Calcutta High Court (Appellete Side)
Binay Adhikari & Anr vs The State Of West Bengal & Ors on 25 February, 2019
Author: Biswanath Somadder
Bench: Biswanath Somadder
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Acting Chief Justice Biswanath Somadder
And
The Hon'ble Justice Arindam Mukherjee
CAN 562 of 2019
in
MAT 71 of 2019
Binay Adhikari & Anr.
Vs.
The State of West Bengal & Ors.
For the appellants/applicants: Mr. Saptansu Basu, Sr. Advocate
Mr. Dhruba Mukherjee
Mr. Subir Kumar Saha
For the State: Mr. Sirsanya Bandopadhyay
Mr. Subhendu Sengupta
For the respondent no.8: Ms. Anita Shaw
Heard on: 04.02.2019 & 25.02.2019. Judgment on: 25th February, 2019. Biswanath Somadder, ACJ.
Let the report in the form of an affidavit filed on behalf of the concerned Prescribed Authority of the State be taken on record.
2
The instant appeal arises out of a judgment and order dated 3rd January, 2019, passed by a learned Single Judge whereby three writ petitions, being WP 24570 (W) of 2018 (Binay Adhikari & Anr. vs. The State of West Bengal & Ors.), WP 19375 (W) of 2018 (Juljelal Miah & Ors. vs. The State of West Bengal & Ors.) and WP 19807 (W) of 2018 with CAN 8950 of 2018 (Mojibar Rahaman Mia & Ors. vs. The State of West Bengal & Ors.) were disposed of.
The writ petitioners in WP 24570 (W) of 2018 have preferred the instant appeal.
By the impugned judgment and order, the learned Single Judge was pleased to dispose of the writ petitions in the manner as indicated hereinbelow:-
"Having heard the parties and considering the materials placed, this Court cannot be oblivious to the fact that the requirement of a quorum under Rule 3(1) of the 1975 Rules read with the Guidelines dated 9th August, 2018 is an open quorum and, not a quorum behind closed doors.
This Court cannot miss the fact that admittedly at the meeting of 13th September, 2018 the door of the venue of the meeting was closed by one of the members of the group of five present inside the venue without any instruction from the PO.
It must, therefore, follow that assuming for the sake of argument that a quorum existed comprising five members initially present at the meeting on 13th September, 2018, the PO had no role to play in recognising such quorum.
The so-called quorum then proceeded to operate behind closed doors by which time the other members, i.e. the petitioners in WP-II had arrived. At the time of their entry into the meeting the PO has taken a stand in his detailed Report on the following day, which appears unconvincing when compared to the brief Report of the same date. While in his brief Report the PO claims that papers connected to the quorum were not in his custody, in 3 his detailed Report he treats the election of the Prodhan to be conclusive on the basis of the quorum.
This Court does not find any whisper in both the Reports -brief and detailed - of the PO that it was possible to continue with the election process on a quorum established by law.
In the event the so-called quorum had existed, the election of other office bearers such as Upa-Prodhan, could be held to be continued even on paper. However, from a cumulative reading of the facts it is apparent that the PO failed to exercise any control or take steps required to be taken by him as PO in law to initiate, hold and conclude the meeting on 13th September, 2018.
Accordingly, the proceedings of the meeting dated 13th September, 2018 stand set aside.
The PA/BDO is directed to call a second meeting of the GP in issue in accordance with law.
In view of the invalidity of the meeting dated 13th September, 2018, the basis of the show-cause notice under Section 11(1)(f) issued against the petitioners in WP-III does not survive. Therefore, the show-cause proceedings against all noticees/Private Respondents to WP-III up to their present stages pending before the PA/SDO also stand set aside.
WP 19375(W) of 2018 (WP-I) stands accordingly dismissed.
WP 19807(W) of 2018 (WP-II) stands accordingly allowed.
WP 24570(W) of 2018 (WP-III) stands accordingly dismissed.
CAN 8950 of 2018 stands disposed of.
There will be no order as to costs."
The only issue which arises for consideration in the facts and circumstances of the instant case is whether the concerned Prescribed Authority could have dropped the case which was initiated against the private respondent nos.8 to 15 herein, particularly, when the admitted position reveals that the said private respondents, being the newly elected Gram Panchayat members of 4 Kurshamari Gram Panchayat, did not make or subscribe an oath or affirmation before the Competent Authority in terms of section 197 of the West Bengal Panchayat Act, 1973 within six months from the date of their election.
The answer to this issue has been clearly stated by the concerned Prescribed Authority, being the Sub-Divisional Officer, Mathabanga Sub-Division, District - Cooch Behar, in the report in the form of an affidavit filed in connection with the instant matter. From paragraph 3 of the said report, it appears that the Prescribed Authority received a report from the Block Development Officer, Mathabhanga-I dated 12th December, 2018, regarding making and subscribing of oath, wherefrom it was ascertained that the eight newly elected Gram Panchayat members did not make or subscribe an oath or affirmation before the Competent Authority under section 197 of the West Bengal Panchayat Act, 1973 within six months from the date of their election which, prima facie, attracts the provision of section 11(1)(f) of the West Bengal Panchayat Act 1973.
This being the admitted position and taking into consideration the facts and circumstances of the instant case, we are of the view that the concerned Prescribed Authority should issue fresh show cause notices against the private respondent nos.8 to 15 in terms of section 11(1)(f) of the West Bengal Panchayat Act, 1973 and proceed further in the matter strictly in accordance with law. If the election of the Pradhan or Upa-Pradhan of the concerned Gram Panchayat has been held in the meanwhile upon taking into account the votes of the private respondent nos.8 to 15, such election cannot be considered valid in the eye of 5 law till the proceedings under section 11(1)(f) of the West Bengal Panchayat Act are concluded by the Prescribed Authority.
The appeal and the application for stay stand disposed of accordingly. Urgent photostat certified copy of this judgment, if applied for, be given to the learned advocates for the parties.
(Biswanath Somadder, ACJ.) I agree.
(Arindam Mukherjee, J.) pg .