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1951 Supreme(Cal) 28
High Court of Calcutta
Bose, J.
Shyamapada Ganguly – Appellant
Versus
Abani Mohan Mukherjee – Respondent
Civil Rule 1551 of 1950
Decided On : Jan 22, 1951
H. Sanyal, Asoke Chandra Sen, Chandra Sekhar Sen, Ranjit Kumar Banerjee
The requirement of a two-thirds majority in Section 61 (2) of the Bengal Municipal Act, 1932, for the removal of a Chairman or Vice-Chairman is a condition precedent that must be fulfilled before the Commissioners can derive power or jurisdiction to remove the Chairman or Vice-Chairman from office.
Headnote:
MUNICIPAL LAW - REMOVAL OF CHAIRMAN - RESOLUTION - MAJORITY REQUIRED - BENGAL MUNICIPAL ACT, 1932, SECTIONS 15 (1), 16, 61 (2) - BENGAL MUNICIPAL (WEST BENGAL) AMENDMENT ACT, 1947, SECTIONS 11, 13 (D).
Fact of the Case:
The Bally Municipality had 17 elected Commissioners and 5 appointed Commissioners. In February 1950, 11 elected Commissioners made a representation to the Secretary, Department of Local Self-Government, West Bengal, alleging mismanagement by the Chairman. The Government initiated an inquiry and found the allegations to be true. The Government removed the Chairman from office and declared his seat vacant. At a special meeting convened to consider a resolution for the removal of the Chairman, 11 Commissioners voted in favor, 3 against, and 2 were absent. The Chairman challenged the validity of the resolution, arguing that it was not passed by a two-thirds majority as required under Section 61 (2) of the Bengal Municipal Act, 1932.
Finding of the Court:
The court held that the resolution was ineffective and the Chairman was still entitled to function as the Chairman of the municipality. The court interpreted Section 61 (2) of the Bengal Municipal Act, 1932, to mean that the "whole number" of Commissioners referred to in the section meant the total number of elected seats on the Municipality, which was 17 in the case of Bally Municipality. The court also held that the voting by 11 Commissioners was not sufficient compliance with the requirement of Section 61 (2), as it required not less than two-thirds of the whole number of Commissioners to vote in favor of the resolution.
Issues: 1. Whether the resolution for the removal of the Chairman was passed by a two-thirds majority as required under Section 61 (2) of the Bengal Municipal Act, 1932? 2. Whether the court should issue a writ in the nature of mandamus or quo warranto under Article 226 of the Constitution when there is an alternative remedy available by ordinary legal process.
Ratio Decidendi: 1. The court interpreted Section 61 (2) of the Bengal Municipal Act, 1932, to mean that the "whole number" of Commissioners referred to in the section meant the total number of elected seats on the Municipality, which was 17 in the case of Bally Municipality. 2. The court held that the voting by 11 Commissioners was not sufficient compliance with the requirement of Section 61 (2), as it required not less than two-thirds of the whole number of Commissioners to vote in favor of the resolution. 3. The court held that the application under Article 226 of the Constitution was not maintainable as the petitioner had an alternative remedy available by ordinary legal process, such as a suit for declaration and injunction.
Final Decision: The petition was dismissed, and the Rule was discharged with costs.
Bose, J.
1. THIS is as appln. under Article 226, Const. Ind., for a writ in the nature of Mandamus or in the nature of Quo Warranto or for such further or other order as to this Ct. may seem fit and proper.
2. A Rule nisi was issued by B. K. Guha J. on 10-10-1950 and the matter has now come up before me for the hearing of that Rule. The facts are that in February 1950 eleven out of the 17 elected Comrs. of the Bally Municipality including the petnr. made a representation to the Secretary, Dept. of Local Self-Government, West Bengal, making serious allegations against the opposite party, the Chairman of the Municipality in relation to the management of the affairs of the Municipality. In the enquiry started by the Govt. as a result of such representation the majority of the charges brought against the opposite party were proved and the Govt. was of the opinion that the only course left was to remove the opposite party from the office of Chairman.
3. ONE of the Comrs. having left for Pakistan, the Govt. announced his removal from office on 14-7-1950 and declared his seat as vacant.
4. AT a special meeting convened upon the requisition of the said eleven Comrs. to consider a resolution for removal of the opposite party from the office of the Chairman eleven Comrs. voted for the resolution, three voted against and two were absent. The meeting was held on 2-9-1950. The opposite party has challenged the validity of the resolution as according to him the resolution was not passed by a majority of two-thirds as required under Section 61 (2), Bengal Municipal Act, 1932.
5. UNDER Section 15 (1), Bengal Municipal Act, (XV [15] of 1932) the then Provincial Govt. specified that the body of Comrs. should consist of twenty-two Comrs.
6. BY virtue of Section 16, Bengal Municipal Act, seventeen Comrs. of the Municipality were to be elected and five Comrs. were to be appointed by the Provincial Govt.
This Section 16 was amended by the Bengal Municipal (West Bengal) Amendment Act (XI [11] of 1947) which came into force on 5-1-1948 and provided as follows: "The Comrs. of the Municipality shall be deemed to be constituted of the elected Comrs. only."
7. IN the amending Act there is also the following provision:
"Section 13 (d): The number of Comrs. of the Municipality shall be deemed to be the total number of elected seats on the municipality as fixed by the existing orders of the Provincial Govt. until the cumber is altered by the Provincial Govt."
8. SECTION 61 (2), Bengal Municipal Act, 1932, provides as follows:
"An elected chairman and a Vice chairman may at any time be removed from his office by a resolution of the comrs. in favour of which not less than two-thirds of the whole number of the comrs. have given their votes at a meeting specially convened for the purpose."
The contention of Mr. Sen, the Senior Govt. pleader, who appears for the opposite party is that the "whole number" in Section 61 (2) means the total number of elected seats on the Municipality as fixed by the orders of the Govt. In other words the "whole number of the Comrs.' of the Bally Municipality is 17.
9. TWO-thirds of this number is 11.1/3 and as only 11 Comrs, that is, less than two thirds of the whole number of Comrs. voted for the resolution the resolution was ineffective and so the opposite party is still functioning and is entitled to function as chairman of the municipality.
10. MR. H. N. Sanyal, the learned counsel appearing for the petnr. contends that Section 61 (2) has to be read with Section 3 (53) of the Act. Section 3 (S3) is as follows: " 'The Commissioners' means the persons for the time being appointed or elected to conduct the affairs of any municipality under the Act." According to Mr. Sanyal the "whole number" in Section 61 (2) means the number of Comrs. who were functioning at the material time as Comrs and who were capable of voting and were entitled to receive notices about any meeting to be convened. Mr. Sanyal's contention is that the "whole
