Kitabuddin Seikh v. Daud Hossain — 1994 DIGILAW 354 (CAL)

Judgment Majumdar, J.: 1. This is an appeal directed against the judgment dated 11th April, 1994, passed by a learned Judge of this Court on an application under Article 226 of the Constitution, taken out by one Daud Hossain, the respondent in this appeal, for cancellation of the requisition meeting dated 16th February, 1994, as also the notice dated 4th February, 1994, being Annexure 'E' to the writ petition. The learned Judge allowed the said application and quashed the resolution adopted at the meeting dated 16th February, 1994. The learned Judge by the said order under appeal also directed that the said order would not prevent the members of the Gram Panchayat from proceeding afresh for removal of the Pradhan. 2. Kitabuddin Seikh, the respondent No. 13 in the writ proceeding, one of the members of the Sujapur Gram Panchayat has preferred this appeal being dissatisfied with the said order under appeal dated.11th April, 1994. The respondent Daud Hossain challenged the resolution of the said meeting, inter alia, contending before the Trial Court that the notice convening the meeting was in violation of the provisions of Section 16 of the West Bengal Panchayat Act, 1973 (hereinafter referred to as the Act), and, accordingly, the meeting and the resolution adopted therein were void and could not be given effect to. It was also contended on behalf of the writ petitioner before the Trial Court that there was no proper notice or resolution for removal of the respondent writ petitioner as Pradhan of said Sujapur Gram Panchayat, Kaliachak-I Panchayat Samity, District-Maida. 3. The case of the writ petitioner as made out in the writ petition is that suddenly a notice of requisition meeting dated 4th February, 1994 was served on the writ petitioner by the requisitionists requesting a meeting in connection with the no confidence against the writ petitioner as Pradhan of the said Sujapur Gram Panchayat. 4. The appellant contended before the Trial Court that all the members have been duty served within the prescribed time and in any event, since the writ petitioner had been removed by a majority of the members of the Gram Panchayat, a meeting of the Gram Panchayat could be convened to ascertain the support of the members of the Gram Panchayat for the newly elected Pradhan. It was also the case of the appellant before the Trial Court that he has been duly elected as Pradhan after removal of the writ petitioner as Pradhan of the' Sujapur Gram Panchayat. 5. It was submitted on behalf of the State that the notice of the meeting had duly been served on all the members but the resolutions that were adopted were not in conformity with the notice convening the said meeting to be held on 16th February, 1994. It was also submitted on behalf of the State before the Trial Court that the resolution was adopted in a manner which was contrary to the provisions of Rule 13 of the West Bengal Gram Panchayat Administration Rules, 1981 (hereinafter referred to as the said Rules). 6. The learned Trial Judge held that since the procedure has not been resorted to, notwithstanding unanimity of the members present in the meeting, the impugned resolution stood vitiated by such non-compliance. Besides this, the learned Judge also held that the requisition meeting was called to consider the question of confidence against the Pradhan (the writ petitioner) and not for his removal and, accordingly, the resolution adopted at the meeting on 16th February, 1994 for removal of the Pradhan was contrary to the notice given and the same also could not be supported. The learned Trial Judge recorded his appreciation of the matter in which the learned Advocate for the State had assisted the Court in arriving at a proper finding in the matter. As stated above, the said writ application taken out by Daud Hossain, the respondent in this appeal was allowed. 7. The learned Counsel appearing for the appellant in this appeal has contended that the said resolution taken in the said meeting dated 16th February, 1994 was unanimously passed by all the members present at the meeting. It is submitted on behalf of the appe1lant that the said resolution for no confidence in the writ petitioner as Pradhan was adopted in the meeting by all the members, 15 in number out of 28 members of the said Sujapur Gram Panchayat, and, as such, the said resolution was passed unanimously by a majority of the members of the said gram Panchayat. The learned Counsel for the appellant has also submitted that proviso to Rule 13 of said Rules provides that any resolution for the removal of the Pradhan or Upa-Pradhan from his office shall be decided by secret voting, would only apply if there is a difference of opinion on any resolution and if the same is put to voting, But, as submitted by the learned Counsel for the appellant, that in the instant case, the said resolution was adopted by all the 15 members and there was no difference of opinion on such resolution and, as Such, it was not put to vote. It is submitted by the learned Counsel for the appellant that if the resolution is not put to vote then there is no question of application of the said proviso to Rule 13 of the said Rules. 8. The learned Counsel for the appellant has also submitted that the requisitionists by giving such notice for no confidence in the Pradhan clearly and unambiguously intended that they had no confidence in the Pradhan (the writ petitioner) and he should be removed from the office of the Pradhan. It is, therefore, the submission on behalf of the appellant that there could not be any infirmity in the said notice and if any resolution for no confidence pursuant to the said notice has been adopted by the majority of the members unanimously, then that would result in automatic vacancy in the office of the Pradhan. It is also submitted by the learned Counsel for the appellant that his client. the appellant, has been duly elected as Pradhan in a subsequent meeting upon the adoption of the said resolution for no confidence and the prescribed authority being the Block Development Officer, Kaliachak- I, by his order dated lith March, 1994, issued a notice for election of a new Pradhan at a meeting to be held on 16th March, 1994, in view of removal of the writ petitioner Daud Hossain from the said office it is also submitted by the learned Counsel for the appellant that by a declaration dated 16th March, 1994, in Form IV the prescribed authority duly declared that 'his client, the appellant had been elected Pradhan of the said Sujapur Gram Panchayat. The learned Counsel for the appellant further submits that since the appellant's election as Pradhan has not been challenged, the continuance of the appellant in the office of the Pradhan cannot be disturbed and the appellant should continue to act as Pradhan as being duly elected in accordance with law. 9. The learned Counsel for the respondent writ petitioner has submitted that when an agenda for no confidence is placed at the meeting that itself implies that said resolution should be decided by secret voting. 10. The learned Counsel for the respondent writ petitioner has also submitted that in any event, as has been held by the learned Trial Judge, the resolution of no confidence, even if it is passed by a majority of members would not result in the removal of the Pradhan. It is the submission of the learned Counsel for the respondent writ petitioner that the requisition meeting was for considering the resolution of no confidence in the Pradhan and there was no notice nor there was any resolution in the meeting for removal of th0 Pradhan. It is his further submission that even if the motion for no confidence is adopted by a majority of the members then there will again have to be a fresh notice for removal under Section 12 of the said Act and until a motion for removal of the Pradhan is adopted by a majority of the members of the Panchayat, the Pradhan cannot be removed from his office or the office of the Pradhan cannot be treated as vacant upon the adoption, if any of motion for no confidence. 11. The learned Government Pleader appearing for the State has, however, taken a contrary stand from what had been taken on behalf of the State before the Trial Court. The learned Government Pleader has submitted that when there was a motion for no confidence and when such motion was unanimously passed by a majority of the members, that would also imply removal of the Pradhan and there need not be any fresh notice for convening any meeting for removal of the Pradhan. The learned Government Pleader referring to the requisition has also submitted that the requisition, served upon the Pradhan clearly stated that the requisition was for convening a meeting under Section 12 of the said Act. The learned Government Pleader referring to the requisition has also submitted that the requisition, served upon the Pradhan clearly stated that the requisition was for convening a meeting under Section 12 of the said Act. It is also submitted by the learned Government Pleader that the intention of the requisitionists was to remove the Pradhan from his office as the Pradhan lacked in confidence and even if the expression "removal" was not there in the notice, a notice for requisitioning a meeting for adopting a resolution for no confidence implies also removal of the Pradhan. 12. The question involved in this appeal whether the said requisition notice dated 4th February, 1994 and whether the resolution passed in the meeting held on 16th February, 1994 adopting the motion for no confidence in the Pradhan, the writ petitioner respondent in this appeal are in accordance with law. 13. Under Section 12 of the said Act, a Pradhan or an Upa-Pradhan of 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. Section 12 of the said Act reads as follows ;- "Section 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 Section 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". 14. It, therefore, appears that a Pradhan or an Upa-Pradhan may be removed from office by a resolution carried by majority of the existing members of the Gram Panchayat. The notice of such meeting shall be given to the prescribed authority. 14. It, therefore, appears that a Pradhan or an Upa-Pradhan may be removed from office by a resolution carried by majority of the existing members of the Gram Panchayat. The notice of such meeting shall be given to the prescribed authority. It, therefore, appears that there should be a resolution for removal of a Pradhan or an Upa-Pradhan of a Gram Panchayat. A resolution of no confidence cannot equate to resolution of removal. 15. Admittedly, in the instant case, the resolution was a resolution for no confidence in the Pradhan. The notice for requisition meeting was for no confidence against the present Pradhan Daud Hossain. The impugned notice for requisition meeting is in Bengali, an English translation has been handed over by the learned Counsel for the respondent writ petitioner, which translation is not, however, disputed by the appellant or the State respondent. The notice for requisition meeting is as follows ;- Notice for requisition meeting Sir, On 28.12.93, the majority members of the Sujapur Gram Panchayat brought a no confidence proposal in writing upon the present Pradhan Daud Hossain and requested to invite a meeting for the discussion of the said proposal. But, due to neg1igence on the part of the Pradhan to invite a meeting till date, we the following signatories members have invited a requisition meeting on 162.94 at 2 p. m. in the Sujapur Gram Panchayat office for the discussion of no confidence against present Pradhan Daud Hossain and to take decision for the said proposal. You are, requested to be present at that said meeting at the scheduled time. Yours faithfully, Signature of the members. Copy to :- l. Sd/- Md. Nazrul 2. Sd/- Salimuddin 3. Sd/- Ataur Rahman 4. Sd/- Metabuddin S. Sd/- Abdul Barkat Biswas 6. Sdl- Aklema Biswas 7. Sdl- Chhabilal Mondal 8. Sdj- Md. Ershad Mondal 9. Sd/- Hasina Bibi 10. Sd/- Md. Obaidullah 11. Sd/- Ruksena Banu. 16. There was a prior requisition notice dated 20th December, 1993 being served on the Pradhan, where it was stated that the requisitionists were informing that the Pradhan had lost their confidence and the requisitionists requested the Pradhan to convene a meeting for discussion of the resolution of no confidence against the Pradhan in accordance with Section 12 of the said Act and Rules 1973. The Pradhan was by the said requisition notice dated 20th December. The Pradhan was by the said requisition notice dated 20th December. 1993, requested to invite a Panchayat meeting by 12th January, 1994, to consider the issue of no confidence in the Pradhan. 17. It will, therefore, appear that there was no proposal in the notice for removal of the Pradhan from the office. The learned Government Pleader has, however, drawn our attention to the said notice to refer that the requisitionists requested the Pradhan to call a meeting for consideration of the said proposal of no confidence under Section 12 of the said Act. It is, therefore, the submission of the learned Government Pleader that when there was a clear reference to Section 12 of the said Act, the requisitionists clearly intended that they were moving this resolution for no confidence against the Pradhan for the purpose of his removal from the office. We do not accept this contention of the learned Government Pleader. The said notice dated 20th December, 1993 referring to Section 12 of the said Act was served only upon the Pradhan and it was not a notice to the members. Therefore, there was no proposal for removal of the Pradhan for consideration of the members who would attend the meeting. By the impugned notice dated 4th February. 1994 the members were told that there was a proposal for no confidence against the Pradhan to be considered in a meeting to be held on 16th February, 1994. Therefore, there was no proposal or any resolution at .the said meeting held on 16th February, 1994 for removal of the writ petitioner respondent, as Pradhan from the office. 18. The learned Counsel for the respondents has cited two decisions of this Court in support of the contention that if there was no notice of removal of the Pradhan, then any resolution removing the Pradhan was bad in law. The first case cited is (1) Soleman Shah and Drs. v. Director of Panchayat, Burdwan and Ors., reported in 70 Calcutta Weekly Notes, page 1088. This is a case under Sections 22 and 28 of the West Bengal Panchayat Act, 1957. In this case, the agenda for discussion as given in the notice was adoption of resolution of no confidence against the Pradhan. v. Director of Panchayat, Burdwan and Ors., reported in 70 Calcutta Weekly Notes, page 1088. This is a case under Sections 22 and 28 of the West Bengal Panchayat Act, 1957. In this case, the agenda for discussion as given in the notice was adoption of resolution of no confidence against the Pradhan. The learned Judge in the said case held that it was manifest that there was no notice for removal and rejecting the contention of the State Counsel in that case, that because the people had lost confidence, therefore, it was proposed to remove the Pradhan, the learned Judge held that removal and loss of confidence were two different concepts and it would be dangerous to equate loss of confidence or lack of confidence with a removal. The learned Judge in this case held that the removal of the Pradhan was bad and everything that had followed in the wake of that removal was also had. The other case cited by the learned Counsel for the respondent writ petitioner is (2) Rayhan and Ors. v. Chamatkar Matilya and Ors., reported in 89 Calcutta Weekly Notes, page 1044. This is a Bench decision. In this case also the subject matter was the resolution for no confidence against the Upa-Pradhan of the Panchayat. This is a case under West Bengal Panchayat Act, 1973. The Division Bench held that no confidence motion had been passed in accordance with the provisions of West Bengal Panchayat Act, 1973 but when it was manifest that there was no notice of removal or the Upa-Pradban, acting as Pradhan, no resolution of removal could be passed or given effect to. The Court in this case further held that when the notice was silent about the removal of the Upa-Pradhan, the resolution removing him was bad in law. 19. We have no doubt that the removal of the writ petitioner as Pradhan pursuant to the impugned resolution adopted in the said meeting dated 16th February, 1994 is bad in law. We find that there was no resolution for removal of the Pradhan. If any resolution of no confidence against the Pradhan is passed in a meeting then the consequential step should be to convene another meeting in the manner prescribed by the said Act for removal of the Pradhan. We find that there was no resolution for removal of the Pradhan. If any resolution of no confidence against the Pradhan is passed in a meeting then the consequential step should be to convene another meeting in the manner prescribed by the said Act for removal of the Pradhan. When any resolution for removal of the Pradhan has been passed in the meeting, then only the Pradhan can be declared to have been removed from the office of the Pradhan and then there will be a resultant vacancy in the office of the Pradhan and in a meeting duly convened, a Pradhan has to be ejected in accordance with law. In the instant case, we hold that simply by adoption of the resolution of no confidence against the Pradhan there was no vacancy in the office of the Pradhan and the Pradhan cannot be removed from his office until a resolution for removal of the Pradhan from his office had been duly adopted in a meeting duly convened in the manner prescribed by law. We, therefore, hold that the writ petitioner continues to be the Pradhan until he is removed from his office by a proper resolution for removal from the office in the manner prescribed by Section 12 of the said Act. 20. It has also been contended on behalf of the writ petitioner respondent that any resolution for removal of the Pradhan or Upa-Pradhan from their office by secret vote under the proviso to Rule 13 of the said Rules. The learned Trial Judge, has, however held that this procedure has not been resorted to. In our opinion the proviso to Rule 13 would only be applicable if there was any difference of opinion on any resolution for removal of the Pradhan or Upa-Pradhan from his office, and, only on such difference and the matter being put to vote the said resolution should be decided by secret voting. We find that in the instant case there was no difference of opinion as the resolution in question was adopted unanimously by the members present and in that event, there was no occasion for putting the resolution to vote. We find that in the instant case there was no difference of opinion as the resolution in question was adopted unanimously by the members present and in that event, there was no occasion for putting the resolution to vote. It is, provided under Rule 12 of the said Rules that if there is any difference of opinion on any resolution, it shall be put to vote and under Rule 13 when a question is put to vote, the Presiding Member shall decide the manner in which the members shall cast their votes and under the proviso to Rule 13 any resolution for removal of the Pradhan or Upa-Pradhan shall be decided by secret voting. In the instant case, first there was no resolution for removal of the Pradhan or Upa-Pradhan. Secondly, even if there was any such resolution, there was no difference on such resolution. Therefore, in our opinion, in neither case, there is any scope for application of the proviso to Rule 13 of the said Rules. 21. As we have held that there was no resolution for removal of the Pradhan (the writ petitioner), the writ petitioner continues to hold his office as Pradhan. If the requisitionists, however, intend to call a meeting for consideration of a resolution for removal of the Pradhan, the requisitionists may do so and if any resolution for removal of the Pradhan is adopted by a majority of the members, as contemplated by Section 12 of the said Act, then only it can be said that the Pradhan has been removed from his office. 22. In the circumstances, the removal of the Pradhan is bad and since the writ petitioner as Pradhan has not been removed from his office in accordance with law, he continues to remain as Pradhan until he is so removed in accordance with Jaw. In the result, the election of the appellant as Pradhan is bad in law as there was no vacancy in the office of the Pradhan of said Sujapur Gram Panchayat notwithstanding that the resolution for no confidence against the writ petitioner was adopted by a majority of the members present in the said meeting dated 16th February, 1994. 23. The appeal is, therefore, dismissed. We affirm the judgment and order of the Trial Court. There will be no order as to costs. 23. The appeal is, therefore, dismissed. We affirm the judgment and order of the Trial Court. There will be no order as to costs. Let a plain copy of the operative portion of this judgment, countersigned by the Assistant Registrar (Court), be given to the learned Advocate for the State on the usual undertaking. Nand, J.: I agree.