In re: Tafiluddin Ahmed v. . — 1994 DIGILAW 27 (CAL)

ORDER 1. This writ application raises a short but interesting point of law relating to certain provisions of the West Bengal Panchayat Act, 1973, and the West Bengal (Gram Panchayat Administration) Rules, 1981. 2. The petitioner no.1 is the Pradhan and the other petitioners are members of the no.7 Silgram Gram Panchayat, under Raigunj Police Station, in the district of Uttar Dinajpur. 3. It appears that by a written notice dated 5th October, 1993, some of the members of the aforesaid Gram Panchayat requested the petitioner no.1 to convene a meeting of the Gram Panchayat for the purpose of ascertaining as to whether the petitioner no.1 continued to enjoy the confidence of the majority of the members to continue as the Pradhan thereof. It appears that on the failure of the petitioner no.1 to convene such meeting, the respondent no. 5 to 19 issued a notice convening a requisition meeting of the Gram Panchayat on 4th November, 1993, for the purpose referred to in the notice of 5th October, 1993. 4. It appears that the requisition meeting was held as scheduled on 4th November, 1993, and was presided over by one Shri Naba Kumar Barman, a member of the aforesaid Gram Panchayat, although, the Upa-Pradhan, Shri Tirthanan Das, was present at the meeting. 5. The aforesaid meeting has been questioned by the petitioners mainly on two grounds. 6. Appearing in support of the writ petition, Mr. M. Ahmed urged that the meeting of the Gram Panchayat held on 4th November, 1993, and the resolutions adopted therein, stood vitiated by the fact that the petitioners had not been given seven clear days notice of the meeting, as contemplated in S. 17 of the West Bengal Panchayat Act, 1973, and also because the meeting had not been presided over by the Upa-Pradhan, although, he was present at the meeting. 7. Mr. Ahmed submitted that, although, S. 17 of the aforesaid Act provides for clear seven days notice to be given of every meeting of a Gram Panchayat, except for emergent meetings for which three days notice was sufficient, the notices in the instant case were received by the petitioners between 30th October, 1993 and 2nd November, 1993. Mr. Ahmed added that the petitioners Nos. Mr. Ahmed added that the petitioners Nos. 2 and 3 had, in fact, not even been served with notice of the meeting, which fact was duly brought to the notice of the Block Development Officer, Raigunj Block, by a letter dated 4th November, 1993, being Annexure 'C' to the writ petition. 8. Mr. Ahmed next submitted that the manner in which the meeting had been held was contrary to the provisions of sub-section (2) of section 16 of the West Bengal Panchayat Act, 1973, which reads as follows:- "16(2). The Pradhan or in his absence the Upa-Pradhan shall preside at the meeting of the Gram Panchayat, and in the absence of both, the members present shall elect one of them to he the President of the meeting." 9. Mr. Ahmed submitted that since the Upa-Pradhan was present at the meeting he should have presided over the meeting in accordance with the above provisions. Since he had not done so, and the meeting was presided over by another member of the Gram Panchayat, the meeting must be held to have been vitiated on that score also. 10. Mr. Ahmed also submitted that such illegality was brought to the notice of the respondents no.2 and 4 by the petitioner no.1, but instead of canceling the resolutions adopted at the said meeting of 4th November, 1993, the said respondents simultaneously issued two notices informing the petitioner no.1 that in view of the decision of the majority of the members, he was removed from the post of Pradhan of the Gram Panchayat under S. 12 of the West Bengal Panchayat Act, 1973. The petitioner no.1 was also requested to hand over charge of the Gram Panchayat to the Upa-Pradhan immediately. 11. Mr. Ahmed urged that the meeting of 4th November, 1993, being itself illegal and invalid, the subsequent directions given by the respondents nos.2 and 4 pursuant to the resolutions adopted therein, were also illegal and void and were liable to be quashed. 12. Appearing on behalf of the State and the State respondents, Mr. Manik Chandra Das, learned advocate, submitted that at the meeting of 4th November, 1993, the members present elected Shri Naba Kumar Barman to preside over the meeting, inasmuch as, the Upa-Pradhan, Shri Tirthanan Das, expressed his inability in writing to preside over the meeting. Mr. 12. Appearing on behalf of the State and the State respondents, Mr. Manik Chandra Das, learned advocate, submitted that at the meeting of 4th November, 1993, the members present elected Shri Naba Kumar Barman to preside over the meeting, inasmuch as, the Upa-Pradhan, Shri Tirthanan Das, expressed his inability in writing to preside over the meeting. Mr. Das submitted that in the said circumstances, the meeting had to be presided over by some other member of the Gram Panchayat. 13. Mr. Das submitted that sub-section (2) of S. 16 specifically provides that in the absence of both the Pradhan and Upa-Pradhan, the members present shall elect one of them to preside over the meeting. Mr. Das urged that since the removal of the Pradhan was the matter for consideration at the said meeting of 4th November, 1993, the Pradhan could not preside over the meeting, and in his place, the Upa-Pradhan was required to preside over the meeting in accordance with the specific provisions of Ss. 12 and 16(2) of the aforesaid Act. 14. Mr. Das urged that in view of the disinclination of the Upa-Pradhan to preside over the meeting, it must be deemed that he was absent for the purposes of sub-section (2) of S. 16 of the aforesaid Act and the members present were, therefore, entitled to elect one of them to preside over the meeting, and it must be held that the meeting was validly conducted. 15. Appearing on behalf of some of the members of the aforesaid Gram Panchayat, Mr. Rabilal Moitra adopted the arguments advanced by Mr. Das, but added that an affidavit had been affirmed by the Upa-Pradhan, Shri Tirthanan Das, stating that, although, he was present at the meeting of the Gram Panchayat held on 4th November, 1993, to consider the removal of the petition no.1 from the post of Pradhan thereof, he refused to preside over the meeting and requested the members in writing present to elect one of them to preside over the meeting. 16. Mr. Moitra urged that in view of the refusal of the Upa-Pradhan to preside over the meeting, the members present had no alternative but to elect one of them to preside over the meeting, as otherwise a stalemate condition would have resulted. 17. 16. Mr. Moitra urged that in view of the refusal of the Upa-Pradhan to preside over the meeting, the members present had no alternative but to elect one of them to preside over the meeting, as otherwise a stalemate condition would have resulted. 17. The problem posed by the refusal of Upa-Pradhan to preside over the meeting held on 4th November, 1993, appears at first glance to be insurmountable in view of the provisions of sub-section (2) of S. 16 of the West Bengal Panchayat Act, 1973. But, on a further consideration of the matter in the light of the provisions of S. 12 of the said Act, the problem, in my view, resolves itself. 18. Section 12 of the aforesaid Act provides for the manner in which the Pradhan or the Upa-Pradhan of a Gram Panchayat may be removed from office and reads as follows:- "S. 12 – A Pradhan or an Upa-Pradhan of a Gram Panchayat may, at any time, be removed from office by a resolution of the Gram Panchayat carried by the majority of the existing members of the Gram Panchayat at a meeting specially convened for the purpose notice of such meeting shall be given to the prescribed authority:- Provided that at any such meeting while any resolution for the removal of the Pradhan from his office is under consideration, the Pradhan, or while any resolution for the removal of the Upa-Pradhan from his office is under consideration, the Upa-Pradhan, shall not, though he is present preside and the provisions of sub-section (2) of S. 16 shall apply in relation to every such meeting as they apply in relation to a meeting from which the Pradhan or, as the case may be, the Upa-Pradhan is absent." 19. Section 12 provides for removal of the Pradhan or Upa-Pradhan of a Gram Panchayat, if they lose the confidence of the majority of the members thereof. Section 12, therefore, contemplates rule of the majority and provides that in the event a meeting is to be convened for the aforesaid purpose, then notice of such meeting is to be given to the prescribed authority. 20. Section 12, therefore, contemplates rule of the majority and provides that in the event a meeting is to be convened for the aforesaid purpose, then notice of such meeting is to be given to the prescribed authority. 20. It will be evident from the proviso to S. 12 that if the meeting is convened for the removal of the Pradhan, then, even if he is present at the meeting, he would not be, entitled to preside over the same and the same would have to be presided over by the Upa-Pradhan. Similarly, if the meeting is convened to consider the removal of the Upa-Pradhan, the Upa-Pradhan would not be entitled to preside over the said meeting, even though he be present at the meeting. The proviso also makes it clear that the provisions of sub-section (2) of S. 16 of the above Act would apply to every such meeting as they apply in relation to a meeting where the Pradhan or Upa-Pradhan is absent. 21. In other words, when a meeting of the Gram Panchayat is convened to consider the removal either of the Pradhan or Upa-Pradhan, the said Pradhan or Upa-Pradhan, as the case may be, though present at the meting, would be deemed to be absent for the purpose of sub-section (2) of S. 16 of the above Act. Hence in a meeting for removal of the Pradhan, if the Upa-Pradhan, is not present, the latter portion of sub-section (2) of S. 16 would be attracted, and the members present would be entitled to elect one of them to preside over the meeting. 22. Section 12 of the aforesaid Act, therefore, also envisages a situation where despite being present at a meeting to consider their removal, the Pradhan or the Upa-Pradhan, as the case may be, would be deemed to be absent at such meeting, despite participating therein and even casting their vote. 23. Section 16 of the aforesaid Act relates to the meetings of the Gram Panchayat and the manner in which they are to be held and conducted. The second proviso to sub-section (1) of S. 16 provides for requisition meetings and sub-section (2) provides that the Pradhan, or in his absence, the Upa-Pradhan, shall preside over the meeting of the Gram Panchayat, and in the absence of both, the members present shall elect one of them to be the President of the meeting. 24. The second proviso to sub-section (1) of S. 16 provides for requisition meetings and sub-section (2) provides that the Pradhan, or in his absence, the Upa-Pradhan, shall preside over the meeting of the Gram Panchayat, and in the absence of both, the members present shall elect one of them to be the President of the meeting. 24. It is, therefore, obvious that in a meeting for the removal of the Pradhan, even though he is present at the meeting and participates therein, he will be deemed to be absent and the meeting is to be presided over by the Upa-Pradhan. Similarly, in a meeting for removal of the Upa-Pradhan, he will be deemed to be absent, though present at the meeting. In the absence of both, that, is, if the meeting is for the removal of the Pradhan and the Upa-Pradhan is absent, or the meeting is for removal of the Upa-Pradhan and the Pradhan is absent, then in such event, the members present would be entitled to elect one of them to preside over the meeting. The second proviso to sub-section (1) also provides that the prescribed authority may appoint an observer for the requisition meeting, who is to submit to the Prescribed Authority a report in writing duly signed by him, within a week of the meeting, on the proceedings of the meeting, and on receipt of the report, the Prescribed Authority shall take action thereon as it may deem fit. 25. Sub-section (4) of S. 16 provides that all questions coming before a Gram Panchayat is to be decided by a majority of votes and in a case of a requisition meeting for the removal of the Pradhan or Upa-Pradhan under S. 12, the person presiding shall have no second or casting vote. 26. From the above provisions of the aforesaid Act it would be apparent that the scheme of the Act, so far as it relates to the election of the Pradhan and Upa-Pradhan and their management of the Gram Panchayat, contemplates rules of the majority. Special provision has, therefore, been made for removal of the Pradhan or the Upa-Pradhan in the event either of them lost the support of the majority of the members of the Gram Panchayat. Special provision has, therefore, been made for removal of the Pradhan or the Upa-Pradhan in the event either of them lost the support of the majority of the members of the Gram Panchayat. The provisions of the Act relating to the removal of the Pradhan or the Upa-Pradhan, who loses the confidence of the majority of the members, are to be construed in a manner so as to achieve such object. 27. In a situation like the present one, in order to give a harmonious construction to the provisions of S. 12 read with S. 16 of the above Act, it must be held that on the refusal of the Upa-Pradhan to chair the meeting called for by the requisitionists for removal of the Pradhan, the latter portion of sub-section (2) of S. 16 would be attracted. It is no doubt true that more specific provision would have been ideal but in order to give effect to the intention of the legislature that the Pradhan and Upa-Pradhan, who had lost the confidence of the majority of the members, would have to step down, in the event of the Upa-Pradhan refusing to preside over such a meeting, he must be deemed to be absent for the purposes of the said meeting within the meaning of sub-section (2) of S. 16, so as to enable the members present to elect one of them to preside over the meeting. 28. In this regard, reference may be made to paragraph 657 of Halsbury, the Laws of England, Volume 36, dealing with implied powers, which reads as follows:- "657. Implied powers – The powers conferred by an enabling statute include not only such as are expressly granted but also, by implication, all powers which are reasonably necessary for the accomplishment of the object intended to be secured." 29. Having regard to the intention of the legislature that the management of the Gram Panchayat should vest in the person who enjoyed the majority support of the members, any interpretation of the provisions of S. 12 and 16 of the above Act to the contrary, would, in my view, frustrate such intention and render the same nugatory. 30. Having regard to the intention of the legislature that the management of the Gram Panchayat should vest in the person who enjoyed the majority support of the members, any interpretation of the provisions of S. 12 and 16 of the above Act to the contrary, would, in my view, frustrate such intention and render the same nugatory. 30. I am, therefore, of the view that no irregularity appears to have been committed by the members in electing Shri Naba Kumar Barman to preside over the meeting of 4th November, 1993, upon the refusal by the Upa-Pradhan to preside over the same. 31. However, the writ application must succeed on the first submission of Mr. Ahmed that notice of the requisition meeting had not been received by all the members, and in some cases, such notice was received beyond the period prescribed under S. 17 of the aforesaid Act. In an earlier case Serajul Islam vs. State of West Bengal & others, 85 CWN 188, this Court had occasion to consider the above question and it was held that the provisions of S. 17 regarding 7 day's notice was mandatory and in the absence of such notice, any meeting of the Gram Panchayat would be void. 32. I respectfully agree with the sentiments expressed in the above decision and this writ application must, therefore, succeed on the aforesaid ground. 33. The meeting held on 4th November, 1993, and the resolutions adopted therein are, therefore, quashed. 34. This order will not, however, prevent the members of the Gram Panchayat from proceeding afresh in accordance with law for the purposes mentioned in S. 12 of the West Bengal Panchayat Act, 1973. 35. There will be no order as to costs. 36. Lex xerox copies of this order be made available to the learned Advocate of the respective parties on the usual undertaking. Writ application allowed.