GOBINDA MANDAL Vs. STATE OF ASSAM

JUDGEMENT

(1.) The legality of the order contained in the letter dated 18- 8-2012 issued by the Principal Secretary to the Government of Assam, Urban Development Department (respondent 1) holding that the resolution dated 21-4-2012 removing the respondent No. 3 from the Chairmanship of Nalbari Municipal Board was untenable inasmuch as the Assam Municipal (Amendment) Act, 2012 requiring such removal by more than half of the whole number of the Commissioners was not fulfilled, is called into question in this writ petition.

(2.) So much of the facts as are necessary for disposal of this writ petition may be referred to at the outset. The petitioner is an elected Commissioner of Nalbari Municipal Board ("the Board" for short), which has altogether 12 elected Commissioners with two ex-officio Members, namely, the local MLA and one local MP. According to the petitioner, when the respondent 3 indulged in corrupt and other illegal activities in contravention of the provisions of the Assam Municipal Act, 1956 ("the Act"), some of the Commissioners on 27-3-2014 submitted a requisition for convening a Special Meeting under Section 43(2) of the Act to move a Motion of No-confidence against him, but he refused to do so. Aggrieved by this, some of the Commissioners issued another notice upon the respondent 3 on 12-4-2012 expressing their dissatisfaction with his conduct. On receipt of the notice, respondent 3 on the same day gave his reply without mentioning anything regarding the holding of the Special Meeting. This prompted the Commissioners to call the Special Meeting under Section 43(3) of the Act on 21-4-2012 to discuss the No-Confidence Motion against respondent 3; the notice was duly received by him on 27-3-2012. The respondent 3, however, failed/refused to call the special meeting whereupon the notice for the Special Meeting was issued on 17-4-2012 by showing the date of the meeting as 21-4-2012 at 11 AM at Nalbari Municipal premises.

(3.) It is the contention of Mr. SK Goswamy, the learned counsel for the petitioner that when the said resolution was passed, the law regulating the issue in question i.e. Section 28(2) of the Act, had provided that an elected Chairman of the Board could be removed from his office by a resolution of the Board in favour of which not less than half of the whole number of Commissioners should have given their votes at a meeting specially convened for the purpose. He further submits that Section 28(2) has since then been amended by the Assam Municipal (Amendment) Act, 2012, which was notified in the Assam Gazette on 19-5-2012 by substituting the words 'not less than half' by the words 'more than half'. It is the contention of the learned counsel that the amended provision came into force only on 19-5-2012 and is, therefore, prospective in operation. Thus, according to the learned counsel, the amended provision requiring more than half of the Commissioners to outvote the Chairman will not be applicable to the instant case inasmuch as the resolution removing the respondent No. 3 had been passed on 21-4-2012 when the amended provision had not come into force. So construed, contends the petitioner, inasmuch as the respondent No. 3 was removed by six Commissioners and one ex-officio member out of the total strength of 14 membership of the Board, the requirement of 'not less than half of the whole number of Commissioners' has been satisfied, and the resolution removing the respondent No. 3 as Chairman of the Board cannot, therefore, be faulted with. Therefore, the decision of the respondent No. 1 dated 18-8-2012 holding to the contrary, contends the learned counsel, is perverse and is liable to be interfered with by this Court.