Calcutta High Court (Appellete Side)
Manju Bala Singh Patar vs State Of West Bengal & Ors on 2 November, 2011
Author: Biswanath Somadder
Bench: Biswanath Somadder
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02.11.2011.
ap
W.P. 17499 (W) of 2011.
Manju Bala Singh Patar
Vs.
State of West Bengal & Ors.
Mr. Amit Prokash Lahiri
... For the petitioner.
Mr. Debabrata Ray
... For the respondent nos. 5,6 & 7.
Mr. Kamalesh Bhattacharya, A.G.P., Mrs. Barnali Sarkar ... For the State.
The petitioner is the Pradhan of Pirrah Gram Panchayat under Puncha Block in the district of Purulia. Her grievance is primarily in respect of a notice dated 19th October, 2011, issued by the prescribed authority under the West Bengal Panchayat Act, 1973, being the Block Development Officer, Puncha Block. By the said notice, the prescribed authority has convened a meeting of the Pirrah Gram Panchayat to be held on 3rd November, 2011 at 11-00 a.m. (i.e. tomorrow) for consideration of a motion for lack of confidence against the writ petitioner taken out by three gram Panchayat members, being the private respondent nos. 5, 6 and 7.
It has been strenuously argued by the learned advocate for the petitioner that the impugned notice is bad in law since the very basis for issuance of the said notice is dehors the statutory provision as applicable. He submitted that according to the relevant provision of law, for the purpose of removal of a Pradhan or an Upa-Pradhan, a motion in writing signed by at least three existing members ought to have been addressed to the 2 prescribed authority, which in the present case has not been done. The three members of the Gram Panchayat had addressed a communication to the writ petitioner dated 18th October, 2011, with a copy of the same merely marked to the prescribed authority and the Sub-Divisional Officer. According to the learned advocate, the applicable provision of law, namely, section 12 of the West Bengal Panchayat Act, 1973 [as amended by the West Bengal Panchayat (Amendment) Act, 2010] clearly specifies the procedure to be followed for the purpose of bringing on a motion for lack of confidence against a Pradhan or an Upa-Pradhan of a Gram Panchayat. If the procedure as laid down in section 12 (2) is not adhered to, the notice convening the meeting by the prescribed authority for removal of a Pradhan in terms of section 12 (3), would be bad in law. That apart, the prescribed authority, in terms of section 12 (3), has to satisfy himself that the motion conforms to the requirements of sub-section 2 of section 12 and only then the notice convening a meeting could be issued by the prescribed authority. It would be evident from the impugned notice itself that the prescribed authority has not recorded satisfaction with regard to the requirements of sub-section 2 of section 12 having been followed by the three existing members of the Gram Panchayat. He finally submitted that in the facts and circumstances of the instant case, this Court ought to stay the notice dated 19th October, 2011, issued by the prescribed authority.
On the other hand, learned advocate appearing on behalf of the respondent nos. 5, 6 and 7, drew this Court's attention to a copy of the motion which was signed by all of them on 18th October, 2011, which formed the very basis of initiation of the process for removal of the Pradhan. He submitted that although the motion was addressed to the Pradhan, i.e. the writ petitioner, a copy of the same was duly addressed to prescribed 3 authority as also the Sub-Divisional Officer. He submitted that the motion was quite in conformity with section 12 sub-section (2) and the prescribed authority had duly exercised his powers under the statute by issuing the notice dated 19th October, 2011, convening the meeting of the Gram Panchayat on 3rd November, 2011, upon being satisfied that the motion conformed to the requirements of sub-section (2) of section 12.
Learned Additional Government Pleader representing the State submitted that the prescribed authority, being the Block Development Officer, issued the notice dated 19th October, 2011, following the applicable provision of law, both in letter and in spirit. There was no infirmity or procedural lapse on the part of the prescribed authority which was so fatal so as to render the notice dated 19th October, 2011, bad in law.
Having considered the submissions made by the respective parties, it is necessary for a better understanding to quote the provision of sections 12 (1) (2) and (3) of the West Bengal Panchayat Act, 1973, (as amended till date), which are applicable in the facts of the instant case:-
"Section 12. (1) Subject to other provisions of the section, the Pradhan or the Upa-Pradhan of a Gram Panchayat may, at any time, be removed from his office by the majority of the existing members of the Gram Panchayat, referred to in clause (i) of sub-section (2A) of section 4, expressing their lack of confidence against the Pradhan or the Upa-Pradhan or recording their decision to remove the Pradhan or the Upa-Pradhan, at a meeting specially convened for the purpose.
(2) 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 4 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.
(3) the prescribed authority on receipt of the motion shall satisfy himself that it conforms to the requirements of sub-section (2) and on his satisfaction shall specially convene, by issue of notice, within five working days of the receipt or the motion, a meeting of the Gram Panchayat to be held in its office fixing date and hour of the meeting and 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."
A clear indication as to the intention of the legislature for the purpose of introducing sections 12 (1) (2) and (3) in the statute book, is manifest from a plain reading of the same. Since a transparent democratic process eliminating any clandestine design being evolved by existing members to remove an existing Pradhan or an Upa-Pradhan of a Gram Panchayat was required to be brought about, the detailed procedure, as laid down, ensures that a motion in writing signed by not less than three existing members of a Gram Panchayat expressing their lack of confidence against the concerned Pradhan or the Upa- 5 Pradhan (as the case may be) or recording their intention to remove the said Pradhan or the Upa-Pradhan, indicating party affiliation or independent status of each of such members, is required to be delivered in person through any of the members or sent by registered post to the prescribed authority. A copy of the motion is also required to be delivered to the concerned Pradhan or the Upa-Pradhan by the same process at the Gram Panchayat office with an additional copy sent by registered post to the concerned Pradhan or Upa-Pradhan's residential address. This detailed procedure brings forth the legislative intention and also ensures that both, the prescribed authority as well as the concerned office bearer (in the instant case, the Pradhan), are given adequate and effective notice and are not taken by surprise. The requirement of signature of at least three existing members of a Gram Panchayat on such motion further ensures elimination of frivolous motions. Sub-section (3) of section 12 casts an additional mandate upon the prescribed authority to satisfy himself that the motion conforms to the requirements of sub-section 2 and only upon reaching such satisfaction, the prescribed authority is required to issue the notice convening meeting for removal of a Pradhan or an Upa-Pradhan within five working days from the date of receipt of such motion.
In the instant case, the private respondent nos. 5, 6 and 7 addressed the motion expressing their lack of confidence to the Pradhan with a copy marked to the prescribed authority and additionally to the Sub-Divisional Officer. Although, hair splitting arguments have been advanced by the learned advocate for the petitioner that there was no scope for the three members of the Gram Panchayat to address their motion expressing lack of confidence to the Pradhan, it cannot be held that merely because a copy of the same was marked to the prescribed authority, the motion does not conform to the 6 requirements as specified in section 12 (2). The prescribed authority was bound to act in terms of the motion, once intimation to that effect in writing reached his hands in accordance with the requirements as specified in section 12 sub-section (2), notwithstanding the fact that such intimation was merely in the form of a copy of the motion.
As discussed hereinbefore, the object of introducing section 12 sub-sections (1) (2) and (3) in the statute is 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 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 to make a motion valid. Such hypertechnical plea, as sought to be raised by the learned advocate for the petitioner, cannot render a transparent democratic process of bringing about a motion of no confidence for removal of a Pradhan or Upa-Pradhan of a Gram Panchayat bad in law, unless it squarely falls foul of the object of the provisions of law, as discussed hereinabove. In any event, the same cannot stand in the way of an authority performing its statutory obligation towards fulfilling the desired object of a particular provision of the statute as per its mandate.
The notice dated 19th October, 2011, issued by the prescribed authority, being the Block Development Officer, Puncha Block, has been duly issued in accordance with law 7 and cannot be held to be bad in law and for reasons stated above, the writ petition is liable to be dismissed and is accordingly dismissed.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(Biswanath Somadder, J.) 8 Xerox plain copy of this order duly countersigned by the Assistant Registrar (Court) be given to the learned counsel for the parties on usual undertakings.
Referring to the affidavit of service, it is submitted that steps for service of notice as well as copy of the application have already been taken.
Since no affidavit in opposition has been filed the allegations/averments made in the application are deemed not to have been admitted.
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