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1994 DIGILAW 395 (CAL)

Samarendra Goswami v. Dabuk Gram Panchayat

1994-12-23

Satyabrata Sinha

body1994
JUDGMENT Satyabrata Sinha, J. The petitioner in this application has, inter alia, prayed for issuance a writ of or in the nature of mandamus directing the respondents to set aside or withdraw the notices dated 9th October, 1994 and 8th November, 1994 as contained in annexures 'A' & 'B' to the writ application respectively. 2. The petitioner is the Pradhan of Gram Panchayat. The general election of the Members of the said Panchayat was held on 31st May, 1993 wherein he was elected as a Member. Respondent Nos. 8 to 24 were also elected as Members of the Gram Panchayat. The petitioner was elected as a Pradhan in a meeting called for that purpose, and Respondent No. 24 was elected as Upa-Pradhan. 3. On 20th June, 1994 Respondent Nos. 10, 12, 13, 15, 17, 19, 20 and 22 to 24 issued a notice asking the petitioner to requisition a meeting in terms of s. 16(1) of the West Bengal Panchayat Act, 1973. The validity of the said notice was questioned before this Court and by an order dated 13th July, 1994 a learned Single Judge of this Court directed :- "Let this matter come up for hearing as 'Contested Application' 8 weeks hence. Petitioner shall serve notice and copy of the application upon the other private respondents by registered post with AID and file Affidavit-of-Service at the time of hearing. The impugned notice in terms of Annexure 'A' & 8' to the writ petition be not held till further orders". 4. The aforementioned respondents again issued a letter dated 19th October, 1994 asking him to call a meeting for his removal from the post of Pradhan of the said Gram Panchayat. A copy of the said letter was served upon the petitioner on 26th Oct. 1994 which is contained in Annexure 'A' to the writ application. 5. On 9th November, 1994 the respondents requisitioned a meeting. 6. The only contention raised in this application is that in view of the provisions of s. 16 of the said Act the meeting requisitioned by the concerned respondents is illegal inasmuch as prior thereto, 15 days from the date of service of notice dated 19.10.94 had not elapsed. 7. 5. On 9th November, 1994 the respondents requisitioned a meeting. 6. The only contention raised in this application is that in view of the provisions of s. 16 of the said Act the meeting requisitioned by the concerned respondents is illegal inasmuch as prior thereto, 15 days from the date of service of notice dated 19.10.94 had not elapsed. 7. The contention raised on behalf of the respondents, on the other hand, is that the said requisitioned notice was sent under registered cover but the same could not be served upon the petitioner before 26th October, 1994 as the petitioner was absent from 20th October, 1994 to 25th October, 1994 as would appear from the endorsement made by the postal peon. It has been submitted that pursuant to the said notice a meeting had already been convened and by an overwhelming majority a resolution for removing the petitioner from the post of. Pradhan has been adopted by the members of the Panchayat. It is stated that in view of the fact that the petitioner has not been prejudiced by reason of the said notice, this Court should not exercise its discretionary jurisdiction in the matter. 8. The learned Counsel appearing on behalf of the respondents in support of his aforementioned contention has relied upon Md. Asraf Ali Mondal vs. The Block Development Officers & Ors., reported in 1992(2) CHN 229 , K. Narasimhiah vs. H. G. Singri Gowda & Ors., reported in AIR 1966 SC 330 , Bhagirathi Co-op. Joint Farming Society vs. Howrah Zilla Parisad, reported in 87 CWN 981 and Hukam Singh vs. The State of Rajasthan & Ors., reported in AIR 1984 Raj 119 . 9. From the facts as noticed hereinbefore it will appear that there is no dispute with regard to the following facts. 10. A notice was issued on 20.10.1994. The said notice under s. 16(1) of the Panchayat Act was served upon the petitioner on 20.10.1994. The impugned notice was thereafter issued on 8.11.1994. Admittedly, therefore, the period of 15 days had not elapsed from 26.10.1994 till the date of the issuance of the impugned notice. 11. Section 12 and the relevant provisions of s. 16(1) of the West Bengal Panchayat Act (hereinafter referred to as 'the Act') read thus : "12. The impugned notice was thereafter issued on 8.11.1994. Admittedly, therefore, the period of 15 days had not elapsed from 26.10.1994 till the date of the issuance of the impugned notice. 11. Section 12 and the relevant provisions of s. 16(1) of the West Bengal Panchayat Act (hereinafter referred to as 'the Act') read thus : "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-so (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." "16(1). Every Gram Panchayat shall hold a meeting at least once in a month in the office of the Gram Panchayat. Such meeting shall be held on such date and at such hour as the Gram Panchayat may fix at the immediately preceding meeting: Provided that the first meeting of a newly constituted Gram Panchayat shall be held on such date and as such hour and at such place within the local limits of the Gram concerned as the prescribed authority may fix : Provided further that the Pradhan when required in writing by one third of the members of the Gram Panchayat subject to a minimum of three members to call a meeting shall do so fixing the date and hour of the meeting within fifteen days after giving intimation to the prescribed authority and seven days' notice to the members of the Gram Panchayat, failing which the members aforesaid may call a meeting within thirty five days' after giving intimation to the prescribed authority and seven clear days' notice to the Pradhan and other members of the Gram Panchayat. Such meeting shall be held in the office of the Gram Panchayat on such date and at such hour as the members calling the meeting may decide." 12. From the persual of s. 12 of the Act it is evident, that a Pradhan or Upa-Pradhan can be removed only by a meeting specially convened for that purpose, notice whereof has been given to the prescribed authority. Second proviso appended to sub-so (1) of s. 16 is in two parts i.e., (a) the Pradhan would convene a meeting, if required to do so by 1/3rd of the members of the Gram Panchayat within 15 days after giving intimation to the prescribed authority and seven days' notice to the members of the Gram Panchayat, (b) Upon failure on the part of the Pradhan to do so, members who had given notice may call a meeting within 35 days after giving an intimation to the prescribed authority and 7 clear days' notice to the Pradhan and members of the Gram Panchayat. Thus, the obligation of Pradhan of the Gram Panchayat to call a meeting having been called upon to do so arises only upon receipt thereof. He is however, enjoined with duty to intimate the prescribed authority as also give 7 days' notice to the members of the Gram Panchayat. 13. Evidently, therefore, the concerned members of the Gram Panchayat asking the Pradhan to call a meeting derive a right to call them a meeting upon his failure to comply with his statutory obligation. 14. In K. Naraslmhiah vs. H.G. Singri Gowda & Ors., reported in AIR 1966 SC 330 the Supreme Court while considering the provision of s. 27(3) of Mysore Town Municipalities Act held :- "It is interesting to notice in this connection that the English law as regards meeting of borough councils and country councils contain a specific provision that want of service of a summons to attend the meeting (which is required to be served on every member of the council) will not affect the validity of the meeting. It may be presumed that the legislature which enacted the Mysore Town Municipalities Act, 1951, was aware of these provisions in English law. It has not gone to the length of saying that the failure to serve the notice will not make the meeting invalid. It may be presumed that the legislature which enacted the Mysore Town Municipalities Act, 1951, was aware of these provisions in English law. It has not gone to the length of saying that the failure to serve the notice will not make the meeting invalid. It has instead said that any irregularity in the service of notice would not make a resolution of the Council invalid provided that the proceedings were not prejudicially affected by such irregularity. The logic of making such a provision in respect of irregularity in the service of notice becomes strong if the fact that the notice given was short of the required period is considered an irregularity. The existence of this provision in s. 36 is a further reason for thinking that the provision as regards any motion or proposition of which notice must be given in s. 27(3) is only directory and not mandatory. We are, therefore, of opinion that the fact that some of the Councilors received less than three clear days notice of the meeting did not by itself make the proceedings of the meeting or the resolution passed there invalid. These would be invalid only if the proceedings were prejudicially affected by such irregularity. As already stated, nineteen of the twenty Councilors attended the meeting. Of these 19, 15 voted in favour of the resolution of no-confidence against the appellant. There is thus absolutely no reason for thinking that the proceedings of the meeting were prejudicially affected by the 'irregularity in the service of notice'." 15. In Bhagirathi Co-op. Joint Farming Society vs. Howrah Zilla Parishad, reported in 87 CWN 981 this Court held : "One should not overlook the special limitation prescribed by the statute itself for preferring some of these disputes. In our opinion, such a consequence could never have been the intention of the legislature. Mr. Ghosh has rightly drawn our attention to an observation of Maxwell on Interpretation of Statutes, 9th Edition page 378. In our opinion, such a consequence could never have been the intention of the legislature. Mr. Ghosh has rightly drawn our attention to an observation of Maxwell on Interpretation of Statutes, 9th Edition page 378. Enunciating the proper principle of interpretation of a statute like one now under consideration, it was therein observed: 'When a public duty is imposed and the statute requires that it shall be performed in a certain manner or within a certain time or under other specified conditions, such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duties would result if such requirements were essential and imperative.' This observation has been approved by the Privy Council in the case of Montreal Street Railway Co. vs. Normandi, AIR 1917 P.C. 148 and has received universal approval by different courts since then. Reliance has also been placed by Mr. Ghosh on the following observation of Lord Blackburn in the case of Middlesex Justices vs. R.(1884) 9 Appeal Cases 757 at page 773 quoted with approval in Craies on Statute Law, 7th Edition page 249: 'There is a numerous class of cases 'in which it has been held that certain provisions in acts of Parliament are directory in the sense that they were not meant to be a condition precedent to the grant, or whatever it may be, but a condition subsequent: a condition as to which the responsible persons may be blameable and punishable if they do not act upon it but their not acting upon it shall not 'invalidate what they have done, third persons having nothing to do with them.' Craies has also referred to the aforesaid decision of the. Privy Council with approval as laying down the proper principle of interpretation to be followed." 16. Yet again a learned Single Judge of this Court in Md. Asraf Ali Mandal vs. The Block Development Officers & Ors., reported in 1992(2) CHN, 229 held : "The only point involved is whether the notice period under the second proviso to s. 16 of the Act is mandatory or in other words would shorter notice period render the meeting pursuant to such notice invalid? In my view the period of 7 clear days mentioned in the second proviso to s. 16 is directory provision and not a mandatory one. 17. In my view the period of 7 clear days mentioned in the second proviso to s. 16 is directory provision and not a mandatory one. 17. The learned Judge observed: "Having held that the provision relating to the period of notice is directory and not mandatory, the question whether the petitioner was served on 20th February, 1991 of 14th February, 1991 becomes irrelevant. If the object of the exercise in giving notice was to enable the petitioner to attend the meeting it cannot be said that this object was not achieved as service was admittedly effected on the petitioner and - it is not the petitioners case that the notice was not sufficient so that the petitioner was unable to attend. Finally even if there was an irregular notice, such irregularity cannot by itself invalidate the meeting unless the petitioner has suffered prejudice thereby. The shortness of notice cannot be said to have prejudiced the petitioner or materially affected the outcome of the proceedings. There were only 20 members of the Gram Panchayat. No other member has come forward to complain of the shortness of the notice. 13 of the members who attended the meeting unanimously held against the petitioner. These 13 members in any event constitute the majority required for passing the resolution." 18. In Hukam Singh vs. State of Rajasthan & Drs., reported in AIR 1984 Raj 119 wherein it has been held: "A Division Bench of this Court in Bhure Khan vs. State of Rajasthan 1976 Raj LW 148: ( AIR 1976 Raj 184 ) has extracted the following from Radhey Shyam's case (1972 WLN 772) : ‘In order to create healthy convention for the functions for the functioning of democracy in the Country, it is necessary that this Court should be slow to help the person in his attempts to stick to his elected office even after the unequivocal declaration of the majority that he has lost their confidence, the court should show its reluctance to allow such person to invoke the extraordinary jurisdiction.' It was observed in Bhure Khan's case ( AIR 1976 Raj. 184 at page 185) as under : "In the instant case out of 12 members 9 persons voted for the motion of non-confidence against Bhure Khan appellant. It is clear from this voting that Bhure Khan had lost confidence of 3/4th of the members of the Panchayat. 184 at page 185) as under : "In the instant case out of 12 members 9 persons voted for the motion of non-confidence against Bhure Khan appellant. It is clear from this voting that Bhure Khan had lost confidence of 3/4th of the members of the Panchayat. Bhure Khan was present in the Panchayat when the motion was moved. He dose not say that the Presiding Officer in any manner showed any bias against him. Therefore this technicality that the meeting was presided over by an officiating Tahsildar and not by the Tahsildar himself cannot: invoke any sympathy in favour of Bhure Khan. The descussions in the above cited case clearly indicate that the agency of the court cannot be employed as an instrument to stick to a job where the petitioner or the appellant has lost his right because of his act that the members have lost faith in him and, therefore, in such circumstances this Court should not allow - itself to act as a medium for permitting unhealthy convention for the working of democratic institution. We are, therefore, inclined to hold that the preliminary objection raised by the opposite party must prevail. " The same view was taken in Bhoorkhas vs. State of Rajasthan 1975 Raj LW 591 wherein, Joshi, J.; observed as follows: 'It is well settled principle of democracy that the person who has lost the confidence of the members of a democratic institution should not be allowed to stay against the will of the members of that institution. The writ of mandamus or certiorari does not issue as a matter of course but is a writ of discretionary nature. Looking to the facts and circumstances of the case, this Court' is not at all inclined to entertain the plea of technical nature to permit the petition who has lost the confidence of the members of the Panchayat. This Court is, therefore, not disposed to help such a person in the exercise of its exitraordinary jurisdiction.' 19. Looking to the facts and circumstances of the case, this Court' is not at all inclined to entertain the plea of technical nature to permit the petition who has lost the confidence of the members of the Panchayat. This Court is, therefore, not disposed to help such a person in the exercise of its exitraordinary jurisdiction.' 19. Reference in this connection may also be made to Biswanath Khemka vs. Emperor reported in AIR 1945 F.C. 67, wherein it has been held that s. 256 of the Government of India Act, 1935 is directory saying- "It seems to us that any other view would lead in many cases to results which would not have been intimated by Parliament and would entail general inconvenience and injustice to persons who have no control over those entrusted with the duty of making recommendation for the grant of magisterial power." 20. In L. Hazarimal Kulhiala vs. Income Tax Officer, reported in AIR 1961 SC 200 the court relied on the aforesaid decision holding that provision for Constitution of Commission under s. 5(5) of the Patiala Income Tax Act is directory stating: "Even so, we do not think that failure to consult the Central Board of Revenue renders the order of the commission ineffective." 21. In T. V. Usman vs. Food Inspector, Tellichery Municipality, Tellichery, reported in 1994(1) BLJR 728, the Supreme Court held: "In Dattatraya vs. State of Bombay, AIR 1952 SC 181 , it was held as under :- 'Generally speaking, the provisions of a statute creating public duties are directory and those conferring private rights are imperative. In T. V. Usman vs. Food Inspector, Tellichery Municipality, Tellichery, reported in 1994(1) BLJR 728, the Supreme Court held: "In Dattatraya vs. State of Bombay, AIR 1952 SC 181 , it was held as under :- 'Generally speaking, the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the Legislature, it has been the practice of the courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done.' In Rule 7(3) no doubt the expression 'shall' is used but it must be borne in mind that the Rule deals with stages prior to launching the prosecution and 'it is also clear that by the date of receipt of the report of the Public Analyst that the concerned authority has to take a decision whether to institute a prosecution or not. There is no time limit prescribed within which the prosecution has to be instituted and when there is no such limit prescribed then there is no valid reason for holding the period of 45 days as mandatory. Of course that does not mean that the Public Analyst can ignore the time limit prescribed under the Rules. He must in all cases try to comply with the time limit. But if there is some delay, in a given case, there is no reason to hold that the very report is void and on that basis to hold that even prosecution cannot be launched." It further held :"In this context it is useful to refer to the judgment of this court in Dalchand vs. Municipal Corpn., Bhopal and Anr., AIR 1983 SC 303 , wherein the question was whether Rule 9(j) of Prevention of Food Adulteration Rules under which report of the Public Analyst has to be supplied within ten days, is mandatory or directory and 'it was held as under: 'There are no ready tests or invariable formula to determine whether a provision is mandatory or directory. The broad purpose of the statute is important. The object of the particular provision must be considered. The link between the two is most important. The weighing of the consequence of holding a provision to be mandatory or directory is vital and, more often than not, determinative of the very question whether the provision is mandatory or directory. Where the design of the statute is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of. It is wel1 to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot be statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute. It is as well to realise that every prescription of a period of limitation with painful consequence if the act is not done within that period'." In this view of the matter this Court held that Rule 9(j) is only directory and not mandatory. Regarding the effect of non-compliance of Rule 9(j) it was further held :- 'Where the effect of non-compliance with the rule was such as to wholly deprive the right of the person to challenge the Public Analyst Report by obtaining the report of the Director of the Central Food Laboratory, there might be just cause for complaint, as prejudice would then be writ large. Where no prejudice was caused there could be no cause for complaint. I am dearly of the view that Rule 9(j) of the Prevention of Food Adulteration Rules was directory and not mandatory'." It also observed :- "In Craies' Statute Law VIII Edn. at page 262 it is stated thus :- 'It is the duty of courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed. . . . . . . . . . at page 262 it is stated thus :- 'It is the duty of courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed. . . . . . . . . . That in each case you must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is caned imperative or only directory.' Likewise in State of Kerala & Ors. vs. Alassery Mohammed & Ors., (1978) 2 SCC 386 , Hon' Untwalia, J. speaking for the Supreme Court and while holding that Rule 22 of Prevention of Food Adulteration Rules is only directory, held that if the object is not frustrated and is squarely and justifiably achieved without any shadow of doubt, then it will endanger public health to acquit offenders on technical grounds which have substance.". 22. The West Bengal Panchayat Act (hereinafter referred to as 'the said Act') was enacted to reorganise Panchayats in rural areas in the State of West Bengal and to provide for matters connected therewith. 23. Chapter II of the said Act provides for constitution of Gram Panchayat which is required to be constituted in every village. All the voters whose names appear in the electoral role of the West Bengal Legislative Assembly are entitled to participate in the election. The Gram Panchayat not only consists of the elected members but also the members of Panchayat Samity not being Sabhapati or Saha-sabhapati thereof. 24. Section 9 lays down the manner in which a Pradhan and UpaPradhan would be elected by the members of the Panchayat. 25. Election of a member of a Panchayat and that of Pradhan thus is to be done by' democratic methods. 26. Removal of Pradhan and Upa-Pradhan as laid down in s. 12 of the said Act which is also required to be done by adopting a democratic norm. 27. As noticed hereinbefore, s. 16 of the said Act provides that a meeting of the Gram Panchayat must be held at least once in month, The matter relating to removal of Pradhan and Upa-pradhan however has to be held in a meeting specially convened for that purpose. 27. As noticed hereinbefore, s. 16 of the said Act provides that a meeting of the Gram Panchayat must be held at least once in month, The matter relating to removal of Pradhan and Upa-pradhan however has to be held in a meeting specially convened for that purpose. The second proviso appended to Sub-so (1) of S. 16 of the said Act provides for the manner in which meetings are to be requisitioned. The right to call a meeting primarily is upon the Pradhan and an additional right has also been conferred upon the members of the Panchayat, if and when Pradhan fails to call a meeting. The meetings are, therefore, required to be held either for discussions of the matter of interest of the Panchayat, meeting may especially be convened for removal of Pradhan or Upa-Pradhan who had lost the confidence of these members. 28. The said Act does not provide for the consequences of an invalid meeting. 29. Earl T. Crawford in his treatise Statutory Constructions states the law thus : "The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other. This case is applicable to the case at bar because it deals with the question of punishment." 30. It is now well known that when a public authority is to discharge public function within the time prescribed therefore, the same is usually' considered to be directory and not mandatory. 31. Reference in this connection may be made to a full bench decision of Patna High Court in Shibeswar Prasad Sinha vs. District Magistrate, Monghyer, reported in AIR 1966 Patna 144. 32. The said Act does not lay down any consequences for not following time schedule. Section 16(1) imposes an obligation upon the Pradhan to call a meeting whenever he is required to do so. The necessity of giving a notice for calling meeting is to bear attendance of all the persons who are concerned therewith. 32. The said Act does not lay down any consequences for not following time schedule. Section 16(1) imposes an obligation upon the Pradhan to call a meeting whenever he is required to do so. The necessity of giving a notice for calling meeting is to bear attendance of all the persons who are concerned therewith. If thus in a given case, despite the fact that notice calling for a meeting does not satisfy the requirement of laws in stricto sensu but if the members had reasonably notice of the meeting and had attended the same, on exception thereto can be taken only because of the notice does not strictly conform to the provision of the law, as has been held by the Supreme Court as well as this Court in the decisions referred to hereinbefore. 33. Moreover, as it is well known that exercise of jurisdiction of this Court to issue a writ as discretionary. The Court does not issue a writ only because it is lawful to do so, 34. Keeping in view of the fact that a resolution has already been adopted as against the petitioner and further keeping in view of the background of the case that even an earlier meeting was called but no decision of the Rajasthan High Court in Hukam Singh's case (supra). 35. I am of the view that it is not a fit case in which this Court should exercise its extra-ordinary constitutional writ jurisdiction. 36. However, as in this case the petitioner has not questioned the resolution adopted in the meeting he may do so before an appropriate forum on other available grounds. 37. This application is dismissed to the aforementioned observations, but without any order as to costs. Application dismissed.