Calcutta High Court (Appellete Side)
Farida Bibi vs The State Of West Bengal & Ors on 27 September, 2016
Author: Biswanath Somadder
Bench: Biswanath Somadder
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IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Biswanath Somadder
AND
The Hon'ble Justice Sankar Acharyya
MAT 1772 of 2016
with
CAN 9907 of 2016
Farida Bibi
Vs.
The State of West Bengal & Ors.
Mr. Sukanta Chakraborty
Md. Anwar Hossain
... For the appellant.
Mr. Amal Baran Chatterjee, Sr. Advocate,
Mr. Usof Ali Dewan
Mr. Arup Sarkar
Mr. Asif Dewan
... For the respondent nos. 10-12 & 15-22.
Mr. Kamalesh Bhattacharya
Mr. Swapan Kumar Pal
... For the State.
Heard on : 27.9.2016.
Judgment on : 27.9.2016.
Biswanath Somadder, J.
Let the affidavit-of-service filed in Court today be taken on record. By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the connected application. 2 The appellant before this Court had filed a writ petition, being W. P. 25317 (W) of 2014, which was dismissed by a judgment and order dated 2nd September, 2016. While dismissing the writ petition, the learned Single Judge held, inter alia, that mere non-mentioning of political identity in a notice (for removal of a Pradhan or an Upa-Pradhan) would not render the entire notice illegal. Against the said order of dismissal of the writ petition, the present appeal has been filed.
In order to effectively adjudicate the issue sought to be raised in the present appeal, it is necessary to refer to section 12(2) of the West Bengal Panchayat Act, 1973 (as amended up-to-date), which reads as follows: -
"For the purpose of removal of the Pradhan or the Upa- Pradhan, one-third of the existing members referred to in sub- section (1) 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 the Pradhan or the Upa-Pradhan, indicating party affiliation or independent status of each of such members and either 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 registered post at his residential address."
A plain reading of the provision of law, as quoted above, clearly reveals that party affiliation or independent status of each of the 3 requisitionists are required to be communicated - not only in the motion in writing delivered to the Prescribed Authority - but also in the copy of the motion in writing, which is required to be delivered to the concerned office bearer - either by hand or by Registered Post at the Gram Panchayat office and also in the copy of that is required to be sent by Registered Post to the concerned office bearer's residential address.
Admittedly, copies of the motion in writing received by the appellant/writ petitioner do not have any party affiliation stated therein.
Learned advocate representing the respondents/requisitionists has referred to a judgment of the Supreme Court rendered in Usha Bharti v. State of U.P. & others., reported in AIR 2014 SC 1686. In particular, he has referred to paragraph 20 of the said judgment in order to submit that the Supreme Court has clearly observed therein 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. He submitted that even though the copy of the motion in writing received by the appellant/writ petitioner did not mention party affiliation of the requisitionists, the scheme of section 12 (2) of the West Bengal Panchayat Act, 1973 (as amended up-to-date), is directory in nature and what has happened in the facts and circumstances of the instant case is that the appellant/writ petitioner has been removed upon giving her effective and adequate notice, although such notice may not have contained party 4 affiliation of the requisitionists. Therefore, such removal, without the notice containing party affiliation, cannot be held to bad in law.
Two questions arise for consideration in the facts of the instant case. The first question is, whether the provisions of section 12 (2) of the West Bengal Panchayat Act, 1973, are mandatory or directory in nature. The other question is, whether the observation made by the Supreme Court in paragraph 20 of the judgment referred to by the learned advocate representing respondents/requisitionists, is at all relevant or applicable in the facts of the instant case.
In order to answer the first question, it is necessary to consider the provision of sub (2) of section 12 of the West Bengal Panchayat Act, 1973 (as amended up-to-date) - which had been quoted hereinbefore - carefully.
A plain reading of the said provision of law reveals that the legislature has consciously put in adequate safeguards in place in order to prevent a duly elected Pradhan or an Upa-Pradhan from being removed on the mere asking without following such due process as established by law. The other sub-sections under section 12 also clearly veers towards this object.
In this context, one may take notice of a judgment rendered by a Single Judge (one of us) in Krishna Dhar & Ors. vs. The State of West Bengal & Ors., reported in (2012) 4 Cal LT 10 (HC), wherein the following observations have been made: -
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"After considering the respective submissions made by the parties and in the facts and circumstances of the instant case it is clear that a motion of no confidence for removal of the Pradhan can be brought about only in accordance with section 12 of West Bengal Panchayat Act, 1973. The provisions of sub-section (2) of section 12 of the said Act of 1973 provides a mechanism by which such a motion can be brought to the notice of the prescribed authority as well as the Pradhan or the Upa-Pradhan of the concerned Gram Panchayat (as the case may be) who is sought to be removed. The object of introducing section 12 sub-sections (1), (2) and (3) in the statute is only to ensure that a motion of no confidence for removal of a Pradhan or an Upa-Pradhan is brought about and executed through a transparent democratic process which ensures elimination of any clandestine design being evolved to oust either of them. In order to further this object, the prescribed authority as well as the concerned office bearer are required to be given adequate and effective notice of such motion. The law additionally ensures elimination of frivolous motions by introducing the requirement of signature of at least three existing members of a Gram Panchayat for making a motion valid. The above observation also finds its place in the recent unreported judgment relied upon by the learned counsel representing the respondent nos. 7 to 12."
It would be evident from the observations made in the judgment rendered in Krishna Dhar's case, as quoted above, that the sole object of introducing sub-sections (1), (2) and (3) under section 12 in the statute- book by the legislature was only to ensure that a motion of no confidence for removal of a Pradhan or an Upa-Pradhan was brought about and 6 executed through a transparent democratic process which ensures elimination of any clandestine design being evolved to oust either of them.
As observed earlier, the statute clearly mandates party affiliation or independent status of each of the members who requisitions a motion in writing expressing their lack of confidence against the Pradhan or the Upa-Pradhan or recording their intention to remove the Pradhan or the Upa-Pradhan of a Gram Panchayat by indicating either their party affiliation or their independent status to be specifically stated in the motion in writing. The specific and clear language of the statute unambiguously and unequivocally reveals the mandatory nature of the provision of law which compels each member to disclose their respective party affiliation or independent status. Therefore, the statutory requirement for indication of party affiliation or independent status in the motion in writing requires no further elucidation and such requirement cannot be held to be directory in nature only in order to suit the interest of the requisitionists who did not comply with the statutory requirement.
So far as the second question is concerned, in Usha Bharti's case (supra), the Supreme Court was considering, inter alia, calling of a meeting envisaged under section 28 of the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Act, 1961. In paragraph 20 of the said judgment itself, the Supreme Court has made the following observation, which is quite pertinent and required to be noticed carefully: - 7
"Undoubtedly, such No Confidence Motion can only be passed upon observing the procedure prescribed under the relevant statute, in the present case the Act."
This clear observation made by the Supreme Court leaves no manner of doubt whatsoever that without observing the procedure prescribed under the relevant statute [in the instant case, the West Bengal Panchayat Act, 1973 (as amended up-to-date)], the elected office bearer (in this case, the Pradhan) could not have been removed. The learned Single Judge - while observing that mere non-mentioning of political identity in the notice will not render the entire notice illegal - has failed to take into consideration the mandatory requirement of indication of party affiliation or independent status of each of the members who signs a motion in writing expressing their lack of confidence against the Pradhan or the Upa-Pradhan or recording their intention to remove the Pradhan or the Upa-Pradhan of a Gram Panchayat, as envisaged under sub-section (2) of section 12 of West Bengal Panchayat Act, 1973 (as amended up-to-date). As observed earlier, the party affiliation or independent status of each of the members should not only appear in the motion in writing delivered to the Prescribed Authority, but also in the copies delivered to the concerned office bearer at the Gram Panchayat office and sent to the residential address of such office bearer. In the absence of party affiliation or independent status of each of the members being stated in the motion in writing delivered to the Prescribed Authority, or, in either of the two 8 copies, will render such motion in writing bad in law; not being in conformity with the mandatory procedural requirement, as clearly specified in section 12 (2) of West Bengal Panchayat Act, 1973 (as amended up-to-date). Thus, the observation made by the Supreme Court, as quoted above, is squarely applicable in the facts of the instant case inasmuch as the learned Single Judge ought not to have made any observation, the effect of which allows a clear mandatory procedure prescribed in law - as appearing in the relevant statute -being given a complete go-by.
The impugned judgment and order dated 2nd September, 2016, therefore, cannot be sustained and is liable to the set aside and is accordingly set aside.
The appeal along with the connected application, however, is disposed of with liberty to the respondents/requisitionists to proceed strictly in accordance with the scheme of section 12 of West Bengal Panchayat Act, 1973 (as amended up-to-date), in the event they wish to initiate fresh proceedings for removal of the appellant as Pradhan of the concerned Gram Panchayat.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(Biswanath Somadder, J.) 9 (Sankar Acharyya, J.) ap