T. Chatterjee, J. - (1.) This appeal arises out of a judgment and/or order dated 17th of April, 2001 passed by a learned Judge of this court whereby the learned Judge dismissed the writ application filed by the appellants/petitioners. The writ application was moved by the appellants challenging a resolution dated 6th of April, 2001 as well as a notice dated 14th of April, 2001 issued by three Councillors convening a special meeting of the Champdani Municipality (hereinafter referred to as "the Municipality") in the District of Hooghly on 18th of April, 2001 for the alleged removal of the Chairman of the Municipality. The appellants and the respondent Nos. 1 to 12 having been elected as Councillors to the Board of the Municipality at a general meeting held for that purpose in the month of May, 2000 for a term of five years commencing from the date of first meeting of the Councillors held in July, 2001, the appellants and the respondent Nos. 1 to 12 are still functioning as such. By virtue of their election as the Councillors/Members of the Board of Councillors, the appellant Nos. 1 and 2 were holding the offices of the Chairman and Vice -Chairman of the Municipality since their election held in July, 2000. By a notice dated 19th March, 2001 the respondent Nos. 1 to 12 called upon the appellant No. 1/Chairman to convene a special meeting of the Board of Councillors for removal of the appellant No. 1 from his office as Chairman. Since the appellant No. 1 had failed to convene the special meeting within the time prescribed under Rule 9 of the West Bengal Municipalities (Procedure and Conduct of Business) Rules, 1995, the Vice -Chairman, viz. the appellant No. 2 in exercise of his power by a notice dated 2nd of April, 2001 convened a special meeting for removal of the Chairman on 6th of April. 2001. On 6th of April, 2001 the special meeting of the Board of Councillors as called was held at the Meeting Hall of the Municipality. In the said special meeting, 11 Councillors/Members out of the total number of members elected to the Board of Councillors of the said Municipality figuring 22, voted in favour of "No Confidence Motion" for removal of the Chairman and 10 voted against the Motion and against the removal of the Chairman. The remaining Member, however, neither attended nor voted in the said special meeting. By a resolution adopted in the said special meeting it was resolved that "No Confidence Motion" against the Chairman was carried by 11 voters as against 10 and the Chairman was removed by such resolution from his office. It is this resolution removing the Chairman and a notice thereof were challenged in the writ application by the appellants. The learned Trial Judge held that since the majority of the total number of elected members by the resolution had removed the Chairman, the Chairman or the other elected members who are appellant before us could not be said to have any case. Feeling aggrieved by the order of the learned Trial Judge, this appeal has been preferred by the appellants.
(2.) We have heard the learned Counsel for the parties. We have also considered the judgment under appeal and the relevant provision of the West Bengal Municipal Act. 1993 and the Rules framed thereunder. The learned Counsel appearing on behalf of the appellants after taking us through the provisions under Sec. 18(3) of the West Bengal Municipal Act, 1993 (hereinafter referred to as the Act) contended before us that as the resolution removing the Chairman of the Municipality was carried by 11 elected members of the Board of Councillors out of 22 elected members, the said resolution removing the Chairman from his Officer could not be said to be legal and valid. According to the learned Advocate for the appellants, the resolution removing the Chairman of Municipality under Sec. 18(3) of the Act can only be carried by a majority of the total number of elected members of the Board of Councillors. The learned Advocate for the appellants submitted that since out of 22 elected members of the Board of Councillors only 11 elected members had voted in favour of the "No Confidence Motion", it could not be said that the resolution was carried by a majority of the total number of elected members of the Board of Councilors. Relying on the decisions in the case of Rates Ahmad vs. State of U.P. & Ors., : (2000)1 SCC 432 and also to a Division Bench decision of the Punjab & Haryana High Court in the case of Jardar Khan vs. State of Haryana & Ors., AIR 1988 P & H 249, the learned Advocate for the appellants contended before us that it could not be said that the majority of the total number of elected members of the Board of Councillors had voted in favour of the "No confidence Motion" against the Chairman of the Municipality as relying on the aforesaid two decisions the learned Counsel for the appellant urged that since by casting of eleven votes in favour of removal, the Chairman could not be removed as there was no majority of total number of votes of the elected members of the Board of Councillors.
(3.) The contentions of the learned Counsel for the appellants were hotly contested by Mr. Bikash Ranjan Bhattacharyay, the learned Senior Counsel appearing on behalf of the respondents. According to Mr. Bhattacharyay, the court should always give a harmonious construction of the provisions of the Act and the West Bengal Municipalities (Procedure and Conduct of Business) Rules, 1995 (hereinafter referred to as "the Rules") and if Ss. 18(3) and 51A of the Act of the Act and the Rule 19 of the Rules are conjointly taken into consideration and if harmonions construction can be given in respect of the words used in the aforesaid two Ss. then it cannot be disputed that the word 'majority' within the meaning of Sec. 18(3) of the Act would mean only the 'majority' to fact. Accordingly Mr. Bhattacharyay, learned senior counsel! appearing on behalf of the respondents submitted that as in this case admittedly 11 members of the Municipality had voted in favour of removal of the Chairman of the Municipality and admittedly 10 members had voted against it, the provisions of Sec. 18(3) of the Act were duly complied with. Mr. Bhattacharyay further contended that since one of the members had not attended the special meeting for removal of the Chairman of the said Municipality and to view of the admitted fact that majority of the elected members had voted to favour of the removal of the Chairman of the Municipality, the resolution removing the Chairman of the Municipality must be said to have been passed to accordance with Sec. 18(3) of the Act. In order to satisfy the Court on the question of giving harmonious construction of the word 'majority' used in Sec. 18(3) of the Act, Mr. Bhattacharyay relied on the decisions of the Supreme Court reported in : AIR 1952 SC 324 (Shamrao vs. District Magistrate, Thana) and reported to : AIR 1959 SC 422 (Veluswami vs. Raja Nainar) and also another decision of the Supreme Court to the case of Union of India vs. Sankalchand, : AIR 1977 SC 2328 and a decision reported to (1978)1 AER 948 (Stock vs. Frank Jones (Tipton) Ltd.).;