Asoke Pal v. State — 1994 DIGILAW 267 (CAL)

Judgment 1. THE writ petitioner no. l is the Prodhan of margram-II Gram Panchayat. Other writ petitioners are the elected members of the said Gram Panchayat. The respondent nos. 8 to 16 who are also the members of the Gram Panchayat issued a notice dated 2-3-94 asking the Prodhan to convene a meeting within 15 days to ascertain whether the Prodhan was enjoying the confidence of the majority members of the Panchayat. The said notice was received by the Secretary of the said gram Panchayat on 7-3-94. The respondent nos. 8 to 16 issued another notice dated 25th March, 1994 convened! a meeting of the Panchayat on 4-4-94 for expressing 'no-confidence' or lack of confidence against the prodhan and for his removal. In the said meeting a resolution expressing no-confidence against the petitioner no. l as well as for his removal was taken. A copy of the resolution is annexed with the writ petition and marked "b". The petitioner no. 1 moved this Hon'ble Court against the said resolution and the matter was finally heard and disposed of by his lordship the Hon'ble Mr. Justice Altamas Kabir on 13-4094 and his lordship was pleased to quash the requisition meeting and the resolution adopted in the said meeting dated 4-4-8 (4. A copy of the order dated 13-4-94 is annexed to the writ petition and marked Annexe "c". Thereafter the respondent nos. 8 to 16 issued another notice dated 19-4-94 asking the Prodhan to convene a requisition meeting for his removal from the post of Prodhan. A copy of the said notice dated 19-4-94 has been annexed to the writ petition and marked Annexure "d", The respondent nos. 8 to 16 thereafter issued a notice dated 11-5-94 convening a special meeting of the Panchayat on 26-5-94 for removal of the Prodhan but prior information to the prescribed authority was not given according to law. A copy of the said notice has been annexed to the writ petition and marked annexure "e". According to the petitioners, the said notices are illegal, arbitrary and mala fide. 2. BEING aggrieved by the impugned notices dated 19-4-94 and 11-5-94. A copy of the said notice has been annexed to the writ petition and marked annexure "e". According to the petitioners, the said notices are illegal, arbitrary and mala fide. 2. BEING aggrieved by the impugned notices dated 19-4-94 and 11-5-94. The writ petitioners have come before this Court for the following pravers:- "(a) A Writ in the nature of mandamus commanding the respondents to recall, rescind, cancel and/or with or the impugned notices being annexures "c" and "e" to the writ petition; (b)A writ in the nature of Certiorari directing the respondents to produce the relevant papers and documents before this Court for doing conscionable justice; (c) An interim order of injunction restraining the respondents, their agents etc. from giving any effect or further effect to or from proceeding in pursuance of the impugned notices dated 19-4-94 and 11-5-94 and other reliefs". An interim order was passed by this Court to the effect that the impugned meeting be held but no legal effect be given to the resolution to be taken in that meeting pursuant to the notice marked Annexure "e" to the writ petition till further orders. 3. ON the prayer of the Learned Advocate for the writ petitioners the application filed for vacating and/or for variation of the interim order dated 20th May, 1994 passed by this Court has been treated as the affidavit in opposition. In the affidavit in opposition it has been claimed that the total number of the members of Gram Panchayat is 17 including three panchayet Samity members and the requisitionings are the 9 elected members. The respondent nos. 8 to 16 have stated that as per the order of the Hon'ble Court dated 13-4-1994 the majority members of the Panchayat issued a letter under Registered Post with A/d on 19-4-1994 to the prodhan requesting him to convene a meeting at an early date for discussion of the proposal for the removal of the Prodhan and a copy of the said notice was duly forwarded to the prescribed authority under registered Post. The said notice was duly received by the Prodhan. But the prodhan did not take any steps for holding the meeting as per the panchayat Act. Having no other alternative the respondent nos. The said notice was duly received by the Prodhan. But the prodhan did not take any steps for holding the meeting as per the panchayat Act. Having no other alternative the respondent nos. 8 to 16 issued a notice to all the members and the prescribed authority for holding a meeting on 26-5-94 at 11-00 A. M. at Panchayat Office with the Agenda of removal of the Prodhan as per Panchayat Act. According to the respondent nos. 8 to 16 a meeting of the Panchayat was held on 26-5-94 at 11-00 a. m. at the Panchayat Office and a resolution was taken removing the Prodhan. The said resolution could not be given effect to as per interim order of this court. Against the said interim order an appeal was preferred being f. M. A. T. No. 1885 of 1994. The said appeal was heard by a Division Bench presided over by Hon'ble Mr. Justice Prabir Kumar Majumdar on 30-6-94 and their Lordships were pleased to direct that the entire matter be remanded to the Trial Court for appropriate direction. A plain copy of the order is annexed in the opposition and marked to the letter "j". According to the respondent nos. 8 to 16 the writ petition is misconceived and should be dismissed with costs. 4. IN the affidavit in reply which is actually the affidavit in opposition on behalf of the writ petitioners against the petition for vacating the interim order, it has been stated that the notice of the requisition meeting to be held on 26-5-94 was not given to all the members of the Panchayat. The learned Advocate appearing for the writ petitioners has drawn the attention of the Court to the fact that the notices of the specially requisitioned meeting were not served at all on petitioner nos. 1 and 7. From the postal covers sent under Registered Post with A/d, it appears that the postal matters were correctly addressed and properly stamped and the envelopes were returned with the postal endorsement of refusal. The postal Peon went on several dates to the addresses as per endorsements given at the back of the postal envelopes. The last date on which the Postal peon called upon the addresses was 20-5-94. The Learned Advocate for the writ petitioners has submitted that even it is assumed that the notice was served on the petitioner nos. The postal Peon went on several dates to the addresses as per endorsements given at the back of the postal envelopes. The last date on which the Postal peon called upon the addresses was 20-5-94. The Learned Advocate for the writ petitioners has submitted that even it is assumed that the notice was served on the petitioner nos. 1 and 7 the presumption of service would arise on 20-5-94. But as the meeting was held on 26-5-94 so 7 clear days notice was not given to the addresses. From the postal endorsement at the back of the envelopes it appears that on several dates long before 20-5-94 the Postal Peon tendered the envelopes brat each time the addressees refused to accept. Therefore, the refusal was on the very first date as mentioned on the back of the envelopes and that date is well beyond seven days prior to 26th of May, 1994. Therefore, this contention of the learned lawyer for the writ petitioners cannot hold good. 5. THE next contention of the learned Advocate for the writ petitioners is that the revisionists could not call a meeting under the second phase of the second proviso to Section 16 (1) of the Panchayat Act without giving intimation to the prescribed authority. In this case, according to the learned Advocate a notice marked Annexure "e" to the writ petition was sent to the prescribed authority only on 11-5-94 on which date notices were given to the other members of the Panchayat. Therefore the requisition to the said meeting is bad in law. 6. HAVING considered the submissions of the learned Advocate of both the sides and after going through the relevant portion of Section 16 (1) of the Panchayat Act, 1973, I find that there is no substance in the contention of the learned Advocate for the writ petitioners. There is no such requirement under that Section as argued by the learned Advocate for the writ petitioners. There is no such requirement under that Section as argued by the learned Advocate for the writ petitioners. Under the second proviso, Section 16 (1) of the Act the prescribed number of numbers of the Gram Panchayat have first to send a notice to the Prodhan requiring him to call a meeting and thereafter the prodhan is to call a meeting within 15 days after giving intimation to the prescribed authorities and seven days notice to the members of the panchayat may call a meeting within 35 days after giving intimation to the prescribed authority and seven clear days notice to the Prodhan and other members of the Gram Panchayat. The words in that Section "may call a meeting within 35 days after giving intimation to the prescribed authority and seven days clear notice to the Prodhan and other members of the gram Panchayat" "cannot be construed as meaning that the meeting cannot be called before giving intimation to the prescribed authority. But the Section lays down is that, that the meeting may be called within 35 days after giving intimation to the prescribed authority. The starting point of the reckoning of 35 days will start from the giving of intimation to the prescribed authority. The words "after giving intimation" in the Section only indicate from which date the counting of 35 days will begin and has nothing to do with the power of the members to call a meeting. Therefore, this contemtion of the petitioners fail. The learned Advocate for the writ petitioners has next draw the attention of the Court of Section 9 of the West: Bengal Panchayat Act, 1994. By that Section there has been an amendment of Section 12 of the Mother act and a new proviso has been added to the following effect :- "provided further that no meeting for the removal of the Prodhan or the Upa Prodhan under this Section shall be convened within a period of one year from the date of election of the Prodhan or the ' Upa Prodhan; provided also that there shall not be more than one resolution for the removal of the Prodhan or the Upa-Prodhan within a period of six months". 7. THIS Section has come into effect by a Notification as per Section 1 (2) of the W. B. Panchayat Amendment Act, 1994 with effect from 18th June, 1994. 7. THIS Section has come into effect by a Notification as per Section 1 (2) of the W. B. Panchayat Amendment Act, 1994 with effect from 18th June, 1994. According to the learned Advocate for the writ petitioners the Prodhan was elected in 12th July, 1993. Therefore, the meeting for which removal of the Prodhan cannot be convened before the expiry of an year from that date. The learned Advocate has submitted that as the assigned of the Government was published in the Calcutta Gazette to the W. B. Panchayat Amendment Act, 1994 on 22nd April, 1994 so the said Act came on the Statute Book on that date. It is immaterial whether particular Section or Sections of the said Amendment Act was given effect to from a particular date. According to the learned Advocate under Section 8 (a) of the General Causes Act as there was no clause saving the operation of the amended portion of the Act, therefore, the field will be governed by the Amended Act as on this date. The learned Advocate for the respondents has seriously challenged this contention of the learned Advocate for the writ petitioners. According to the Learned Advocate for the respondent nos. 8 to 16, the provisions of Section 8 (a) of the General Causes Act can be attracted when there has been a repealed. The word repeal signifies the abrogation of one statute by another as there was no repealing of one statute by another statute in case of the West Bengal Panchayat Amendment Act, 1994, therefore; the contention of the learned Advocate for the writ petitioners falls through. 8. IT is clear that the amended provisions of Section 12 of the Panchayat Act cannot come into effect before the appointed date as per Notification under Section 1 (2) of the West Bengal Panchayat Amendment Act, 1994. Moreover what the new proviso under the amended Act lays down is that no meeting for removal of the Prodhan or Upa-Prodhan under this Section shall be convened within a period of one year from the date of election of the Prodhan or Upa-Prodhan. Therefore, if the meeting was convened before the Amended Act came into operation, it cannot be said that there is any bar in holding the meeting for removal of the Prodhan or Upa-Prodhan. Therefore, if the meeting was convened before the Amended Act came into operation, it cannot be said that there is any bar in holding the meeting for removal of the Prodhan or Upa-Prodhan. The last contention of the learned Advocate for the writ petitioners is that at when the Prodhan fails to call a meeting as requisitioned under the first part of the second proviso of Section 16 (1) then the revisionists may call a meeting within 35 days of the giving of the notice under the first part of the second proviso to the said Section. As in this case the meeting was held on 26th May, 1994 and this was beyond 35 days from the giving of the first notice on 19.4.94 as per Annexure "d" to the writ petition, therefore, it was beyond 35 days. The learned Advocate for the respondent nos. 8 to 16 has submitted that this contention of the learned Advocate for the writ petitioner is not tenable as the starting point of 35 days is not the giving of notice under the first part of the second proviso but after giving intimation to the prescribed authority. The second part of the second proviso to the said Section lays down that the Prodhan shall call a meeting within 15 days after giving intimation to the prescribed authority and seven days notice to the members. In this cast he Prodhan did not give any intimation to the prescribed authority. Therefore, the counting 35 days cannot start from 19-4-94 as contended by the learned Advocate for the writ petitioners 9. CONSIDERED the submissions of the learned lawyers of both sides. It appears that the words "after giving intimation to the prescribed authority" appear twice in the body of the Section. There is no such requirement of giving notice to the prescribed authority under the first part of the second proviso of Section 16 (1) of the Panchayat Act. The mere fact that a copy of the notice was forwarded to prescribed authority on 19-4-94 as per Annexure "d" cannot determine the starting of the counting 35 clays from that date. Therefore the last contention of the learned Advocate for the writ petitioners also fails. 10. IN view of the discussions made above. I find that the writ petition must fail. Accordingly the writ petition is dismissed. The interim order stands vacated. Petition rejected.