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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 area of disagreement, as we find on perusal of the decisions referred to above is summarized as under :-
13
Decision Subject View Remark
Jai Charan Lal Anal U.P. Municipalities The word "send" This judgment would
(Supra) (S.C.) Act would mean that the be applicable in the
Seven clear days relevant date would be present context.
notice to be sent. the date of despatch
and not the date of
receipt
State of Punjab -VS- Administrative The word This is not pari
Khemi Ram (S.C.) Law "communicate" would materia with Section
mean, when the order 16 of the Panchayat
was signed and sent for Act.
communication and
not the date of receipt.
J.N. Pramanick Section 16(3) of Provision for sending The section
(Supra) (S.B.) Bengal Municipal fifteen clear days postulates notice to
Act notice is directory and be "given" meaning
not mandatory. thereby the date of
despatch would be
the relevant date.
Md. Asraf Ali Section 16 of the Provision for giving J.N. Pramanick
Mondal (Supra) Panchayat Act. notice of seven clear (Supra) was relied
(S.B.) days is directory and upon along with K.
not mandatory Narasimhiah (Supra)
Alok Pramanick West Bengal Even a notice shorter This judgment relied
(Supra) (D.B.) Panchayat Act than seven days would upon K.
serve the purpose Narasimhiah where
Mysore Town
Municipalities Act,
1951 was considered.
From the judgment
however, we do not
find the exact
provision considered
by the Narasimhiah.
Hence, it would not
be safe to rely on the
said decision and
apply the same while
interpreting the
subject provision.
Madhumita Biswas Section 105 of the The provision is In this unreported
(Supra) (D.B.) West Bengal mandatory and not decision, the
Panchayat Act pari directory. Division Bench
materia with distinguished
Section 16 thereof. K.Narasimhiah
(Supra) and held that
Mysore
Municipalities Act
was not pari materia
with West Bengal
Panchayat Act. The
Division Bench also
observed that the
decision in the case
of Alok Pramanick
(Supra) was not the
correct law as it
failed to notice that
Narasimhiah would
not have any
application in the
subject controversy.
Upananda Chatterjee West Bengal The word "given" This judgment
(Supra) (D.B.) Panchayat Act would mean that literally followed
despatch by registered Aloke Pramanick
post would be (Supra), Narasimhiah
sufficient compliance (Supra) and
of Section 16. distinguished
Madhumita Biswas
(Supra). The
Division Bench
observed that the
earlier Division
Bench in the case of
Madhumita (Supra)
should have referred
the matter to the
Chief Justice for
constitution of the
larger bench while
disagreeing with
Aloke Pramanick
(Supra). The
Division Bench
followed the earlier
decision in the case
of Aloke Pramanick
(Supra) and ignored
Madhumita Biswas
(Supra)
Firoz Alam (Supra) West Bengal The Division Bench This Division Bench
Panchayat Act on an identical also did not refer it
controversy followed to the Chief Justice.
Madhumita Biswas and
held that the provision
is mandatory and not
directory and then
upheld the ultimate
resolution by taking
recourse to Section 12
by observing that once
the resolution was
passed by an absolute
majority the
shortcomings of
Section 16 would be
saved and would have
no effect.
We have already held that the notice of despatch was the relevant date. We have also observed that when the resolution was taken by absolute majority clear mandate of Section 12 would override the shortcomings, if any, under Section 16. In this regard, we follow Firoz Alam (Supra) In our considered view, this appeal should fail and should be dismissed. We however feel that because of the divergent views of different Division Benches matter should be placed before the Hon'ble Chief Justice for constitution of a larger Bench to answer the following questions :-
i) What would be the relevant date for computation of "seven clear days" in terms of the second proviso to Section 16(1) of the West Bengal Panchayat Act, 1973?
ii) Is the second proviso to Section 16(1) mandatory or directory?
iii) What would be the effect of the resolution in case a notice shorter than seven clear days is given and Pradhan is removed by an absolute majority in a meeting other wise validly called?
Let this matter be referred to the Hon'ble Chief Justice for constitution of the larger bench.