Calcutta High Court (Appellete Side)
Gopal Kumar & Anr vs The State Of West Bengal & Ors on 18 December, 2014
Author: Arijit Banerjee
Bench: Manjula Chellur, Arijit Banerjee
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
WP 24555 (W) of 2014
With
WP 25717 (W) of 2014
With
WP 27877 (W) of 2014
With
WP 26946 (W) of 2014
Gopal Kumar & Anr.
-vs.-
The State of West Bengal & Ors.
Coram : The Hon'ble The Chief Justice Manjula Chellur
And
The Hon'ble Justice Mr. Arijit Banerjee
For the Petitioner : Mr. Amal Baran Chatterjee, Adv.
Mr. Amit Prakash Lahiri, Adv.
For the Petitioner : Mr. Sayan De, Adv.
(In WP 27866 (W)/14)
For the State : Mr. Kamalesh Bhattacharyya, Adv.
(In WP 24555 (W)/14) Mr. Swapan Kumar Pal, Adv.
For the State : Mr. Subhabrata Dutta, Adv.
(In WP 27877 (W)/14)
For the State : Mr. Sadhan Kumar Halder, Adv.
(In WP 26946 (W)/14) Mr. Jaladhi Das, Adv.
For Respondent Nos. 5-12 : Mr. Milon Bhattacharyya, Adv.
(In WP 24555 (W) of 2014) Mr. Apurba Kumar Das, Adv.
Mr. S. B. Mukherjee, Adv.
For Respondent Nos. 4-10 & 13: Mr. Partha Chakraborty, Adv.
Mr. Nilanjan Bhattacharjee, Adv.
Heard On : 11/11/2014, 25/11/2014, 26/11/2014
27/11/2014 and 03/12/2014
Judgment On : 18/12/2014
Arijit Banerjee, J.:
(1) A judgment and order dated 10th September, 2014 was passed by the Ld. Single Judge in WP No. 24555 (W) of 2014 referring a question of law to a Division Bench. This is why the matter is before us. Similar question of law arises in three other writ petitions being WP 25717 (W) of 2014, WP 27877 (W) of 2014 and WP 26946 (W) of 2014 and accordingly the said three writ petitions have been clubbed together with WP 24555 (W) of 2014. (2) The question of law that arises for our consideration can be formulated as follows:-
"Upon receipt of a motion from the requisite number of members of a Gram Panchayat indicating their intention to remove the Pradhan or the Upa- Pradhan, before issuing a notice convening a meeting of the Gram Panchayat for consideration of the motion and taking a decision on it, whether or not the Prescribed Authority is required to expressly record his satisfaction that the motion conforms to the requirements of Section 12 (2) of the West Bengal Panchayat Act, 1973 (hereinafter referred to as 'the said Act')"? (3) We refrain from discussing the facts of each of the writ petitions since we intend to send back the writ petitions to the Ld. Single Judge for final disposal on merits in the light of the opinion that we express in this judgment on the question of law referred to us.
(4) The Ld. Judge was of the view that the Prescribed Authority is obliged to record his satisfaction regarding compliance of requirements of Section 12 (2) of the 1973 Act along with reasons in support thereof in his office records. However, since his view was at variance from the view expressed by another Ld. Single Judge in the case of Firoza Begam-vs.-State of West Bengal reported in 2013 (3) CHN (Cal.) 241, the matter has been referred to us.
(5) Before noting the conflicting views of the two Ld. Judges, we set out hereunder sub-Sections 1, 2 and 3 of Section 12 of the said Act.
"12. Motion of no confidence or removal of Pradhan or Upa-Pradhan.- (1) Subject to other provisions of this section, the Pradhan or the Upa-
Pradhan of a Gram Panchayat may, at any time, be removed from his office by the majority of the existing members of the Gram Panchayat, referred to in clause (I) of sub-Section (2A) of Section 4, expressing their lack of confidence against the Pradhan or the Upa-pradhan or recording their decision to remove the Pradhan or the Upa-Pradhan, at a meeting specially convened for the purpose.
(2) For the purpose of removal of the Pradhan or the Upa-Pradhan, one-
third of the existing members referred to in sub-Section (1) subject to a minimum of three members shall sign a motion in writing expressing their lack of confidence against the Pradhan or the Upa-Pradhan or recording their intention to remove the Pradhan or the Upa-Pradhan, indicating party affiliation or independent status of each of such members and either deliver the motion in person through any of the members of send it by registered post to the prescribed authority; one copy of the motion shall be delivered to the concerned office bearer either by hand or by registered post at the Gram Panchayat office and another copy shall be sent by registered post at his residential address.
(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."
(6) In the case of Firoza Begam (supra) Samaddar, J. held that Section 12 (3) of the said Act does not cast a mandate upon the Prescribed Authority to record his/her satisfaction, while issuing a notice under that provision that a motion in writing, taken out by a minimum of three members of a Gram Panchayat, expressing their lack of confidence against a Pradhan or an Upa- Pradhan or recording their intention to remove a Pradhan or an Upa- Pradhan, conforms to the statutory requirements of Section 12 (2) of the said Act. Section 12 sub Section 3 of the said Act only postulates that the Prescribed Authority has to be satisfied himself/herself, on receipt of such motion, that it conforms to the requirement of Section 12 (2) of the said Act. The issuance of notice under Section 12 (3) of the said Act by the Prescribed Authority, by itself, is a clear indication that the Prescribed Authority has satisfied himself/herself that the motion conforms to the requirements of Section 12 (2) of the said Act.
(7) In the instant case Kargupta, J. was unable to agree with the decision in the case of Firoza Begam (supra) and expressed the view that although there was no scope for incorporation of reasons in the notice issued by the Prescribed Authority under Section 12 (3) of the said Act, which is in the format as prescribed by Form 1E of the West Bengal Panchayat (Constitution) Rules, 1975, yet, incorporation of such reasons in the office record of the Prescribed Authority was necessary for the purpose of consideration of propriety of the same in course of judicial review. (8) Appearing for the writ petitioner, Mr. Amal Baran Chatterjee, Ld Senior Counsel strenuously argued that the Prescribed Authority must expressly record his satisfaction as regards compliance of the requirements of Section 12 (2) of the said Act. He submitted that the words 'satisfaction' and 'satisfy' have been advisedly introduced in Section 12 (3) of the Act by way of 2010 amendment and the same has been done with a purpose. Hence, purposive interpretation of statute warrants recording of satisfaction and reasons in support thereof.
(9) Mr. Chatterjee relied on a Division Bench decision of this Court in the case of Jadab Chandra Mukhopadhyay-vs.-The State of West Bengal reported in 1998 (2) CHN 121 in support of his contention that the Prescribed Authority issued a notice convening a meeting in hot haste which indicates mala fide on his part. The written motion of the requisitionists was received by the Prescribed Authority on 19th August, 2014 and the Prescribed Authority issued the notice convening a meeting on 20th August, 2014. Such hasty action according to Mr. Chatterjee is indicative of dishonest motive on the part of the Prescribed Authority. However, we are unable to agree with such contention of Mr. Chatterjee as we do not feel that promptness of action can be faulted. However, we do not express any final view on this matter since we are not adjudicating the merits of the case. (10) Mr. Chatterjee cited the decision of the Hon'ble Apex Court in the case of Bharat Petroleum Corporation Ltd.-vs.-Maddula Ratnavalli reported in 2007 6 SCC 81 and relied on paragraph 16 thereof. In that paragraph the Hon'ble Supreme Court reiterates the established principle that an executive action must be informed by reason and unfair executive action can only survive for a potent reason. An action which is simply unfair or unreasonable would not be sustained. Objective satisfaction must be the basis for an executive action. Even subjective satisfaction on the part of a State is liable to judicial review. With respect, we do not see how this decision helps Mr. Chatterjee.
(11) Appearing for the requisitionists being the respondent nos. 5 to 12 in WP 24555 (w) of 2014 Mr. Milon Bhattacharyya submitted that the legislature did not require the Prescribed Authority to record satisfaction or reasons in support thereof. If such requirement is introduced the same would amount to adding words to the statute and enlarging the scope thereof which is not permissible in law. He referred to Rule 5B of the West Bengal Panchayat (Constitution) Rules, 1975 which provides that the Prescribed Authority on receipt of a legally acceptable motion shall specially convene a meeting of the Gram Panchayat by issue of notice in form 1E. There is no scope for recording any satisfaction or reason in support thereof in such form 1E. Mr Bhattacharyya submitted that accepting the view of Kargupta, J. would amount to judicial legislation which ought to be avoided. He relied on the Supreme Court decision in the case of Mohan Lal Tripathi-vs.- District Magistrate Rae Bareilly reported in AIR 1993 SC 2042 para 16. (12) Mr. Bhattacharyya then cited a decision of the Supreme Court in the case of Sanjay Singh-vs.-U.P. Public Service Commission, Allahabad reported in 2007 3 SCC 720. At paragraph 19 of the judgment it has been observed that it is well-settled that Courts will not add words to a statute or read into the statute words not in it. Even if the Courts come to the conclusion that there is any omission in the words used, it cannot make up the deficiency, where the wording as it exists is clear and unambiguous. While the Courts can adopt a construction which will carry out the obvious intention of the legislative or the rule-making authority, it cannot set at naught the legislative intent clearly expressed in a statute or the rules. (13) The next decision relied on by Mr. Bhattacharyya is in the case of Union of India-vs.-Namit Sharma reported in 2013 10 SCC 359. In that case in paragraph 33 the Supreme Court quoted the dicta of V. Ramaswami, J. in the case of Union of India-vs.-Deoki Nandan Aggarwal reported in 1992 Supplementary (1) SCC 323 to the effect that it is not the duty of the Court either to enlarge the scope of legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The Court cannot add words to a statute or write words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature, the court could not go to its aid to correct or make up deficiency. The Courts shall decide what the law is and not what it should be.
(14) He then cited a decision of the Supreme Court in the case of P. Ramachandra Rao-vs.-State of Karnataka reported in 2002 4 SCC 578 wherein at paragraphs 22 and 25 the Supreme Court observed that there is a clear dividing line between permissible legislation by judicial directives and enacting law which field is exclusively reserved for the legislature. The primary function of the judiciary is to interpret the law. It may lay down principles, guidelines and exhibit creativity in the field left open and unoccupied by legislation but should never abrogate the powers of the legislature.
(15) The last decision cited by Mr. Bhattacharyya is that of the Supreme Court in the case of Bhavnagar University-vs.-Palitana Sugar Mill (P) Ltd. reported in 2003 2 SCC 111 at paras 23 and 25 whereof the Supreme Court observed that the basic principle of construction of statute is that the same should be read as a whole, then chapter by chapter, section by section and word by word. Recourse to construction or interpretation of statute is necessary when there is ambiguity, obscurity or inconsistency therein and not otherwise. Scope of the legislation on the intention of the legislature cannot be enlarged when the provision is plain and unambiguous. Statutory enactments must ordinarily be construed according to its plain meaning and no words shall be added, altered or modified unless it is necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest of the statute. (16) Appearing for the State in WP 27877 (w) of 2014 Mr. Subhabrata Dutta, Ld. Advocate cited the Supreme Court decision in the case of Ravi Yashwant Bhoir-vs.-District Collector, Raigad reported in 2012 4 SCC 407. In paragraphs 38 to 43 of the said judgment it was observed that even in administrative matters, reasons should be recorded as it is incumbent upon the authorities to pass a speaking and reasoned order. The rule of law requires that any action or decision of a statutory or public authority must be founded on the reasons stated in the order or borne out from the record. (17) Mr. Dutta then cited the Supreme Court decision in the case of C.B. Gautam-vs.-Union of India reported in 1993 1 SCC 78 wherein the Supreme Court while discussing an order for compulsory purchase of immovable property under the provisions of Section 269-UD of the Income Tax Act, 1961 observed that the recording of reasons in support of an order is intended to serve a two-fold purpose. Firstly, the party aggrieved in the proceeding before the appropriate authority acquires knowledge of reasons and in a proceeding before a court of law, it has an opportunity to demonstrate that the reasons which persuaded the authority to pass an order adverse to his interest were erroneous, irrational or irrelevant. Secondly, the obligation to record reasons and convey the same to the parties concerned as a deterrent against possible arbitrary action by the quasi judicial or the executive authorities invested with judicial powers.
Our View:-
(18) We have considered the rival contentions of the parties. (19) Section 12 (1) of the said Act empowers the majority of the existing members of Gram Panchayat to remove the Pradhan or the Upa-Pradhan of the Gram Panchayat from his office expressing their lack of confidence against the Pradhan or the Upa-Pradhan or recording their decision to remove the Pradhan or Upa-Pradhan at a meeting specially convened for that purpose.
(20) Section 12 (2) of the said Act provides manner in which such a meeting can be requisitioned. It stipulates that one-third of the existing members subject to a minimum of three members shall sign a motion in writing expressing their lack of confidence against the Pradhan or the Upa-
Pradhan or recording their intention to remove such office holder. The motion must indicate the party affiliation or independent status of each of the members signing the motion. It must be delivered in person through any of the members or sent by registered post to the Prescribed Authority. One copy of the motion must be delivered to the concerned office bearer either by hand or by registered post at the Gram Panchayat office. Another copy of the motion must be sent by registered post at the residential address of the concerned office bearer. Thus, the requirements of sub-Section 2 are as follows:-
(i) One-third of the existing members of the Gram Panchayat subject to a minimum of three members shall sign a motion in writing.
(ii) The motion in writing will record their lack of confidence against the Pradhan or the Upa-Pradhan or their intention to remove the Pradhan or the Upa-Pradhan
(iii) The party affiliation or independent status of each of such members shall be indicated in the motion.
(iv) The motion must be delivered in person through any of the members or sent by registered post to the Prescribed Authority.
(v) One copy of the motion shall be delivered to the concerned office bearer either by hand or by registered post at the Gram Panchayat office.
(vi) Another copy of the motion shall be sent by registered post at the residential address of the concerned office bearer. (21) Section 12 (3) provides that the Prescribed Authority upon receiving the motion shall satisfy himself that it conforms to the requirements of sub-
Section 2 and upon such satisfaction shall specially convene, by issue of notice, a meeting of the Gram Panchayat for consideration of the motion and for taking a decision on it. An obligation is, thus, cast on the Prescribed Authority to convene a meeting as per the requisition of the members if he is satisfied that the motion complies with the requirements of sub-Section 2. This is not subjective satisfaction and the Prescribed Authority has no amount of discretion in the matter. It is purely an objective satisfaction and the only obligation of the Prescribed Authority is to check if the motion complies with the six requirements of sub-Section 2 enumerated above. Sub-Section (2) is nothing but a check list and the duty of the Prescribed Authority is to see that the requirements indicated in the check list have been complied with by the requisitionists. If satisfied that the six requirements of sub-Section 2 have been complied with, the Prescribed Authority is duty bound to convene the meeting. Equally, if he finds that anyone or more of the requirements are not complied with then the motion is not legally acceptable and he is duty bound not to convene a meeting on the basis of such deficient motion.
(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. (28) We make it clear that we have not gone into the factual merits of any of the writ petitions before us. Let the writ petitions be placed before the Ld. Single Judge for final disposal on merits in the light of the opinion expressed by us on the question of law referred to us as indicated above. I Agree.
(Manjula Chellur, CJ.) (Arijit Banerjee, J.)