Calcutta High Court (Appellete Side)
Krishna Dhar & Ors vs The State Of West Bengal & Ors on 2 December, 2011
Author: Biswanath Somadder
Bench: Biswanath Somadder
1
02.12.2011
(PP)
W. P. No.19116 (W) of 2011
Krishna Dhar & Ors.
Vs.
The State of West Bengal & Ors.
Mr. Malay Kumar Basu, Sr. Adv.,
Mr. Abhijit Basu,
Mr. Sankha Subhra Ray
.....for the petitioners.
Mr. Lalit Mohan Mahato,
Mr. Prasanta Behari Mahato
....for the State respondent nos. 1 to 5.
Mr. Tapabrata Chakraborty, Mr. Kumaresh Dalal ....for the respondent nos.7 to 12.
The petitioner no.1 claims to be the elected Pradhan of Paikar-I Gram Panchayat, situated under Murarai-II Development Block, in the district of Birbhum. The petitioner nos. 2, 3 and 4 are the elected members of the said Gram Panchayat and claim to be members of the Indian National Congress.
In the instant writ petition, they are essentially challenging issuance of a memo dated 17th November, 2011, by the prescribed authority, being the Block Development Officer, Murarai-II Development Block, whereby notice was given for a meeting of the Gram Panchayat for consideration of a motion for removal of the writ petitioner no.1 as the Pradhan of the Gram Panchayat. The 2 petitioners have also challenged the two notices containing the no confidence motion dated 11th November, 2011 and 15th November, 2011, taken out by some members of the Gram Panchayat, based on which the impugned notice was published on 17th November, 2011.
The main thrust of challenge, as submitted by the learned senior counsel appearing on behalf of the petitioners is that the prescribed authority could not have reached his satisfaction prior to issuing the impugned notice dated 17th November, 2011, in terms of section 12(3) of the West Bengal Panchayat Act, 1973 (as amended), in the given facts and circumstances. According to the learned senior counsel for the petitioners, the first notice containing the motion of no confidence dated 11th November, 2011, did not indicate party affiliation of the signatories to the said motion. The subsequent notice dated 15th November, 2011, containing an identical motion of no confidence, although had party affiliation of the signatories to the said notice indicated therein, there could not have been two parallel notices and in such circumstances, the prescribed authority ought to have satisfied himself as to which one of the two notices conformed to the requirements of sub-section (2) of section 12 of the West Bengal Panchayat Act, 1973 (as amended). It was also categorically submitted by the learned senior counsel for the petitioners that no 3 such satisfaction is manifest from the impugned notice dated 17th November, 2011, and as such the said notice is palpably bad in law and is liable to be set aside.
On the other hand, learned counsel appearing on behalf of the private respondent nos. 7 to 12 submitted that the impugned notice dated 17th November, 2011, was issued by the prescribed authority upon reaching due satisfaction in terms of sub-section (3) of section 12 of the West Bengal Panchayat Act, 1973. In order to reach such satisfaction, all that the prescribed authority was required to do was to take into consideration whether the requirements of sub-section (2) of section 12 had been substantially complied with. Learned counsel submitted that although the notice dated 11th November, 2011, did not indicate the party affiliation of the signatories, that defect was removed in the subsequent notice dated 15th November, 2011. In any event, non-indication of party affiliation would not have rendered the notice dated 11th November, 2011, bad in law. Relying on a recent unreported judgment of this Court rendered in W. P. 17499 (W) of 2011 (Manju Bala Singh Patar Vs. State of West Bengal & Ors.) on 2nd November, 2011, he submitted that the object of introducing section 12 sub-sections (1), (2) and (3) in the statute was only to ensure that a motion of no confidence for removal of a Pradhan or an Upa-Pradhan was brought about and executed 4 through a transparent democratic process which would ensure elimination of any clandestine design being evolved to oust either of them. In this context, learned counsel has also relied on a Division Bench judgment of this Court in Naru Gopal Chakraborty & Ors. vs. State of West Bengal & Ors., reported in 2006 (4) CHN 436. Reliance has been particularly placed on paragraph 8 of the said judgment and it is submitted that it must be remembered that in a democratic process there is no scope for allowing a person who has lost confidence to continue even for a minute after the resolution had taken place. He further submitted that such resolution had already been taken by the members of the Gram Panchayat in a meeting held on 29th November, 2011, wherein the writ petitioners also participated.
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 the 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 5 (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 on by the learned counsel representing the respondent nos.7 to 12.
Now, the only issue that remains to be decided as to whether the prescribed authority could have reached satisfaction in terms of section 12 sub-section (3) of the West Bengal Panchayat Act, 1973, in the backdrop of the two notices dated 11th November, 2011 and 15th November, 2011, prior to issuing the impugned notice dated 17th November, 2011.
Although, it was strenuously submitted by the learned senior counsel for the petitioners that the prescribed authority could not have reached satisfaction in accordance with sub-section (3) of section 12 of the Act of 1973, in the light of the contents of 6 the two parallel notices dated 11th November, 2011 and 15th November, 2011; there appears to be no reason as to why it should be held as such. The first notice dated 11th November, 2011, did not contain party affiliation of the signatories to the said notice. In such circumstances, once the second notice dated 15th November, 2011, was issued which contained party affiliation of the signatories, the earlier notice simply became non est. Thus, while issuing the impugned notice dated 17th November, 2011, the prescribed authority had only one valid notice before him, i. e., notice dated 15th November, 2011, and not two parallel notices, as contended on behalf of the writ petitioners. As such, there was no question of even formally withdrawing the earlier notice dated 11th November, 2011, by the respondent nos. 7 to 12, which stood automatically replaced by the subsequent notice dated 15th November, 2011. The plea taken by the petitioners is definitely a hypertechnical plea and as observed by this Court in the judgment rendered in W. P. 17499 (W) of 2011, such plea cannot render a transparent democratic process of bringing about a motion of no confidence for removal of a Pradhan or an Upa-Pradhan of a Gram Panchayat bad in law unless it squarely falls foul of the object of the provisions of law. Thus, the satisfaction arrived at by the prescribed authority under sub-section (3) of section 12 of the Act 7 could only have been on the basis of subsequent notice dated 15th November, 2011 and not otherwise.
A fact which has been brought to the notice of this Court during the course of hearing that in the meanwhile the petitioner no.1 has already been removed from the post of Pradhan in the meeting held on 29th November, 2011, is also a clear indication of a transparent democratic process being in operation. As observed by the Division Bench of this Court in Naru Gopal Chakraborty & Ors. vs. State of West Bengal & Ors. (supra), it must be remembered that in a democratic process there is no scope for allowing a person who has lost confidence to continue even for a minute after the resolution had taken place.
For reasons stated above, this Court has no hesitation in holding that the writ petition is liable to be dismissed and the same 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.)