- (1.) IN this writ petition, the petitioner, the Chairman of Bhadreswar Municipality, has challenged the resolution adopted on 24th March, 2012 by the councillors of the said Municipality removing him from the post. Facts which require to be considered are that the total strength of the councillors in the said Municipality is 22. Pursuant to the election in 2010, on 18th June, 2010 Board was constituted. The petitioner was elected the Chairman. Subsequent to the election of councillors and after formation of the Board, one councilior expired.
(2.) THEREFORE, at present the Board consists of 21 councillors. On 20th March, 2012, 9 councillors issued a notice for removal of the petitioner from the post of Chairman. On 24th March, 2012 10 members adopted a resolution for removal of the petitioner. Nine councillors voted against the resolution. 2 councillors abstained from voting. After resolution was passed, the petitioner addressed a letter dated 24th March, 2012, to the District Magistrate, Hooghly, the respondent no.3, being annexure P4 to the writ petition, alleging that his removal by less than fifty per cent of the elected councillors was unethical and against the scheme of the West Bengal Municipal Act, 1993 (for short the Act), particularly section 18(3) thereof. Thereafter, the Sub-Divisional Officer, Chandernagore, Hooghly, by memo dated 26th March, 2012 directed the Executive Officer of the Municipality, the respondent no.4, to take charge from the petitioner and hand over the same to the Vice-Chairman. It has been stated that on 26th March, 2012 the respondent no.4 had issued the impugned letter requesting the petitioner to hand over charge on 26th March, 2012 at 5 P.M. Mr. Hirak Mitra, learned senior advocate, appearing on behalf of the petitioner, relying on the statements in the writ petition and in the affidavit in reply had submitted that section 18(3) of the Act along with the proviso should be given a harmonious construction. No part of the statute can be disregarded. Though section 18(3) was amended, as even after amendment proviso remains intact, it explains what the parent section is. Submission was amendment of section 18(3) did not meet the desired objective and even after amendment, total number of elected members present and voting by them means total number of elected members. In this regard the provisions contained in West Bengal Municipal Corporation Act, 2006 were referred to. Learned senior advocate had relied on the judgment by the House of Lords in Jennings vs. Kelly : 1939 (4) AII ER 4 in support of the proposition that proviso controls the section. Mr. Ashok Kumar Banerjee, learned Government Pleader, relying on the affidavit in opposition and refuting the submission made on behalf of the petitioner, had submitted that while section 18(3) lays down the procedure for removal of Chairman, the proviso to the said section creates a restriction regarding removal as it stipulates that no resolution regarding removal of the Chairman shall be moved before the expiry of six months from the date of assumption of office by a Chairman and if such resolution is not carried out by a majority of the total number of elected members, no further resolution for such purpose shall be moved before the expiry of a period of six months from the date on which the former resolution was passed. As the language in section 18(3) is clear and unambiguous and proviso to the said section operates on a different field, relying on the meaning of the word Proviso in Strouds Judicial Dictionary, submission was proviso to a section cannot be used to import into the enacting part something which is not there. Learned Government Pleader had relied on the judgment of the Apex Court in Tribhovandas Haribhai Tamboli vs. Gujarat Revenue Tribunal: AIR 1991 SC 1538 in support of his submission. Learned senior counsel for the parties have also relied on the judgment passed in Bhagawan Dutt Tiwari & Ors vs Kabita Sarkar & Ors. : 2002 (1) CHN 327 in support of their arguments.
(3.) THE issues which require consideration - i) Whether after amendment of section 18(3) with effect from 15th December, 2003, majority means total number of elected members present and voting or majority of the total number of elected members as contained in the proviso to the said section; ii) Whether the 10 councillors who had voted in favour of the resolution for removal of the Chairman constitute the majority of the councillors or not; iii) Whether proviso can override section 18(3) of the Act and iv) Whether proviso to section 18(3) is only with regard to the bar in removing the Chairman within six months from the date of assumption of office. In order to deal with the issues, it is appropriate to refer to section 18(3) of the Act which is as under :- 18. Terms of office of Chairman. (1) .. (2) . (3) The Chairman may be removed from office by a resolution carried by a majority of the total number of [elected members] of the Board of Councillors holding office for the time being [present and voting by them,] at a special meeting to be called for this purpose in the manner prescribed upon a requisition made in writing by not less than one-third of the total number of [elected members] of the Board of Councillors, and the procedure for the conduct of business in the special meeting shall be such as may be prescribed : Provided that no such resolution shall be moved before the expiry of six months from the date of assumption of office by a Chairman, and if such resolution is not carried by a majority of the total number of [elected members], no further resolution for such purpose shall be moved before the expiry of a period of six months from the date on which the former resolution was moved.;