JNANENDRA NATH PRAMANICK Vs. DISTRICT MAGISTRATE NADIA

JUDGEMENT

(1.) The petitioner, an elected Commissioner of Santipur Municipality (hereinafter referred to as the said Municipality), has challenged a notice in Annexure "A," issued by the District Magistrate, Nadia in exercise of the powers under Sub-section (4) of Section 61 of the Bengal Municipal Act, 1932 (hereinafter referred to as the said Act).

(2.) At the time material to the Rule, Shri Pratap Chandra Saha (Respondent No. 5) was the Chairman of the said Municipality. A notice dated October 9. 1976 was signed by 16 out of the 18 Commissioners of the said Municipality and was served on the District Magistrate, Nadia (Respondent No. 1), informing her thereby that they have no confidence in the Chairman of the said Municipality and requesting the said respondent No. 1 to convene a special meeting of the Commissioners under Section 61 of the said Act for the purpose of moving the following resolution: ..(VERUNACULAR MATTER OMITTED).. The original of the notice was produced by Mr. Ghosal appearing for the Respondents Nos. 1 to 4 and a copy of the same has also been annexed with the affidavit-in-opposition of Respondents Nos. 15 to 28. The receipt of the said notice has not been denied by the District Magistrate concerned in her return to the Rule and she has stated that on receipt of the said notice at about 10.30 A. M., she heard all the Commissioners, who were signatories to the said notice and thereafter she was convinced that a case was made out for convening a special meeting and as such in exercise of her powers under Section 61 (3) of the said Act she gave the impugned notice in Annexure "A" to all the Commissioners, The said notice was dated October 17, 1976 and it appears from the original of the same that the same was signed by the District Magistrate concerned. It has also been stated by the said Respondent No. 1 that the notice in question was sent out on Oct. 18, 1976 for service on the Commissioners and Respondents Nos. 5, 10, 11 and 12 were served on the same day i.e. October 18, 1976 and the other Commissioners were served on October 19, 1976. Since the meeting was Scheduled to be held on November 3, 1976, it has been contended that 15 clear days notice of the meeting was duly given. It has also been stated by the said Respondent No. 1 that thereafter, in exercise of her powers under Section 61 (4) of the said Act, she directed the Additional District Magistrate, Nadia, to preside over the said special meeting. It has further been stated that the no confidence resolution was read over in the connected meeting and at that time the petitioner and the Respondents Nos. 6 and 7 staged a walk out, whereas the remaining 15 Commissioners including the Chairman participated in the debata and exercised their voting right. It appears that out of the 15 Commissioners 14 casted their votes in favour of the no confidence resolution, whereas the Chairman (Respondent No. 5) voted against the same. It is an admitted fact that although the resolution was passed yet the effect to the same could not be given because of the order dated November 2, 1976 passed by this Court, which permitted the holding of the meeting but restrained the authorities concerned from taking any steps regarding the resolution that may be passed.

(3.) The Respondents Nos. 15 to 28 to their separate return to the Rule, apart from denying the material allegations stated that the notice in question was duly served on the Commissioners and in any event no injury, injustice or prejudice has been caused by the issue of the notice dated October 17, 1976 and service thereof on some of the Commissioners on October 18, 1976 and the day after that on the rest. They have contended that the terms of Section 61 (3) are not mandatory but directory and in any event there has been substantial compliance with the said terms and more particularly when the meeting was held on November 3, 1976. Such contentions was raised as the petitioner pleaded that clear 15 days notice in terms of the requirements of the section was not given. The said Respondents have of course alleged mala fide activities and such activities which were and are detrimental to the said Municipality and its rate payers against the Chairman, Respondent No. 5 and his group. Furthermore, they contended that the petition at the instance of the petitioner, who was admittedly served with the notice on October 18, 1976, would not be maintainable as he has not in any event been prejudiced for the shortness of time as alleged and if at all.