has also been stated by the said Respondent No. 1 that the notice in question was sent out on Oct. 18, 1976 for service on the Commissioners and Respondents Nos. 5, 10, 11 and 12 were served on the same day i. e. October 18, 1976 and the other Commissioners were served on October 19, 1976. Since the meeting was Scheduled to be held on November 3, 1976, it has been contended that 15 clear days notice of the meeting was duly given. It has also been stated by the said Respondent No. 1 that thereafter, in exercise of her powers under Section 61 (4) of the said Act, she directed the Additional District Magistrate, Nadia, to preside over the said special meeting. It has further been stated that the no confidence resolution was read over in the connected meeting and at that time the petitioner and the Respondents Nos. 6 and 7 staged a walk out, whereas the remaining 15 Commissioners including the Chairman participated in the debata and exercised their voting right. It appears that out of the 15 Commissioners 14 casted their votes in favour of the no confidence resolution, whereas the Chairman (Respondent No. 5) voted against the same. It is an admitted fact that although the resolution was passed yet the effect to the same could not be given because of the order dated November 2, 1976 passed by this Court, which permitted the holding of the meeting but restrained the authorities concerned from taking any steps regarding the resolution that may be passed.
( 3 ) THE Respondents Nos. 15 to 28 to their separate return to the Rule, apart from denying the material allegations stated that the notice in question was duly served on the Commissioners and in any event no injury, injustice or prejudice has been caused by the issue of the notice dated October 17, 1976 and service thereof on some of the Commissioners on October 18, 1976 and the day after that on the rest. They have contended that the terms of Section 61 (3) are not mandatory but directory and in any event there has been substantial compliance with the said terms and more particularly when the meeting was held on November 3, 1976. Such contentions was raised as the petitioner pleaded that clear
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