The legal right to move the court for issuance of a writ of Mandamus and the sufficiency of notice as per the prescribed rules.

JUDGMENT

Arindam Sinha, J. - A Councillor of Bhatpara Municipality has petitioned for interference, to declare notice dated 30th December, 2019 as issued in violation of the Rules and, therefore, bad. The facts are, requisition dated 6th December, 2019 was duly made for removal of present Chairman of the Municipality. The requisition was received on the day itself. On 20th December, 2019, the Chairman issued meeting notice on the item of business of his removal. The meeting would be a special meeting of Councillors of Bhatpara Municipality, to be held on 20th January, 2020 at 1.00 PM. The Vice-Chairman of the Municipality by letter dated 26th December, 2019 addressed to Principal Secretary of concerned department in Government of West Bengal said, inter alia, as follows :-

"With reference to the above, this is to inform you that the Chairman, Bhatpara Municipality has convened a Special Meeting as per provision of Rule 9(3)(b)(i) of the W.B. Municipalities (Procedure & Conduct of Business) rules, 1995 after giving 31 (thirty one) days' notice to the members which is clearly in contravention to the rule 9(3)(b)(i) where it is clearly mentioned that such Special Meeting be convened after giving 3(three) days' notice.

Thus 31(thirty one) days' notice is not at all permissible under any circumstances neither under rule-8 nor under rule-9.

Therefore, you are requested to declare the notice as void so that I, being the Vice-Chairman of Bhatpara Municipality, can convene the Special Meeting as per provision of Rule 9(3)(b)(ii) of the aforesaid rule."

2. On 28th December, 2019 some Councillors wrote to said Principal Secretary contending that the Vice-Chairman had made a thinly veiled attempt to usurp the powers of the Chairman, in colourable exercise of authority. On 30th December, 2019 three other Councillors issued impugned notice convening meeting on the agenda, to be held today at 10:30 AM.

3. Mr. Bhattacharya, learned senior advocate appears on behalf of petitioner and moves the petition as 'unlisted motion' on leave obtained. He submits, rule 9 in West Bengal Municipalities (Procedure and Conduct of Business) Rules, 1995 provides for prescribed procedure, mandated by West Bengal Municipal Act, 1993. The Chairman, on receipt of the requisition, convened meeting within 15 days thereof. He relies on view expressed by a learned single Judge of this Court by order dated 31st August, 2016, in AST 269 of 2016 [Mahendra Kumar Rungta vs. The State of West Bengal & Ors.] to submit, in similar fact situation said learned Judge had set aside subsequent notice of meeting issued by Councillors of concerned Municipality. He submits further, there is no challenge to the notice of meeting issued by the Chairman.

4. Mr. Dutta, learned senior advocate, Advocate General, appears on behalf of State and submits, section 18 mandates for prescribed procedure as in rule 9. Mahendra Kumar Rungta (supra) cannot be relied upon as a precedent since he has further and other points, neither argued nor considered in making of the order. He submits, there is legislative intent in mandating prescribed procedure, which procedure gives timeframe for convening special meeting. Outer limit of time for convening such a meeting, taking into consideration happening of all contingencies provided, is less than a month. The Chairman sought to make such provision unworkable by convening a meeting, notified as scheduled to be held approximately 45 days after receipt of the requisition. In such a situation, the Councillors requisitioning the special meeting duly acted, the meeting has been held and the Chairman removed by majority of elected Councillors of the Municipality.

5. Petitioner does not have legal right infringed or affected to move Court for issuance of a writ of Mandamus. There is no pleading regarding petitioner's right to move. Prayer 'C' is prayer for declaration. Petitioner, as a Councillor, has right to vote in the special meeting. The special meeting was du