Decided on August 21,2018

Shikha Sutradhar Appellant
STATE OF ASSAM Respondents


MANOJIT BHUYAN, J. - (1.) Fifteen Ward Commissioners of Karimganj Municipal Board had expressed want of confidence in the Chairperson i.e. Smti. Shikha Sutradhar and the Vice-Chairman i.e. Sri Partha Sarathi Das by submitting requisition notice dated 28.08.2017 for convening a special meeting to discuss on the 'No Confidence Motion'. Both Shikha Sutradhar and Partha Sarathi Das instituted WP(C) 5516/2017, assailing the requisition notice dated 28.08.2017 on ground that the said notice was not properly served upon them. The operation of the said requisition notice dated 28.08.2017 was kept in abeyance vide interim order dated 12.09.2017. Eventually, on 05.01.2018 the writ petition itself was disposed of on agreement between the parties with direction to Shikha Sutradhar to convene a meeting within 21 (twenty one) days to discuss the 'No Confidence Motion' as per the requisition dated 28.08.2017. The Court observed that since the contesting parties were represented, therefore, no individual notice of the meeting to be convened is required to be served on the members, save and except, a general notice notifying the date, time and venue of the special meeting, by displaying the same in the Notice Board of the Karimganj Municipal Board. In pursuance of the directions of the Court, a Notice was put up fixing 25.01.2018 at 11 AM in the premises of the Municipal Meeting Hall of Karimganj Municipality for holding the special meeting. As necessary preparations were being made for holding the meeting, Smti. Shikha Sutradhar submitted resignation letter dated 24.01.2018 as Chairman of the Board due to personal reasons, addressed to the Deputy Commissioner of Karimganj. On such tendering of resignation, a flurry of activities took place on the same date. The requisitionists and the ex-officio members submitted letter to the Deputy Commissioner, with copy to the Executive Officer of the Board, proposing respective names from amongst the elected Ward Commissioners as Chairperson and Vice-Chairman of the Board upon resignation tendered by Shikha Sutradhar and Partha Sarathi Das. Request was made for fixing a date for the purpose of taking oath by the proposed Ward Commissioners as Chairperson and Vice Chairman of the Board. On the same date i.e. 24.1.2018, the Executive Officer of the Board also wrote to the Deputy Commissioner, Karimganj, to the effect that in view of the resignation of the Chairperson and Vice-Chairman, the special meeting scheduled on 25.01.2018 probably be not required to be held. Reply thereof was made by the Deputy Commissioner, again on 24.01.2018 itself, directing the Executive Officer to inform all concerned regarding non-requirement of the special meeting, whereafter the Executive Officer issued a general letter on the same day, informing all Ward Commissioners that there was no requirement for holding the special meeting on 25.01.2018. On the next date i.e. 25.01.2018, another flurry of activities took place. It started with the order of the Deputy Commissioner that no special meeting towards No-Confidence be arranged on 25.01.2018 due to written resignation information received from the Chairperson and Vice-Chairman of the Board, followed by the letter of the Chairperson, addressed to the Executive Officer of the Board, stating that the special meeting dated 25.01.2018 has been fixed as per direction of the Court and since resignation has not been submitted as per provision of law, therefore, the resignation letter submitted before the Deputy Commissioner of Karimganj be treated as cancelled and finally the fact of the holding of the special meeting on 25.01.2018, without the requisitionists and the ex-officio members, whereby a resolution was adopted that the 'No Confidence Motion' have failed as all fifteen members present in the meeting expressed support and confidence in favour of Shikha Sutradhar as Chairperson and Partha Sarathi Das as Vice-Chairman of the Karimngang Municipal Board. Two other activity taking place on 25.01.2018 were of putting the office chamber of the Chairperson and Vice-Chairman under lock and key at the instance of the Deputy Commissioner, Karimganj, fearing untoward law and order situation and the submission of letter by Shikha Sutradhar requesting the Deputy Commissioner to remove the lock from the office chamber. On this, a letter was issued by the Deputy Commissioner on 29.01.2018 informing Shikha Sutradhar and Partha Sarathi Das that as they had tendered resignation before him, therefore, they are no longer the Chairperson and Vice-Chairman of the Board and, situated thus, there was no question of removing the lock from the chamber.
(2.) In the above scenario, WP(C) 809/2018 was instituted by Partha Sarathi Das against the action of the Deputy Commissioner, reflected in the letter dated 29.1.2018. Another writ petition i.e. WP(C) 1472/2018, on the same subject matter with identical relief, was instituted by Shikha Sutradhar. As regards the resolution adopted in the special meeting dated 25.01.2018, the same was put to challenge in WP(C) 1262/2018 by two Ward Commissioners from amongst the requisitionists. Interim order in WP(C) 809/2018 was passed on 16.02.2018 to the effect that the functioning of the petitioner (Partha Sarathi Das) as Vice-Chairman of the Board be not disturbed. Similar interim order was passed in respect of Shikha Sutradhar in WP(C) 1472/2018. All the three writ petitions were heard and disposed of by common order dated 30.07.2018. On due consideration of the facts in entirety and on the principles of equity, as well as taking support from the legal maxim "Commodum ex injuria sua nemo habere debet" (convenience cannot accrue to a party from his own wrong), the learned Single Judge held that it would be proper to relegate the parties to the position as obtaining on 25.01.2018 by setting aside the Resolution dated 25.01.2018. While doing so, a direction was made to Shikha Sutradhar to take steps to convene a special meeting in terms of the requisition notice dated 28.08.2017 and as per direction of the Court dated 05.01.2018 rendered in the afore-stated WP(C) 5516/2017. Accordingly, WP(C) 1262/2018 was disposed of and the other two writ petitions i.e. WP(C) 809/2018 and WP(C) 1472/2018 were held to have become infructuous. Interim orders were recalled. Being aggrieved of the direction to hold special meeting as per requisition dated 28.8.2017, both Shikha Sutradhar and Partha Sarathi Das have preferred this instant appeal.
(3.) On behalf of the appellants, Mr. D. Das, learned senior counsel submits that holding of the special meeting dated 25.01.2018 did not suffer from any infirmity, inasmuch as, the same was done in strict compliance of the order dated 05.01.2018 passed in WP(C) 5516/2017. It is further contended that action of the Deputy Commissioner and that of the Executive Officer of the Board to shelve holding of the special meeting on 25.01.2018 on purported ground of resignation is not sustainable in law, inasmuch as, such resignation not being in terms of sub-section (2) of Section 27 of the Assam Municipal Act, 1956, the same could not have been acted upon to the detriment of the appellants. Further argument advanced is that the direction of the learned Single Judge for holding of fresh special meeting on the principles of equity cannot find legal support in view of the ratio laid down in B. Premanand and Ors. Vs. Mohan Koikal and Ors., reported in (2011) 4 SCC 266. It is argued that in the said case it was held that when there is a conflict between law and equity, it is the law which is to prevail and equity can only supplement the law when there is a gap in it, but cannot supplant the law.;

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