Calcutta High Court (Appellete Side)
(Sl 1) vs State Of West Bengal & Ors on 2 September, 2016
1
Court No. 32 W. P. 12286(W) of 2016
02.09.2016 Ayub Ali Mandal
(SL 1) Vs.
State of West Bengal & Ors.
(S. Banerjee)
Mr. Amit Prakash Lahiri, Ld. Advocate
Mr. Shahan Shah, Ld. Advocate
... for the petitioner
Mr. Prasanta Kumar Giri, Ld. Advocate
... for the State-respondent
Mr. S. Deb Roy, Ld. Advocate ... for the respondents nos. 4 to 13 Although the matter is appearing today for extension of interim order, since the learned Advocate for the State has produced the report in the form of an affidavit, the writ petition is taken up for consideration on merits with the consent of the parties.
Let the affidavit-of service filed by the petitioner in court today be kept with the record.
Pursuant to my order dated July 22, 2016 Mr. Giri, the learned Advocate for the State-respondents, has submitted in court a report in the form of an affidavit affirmed by the prescribed authority, i.e., the respondent no. 3.
Perused the report and heard Mr. Giri, the learned Advocate for the State-respondents. Mr. Lahiri, the learned Advocate for the petitioner has not been called on to make any submission.
2In my earlier order I had directed that the prescribed authority shall inter alia disclose how he satisfied himself about the compliance of the requirement of Section 12(2) of the West Bengal Panchayat Act.
Mr. Giri drew my attention to paragraph 2 of the said report the majority of which is a selective reproduction of the order I passed on July 22, 2016. Regard being had to the specific direction upon the respondent no. 3 to disclose certain facts it was only expected that he would deal with the same with special emphasis.
What I find is an affidavit not to be expected of a Government official who has been designated to act as the prescribed authority in respect of a Gram Panchayat. According to him the petitioners had practiced fraud and has misled the Hon'ble Court by suppressing material facts. The respondent no. 3 merely says that when the notice dated July 14, 2016 issued by the respondent no. 3 had been received by the Pradhan the petitioner should have informed and brought it to the notice of the court on the first date of hearing.
The question is not whether the petitioner had received it or not. It was never the allegation of the petitioner that the prescribed authority was going to hold the meeting without serving upon him the notice of meeting on motion. His case was that party affiliations of the requisitionists have not been disclosed in the notice of removal.
3The learned Advocate for the State has drawn my attention to paragraph 2 of the report which has nothing to do with what I wanted to know. However, it appears from Annexure 1 to the report that the notice of removal dated July 8, 2016 was submitted to the prescribed authority containing the respective party affiliations. The notice of removal annexed to the writ petition is dated July 4, 2016. In justification of the report given by the Block Development Officer (BDO), the learned Advocate for the State has produced before me a copy of the communication made by the learned Advocate for the petitioner. I have perused the same and I consider this to be a substantially correct communication of the order I passed, except that the special disclosure requirement was not communicated. However, there was a communication by the learned Advocate for the petitioner that the respondent no. 3 should disclose how he satisfied himself about the compliance of Section 12(2) of the West Bengal Panchayat Act. If the learned Advocate for the State wants to take any advantage of purportedly wrong communication on the part of the petitioner he should have shown the communication made by him. The problem is, as submitted by him, Mr. Giri did not make any communication at all. Even though I directed the petitioner to make communication to all the private respondents after all the prescribed authority was Mr. Giri's client. It was only expected that the BDO would receive some communication from him.
Be that as it may, it appears from the annexure that the notice dated July 4, 2016 was rejected because it 4 contained certain flaws. If thereafter a subsequent notice was issued by the requisitionists I do not know how it was served upon the petitioner. If page 37 of the said report is to be taken as correct, as submitted by Mr. Giri, the BDO had sent it to the petitioner which was in clear violation of the provisions of law. Section 12(2) of the West Bengal Panchayat Act says that the requisitionists shall deliver the motion in person through any of the members or send it by registered post to the prescribed authority. One copy of the motion shall be delivered to the concerned office bearer either by hand or by registered post at the Gram Panchayat office and another copy shall be sent by the registered post at his residential address. The responsibility of the prescribed authority starts from the latter part of Section 12(2) of the Act which says that the prescribed authority on receipt of the motion shall satisfy himself that it conforms to Section 12(2) and on his satisfaction shall convene by issue of notice of meeting of the Gram Panchayat. The law does not require nor is it expected that the prescribed authority should serve a notice upon the Pradhan.
Moreover, it is also not clear whether the notices, one on the Panchayat office and the other at the petitioner's residential address, had been delivered. Mr. Giri submits that the Pradhan should come and dispute his signature. That is not the issue here. The report is not very specific and is not clear how the respondent no. 3 satisfied himself about the compliance of Section 12(2). It may be mentioned that at page 9 of the said report, where the steps taken by the prescribed authority has been 5 mentioned with greater details, there is no mention whether the notices of removal had been sent to the Pradhan in the manner prescribed. All that it says is that the requisitionists had attended his chamber on July 11, 2016 and the prescribed authority verified their signatures and being satisfied he had issued the notice in Form 1E.
A bare reading of this sentence leaves no manner of doubt that the satisfaction of the respondent authority was only with regard to verification of signature of the requisitionists. Had the requisitionists sent the notice of removal there might not have been any occasion for the prescribed authority to take upon himself the task of sending the notice to the petitioner.
I find sufficient merit in the contention of the petitioner and I find that the procedure prescribed in the Act has not been complied with. I set aside and quash the notice of meeting on motion issued by the respondent no.
3. I direct the prescribed authority not to act on the notices of removal, dated July 8, 2016 for it has already been vitiated by factors mentioned above.
Before I part with, it is necessary to mention that when I was going through the report affirmed by the respondent no. 3, it has given me enormous pains. The respondent no. 3 has stated that the petitioner has practiced fraud, misled the court and suppressed material facts. He has used words like 'deliberately', 'intentionally', 'purposely' and 'motivatedly' about the petitioner in not bringing certain things to the notice of court. Whether attention of the court was brought to those matters are a 6 separate issue. After all the State was represented by a learned Advocate on July 22, 2016 when I passed the order. But the language used in the affidavit about the conduct of the petitioner is not expected of a government official discharging statutory duties. I wonder, how the prescribed authority could pray to the court that the interim order passed on July 22, 2016 be vacated with exemplary costs. Even if the interim order had continued the requisitionists might have had reasons to feel inconvenienced or aggrieved, a government official cannot pray for vacating the interim order.
I, therefore, direct the District Magistrate, North 24 Parganas, to immediately seek an explanation from the respondent no. 3 about the affidavit he has affirmed. He shall file a report before me on the next date of hearing which is fixed on September 23, 2016 under the heading 'For Orders'. Even if the ultimate order in favour of the petitioner has been passed on the writ petition the matter shall appear on that date to consider the report of the District Magistrate.
Needless to mention this order shall not preclude the requisitionists from bringing a fresh notice of removal against the Pradhan, in accordance with law.
The leaned Advocate for the petitioner is directed to communicate the gist of the order to the District Magistrate, North 24 Parganas.
7Over and above that, the learned Registrar General is also directed to communicate this order to the District Magistrate, North 24 Parganas in the official manner.
Considering the gravity of the matter and the issues involved I request the learned Advocate General to personally appear in this matter.
(Dr. Sambuddha Chakrabarti, J.)