Calcutta High Court (Appellete Side)
Dipali Halder vs The State Of West Bengal & Ors on 25 January, 2018
Author: Subrata Talukdar
Bench: Subrata Talukdar
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Mr. Justice Subrata Talukdar
W.P. 25754 (W) of 2017
Dipali Halder vs. The State of West Bengal & Ors.
with
WP 25755(W) of 2017
Abdul hamid Molla vs. The State of West Bengal & Ors.
with
WP 27984(W) of 2017
Asit Sardar vs. The State of West Bengal & Ors.
and
WP 25661(W) of 2017
with
CPAN 1399 of 2017
Asit Sardar vs. Shaama Parveen
For the Petitioner in
WP 27984(W) of 2017 : Mr. Bijoy Adhikary
Mr. Nitish Kumar Ghosh
For the Petitioner in
WP 25754(W) of 2017 : Mr. P. Chaturbedi
Mr. Pankaj Halder
For the Respondent
Nos. 7 to 16 : Mr. Sadhan Kumar Halder
Mr. Tapash Mondal
For the State in
WP 27984(W) of 2017 : Mr. Jahar Lal De
Ms. Smita Das De
For the State in
WP 25755(W) of 2017 : Mr. Sirsanya Bandopadhyay
Mr. Parikshit Goswami
For the State in
WP 25754(W) of 2017 : Sk. Md. Galib
Ms. Subhro Nag
For the Respondent
Nos. 2 and 4 : Mr. Pantu Deb Roy
Mr. Arindam Deb Roy
Heard on : 19/01/2018
Judgement on : 25/01/2018
Subrata Talukdar, J.:
Three out of the abovenoted four writ petitions and, the contempt application, have been keenly contested. One of the writ petitions, i.e. WP 25661(W) of 2017 was disposed of by an order of this Court dated 17th of October, 2017 and, in connection therewith, the contempt application, i.e. CPAN 1399 of 2017 (for short CPAN) has been filed.
The essential issues which have given rise to the present litigation between the parties are as follows:-
(a) The no confidence motion proposed to be discussed against the Prodhan of Bamangachhi Gram Panchayat (for short GP) under Joynagar-I Panchayat Samiti under Section 12 of the West Bengal Panchayat Act, 1973 (for short the 1973 Act).
(b) The proceedings for disqualification of four members of the GP, viz. the Private Respondent Nos. 7, 8, 9 & 10 (for short PR Nos. 7 to 10) in WP 27984(W) of 2017 (hereinafter referred to as WP-II) under Section 11 of the 1973 Act.
The four writ petitions are as follows:-
1) WP 25754(W) of 2017 (for convenience referred to as WP-I) is filed by Dipali Halder (for convenience hereinafter referred to as DH) with a prayer for setting aside the notice dated 13th October, 2017 issued by the Block Development Officer/Prescribed Authority (BDO/PA) of Joynagar-I Block scheduling the meeting to remove the Prodhan/DH on the 23rd of October, 2017.
2) WP 27984(W) of 2017 (WP-II) is filed by one Asit Sardar (for short AS) with a prayer to direct the Prescribed Authority/Sub-
Divisional Officer, Baruipur (for short the PA/SDO) to take steps on the complaint of AS dated 3rd August, 2017 seeking removal of the PR Nos. 7 to 10 in WP-II namely, Manchura Sardar, Mozammel Mistry, Tapasi Sardar and Mosaraf Gazi as elected members of the GP in view of their liability for disqualification under Section 11(1)(d) of the 1973 Act.
3) WP 25755(W) of 2017 (WP-III) is filed by one Abdul Hamid Molla (AHM) claiming to be the Upa-Prodhan of the GP and, reiterating the prayer of the Prodhan/DH in WP-I that the PA and BDO be restrained from acting further in terms of the notice dated 13th October, 2017 for removal of both the Prodhan and the Upa- Prodhan at the meetings scheduled at the Panchayat Office on the 23rd of October, 2017 and 24th of October, 2017 respectively.
4) In the pending CPAN, AS, who is also an elected member of the GP, raises the issue of the alleged non-compliance by the PA/SDO of the order of this Court dated 17th October, 2017 in WP 25611(W) of 2017. It is, inter alia, pleaded that by the order of 23rd October, 2017 this Court directed the PA/SDO to take a decision on the complaint of AS relating to the removal of the above noted PRs in WP-II for not attending three consecutive meetings of the GP thereby incurring the applicability of Section 11(1)(d) of the 1973 Act.
For the sake of avoidable prolixity the facts and arguments as placed by the contesting parties can be arranged as follows:-
(i) That the events complained of in the WPs and CPAN find their first murmurs with the complaint dated 3rd August, 2017 of AS addressed to the PA/SDO for cancelling the membership of the PR Nos. 7 to 10 in WP-II by invoking Section 11(1)(d) of the 1973 Act. Simply put the said PR Nos. 7 to 10 were alleged to be absent from three consecutive meetings of the GP and, also allegedly not present at meetings called on several other dates.
(ii) On 22nd September, 2017 the Prodhan/DH of the GP also lodged a similar complaint against the PR Nos. 7 to 10 for taking steps under Section 11(1)(d) of the 1973 Act (supra).
(iii) On 10th October, 2017, AS filed WP 25661(W) of 2017 and, by order dated 17th October, 2017, WP 25661(W) of 2017 stood disposed of in presence of the parties by directing the PA/SDO to take a decision within a stipulated period on the complaint of AS.
(iv) On the 10th of October, 2017 ten members out of eighteen members of the GP, including the PR Nos. 7 to 10, lodged a No Confidence Motion against the Prodhan/DH and the Upa-
Prodhan/AHM with the PA/BDO under Section 12 of the 1973 Act.
(v) On the 13th of October, the PA/BDO issued notices of meeting on the motion of no confidence under Section 12(3) of the 1973 Act fixing the 23rd of October, 2017 and 24th of October, 2017 as the respective dates for considering the motions for removal of the Prodhan/DH and the Upa-Prodhan/AHM respectively.
(vi) The notice dated 13th October, 2017 came up for consideration before the Hon'ble Single Bench of this Court in WP-I filed by DH/the Prodhan. Sitting in Vacation the Hon'ble Single Bench was pleased to hold as follows and it would be necessary for the discussion to reproduce the order of the Hon'ble Vacation Bench below:-
"The petitioner in this writ petition claims to be the Prodhan of the concerned Panchayat. Aggrieved by a notice dated 13th October, 2017, issued by the Prescribed Authority under Section 12 of the West Bengal Panchayat Act (hereinafter referred to as the said Act), this writ petition has been filed.
It is the petitioner's case that Section 12 of the said Act requires clear seven days' notice for holding a meeting for removal of Prodhan. The petitioner has stated in paragraph 12 of the writ petition that in between 13th October, 2017 and 23rd October, 2017 there have been declared holidays on 14th, 15th, 19th, 20th, 21st and 22nd October, 2017.
That being the situation, this cannot be a notice showing of clear seven days within the parameters prescribed in Section 12 of the said Act.
In that view of the matter, there shall be an order of stay of the notice impugned being dated 13th October, 2017 (Annexure P5 to the writ petition) for a period of three weeks till after the vacation The petitioner is directed to serve copies of the writ petition upon all the respondents and to inform the order passed today.
Let this matter appear before the regular Bench two weeks after the vacation."
(vii) Mr. Chaturvedi assisted by Mr. Halder, Ld. Counsel for DH/Prodhan/the petitioner in WP-I have argued that the notice of removal of the PA/BDO under Section 12(3) of the 1973 Act is not a compliance with the time period granted/as understood in law. Mr. Chaturvedi points out from the State' Calendar of Holidays for the year 2017 that, in addition to what has been recorded in the order of the Hon'ble Vacation Bench dated the 17th of October, 2017, the State's Holiday Calendar for the year 2017 shows 19th of October as the general public holiday for Kalipuja; 20th of October as the additional public holiday for Kalipuja; and 21st of October as an additional public holiday for Bhatridwitya.
Mr. Chaturvedi further contends that the provision for granting 'seven clear days' notice under Section 12(3) of the 1973 Act was not fulfilled by the PA/BDO. Relying on 2012 (4) SCC 407 (at Paras 31- 37), Mr. Chaturvedi submits that in the absence of a proper statutory compliance of a procedural provision, the presumption in favour of legal malice cannot be avoided.
Again relying on 1991 (1) SCC 212 Mr. Chaturvedi points out that there is an obligation on the part of the PA/BDO to express/record his satisfaction under Section 12 of the 1973 Act before 'sending' the notice of meeting on the no confidence motion. Allegedly, a group among the requisitionists comprising the PR Nos. 7 to 10 have been absentee members and, were under threat of disqualification by invocation of Section 11(1)(d) of the 1973 Act. Therefore, the PA/BDO ought to have recorded his satisfaction whether during pendency of the proceeding for disqualification of PR Nos. 7 to 10, such members acting as requisitionists can usher in a no confidence motion.
(viii) Arguing for the State-respondents, Mr. Galib and Mr. Bandopadhyay, Ld. State Counsel persuasively argue that the two proceedings under Section 11(1)(d) and Section 12 of the 1973 Act are distinct. In Section 11(1)(d) the PA is the SDO and qua Section 12 of the 1973 Act, the PA is the BDO. Therefore, the satisfaction under Section 12 of the 1973 Act cannot legally embrace the proceeding which is the subject matter of Section 11(1)(d). Accordingly, there is no bar on the PA/SDO to proceed with the notices of meeting dated 13th October, 2017 in the absence of a decision by the PA/SDO on the 11(1)(d) complaint. It next argued by Ld. State Counsel that the clear intention of Section 12(3) is that existing members of the GP shall be entitled to participate in the No Confidence Motion. Therefore, on the date of the requisitionists signing the No Confidence Motion each of the signatories, including the PR Nos. 7 to 10, were existing members of the GP and, therefore, could validly bring in the requisition notice.
Arguing on the period of the notice with reference to the statutory expression, 'clear seven days', Ld. State Counsel point out that under Section 12(3) there are two mandates on the PA/BDO. The first is to convene a meeting 'within five working days' and thereafter 'send' the notice convening the meeting 'at least before clear seven days'.
Therefore it is argued that a distinction has been drawn in Section 12(3) between 'working' and 'clear' days. A 'clear day' would mean a working or non working day, provided the day is otherwise free to be counted as a complete day. The question of holidays cannot be read into the concept of clear days since, such a reading would frustrate the legislative intent.
It is submitted by Ld. State Counsel relying on the unreported authorities of MAT 2052 of 2016, FMA 1209 of 2015 and MAT 2003 of 2016 that a democratic process initiated under the statute does not require to be readily interdicted. It is submitted that the noticees/members of the GP had the requisite knowledge of the meeting as convened by the notices dated 13th October, 2017. Therefore, with the fulfilment of 'seven clear days' from the existence of knowledge of the meeting, the mandate of Section 12(3) stood complied.
(ix) Mr. Halder, Ld. Counsel appearing for the requistionists/the PR Nos. 7 to 10, relies on the authority of AIR 1966 SC 330 to argue that the procedure of notice under Section 12(3) is not mandatory. It is submitted that as long as the noticees have knowledge of the content and the date of the No Confidence meeting, the democratic process connected to the GP should be left to the members themselves.
Further relying on the authority of 2013(1) CHN 458 at Paragraph 33, Mr. Halder argues that so long the membership of the requisitionists is not taken away, there can be no curtailment of the right of vote by an existing member which includes the PR Nos. 7 to 10.
(x) Arguing for the petitioner in WP-II and, also in support of CPAN with trademark vigour, Mr. Adhikari, Ld. Counsel submits that it was the mandate of the Court vide its order dated 17th October, 2017 that the proceedings under Section 11(1)(d) be completed by the PA/SDO within the period fixed by Court. It is argued that the complaint of AS dated the 3rd of August, 2017 is yet to be considered by the PA/SDO. Without the complaint of AS reaching its logical culmination at the hands of the PA/SDO, the meetings dated 23rd and 24th October, 2017 cannot fructify.
It is important that the PA/SDO should purge himself of the contempt as alleged in the CPAN, prior to the requisitionists being permitted to participate in the meetings dated 23rd and 24th of October, 2017.
Also referring to the order of the Hon'ble Division Bench in MAT 1959 of 2017 with CAN 10797 of 2017, Mr. Adhikari submits that the Hon'ble Division Bench did not interfere with the orders dated 17th October, 2017 (supra) and 13th November, 2017 (extending the interim order of 17th October, 2017) passed in WP-I as filed by DH. The observations of the Hon'ble Division Bench are as follows:-
"In an Intra-Court Mandamus Appeal, no interference is usually warranted unless palpable infirmities or perversities are noticed. No such palpable infirmities or perversities are noticed on a plain reading of the two impugned orders.
As such, the appeal and the application for stay find no merit and are liable to be summarily dismissed and stand accordingly dismissed."
Therefore, Mr. Adhikari argues that the Hon'ble Division Bench having refused to interfere with the orders dated 17th October, 2017 and 13th November, 2017 on the basis of the above observations, the notices under Section 12(3) of the PA/BDO ought to be considered only subsequent to the disposal of the proceedings under Section 11(1)(d) of the 1973 Act by the PA/SDO.
The final submission is made by Mr. Adhikari that the PA/SDO should answer the contempt arising out of the order of the Court dated 17th October, 2017 in WP 25661(W) of 2017 and only thereafter this Court may proceed with the consideration of the pending WPs I, II and III.
Having heard the parties and considering the materials placed, this Court arrives at the following findings:-
A) There can be no two opinions that the proceedings under Sections 11 (1)(d) and 12(3) of the 1973 Act are distinct in nature. However, at the same time, in particular fact situations, the two proceedings have intertwining periods which provide ample fodder to the parties to point out the stains on the democratic fabric.
B) From the record it transpires that by the order dated 17th October, 2017, this Court permitted the PA/SDO to complete the proceeding under Section 11(1)(d) of the 1973 Act within a stipulated period. From the facts and reasoned order submitted by Ld. State Counsel it transpires that by order dated 6th of November, 2011 the SDO took unusual pains to unravel the format of the meetings of the GP and, ultimately opined as follows:-
"......making the alleged records confusing, contradictory and difficult to take any concrete decision upon;
And Therefore, after verifying all relevant documents at the hearing held on 24th October, 2017, I, Smt. Shama Parveen (IAS), Sub-Divisional Officer, Baruipur, hereby ordered that the membership of (a) Manchra Sardar, (2) Mojammel Mistry, (3) Tapasi Sardar, (4) Mosarab Gazi, & (5) Sirajul Sardar will not be disqualified, and the case is disposed of."
C) The decision of the SDO dated the 6th of November, 2017 is not under challenge before this Court. The challenge in the CPAN relates to the complaint of AS dated 3rd August, 2017 which has not been considered by the SDO, since it transpires that the decision dated 6th November, 2017 has been taken by the PA/SDO on the basis of the complaint by the Prodhan/DH dated 22nd September, 2017.
D) Section 11(1) of the 1973 Act provides authority to the PA/SDO to permit a member of the GP to show cause against the action proposed to be taken against him under any of the sub-sections of Section 11(1), in this case 11(1)(d). Therefore, to the mind of this Court the obligation sought to be created on behalf of AS that he has a right of further action before the SDO on the basis of his complaint dated 3rd August, 2017 cannot be considered to be a legally tenable course of action once, the similar complaint of DH/the Prodhan has been dealt with by the order of 6th November, 2017. It is trite that no man be vexed twice over the same cause.
E) The prerequisite of Section 11(1) of the 1973 Act is the proceeding which may be initiated by the PA/SDO upon granting an opportunity to show cause qua the members/member of the GP proposed to be removed - in this case the PR Nos. 7 to 10. Accordingly, the PA/SDO, towards fulfillment of his legal obligation under Section 11(1) of the 1973 Act, has passed the reasoned order dated 6th November, 2017. The reasoned order dated 6th November, 2017 must be understood by this Court in its correct perspective of having the legally presumptive effect of disposing of the similar complaint of AS dated 3rd August, 2017 alongwith the complaint of DH dated 22nd September, 2017 - both being directed on similar grounds against the PR Nos. 7 to 10. Moreover, the reasoned order dated 16th November, 2017, for whatever it is worth, is not under challenge before this Court.
F) Accordingly, this Court is of the clear view that Mr. Adhikari's submission that the contempt proceeding be taken up first does not inspire this Court.
CPAN 1399 of 2017 stands accordingly dismissed. G) Next, coming to the point of satisfaction of the PA/BDO in issuing the notice dated 13th October, 2017, as argued by Mr. Chaturvedi, this Court finds that the legal position has been squarely settled by the authority of the Hon'ble Division Bench as reported in 2015 (1) CHN (Cal) 445. The Hon'ble Division Bench considered the conflicting views of two Hon'ble Single Benches on the issue and agreed with the view In Re: Firoza Begam vs. State of West Bengal as reported in 2013 (3) CHN (Cal) 241 and, 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 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 Hon'ble 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." H) This Court finds no reason to take a different view and, must record that following the view of the Hon'ble Division Bench In Re: Gopal Kumar [2015 (1) CHN 445 (supra), the satisfaction of the PA/BDO must be understood as implicit in the notice itself.
I) This Court must next consider the argument of Mr. Adhikari that the notice of the No Confidence Motion should be or, can be only considered post a decision by the PA/SDO under Section 11(1)(d). Therefore, the meetings as convened on 23rd October and 24th October, 2017 for the removal of the Prodhan and Upa- Prodhan respectively by the notices of the PA/BDO dated 13th October, 2017 ought not to have any legal validity since at the time of such meeting the PR Nos. 7 to 10 were under a threat of disqualification. Accordingly, without the status of the PR Nos. 7 to 10 having been finally decided, the meetings dated 23rd October and 24th October, 2017 cannot be held with their participation.
The counter argument, however, to the above point is the law placed on behalf of the State/Respondents and Ld. Counsel for the PR Nos. 7 to 10 that Section 12 permits all existing members as on the date of signing the requisition notice, as also on the date of the meeting itself, to participate in the proceeding. Therefore, there can be no legal infirmity in the PR Nos. 7 to 10 being allowed to exercise their franchise being existing members of the GP on the relevant dates, viz. 10th October, 2017 (date of the requisition notice); the 13th of October, 2017 (date of the notices of the no confidence meeting); 23rd and 24th October, 2017 (dates for the no confidence meetings).
J) With regard to the discussion at Paragraph (I) above, this Court must notice the law as pronounced in AIR 2001 Cal 72 covering Sections 11, 12 and 16 of the 1973 Act. The relevant observations are reproduced below:-
"10. Section 11 does not prescribed any time limit within which the same has to be exercised but at the same time in the absence of any time limit it is expected that the same is to be performed within a reasonable proximity from the date of making such application or invocation of jurisdiction under Section 11. The provision for showing cause has also to be kept in mind and therefore it should be done as soon as possible and the same can not be extended beyond a reasonable period. At the same time, no one can be permitted to take advantage of absence of time limit prescribed in Section 11 by dragging on the matter for any indefinite period to his own advantage. Therefore, all endeavour should be made to dispose of such matter as early as possible, preferably, within six weeks with an outer limit of 3 months. Such step is to be taken on principle having regard to the facts and circumstances of each case.
11. Since no provision has been provided in the Act and the rules therefore the Court has been tempted to prescribe the outer limit having regard to the provisions contained in Section 213-A Sub-section 9 which however prescribes six weeks as limit.
12. So far as the abuse of the democratic process as contended by Mr. Bihani is concerned, the Court is not supposed to look into any such question unless there is any infringement of law. In view of the provisions contained in Section 11 particularly Sub-section 3 read with Sub-section 2 it can not be said that the removal would operate from the date the jurisdiction of the prescribed authority is invoked. On the other hand, by reason of the expression used in Sub-section 2 and 3, the removal becomes effective only on the passing of the order by the prescribed authority and it remains operative unless it is stayed by the appellate authority. However, by reason of Sub-section 3 such an order becomes final after the order on appeal is passed. Therefore, so long the order does not become final or becomes operative a member against whom a process Under Section 11 is initiated can not be precluded from participating in the meeting or even to requisition a meeting for removal of the Prodhan. It is a democratic process and a democratic process is not confined to the democratic right of the petitioner alone. It also extends to the democratic right of the respondents as well. It is a question of striking a balance. One might be of one view and the other might be of other. But those views can not be inducted when it is a question of interpretation of law or doing justice according to law. It is only law that has to be looked into. Whether it works hardship or it brings absurd result that is none of the business for the Court to look into. Such consequences are to be taken care of by the legislature. The Court even while interprating can not encroach upon the domain of the legislature. The Court also can not indirectly legislate through interpretation which is otherwise impermissible and outside the jurisdiction of the Court.
13. In the absence of any provision under which such members can be precluded from participating in a meeting it is not possible for this Court to prevent their participation in the meeting and exercising their right available under the system.
14. In the present case the proceeding has since been initiated in September, 2000 and as such it is expected the prescribed authority should decide the question as early as possible in accordance with Section 11 even if the case so requires without giving any adjournment after a date is fixed for showing causes by the members. Thus the prescribed authority is hereby directed to conclude the process by 22nd January, 2001. Mr. Dasgupta pointed out that the said resolution was forwarded to the District Panchayat Village Development Officer. According to him, there is no such officer whereas Mr. Bihani had pointed out that it was sent to the Sub-divisional Officer who is the prescribed authority. Therefore, this question need not be gone into. The Sub-divisional Officer or the prescribed authority is hereby directed to comply with the order as directed above within the time stipulated."
This Court finds no reason at this stage to take a different view from In Re: AIR 2001 Cal 72 (supra) and, while so doing, must also notice that the PA/SDO has passed the reasoned order on 6th November, 2017 which is appealable under Section 11 (2) of the 1973 Act. Therefore, this Court is of the view that on the point of the ultimate conclusion arrived at by the PA/SDO vide his order dated 6th of November, 2017, a writ petition may be assumed to be, in the usual course, not maintainable.
K) Coming to the final question of 'clear seven days' for issue of the notice under Section 12 (3), this Court is required to place the Section itself:-
"Section: 12 Motion of no confidence or removal of Pradhan and Upa-Pradhan.
(1) ........
(2) ........
(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 of 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."
L) It further transpires from the Section itself (supra) that a distinction is made between five working days within which steps are to be taken by the PA/BDO to convene the meeting and sending of such notice 'at least before clear seven days to each of his existing members'.
M) This Court is taken to the discussion on the point In Re: Malati Sarkar Vs. State of West Bengal & Ors. reported in 2010 (3) CHN (Cal) 203. On the point of 'seven clear days' the Hon'ble Division Bench was pleased to hold as follows:-
"13. Section 12 inter alia provides that a Pradhan or Upa-pradhan could be removed from the office by a resolution carried by majority at a meeting specially convened for the said purpose upon giving notice to the prescribed authority. The second proviso to Section 16(1) inter alia provides that Pradhan would require in writing by one-third of the members of Gram Panchayat subject to a minimum of three members to call a meeting, shall do so fixing the date and hour of the meeting to be held within fifteen days after intimation to the prescribed authority and seven days notice to the members. The said proviso further stipulates that in case of failure on the part of the Pradhan to convene a meeting, the requisitionist may call a meeting within thirty five days after "giving" intimation to the prescribed authority and "seven clear days notice" to the Pradhan and other members. In the instant case, Pradhan admittedly did not convene the meeting in terms of the requisition. Hence, the second notice issued by the requisitionists was perfect in terms of the provisions of Section 16(1). Appellant raised the plea that the notice was short as she received it on March 27 whereas the meeting was held on March 31. The learned Judge observed that the appellant being a Pradhan understood the notice and purport thereof. The learned Judge also accepted the contention of the requisitionists with regard to the interpretation of "seven clear days" as discussed hereinbefore. The learned Judge in addition, considered the effect of Section 12 which clearly stipulates that a Pradhan could be removed by majority having five members in support of the resolution against four including the Pradhan. From the resolution it appears that all five members present at the meeting unanimously resolved that they lost confidence in the Pradhan and as such they removed the Pradhan in accordance with the provisions of Section 12. Hence, the Pradhan's removal was made by absolute majority and was valid in view of the provisions of Section 12. Question now remains as to whether the notice convening the meeting was valid or not. The majority of the members were present and voted in favour of the resolution. It was not the case of the Pradhan that she did not receive the notice. However, two of her supporters being respondent nos.4 and 5 contended that they did not receive the notice whereas the undelivered packet came back with the remark "refused". If out of nine members, six members duly received the notice well ahead of the meeting and did not raise any issue with regard to service it is presumed that the notice was attempted to be served on all the members in usual course including respondent nos.4 and 5. Question however remains, is the notice insufficient in accordance with the second proviso to Section 16(1)? Learned Judge relied on the Apex Court decision in the case of State of Punjab (Supra), where interpreting the word "communicate" Apex Court observed that it could not be interpreted to mean that the order would become effective only on its receipt. In the case of Jai Charan Lal (Supra), the Apex Court considered Section 87- A(3) of the Uttar Pradesh Municipalities Act where the Apex Court decided almost identical provision. In section 87-A(3) it was, inter alia, provided that written notice of intention to make a motion of no confidence on the President must be signed by the members not less than one third of the total strength. Sub-section 3 provided that the District Magistrate would call a meeting and would usually send notice by Registered Post "not less than seven clear days" before the date of the meeting. While interpreting such provision the Apex Court observed that the District Magistrate was obliged to "send" notice not less than seven clear days. The word "send" would mean that the crucial date would be the date of despatch. In the instant case, second proviso to Section 16(1) inter alia provides that the notice shall be "given". In our view, "seven clear days" would start considering the date of despatch and not the date of receipt. The learned Judge, in our view, very rightly approached the problem. Mr. De relied upon a passage from Shackleton on the Law and Practice of Meetings wherein "clear days" were defined by exclusion of the day when the notice was served and the day when the meeting was held. Such observation was made by the author being prompted by the English decision in the case of In re Railway Sleepers Supply Company reported in 1885, Volume - XXIX, Chancery Division, Page-204. In the said decision, Section 51 of the Companies Act, 1862 was considered wherein it was provided that a resolution would be deemed to be special when it had been passed at any general meeting of which notice specifying the intention to propose such resolution had been duly given and such resolution had been confirmed at a subsequent general meeting, of which notice had been duly given, and held at an interval of "not less than fourteen days, not more than one month, from the date of the meeting" at which such resolution was passed. In our view, such proposition of law is well-settled and would also be applicable in the instant case, when we would interpret the word "clear days". In our considered view, "clear days" means while computing it must exclude the start date and the date of the meeting. Parties, however, joined issue before us as to what would be the start date in the given circumstance. Is it the date of issue or date of receipt?
Mr. De relied upon the two unreported decisions in the case of Smt. Madhumita Biswas (Supra) and in the case of Md. Firoz Alam (Supra). In the case of Firoz Alam (Supra) the Division Bench of our Court while interpreting both the Sections observed that the language used in Section 12 was different from Section 16. Section 12 inter alia empowers the majority to remove Pradhan and Upa-pradhan "at any time" in a specially convened meeting. Section 16 spoke about different meetings. Under the second proviso to Sub-section 1 one-third members of the Gram Panchayat may request the Pradhan to convene a meeting and Pradhan was statutorily obliged to convene such meeting within fifteen days from the date of receipt of such requisition and seven days notice to all members. Under the second proviso in case of failure to convene a meeting by Pradhan the requisitionists were entitled to pass a resolution by convening meeting for the said purpose by "giving" seven clear days notice. The Division Bench considered various meetings contemplated under the said Act of 1973. The Division Bench also considered Rule 5 and 6 which spoke of notice of meeting to the members and procedure of delivery of notice. After discussing all the provisions the Division Bench held that seven clear days notice would mean a gap of seven clear days in between the date of service of notice and date of holding of the meeting. The Division Bench considered the Apex Court decision in the case of Jai Charan Lal (Supra) and observed that the language used in the Uttar Pradesh Municipalities Act would have a different connotation. The other Division Bench judgment in the case of Upananda Chatterjee (Supra)was also considered where the other Division Bench relying on a Supreme Court decision in the case of K. Narasimiah -VS- H.C. Singri Gowda reported in All India Reporter, 1966, Supreme Court, Page-330 held that the provision for service of seven clear days notice was not mandated. The Division Bench also considered the another unreported decision of our Court in the case of Madhumita Biswas -VS- State of West Bengal (Supra) where the other Division Bench observed that it was mandatory and not directory. Considering the views of two different Division Benches discussed above the Division Bench in the case of Firoz Alam (Supra) held that it was not necessary to deal with the proposition as to whether the notice was mandatory or directory. The Division Bench ultimately held that Section 12 clearly prescribed for removal of the Pradhan by a majority. Section 16 spoke about removal of Pradhan by the procedure laid down therein. The Division Bench ultimately held that the majority of the members gave notice to Pradhan for convening a meeting. The Pradhan failed to convene a meeting under Section 16. The requisitionists thereafter held a meeting upon notice to the prescribed authority as well as the members and took a decision to remove the Pradhan and such attempt of the requisitionists was valid under Section 12. Their Lordships rejected the contentions of the Pradhan and sustained the removal.
14. In the case of Madhumita Biswas (Supra) the other Division Bench held that giving of seven clear days notice was mandatory and not directory. The said Division Bench held that the provisions of the West Bengal Panchayat Act was not pari materia with Mysore Town Municipalities Act considered by the Apex Court. In the case of Khalil Sekh (Supra), plea was taken that the first notice asking the Pradhan to convene meeting was not properly given. The Division Bench negated such contention. While doing so, the Division Bench interpreted second proviso to Section 16 and observed that in case Pradhan failed to call such meeting despite receipt of notice the requisitioninsts were entitled to convene the meeting by giving seven clear days notice. The Apex Court decision in the case of Meera Sahni (Supra) was cited to support the contention that the statutory compliance must be had in the manner as prescribed in the statute. Apex Court held, where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.
15. In this case, the notice was admittedly issued on March 23, and meeting was held on March 31. If we exclude both the dates we get seven clear days being 24th to 30th. Section 16 clearly stipulates that the notice should be "given" and not "delivered" or "served". Giving of the notice means despatch of the same. Once the notice was issued on March 23, it was immaterial when it was received by the notice so long there was no complaint with regard to non-receipt of the notice and the meeting could not be held to be void. The learned Judge relied upon State of Punjab (Supra). We do not find any scope of interference.
16. Even assuming we hold that seven clear days should be computed from the date of receipt it would have no bearing on the subject controversy in view of the clear mandate of Section 12 as interpreted by the other Division Bench in the case of Firoz Alam (Supra).
17. On examination of the precedents it appears that the Division Benches of our Court are not ad idem on the subject issue and in our considered view it is high time that the matter should be referred to the larger bench to be constituted by the Chief Justice for settling the law on the subject."
N) This Court further observes that after elucidating its findings In Re: Malati Sarkar (supra), the Hon'ble Division Bench referred the matter to a Larger Bench to answer the question. O) The Larger Bench following the reference In Re: Malati Sarkar (supra) by its order dated 17th of July, 2015 in FMA 600 of 2010 opined, having regard to the facts of that case, as follows:-
"None appears on behalf of either of the parties.
The reference by Division Bench was on the following questions;
The litigation that came up for consideration was with regard to the passing 'no confidence' against the Prodhan of a Panchayat. In that context what exactly the date of computation of 'seven clear days' in terms of the second proviso to Section 16(1) of the West Bengal Panchayat Act, 1973 would be considered.
The controversy arose in March, 2010. We are in 2015. More than five years since the committee was constituted. The term of the body must have come to an end and in all probability, new body must have come into existence. The reference is purely an academic issue now.
In view of that matter, we are of the opinion that in a future date and in a proper case, the said issue could be decided.
With this observation, the reference is disposed of."
P) Therefore, this Court is now required to examine whether the period granted by the notices of 13th October, 2017 fulfill the mandate of seven clear days which, in the considered view of this Court, casts a special mandate on the PA/BDO to send/despatch the notice of meeting keeping clear seven days before/or, prior to the date of the meeting.
The law as applicable to several fact situations has been illustratively discussed through a line of judicial authorities. It will be meaningful for this discussion to refer to a few:
AIR 1957 Raj 388 in the matter of Anokhmal Bhurelal vs. Chief Panchayat Officer, Rajasthan Jaipur & Ors.
AIR 1964 Punjab 135 in the matter of Jai Bhagwan Sharma & Anr. vs. Matu Ram Bhola Ram & Ors.
AIR 1955 Nagpur 35 in the matter of Rambharoselal Gahoi vs. State of Madhya Pradesh & Ors.
2004 (2) BLJR 1408 in the matter of Smt. Rambha Sinha vs. The State of Bihar & Ors. which has also discussed the pronouncement of the Hon'ble Apex Court in AIR 1968 SC 5.
Q) Respectfully noticing the above noted authorities, this Court is now required to read the law into the statutory mandate of Section 12(3) of the 1973 Act authorising the PA/BDO to send/despatch the notice at least before clear seven days. The expression at least before requires to be read in its proper perspective/timeline to the word clear in the context of the particular fact situation of this case.
This Court must also notice the predicative portion under Section 12(3) which is the intention of the notice of clear seven days to each of the existing members of the GP 'for consideration of motion and taking a decision on it'. Therefore, to the mind of this Court, the purpose of sending the notice at least before seven clear days is to enable each of the members of the GP to not only acquire knowledge/notice of the intended meeting but, to also consider and take a decision on the manner of exercise their franchise in a scenario which is unencumbered. R) To the further mind of this Court the intervention of pre- declared general State holidays, notwithstanding the Saturday and Sunday in between, ought to have been taken into contemplation by the PA/BDO while deciding to send the notice of meeting. It would be an impossibility to claim ignorance on the part of the PA/BDO as not to have understood that the general declared holidays coinciding with important festivals in the State' Calendar and also covering the Panchayat office/administration may not be clear days insofar as the noticees/other members are concerned who may be otherwise encumbered with plans of their own covering the holiday/festival period.
S) The further fact situation is not lost on this Court that the time period for sending the notice under Section 12(3) is to enable the noticees/existing members an opportunity for consideration of the motion and for taking a decision on it. Without attempting to sound too subjective on the issue, this Court can hardly be ad idem on the idea that with the declared State holidays in place and, for the reasons discussed above, the PA/BDO was required to provide a clear prior seven days notice for calm consideration of and decision on the notice of motion, notwithstanding the surrounding issues connected to validity of the existing composition of the GP left festering since August, 2017.
T) At this stage this Court must notice the view In Re: Bibi Najba reported in 2008 (2) CHN 363 which, inter alia, holds that the only purpose of service of notice is to make a member aware of the holding of the meeting. A similar view was taken In Re:
Upananda Chatterjee reported in 2007 (4) CHN 605 wherein it has been, inter alia, held that the provision of seven clear days notice is directory not mandatory.
U) This Court must finally notice that In Re: Upananda Chatterjee (supra) was considered by the Hon'ble Coordinate Bench In Re: Malati Sarkar (supra), which in turn referred the matter to the Hon'ble Larger Bench (supra).
In the backdrop of the above discussion and, having regard to the particular fact situation of this Case this Court holds as follows:-
I) That the provision of at least before seven clear days was required to be followed by the PA/BDO in letter and spirit;
II) With the pre-declared General State holidays the provision of at least before seven clear days notice has been frustrated;
III) The notices of meeting dated 13th October, 2017 stand therefore set aside.
WP 25754(W) of 2017, WP 25755(W) of 2017 & WP 27984(W) of 2017 stand accordingly disposed of.
Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities.
(Subrata Talukdar, J.)