Calcutta High Court (Appellete Side)
Meherun Khatun vs State Of West Bengal & Ors on 7 July, 2021
Author: Shampa Sarkar
Bench: Shampa Sarkar
S/L 1
07.07.2021
Court. No. 19
GB
WPA 11074 of 2021
Meherun Khatun
VS
State of West Bengal & Ors.
(Through Video Conference)
Ms. Susmita Saha Dutta,
Mr. Niladri Saha.
... for the Petitioner.
Mr. Raja Saha,
Ms. Rupsha Chakraborty.
... for the State.
This writ petition has been filed challenging a notice
dated June 24, 2021 issued by the Prescribed Authority. The
agenda is "removal of the Pradhan of No.9, Chaloon Gram
Panchayat".
The notice under challenge is issued under Form-1E of
the West Bengal Panchayat Constitution Rules, 1975. The
meeting was scheduled to be held at 12 noon today. The
notice was received by the petitioner on June 24, 2021. The
writ petition was filed on July 5, 2021. On urgent mentioning
the matter has been listed before this Court today.
The only contention of the petitioner is that the notice
dated June 24, 2021 did not satisfy the provisions of Section
12(3) of the West Bengal Panchayat Act, 1973. The Prescribed
Authority did not satisfy itself that the provisions of Section
12(2) had been complied with. It is submitted that in the
requisition, the party affiliations of the requisitionists were
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not mentioned. The crux of the argument of the petitioner is
only the defect in the notice under Section 12(3) of the said
Act, on the ground that as the requisitionists have not
mentioned the party affiliations, Form 1E should not have
been issued. The petitioner prays for setting aside of the
notice under Form 1E issued by the Prescribed Authority.
There is no challenge to the requisition. The requisitionists
have also not been impleaded as a party although, any order
setting aside the notice dated June 24, 2021 would affect the
democratic rights of the requisitionists.
Reliance has been placed on a Division Bench
Judgment in the matter of Gopal Kumar versus State of West
Bengal, reported in 2015 (1) CHN Cal 445. It is submitted
that Section 12(2) is like a check list and the party affiliation
of the requisitionists should have been mentioned. Support is
drawn from the Hon'ble Division Bench judgment stated
hereinabove.
Reliance has also been placed on an another decision
of this Court in the matter of Rajendra Kujur versus The
State of West Bengal & Ors., where this Court has taken a
similar view that all the six requirements of the provisions of
Section 12(2) should be complied with mandatorily.
The learned advocate for the State respondents
including the prescribed authority submits that these are hyper technical issues. The Pradhan has been elected by a democratic process and the persons who elected the Pradhan have a right to remove him if they lack confidence in him. 3 That is the principle of democratic republicanism in our country. A document has been handed over to this Court which shows that the Prescribed Authority before issuing the notice which is impugned to this writ petition, called for a meeting of the requisitionists and satisfied himself about their identity, party affiliation and also obtained their phone numbers and other details. In the requisition notice, which is annexed to the writ petition, the names of the requisitionists along with their post/designation in the Gram Panchayat has been mentioned. The Prescribed Authority does not need to form a subjective opinion and record such satisfaction, in my prima facie opinion. In my view, prima facie, the notice dated June 24, 2021 is itself a satisfaction of compliance of Section 12(2). It appears that out of 13 members, 10 members have given the requisition for removal of the Pradhan. If in the Gram Panchayat, 10 persons have lost confidence in the Pradhan, a hyper technical flaw, in my prima facie opinion, cannot be of serious consequence. The democratic process must continue. More so, because the writ petition is being moved when the meeting is to be held. Another reason for denying the interim order at this stage is because the requisitionists have not been impleaded in this proceeding. The Prescribed Authority has, in my prima facie opinion, satisfied himself about the identity and the party affiliation of such persons. Moreover the details of the requisitionists are also available in the office of the Gram Panchayat. The said documents have to be brought on record. Thus, I do not find 4 any reason to stay the meeting convened by the Prescribed Authority.
During the pandemic situation where the Gram Panchayat has additional duties to perform under the Disaster Management Act, in my prima facie opinion, if 10 out of the 13 members do not have confidence on the Pradhan, the entire operation and the business of the Gram Panchayat, would come to a stand still. This impasse cannot be allowed as the local bodies need to function on a war like footing, during this outbreak. Non-cooperation amongst the members with their superior, would cause irreparable injury to the local people whose welfare, sustenance, medication, health facilities and vaccination would depend on the proper functioning of the Gram Panchayat. The decision in Gopal Kumar v. State of (supra) was rendered in a separate set of facts and the Division Bench held as follows:-
"(22) In our view satisfying himself as regards the sufficiency of the motion really means that the Prescribed Authority has to ascertain with reference to sub-Section 2 whether the requirements mentioned therein are satisfied by the motion. No subjective exercise is involved therein. No executive or administrative order is to be issued by the Prescribed Authority by convening the meeting. It is more of a ministerial task. In our view, the language of sub-
Section 3 is quite clear and the legislature did not require the Prescribed Authority to record his satisfaction or reasons in support thereof as regards the sufficiency of the motion before convening the meeting. We are in agreement with the view of Samaddar, J. in the case of Firoza Begam (supra) that issuance of notice convening the meeting itself indicates the satisfaction of the Prescribed Authority as regards acceptability of the motion.
(23) We feel that we would be adding words to the statute if we opine that the Prescribed Authority must record his satisfaction and reasons in support therein 5 prior to issuance of notice convening meeting. This would be impermissible in view of the established principle of law regarding interpretation of statutes as amplified by the decisions of the Honble Apex Court discussed above.
(24) We have checked up the Panchayat Act and/or equivalent legislation of several other States including Assam, Bihar, Himachal Pradesh, Karnataka, Kerala, Panjub, Rajasthan and Uttar Pradesh. None of such legislations provide for the Prescribed Authority to record his satisfaction as regards the sufficiency of a motion convening a meeting.
(25) We further feel that recording of satisfaction by the Prescribed Authority prior to convening a meeting would serve no useful purpose and would be of no consequence. Even if the Prescribed Authority records his satisfaction as to the sufficiency of a motion when, in fact, such motion does not confirm to the requirements of sub-Section 2, such motion would be liable to be quashed by the Court. The motion will speak for itself and all that the court will have to see is whether or not it satisfies the requirements of sub- Section 2. Hence, it would be a futile and useless exercise to put an obligation on the Prescribed Authority to record his satisfaction in his official records as regards sufficiency of the motion. Such recording will not change the factual scenario or the actual contents of the motion.
(26) It is also significant that the format of the notice of meeting i.e. form 1E prescribed by Rule 5B of the West Bengal Panchayat (Constitution) Rules, 1975 does not provide for any scope for recording the satisfaction of the Prescribed Authority as regards the legal validity of the motion prior to issuance of notice of meeting.
(27) In view of the discussion above we are of the opinion that it was not the intention of the legislation to impose any obligation on the Prescribed Authority to record satisfaction regarding legal acceptability of a motion submitted under section 12(2) of the said Act before issuance of a notice of meeting under section 12(3) of the said Act. We are of the view that it is not necessary for the Prescribed Authority to record any such satisfaction and we agree with the view of the Ld. Judge in the case of Firoza Begam (Supra) that issuance of notice of meeting itself indicates such satisfaction. We answer the question of law referred to us accordingly."
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A judgment is an authority for what it decides and not every observation and discussion in the judgment can be a binding precedence.
Learned advocate for the petitioner prays that the petitioner be allowed to add the requisitionists as respondents to this proceeding. Such liberty is granted. The cause title be amended. Service of the writ petition upon the added respondents.
The Prescribed Authority and the added respondents are directed to file their affidavits-in-opposition within a period of six weeks. Reply thereto, if any, be filed within two weeks thereafter.
All actions taken in the meantime shall abide by the result of the writ petition.
(Shampa Sarkar, J.)