Calcutta High Court (Appellete Side)
Election Of Pradhan When The Gram ... vs Unknown on 6 March, 2008
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
1
6.3.2008.
M.A.T. No. 2594 of 2007
C.A.N. No. 7720 of 2007
C.A.N. 491 of 2008
with
W.P. No. 15945 (W) of 2007
(Writ file not here)
Mr. Chitta Ranjan Chakraborty
Mr. Parvej Anam
.. for the appellant.
Mr. S. Dasgupta
Mr. T.N. Ghosh
.. for the State.
____________
Pratap Kumar Ray, J.
This application has come up for final hearing on exchange of affidavits. In considering the application for stay, we are of the view that the matter could be disposed of on merit by hearing the appeal itself. Since the main contesting parties are appearing before us, we are dispensing with service of notice of appeal and all other formalities.
The appeal is accordingly taken up as on day's list for final hearing along with the stay application.
Heard the learned Advocates appearing for the parties.
This appeal has been preferred by the writ petitioner assailing the judgement and order dated 13th August, 2007 passed by the learned trial Judge in W.P. No. 15945 (W) of 2007` whereby and whereunder the learned trial Judge disposed of the writ application directing that the meeting convened by the requisitionists to remove the Pradhan would be valid meeting and any resolution by majority members in the meeting as held on 27th July, 2007 should be given effect to 2 for removal of Pradhan. The appellant is not the Pradhan of the concerned Gram Panchayat. In view of the tenor of the judgment, we are of the view that the concerned Pradhan of the Gram Panchayat against whom a removal resolution was taken which has been declared by the Hon'ble High Court by the impugned judgement under appeal as valid, should be the person aggrieved by the judgement under appeal. But one of the members of the Gram Panchayat has preferred this appeal. The concerned Pradhan was a party in the writ proceeding but he has not preferred any appeal. Having regard to such, we are of the view that the present appellant cannot be deemed as a party aggrieved by the impugned judgement under appeal.
The writ application was moved by the present appellant seeking declaration that the other two meetings convened on 27th July, 2007, namely, the meeting convened by the Pradhan for his removal and the meeting convened by the requisitionists for removal of the Pradhan should be declared as void to make the meeting as convened for removal of Upa-Pradhan on the same date prior to the timing of the meeting of the said two meetings to be the valid one. The factual scenario leading to the writ application is to this effect.
Eight elected members of the concerned Gram Panchayat who are more than one third members of the concerned Gram Panchayat for the purpose of filing a requisition on removal of Pradhan requested the concerned Pradhan to convene a meeting in terms of second proviso to Section 16 of the West Bengal Panchayat Act, 1973. Subsequently, those requisitionists convened a meeting for removal of Pradhan as the Pradhan failed to convene the meeting as per notice sent by them fixing the date 27th July, 2007 at 11 A.M. Pradhan also convened a meeting for removal of himself by fixing the same date with only variation of the time at 12 Noon. On the other hand some other members also requested the Pradhan under the second proviso of said Section 16 to convene a meeting for removal of Upa-Pradhan and Pradhan convened such meeting on 27th July, 3 2007 fixing the time 11 A.M. In the writ application, the writ petitioner, who is one of the total elected members of 14 of the said Gram Panchayat, assailed the convening of other two meetings for removal of Pradhan as fixed by the Pradhan and the requisitionists respectively by contending that under Rule 5 Clause 5 of West Bengal Panchayat (Gram Panchayat Administration) Rules 2004 there was no scope to call any second or third meeting on the same date and in the event of convening any such meeting, only the first meeting of that date should be valid.
The writ application was opposed by the requisitionists and they contested the matter. The learned trial Judge held that considering the democratic set up and purposive idea of Panchayat Act the meeting convened by the requisitionists for removal of Pradhan should be valid one and other two meetings as convened by the Pradhan one for removal of Pradhan and another for removal of Upa-Pradhan should not be held on the date fixed and thereby passed an interim order for convening only one meeting of removal of Pradhan on 27th July, 2007 as convened by requisitionists and by final judgement His Lordship has declared that the said meeting was valid and directed to all authorities concerned to take steps on the basis of such resolution as taken for removal of Pradhan on 27th July, 2007. Before us the learned Advocate for the appellant has raised the same question as thrashed before the learned trial Judge, namely, Rule 5 sub-rule 5 of the said Panchayat Rules. Hence, for effective adjudication of the matter, the statutory rules in the field are required to be discussed first. Rule 5 sub-rule 5 of the said West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004 reads such:-
" 5. Notice of the meeting to members.- .......
(5) In a Gram Panchayat, not more that one general body meeting shall be held on a single calendar day. A notice convening more than one general body meeting on a single calendar day, 4 shall be void ab initio; if more than one notice are issued for convening separate meeting on the same day only the notice which is issued first shall be valid".
Section 12 of the relevant Section of the Panchayat Act which is designed specifically for removal of Pradhan and Upa-Pradhan reads such:-
"12. Removal of Pradhan and Upa-Pradhan. - [Subject to the other provisions of this section, a Pradhan or an Upa-Pradhan] of a Gram Panchayat may, at any time, be removed from office [ by a resolution carried by the majority of the existing members referred to in clause (i) of such-section (2A) of section 4] at a meeting specifically convened for the purpose. Notice of such meeting shall be given to the prescribed authority.
Provided that at any such meeting while any resolution for the removal of the Pradhan from his office is under consideration, the Pradhan, or while any resolution for the removal of the Upa- Pradhan from his office is under consideration, the Upa-Pradhan, shall not, though he is present, preside, and the provision of sub-section (2) of section 16 shall apply in relation to every such meeting as they apply in relation to a meeting from which the Pradhan or, as the case may be, the Upa-Pradhan is absent.
Provided further that no meeting for the removal of the Pradhan or the Upa-Pradhan under this section shall be convened within a period of one year from the date of election of the Pradhan or the Upa-Pradhan.
Provided also that if, at a meeting convened under this section, either no meeting is held or no resolution removing an office bearer is adopted, no other meeting shall be convened for the removal of the same office bearer within six months from the date appointed for such meeting". 5
Section 16 is the procedural law about convening of a meeting which may be a meeting of Gram Panchayat itself or a meeting by the requisitionists and or Pradhan as the case may be which reads such :-
"16. Meeting of Gram Panchayat. - (1) Every Gram Panchayat shall hold a meeting at least once a month [in the office of the Gram Panchayat. Such meeting shall be held on such date and it such hour as the Gram Panchayat may fix at the immediately preceding meeting.] Provided that the first meeting of a newly-constituted Gram Panchayat shall be held [on such date at such hour and] at such place within the local limits of the Gram concerned as the prescribed authority may fix.
Provided further that the Prodhan when required in writing by [one-third] of the members of the Gram Panchayat subject to a minimum of [three members] to call a meeting [shall do so fixing the date and hour of such meeting (to be held) within fifteen days after giving intimation to the prescribed authority and seven days' notice to the members of the Gram Panchayat,] failing which the members aforesaid may call a meeting [ to be held] [ within thirty-five days] after giving intimation to the prescribed authority and seven clear days' notice to the Pradhan and other members of the Gram Panchayat. Such meeting shall be held [in the office of the Gram Panchayat on such date and at such hour] as the members calling the meeting may decide. [The prescribed authority may appoint an observer for such meeting who shall submit to the prescribed authority a report in writing duly signed by him within a week of the meeting on the proceedings of the meeting. The prescribed authority shall, on receipt of the report, take such action thereon as it may deem fit.] 6 Provided also that for the purpose of convening a meeting under section 12 at least one- third of the members referred to in clause (i) of such-section (2A) of Section 4, subject to a minimum of three members, shall require the Pradhan to convene the meeting.
Provided also that if the Gram Panchayat does not fix at any meeting the date and the hour of the next meeting or if any meeting of the Gram Panchayat is not held on the date and the hour fixed at the immediately preceding meeting, the Pradhan shall call a meeting of the Gram Panchayat on such date and at such hour as he thinks fit".
On a reading of Section 12, a provision specific for removal of Pradhan, it appears that a resolution carried by the majority of existing members referred to in Clause (2) of sub-section (2A) of Section 4 is the condition-precedent for removal. Clause (i) of sub-section (2A) of Section 4 is on the constitution of Gram Panchayat whereby the said Clause (i) of sub-section (2A) relates to the members elected under sub-section 2. Section 4(2A) has defined the Gram Panchayat which shall consist of the members under Clause (i) namely, the elected members and under Clause (ii) namely, the nominated members from Panchayat Samity. Hence, the word 'Gram Panchayat' means a body constituted by two types of members, one is elected members and other is nominated members. Under Rule 5(5) the word "general body meeting" is under an embargo that there should not be more than one such meeting with a rider that even of convening any such meeting only the first meting should be valid and the other meeting should be void ab initio. The word "general body"
has not been defined under the Panchayat Act. Accordingly, the dictionary meaning of the word "general body" and the meaning from the Law Lexicon will lead us to identify the meaning. In our view, the general body meeting means a meeting of entire Gram Panchayat consisting of two groups of members elected, nominated and ex-officio members. Under Section 12 it appears that elected members are only entitled to move a motion against the Pradhan for his removal. The 7 legislature in enacting provisions namely Section 12 and the Rule 5 (5) aforesaid accordingly were very cautious to distinguish the different types of meeting as to be convened for different purposes. Section 12 of the Act has empowered only the elected members to oust the Pradhan by majority decision for the simple reason that the non-elected that is nominated members and/or ex-officio members have no voting right in the matter of election of Pradhan when the Gram Panchayat was constituted and thereafter office bearer election held. Since the Pradhan has been elected by majority vote of the elected members of the Gram Panchayat, naturally the statute has empowered under Section 12 the majority members to remove the Pradhan under the contingencies as mentioned in Section 12 and the proviso thereof.
On a bare reading of Section 16, second proviso, it appears that for removal of Pradhan only one third elected members may start the ball in motion by requesting the Pradhan to convene a meeting for his removal within the certain period as mentioned by the statute and failure to convene such a meeting by the Pradhan himself, requisitionists under the statute has been entitled to convene a meting for removal of Pradhan by application of Section 12, namely, by majority decision.
Having regard to the condition stipulated for convening a meeting by the requisitionists, namely, the failure of Pradhan to convene a meeting, it is clear that if the meeting of the requisitionists is concerned as a valid one, the Pradhan accordingly had no right to convene any meeting for his own removal as has been done in the instant case fixing the time as already mentioned. The learned trial judge stayed the holding of the meeting as convened by the Pradhan himself and when the final judgement delivered, learned trial Judge quashed those two meetings and declared the meeting convened by the requisitionists as valid.8
Having regard to such finding of the learned trial Judge, we are of the view that having regard to the factual premises, the meeting convened by the requisitionists is the valid one and the meeting convened by the Pradhan for his own removal was invalid. It is to be noted herein that the meeting convened by the Pradhan for removal of Pradhan was stayed by the interim order passed by the learned trial Judge was challenged unsuccessfully.
So far as the convening of the meeting for removal of Upa-Pradhan, as such convening of the meeting was under Section 12 of the said Act, the Rule 5 (5) of the said West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004 also is not attracted as the meeting as convened for removal of Pradhan or Upa-Pradhan under Section 12 read with Section 16 of the said Act cannot be considered as a general body meeting, but it is a meeting limited with the elected members in terms of clear statutory provision to that effect. Furthermore, Rule 5 (4) also is not an embargo to convene any such meeting under Section 12, namely, one for removal of Pradhan and another for removal of Upa-Pradhan on the same date but it should be by separate agenda with separate meeting time. Rule 5 (4) read such:-
"5. Notice of the meeting to members. - .....
(4) There shall be no meeting with agenda for removal of more than one office bearer in a Gram Panchayat any notice issued for removal of more than one office bearer shall be void ab initio."
Under the said Rule 5 (4) there is an embargo for convening a meeting with agenda for removal of more than one office bearer which does not mean that there cannot be any meeting may be consecutive meeting on the same date with separate agenda for removal of office bearer by taking single agenda either for removal of Pradhan or removal of Upa-Pradhan by the elected members in terms of Section 12 read with Section 16.
9
Learned Advocate for the appellant, however, has submitted before us a judgment delivered by Jayanta Kumar Biswas, J. in W.P. No. 264 (W) of 2004 (Santi Ranjan Mirdha & Ors. -vs- State of West Bengal & Ors.), a reported judgement as reported in 2007 (2) C.H.N. 405 whereby Section 4 (2A) (ii) has been declared as ultra vires to the constitutional provision of Article 243C (3). Learned Advocate for the appellant further submits that once the said Clause (ii) of Section 4 (2A) has been declared as ultra vires, in a Gram Panchayat, there will be only elected members and, as such, the general body meeting in terms of Rule 5 (5) now should be construed as a meeting of the elected members of Gram Panchayat only. In this appeal, we are not concerned to deal with that issue. It appears that Section 12 is the specific provision for removal of Pradhan by convening a meeting by the elected members and by majority decision. Hence, under Sections 12 and 16 of the said Act for removal of Pradhan or Upa-Pradhan it always to be construed a meeting of the requisitionists and/or a meeting for a decision by elected members if the meeting is convened by the Pradhan for his removal or for removal of Upa-Pradhan and the same cannot be termed as a general body meeting in the angle as has been used by the legislature by providing specific provision of removal of Pradhan and/or Upa-Pradhan under Section 12 of the said Act. Furthermore, under Section 12 it appears that Pradhan and/or Upa-Pradhan could be removed at any time subject to the provision of the said Act by a resolution taken by the majority elected members. The word "at any time" has a significance with reference to the interpretation of Rule 5 (5) of the Administration Rule, 2004. Though we have held that the general body meeting by the Gram Panchayat means a meeting of elected and nominated members as well ex-officio members and only the elected members under Section 12 are entitled to take a resolution for removal of Pradhan or Upa-Pradhan but even for argumendo sake it is considered that due to declaration of Section 4 (2A) (ii) of Panchayat Act as ultra vires to the Constitution of India though the legality 10 and validity of such judgment we are not testing herein and keeping the same open as and when any situation will arise, still then due to the word " at any time" as mentioned under Section 12 of the said Act which is only contoured or limited by the two provisos mentioned in the said Section, Rule 5 (5) cannot counter it and contradict it to limit wide contour of word "at any time". Hence, Rule 5 (5) even if is considered due to declaration of Section 4 (2A) (ii) as ultra vires for argumendo creating a situation that general body meeting means a meeting only by the elected members, still cannot touch the word "at any time" by putting any embargo in the manner as has been done for declaring the other meeting than the first one of a particular day as void ab initio, on the logic that rule cannot limit or supersede the provision of Act, a settled legal position.
Having regard to our findings above, accordingly we are of the view that there is no merit in the appeal itself and the appellant cannot be said as a party aggrieved by the impugned judgment under appeal.
The appeal accordingly stands dismissed.
The judgement under appeal stands confirmed.
The stay application also stands dismissed on the aforesaid reasoning.
(Pratap Kumar Ray, J.) I agree (Manik Mohan Sarkar, J.)