Calcutta High Court (Appellete Side)
Sanjida Naaz @ Sanjeeda Naaz vs The State Of West Bengal & Ors on 6 September, 2021
Author: Shampa Sarkar
Bench: Shampa Sarkar
06.09.2021
Court No. 19
Item no.04
CP
WPA 13680 of 2021
Sanjida Naaz @ Sanjeeda Naaz
Vs.
The State of West Bengal & ors.
Mr. Subir Sanyal
Mr. Md. M. Nazar Chowdhury
Ms. Priyanka Saha
Mr. M. Satik
......for the petitioners.
Mr. Raja Saha
Mr. Subhra Prakash Lahiri
....for the State.
Mr. P.S. Deb Barman
Mr. S. Alam
...for the respondents 9 to 16.
The writ petition has been filed by the pradhan of Panditpota - I Gram Panchayat, challenging the notice dated August 31, 2021, issued by the prescribed authority under Form 1-E, Sub-Rule (2) of Rule 5B of the West Bengal Panchayat (Constitution) Rules, 1975.
The first contention of Mr. Sanyal, learned advocate for the petitioner, is that the notice was issued on the sixth working day from receipt of the motion. The next contention of Mr. Sanyal is that clear seven days notice has not been given to the pradhan in terms of Section 12(3) of the West Bengal 2 Panchayat Act, 1973 (hereafter referred to as the said Act). According to him, the notice was received on September 1, 2021 and between September 1, 2021 and September 8, 2021, seven clear days notice has not been provided. It is further submitted that an affidavit had been affirmed by three of the requisitionists in the year 2018, indicating that they had changed their party affiliation to All India Trinamul Congress, whereas, in the requisition they have singed as independent members. Thus, it is the contention of the petitioner that the requisition was defective and the requisition as also the meeting must be set aside and quashed.
With regard to the party affiliation of the three requisitionists, there is nothing on record to show that these requisitionists had shifted to Trinamul Congress sometime in the year 2018, except for an affidavit annexed to the writ petition affirmed before the Executive Magistrate, Islampur. Whether this affidavit is a true copy of the original and whether any reliance can be placed on the same in view of the subsequent requisition brought by them where the party affiliations have been mentioned as 'independent', is required to be ascertained before the court takes a view. Unless affidavits are filed by each of these persons explaining their affidavit and mentioning their party affiliation, interim order on 3 the basis of such affidavits, staying the meeting cannot be passed.
Mr. Deb Barman, learned advocate, submits that these persons were elected as independent candidates and they fought election as independent candidates.
The requisition has to satisfy the check list as provided under Section 12(2) of the said Act. If the same have been complied with, the prescribed authority can proceed according to law.
This Court in Gopal Kumar versus State of West Bengal, reported in 2015 (1) CHN Cal 445 held as follows:-
"(20) Section 12(2) of the said Act provides manner in which such a meeting can be requisitioned. It stipulates that one-third of the existing members subject to a minimum of three members shall sign a motion in writing expressing their lack of confidence against the Pradhan or the Upa-Pradhan or recording their intention to remove such office holder. The motion must indicate the party affiliation or independent status of each of the members signing the motion. It must be delivered in person through any of the members or sent by registered post to the Prescribed Authority.
One copy of the motion must be delivered to the concerned office bearer either by hand or by registered post at the Gram Panchayat office. Another copy of the motion must be sent by registered post at the residential address of the concerned office bearer. Thus, the requirements of sub-Section 2 are as follows:
(i) One-third of the existing members of the Gram Panchayat subject to a minimum of three members shall sign a motion in writing.
(ii) The motion in writing will record their lack of confidence against the Pradhan or the Upa-4
Pradhan or their intention to remove the Pradhan or the Upa-Pradhan.
(iii) The party affiliation or independent status of each of such members shall be indicated in the motion.
(iv) The motion must be delivered in person through any of the members or sent by registered post to the Prescribed Authority.
(v) 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.
(vi) Another copy of the motion shall be sent by registered post at the residential address of the concerned office bearer.
(21) Section 12(3) provides that the Prescribed Authority upon receiving the motion shall satisfy himself that it conforms to the requirements of sub-Section 2 and upon such satisfaction shall specially convene, by issue of notice, a meeting of the Gram Panchayat for consideration of the motion and for taking a decision on it. An obligation is, thus, cast on the Prescribed Authority to convene a meeting as per the requisition of the members if he is satisfied that the motion complies with the requirements of sub-Section 2. This is not subjective satisfaction and the Prescribed Authority has no amount of discretion in the matter. It is purely an objective satisfaction and the only obligation of the Prescribed Authority is to check if the motion complies with the six requirements of sub-Section 2 enumerated above. Sub-Section (2) is nothing but a check list and the duty of the Prescribed Authority is to see that the requirements indicated in the check list have been complied with by the requisitionists. If satisfied that the six requirements of sub-Section 2 have been complied with, the Prescribed Authority is duty bound to convene the meeting. Equally, if he finds that anyone or more of the requirements are not complied with then the motion is not legally acceptable and he is duty bound not to convene a meeting on the basis of such deficient motion.
(22) In our view satisfying himself as regards the sufficiency of the motion really means that the Prescribed Authority has to ascertain with 5 reference to sub-Section 2 whether the requirements mentioned therein are satisfied by the motion. No subjective exercise is involved therein. No executive or administrative order is to be issued by the Prescribed Authority by convening the meeting. It is more of a ministerial task.
(27) In view of the discussion above we are of the opinion that it was not the intention of the legislation to impose any obligation on the Prescribed Authority to record satisfaction regarding legal acceptability of a motion submitted under section 12(2) of the said Act before issuance of a notice of meeting under section 12(3) of the said Act. We are of the view that it is not necessary for the Prescribed Authority to record any such satisfaction and we agree with the view of the Ld. Judge in the case of Firoza Begam (Supra) that issuance of notice of meeting itself indicates such satisfaction. We answer the question of law referred to us accordingly."
In this case, the requisitionists brought a requisition. All the requisitionists signed and mentioned their party affiliation, sent notices of the requisition to the pradhan through both modes and the prescribed authority being satisfied with the compliance under Section 12(2) issued the impugned notice under Form 1E.
The question whether the prescribed period of five working days should be mandatory or not is now taken into consideration. The requisitionists brought a requisition for the first time on August 3, 2021. The said requisition was frustrated as the prescribed authority failed to convene a meeting. A writ petition was filed. This court set aside the requisition which had lost its validity as 10 days from the date of 6 receipt of the requisition had expired. The reason was that even if the court allowed the notice to be issued as prayed for by Mr. Deb Barman in that proceeding, the mandatory period of 15 days to hold the meeting under Section 12(4) would not have been maintained.
In this case, the situation is different. The petitioners brought a second requisition on the liberty granted by this court. The prescribed authority failed to issue a notice within five working days and ultimately, on August 31, 2021 issued the notice fixing the meeting on September 8, 2021. This information was supplied by the state respondents when the requisitionists moved the earlier writ petition. WPA 13489 of 2021 was filed before this court on August 31, 2021 just a day after the period of five days expired, challenging inaction on the part of the prescribed authority. When the matter was moved on September 1, 2021, the learned advocate for the State respondents handed over the notice impugned to the writ petition and made a submission that the meeting had been fixed on September 8, 2021. The petitioner was represented in that proceeding by a learned advocates and the petitioner was apprised of the said notice of the meeting, in the court. The petitioner was aware of the meeting.
7
In my prima facie view, the statute provides that the meeting shall be convened by issuing a notice within five working days of the receipt of the motion and the meeting of the gram panchayat should be held at least with seven clear days notice. Sub-section 12(3) provides two time frames. One, within which the notice for convening the meeting should be issued and the other, the time that should be available to the members after issuance of the notice and before the meeting is held to consider and deliberate upon such motion. In my prima facie view, the intention of the legislature is that there should not be any delay on the part of the prescribed authority in giving effect to the requisition which otherwise satisfies the requirements of Section 12(2) of the said Act. This is a respect that is shown to the democratic rights of the persons who seek to remove their leader who they had elected but on whom they had lost confidence. The same acts as a shield and not a sword. In my prima facie opinion, the office bearer sought to be removed cannot use this provision as a weapon to deny or defy the requisition or the intention of the requisitionists.
The first requisition failed due to the inaction of the prescribed authority. The second requisition was targeted to be frustrated once again and the petitioner was compelled to move this court. The law 8 is well settled. In Ujjwal Kumar Singha v. State of W.B. reported in 2017 SCC OnLine Cal 4636, the right of the requisitionists to remove the pradhan democratically has been laid down on the basis of an order of the Hon'ble Supreme Court.
The relevant portion is quoted below:-
"5. The entire impugned judgment and order is supported with cogent reasons and there is no palpable infirmity noticed therein which would warrant any interference in an Intra- Court Mandamus Appeal. It appears that the appellant/writ petitioner resorted to taking shelter under the high prerogative jurisdiction of the High Court under Article 226 of the Constitution of India only for the purpose of thwarting the well-established democratic principles which govern the running of public institutions such as a Gram Panchayat, being at the lowest tier of self-governance at the village level in the three-tier Panchayati Raj System. In this context, one may take notice of the observations made by this Court in Farida Bibi v. The State of West Bengal reported in 2016 (5) CHN (Cal) 258, while following the observations made by the Supreme Court in Usha Bharti v. State of U.P. reported in (2014) 7 SCC 663 : AIR 2014 SC 1686, wherein it was observed to the effect that it is the fundamental right of democracy that those who have been elected can also be removed by expressing, 'No Confidence Motion' for the elected person. In an institution which runs on democratic principles, a person can continue to be its head so long he/she enjoys the confidence of the persons who comprised such a body. This is the essence of democratic republicanism which was taken note of by the Supreme Court in Usha Bharti (supra).9
6. The appeal has no merit and is liable to be dismissed along with the application for stay with exemplary costs assessed at 500 G.Ms. which shall be deposited with the State Legal Services Authority for being earmarked for utilisation by the Mediation and Conciliation Committee of the High Court."
Moreover, the legislative intent as to whether a provision is mandatory or directory can be ascertained from the use of the preemptory language. In the decisions of Lachmi Narain v. Union of India, reported in (1976) 2 SCC 953, The Hon'ble Apex Court held as follows:-
"68. Section 6(2), as it stood immediately before the impugned notification, requires the State Government to give by notification in the Official Gazette "not less than 3 months' notice" of its intention to add to or omit from or otherwise amend the Second Schedule. The primary key to the problem whether a statutory provision is mandatory or directory, is the intention of the law-maker as expressed in the law, itself. The reason behind the provision may be a further aid to the ascertainment of that intention. If the legislative intent is expressed clearly and strongly in imperative words, such as the use of "must" instead of "shall", that will itself be sufficient to hold the provision to be mandatory, and it will not be necessary to pursue the enquiry further. If the provision is couched in prohibitive or negative language, it can rarely be directory, the use of peremptory language in a negative form is per se indicative of the intent that the provision is to be mandatory. (Crawford, The Construction of Statutes, pp. 523-24). Here the language of sub-section (2) of Section 6 is emphatically prohibitive, it commands the Government in unambiguous negative terms that the period of the requisite notice must not be less than three months."10
In my prima facie view, apart from the provisions of Section 12(4) with regard to the calling a meeting not later than 15 days from the date of receipt of the motion, the other two time periods mentioned in Section 12(3) are directory. Reference is made to the decisions in the matter of State Bank of Patiala and Ors. vs. S.K. Sharma reported in (1996) 3 SCC 364. The Apex Court was of the view that in case of a procedural provision, the same was conceived in the interest of the person likely to be affected. Violation of any procedural provision would not automatically vitiate the proceedings unless the violation falls under the category of 'no notice', 'no opportunity' and no 'hearing'.
The complaint of the violation of the procedural provision should be examined from the point of view of prejudice. In this case, the issuance of the notice on the 6th working day by the prescribed authority has not caused any substantial prejudice in my prima facie view, to the petitioner. Moreover, the expression is 'shall' and not 'must' and the ratio of the decision of Lachmi Narain (supra) takes care of such a situation. The procedural provision in this case in my prima facie view has to be examined from the point of substantial compliance.
Instead of five working days the prescribed authority issued the notice on the 6th working day. 11 According to Mr. Saha, the reason being that the prescribed authority did not get assurance from the police that support and assistance would be provided. In the perception of the prescribed authority, there was a chance of violence. This will be explained by an affidavit-in-opposition.
When the prescribed authority has issued the notice on the 6th day, in my prima facie view, there has been substantial compliance of the procedural provision with regard to issuance of the notice under Section 12(3) of the said Act. I agree with the submissions of Mr. Saha at this stage.
Moreover, this court in the matter of Upananda Chatterjee vs. State of West Bengal & ors. has held that when consequences of non-compliance with a provision of a procedural law is not provided in the statute, the same shall ordinarily be treated as directory and not mandatory. The relevant portions are quoted below:-
"21. In our view, the provisions of giving seven clear days' notice as mentioned in the second proviso to section 16 of the Act is a directory provision and not a mandatory one as rightly held in the case of Aloke Pramanik (supra) while construing a similar provision of the same statute. It is now settled by the Apex Court that if a particular statutory provision is a procedural one, even the use of the word "shall" in such provision will not make it mandatory unless consequence of disobedience has been indicated in the statute. The exceptions to the previously mentioned rule of interpretation are in the cases where there is either "no notice", or "no opportunity" or "no hearing". In this connection, we may refer to the following observations of the Supreme Court in the case of State Bank of India v. S.K. Sharma, reported in AIR 1996 SC 1669 at 1683:--12
'A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
In the case of violation of a procedural provision, the position is this procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively.'
22. In the case of Lachmi Narayan v. Union of India, reported in AIR 1976 SC 714, the Supreme Court pointed out some of the cases where the provisions must be held to be mandatory. Those are enumerated below in the exact language of the Apex Court:
'The primary key to the problem whether a statutory provision is mandatory or directory, is the intention of the law maker as expressed in the law, itself. The reason behind the provision may be a further aid to the ascertainment of that intention. If the legislative intent is expressed clearly and strongly in imperative words, such as the use of 'must' instead of "shall", that will itself be sufficient to hold the provision to be mandatory, and it will not be necessary to pursue the enquiry further. If the provision is couched in prohibitive or negative language, it can rarely be directory, the use of peremptory language in negative form is per se indicative of the intent that the provision is to be mandatory (Crawford, the Construction of Statutes pp. 523-524). Here the language of sub-section (2) of section 6 is emphatically prohibitive, it commands the Government in unambiguous negative terms that the period of the requisite notice must not be less than three months.'
23. In the case before us, the word used is "shall" and not "must" and the language is also not in the negative form. The provision of giving notice is a rather procedural one and no consequence is indicated in the statute for 13 non-compliance of seven clear days' notice. In such circumstances, unless prejudice is shown, the departure from the statutory provisions cannot lead to annulment of the action taken.'' As Section 12(3) does not provide a consequence for not issuing the notice of the meeting within five working days, the Court is of the prima facie view on the basis of the discussions hereinabove that the intention of the legislature was not to make such a provision mandatory. For similar reasons, the provision of sending such notice at least before clear seven days to each of its existing members for consideration of the motion and for taking a decision on it, has also been held by this Court to be directory in nature. Reference is made to the decision of Md. Asraf Ali Mandal v. Block Development Officer, reported in 1992 (2) CHN 229 a Co-ordinate Bench held as follows:-
"20. The only point involved is whether the notice period under the second proviso to s. 16 of the Act is mandatory or in other words would a shorter notice period render the meeting pursuant to such notice invalid? In my view the period of 7 clear days mentioned in the second proviso to s. 16 is directory provision and not a mandatory one. A similar provision was construed by the Supreme Court in the case of K. Narasimhaiah v. H. Singh Gowda (AIR 1966 SC 330). The Supreme Court held that the period of the notice was directory because the main object of giving the notice is to make it possible for the voters so to attend to their other business as to be able to attend the meeting. The Supreme Court also held:--
"A consideration of the object of these provisions and the manner in which the object 14 is sought to be achieved indicates that while the legislature did intend that ordinarily the notice as mentioned should be given it could not have intended that the fact that the notice is of less than the period mentioned in the Section and thus the Councillors had less time than is ordinarily considered reasonable to arrange his other business to be free to attend the meeting, should have the serious result of making the proceedings of the meeting invalid."
20A. This decision of the Supreme Court was followed by a learned Single Judge of this Court in the case of Jnanendra Nath Pramanik v. District Magistrate Nadia (81 CWN
986). In that case the Court was called upon to consider the construction of s. 61(1) of the Bengal Municipal Act 1932 which provided for the removal of a Chairman. Section 61(3) provided that a special meeting could be convened for such purpose provided that "not less than 15 clear days notice of the meeting"
was given. The learned Single Judge held that the provision was directory and not mandatory. There is no material distinction between the facts before the Court and those in the case of Jnanendra Nath Pramanik and indeed the petitioner has not sought to draw any. On the other hand no decision whatsoever has been cited by the petitioner in support of his contention that non-compliance of the period provided in the second proviso to s. 16 would render the meeting invalid. There is also nothing in the Act itself to show that the period of the notice is a mandatory requirement. I therefore respectfully agree with and adopt the reasoning in the decision of Jnanendra Nath Pramanik and hold that the requirement of 7 days clear notice is only directory in nature.
21. Having held that the provision relating to the period of notice is directory and not mandatory the question whether the petitioner was served on 20th February 1991 or 14th February 1991 becomes irrelevant. If the object of the exercise in giving notice was to enable the petitioner to attend the meeting it cannot be said that this object was not achieved as service was admittedly effected on the petitioner and it is not the petitioner's case that the notice was not sufficient so that the petitioner was unable to attend."15
Reference is also made to the decisions of this Court (Manwara Bibi vs. The State of West Bengal & ors in the matter of W.P.A. No. 11414 of 2021). This Court held as follows:-
"Both Sections 12 and 16 of the West Bengal Panchayat Act before the amendment of 2010 dealt with the removal of Pradhan by two different procedure and both have requirement of seven days' notice to the members. In two decisions of this Court namely Md. Asraf Ali Mandal v. Block Development Officer, reported in 1992 (2) CHN 229 and in Samarendra Goswami v. Dabuk Gram Panchayat reported in 1995 (2) CHN 238, it has been specifically held that the provision regarding seven days' notice in Section 16 is directory. When both the sections provided seven days notice, in my opinion, I propose to follow the decision of the Division Bench and prima facie hold that seven days notice in Section 12(3) should have the same interpretation."
The necessity of giving seven clear days notice of the meeting is to ensure attendance of all persons who are concerned with it and also to allow such persons to deliberate on the motion. In this case, neither the existing members have challenged the delay of one day in issuing the notice calling for the meeting nor have any of the members approached the court with the grievance that seven clear days notice not having been given, the said members did not get adequate time to deliberate upon the motion. Only the Pradhan has come forward, who has always been aware of the requisitions which have been brought by the requisitionists one after other. The Pradhan was present before this court during the 16 previous rounds of litigation. If the members have accepted the notice and are ready to act thereupon, the notice cannot be decided to be bad in law in my prima facie view only because it failed to strictly confirm to the time period prescribed in 12(3) of the said Act. The notice was issued on August 31, 2021 and the meeting has been fixed on September 8, 2021. There is an intervening period of seven days from the date of issue of the notice, and the date of the meeting. The contention of the petitioner that as he had received the notice on September 1, 2021 and he did not have clear seven days notice, the meeting should not be held is not acceptable to the court. This court is of the prima facie opinion that the provision relied upon by the petitioner of having seven clear days notice of the meeting is directory in nature and no prejudice has been caused to the petitioner. These are notices convening a meeting for removal of the Pradhan. The Pradhan does not need to apply his mind to the motion or deliberate upon the same. On the contrary, the Pradhan has been aware from August 3, 2021 onwards that the requisitionists have been attempting to remove him accordance with law. Such attempts have been frustrated on two occasions.
The key to the opening of every law is the reason and spirit of the law. It is the animus 17 imponentis, the intention of the law maker expressed in the law itself, taken as a whole.
In the decision of Union of India & ors. vs. A.K. Pandey reported in (2009) 10 SCC 532 it was held as follows:-
"It is well settled that prohibitive or negative words are ordinarily indicative of mandatory nature of the provision; although not conclusive. The Court has to examine carefully the purpose of such provision and the consequences that may follow from non- observance thereof. If the context does not show nor demands otherwise, the text of a statutory provision couched in a negative form ordinarily has to be read in the form of a command. When the word "shall" is followed by prohibitive or negative words, the legislative4 intention of making the provision absolute, peremptory and imperative becomes loud and clear and ordinarily has to be inferred as such."
Applying the said principle Section 12(4) of the West Bengal Panchayat Act, 1973 of holding the meeting within 15 working days is mandatory in nature in contra-distinction to Section 12(3), because the word 'shall' is followed by a prohibitive expression.
In the decision of Bijay Kumar Singh & Ors.. vs. Amit Kumar Chamariya & Anr. reported in (2019) 10 SCC 660 it was held that when negative words were used, the courts would presume that the intention of the legislature was that the provisions were mandatory in character. Whether a mandatory or directory construction should be given to a statutory provision may be determined by an 18 expression in the statute itself or the result that shall follow due to non-compliance with the provision.
In this case, the petitioner was aware of the meeting on September 1, 2021. The meeting has been fixed on September 8, 2021. The office bearer has adequate notice of the meeting. The other members are not aggrieved and have not moved this court. Thus I am of the prima facie view, that the period of five working days and seven clear days are directory and there is no prima facie reason to interfere with the meeting at the interim stage as the prescribed authority has acted in terms of the law. Calling the meeting does not ipso facto mean that the pradhan has already been removed. The court also takes note that there has been a continuous attempt by the pradhan to frustrate the requisition. The requisitionists had to move this court on two occasions in order to exercise their right under the statute, which is uncalled for. Taking note of the history of this case, this court is of the prima facie view, that issuance of the notice on the sixth working day from receipt of the motion by the prescribed authority shall not stand in the way of requisitionists exercising their rights in the peculiar facts and circumstances of the case. The courts have held on previous occasions that the provisions of seven clear days notice is directory in nature. The provision of 19 issuing the notice within five working days is also directory in nature for the same reasons supplied by this court hereinbefore.
The decision of Malati Sarkar vs. State of West Bengal & ors, reported in 2010 3 CHN (CAL) 203, is not applicable as the decision was with regard to exclusion of the begin and end date for computing the period of seven clear days under Section 16 of the said Act.
The meeting shall be held on September 8, 2021 in accordance with law and reached to its logical conclusion. All actions will abide by the result of the writ petition.
Let this order be communicated by the learned Advocates for the respective parties. The meeting shall be held without the prescribed authority or either any of the parties insisting for a copy of the order. The learned advocate's communication shall be taken as good communication.
Affidavit-in-opposition to be filed within 6 weeks from date. Reply thereto, if any, to be filed within 2 weeks thereafter. Liberty to mention.
(Shampa Sarkar, J.)