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1996 DIGILAW 187 (CAL)

Dilip Bhattacharya v. State of West Bengal

1996-04-26

ALTAMAS KABIR

body1996
JUDGMENT 1. In the Panchayat Election held in West Bengal in 1993, the writ petitioner, along with the respondents Nos. 5 to 24, were all elected as members of the Itaberia Gram Panchayat under Bhupatinagar Police Station, in the District of Midnapore. 2. Some of the members of the Gram Panchayat having lost confidence in the Pradhan and Upa-Pradhan gave a single notice for their removal, which was challenged by way of a writ petition wherein the Pradhan and Upa-Pradhan were restrained from dealing with the assets and/or funds of the said Gram Panchayat. An appeal was preferred from the said order by the said Pradhan and Upa-Pradhan and in the application for stay filed therein the Appeal Court by its order of 11th July, 1995, directed that fresh meetings be held for the purpose of ascertaining as to whether the Pradhan and Upa-Pradhan still retained the confidence of the majority of the members. 3. The Division Bench appointed one Mr. Biswajit De, a learned Advocate of this Court, as Special Officer, to hold two separate meetings after issuing two notices for the purpose of removal of the Pradhan and Upa-Pradhan. 4. Pursuant to the above, the Special Officer issued notices for holding the meetings on 11th August, 1995, in terms of the directions given by the Appeal Court in its order of 11th July, 1995. 5. The said meeting could not, however, be held and fresh notices were issued by the Special Officer on 11th August, 1995, convening the said meetings on 8th September, 1995, at the Itaberia Gram Panchayat Office. 6. From the report submitted by the learned Special Officer, it appears that the two meetings convened for the purpose of removal of the Pradhan and Upa-Pradhan were duty held on 8th September, 1995 as scheduled, and the majority of the members voted for removal of the Pradhan and Upa-Pradhan of the aforesaid Gram Panchayat. 7. 6. From the report submitted by the learned Special Officer, it appears that the two meetings convened for the purpose of removal of the Pradhan and Upa-Pradhan were duty held on 8th September, 1995 as scheduled, and the majority of the members voted for removal of the Pradhan and Upa-Pradhan of the aforesaid Gram Panchayat. 7. The writ petitioners have challenged the manner in which the meetings were held and have also questioned the competence of the Special Officer to convene a second meeting to consider the question of removal of the Pradhan and Upa-Pradhan after the first meetings which were scheduled to be held about a month earlier were not held, having regard to the provisions of the third proviso to Section 12 of the West Bengal Panchayat Act, 1973, as amended by Section 5 of the West Bengal Panchayat (Amendment) Act, 1995. 8. On behalf of the writ petitioner, it was urged that once the meetings scheduled for 11th August, 1995 could not be held for whatever reason, the Special Officer was no longer competent to convene subsequent meetings for the same purpose before the expiry of six months from the date fixed for the first meetings, in view of the amended provisions of the third proviso to Section 12 of the West Bengal Panchayat Act, 1971. 9. Apart from the above, another point was canvassed on behalf of the respondents Nos. 5 to 13, who supported the writ petitioner's case, to the effect that the learned Special Officer had acted in contravention of the provisions of Rule 13 of the West Bengal Panchayat (Gram Panchayat Administration) Rules, 1981, in initially adopting the procedure for voting by show of hands, although, ultimately secret ballot was resorted to. 10. It was also contended that the learned Special Officer acted in a grossly mala fide manner in cancelling the ballot paper of Smt. Snehalata Debi and providing her with a second ballot paper for casting her vote afresh. It was alleged that by such act, the learned Special Officer made it possible for a certain section of the members of the Gram Panchayat to carry the resolution for removal of the Pradhan and Upa-Pradhan, since barring the second vote cast by Smt Snehalata Debi, the two opposing factions had obtained an equal number of votes. 11. It was alleged that by such act, the learned Special Officer made it possible for a certain section of the members of the Gram Panchayat to carry the resolution for removal of the Pradhan and Upa-Pradhan, since barring the second vote cast by Smt Snehalata Debi, the two opposing factions had obtained an equal number of votes. 11. It was then urged that the bias of the Special Officer would also be evident from the fact that though the Division Bench had by its order of 18th September, 1995, directed that the resolutions adopted by the members of the Gram Panchayat should be given effect subject to any order to be passed by the Single Judge, and though he had not been directed to do so, the Special Officer had by his letter of 11th September, 1995, addressed to the Block Development Officer, Bhagabanpur-II Block, Midnapore, informed the said Officer that the removal of the Pradhan and Upa-Pradhan had been accepted by the Division Bench and that the same would be given effect to and consequential action should be taken in the matter. 12. It was urged that because of such uncalled for communication by the learned Special Officer, the Pradhan and Upa-Pradhan were sought to be removed and one Shri Sajal Mondal, a member of the ltaberia Gram Panchayat, was appointed by the District Magistrate, Midnapore, to act as Pradhan of the said Gram Panchayat under Section 9(6) of the West Bengal Panchayat Act, 1973. 13. Reference was then made to a decision of the Supreme Court in the case of (1) Shri Ram Pyare Chaudhary v. State of Uttar Pradesh reported in AIR 1982 SC at page 831, wherein while considering the provisions of the U.P. Co-operative Societies Act, 1966, relating to election of the Committee of Management, the Hon'ble Supreme Court observed that the term of the Committee of Management would commence from the date of their election. 14. Taking a cue from the said decision, it was urged that the Pradhan and Upa-Pradhan should not only be restored to their respective positions, but their tenure should also be extended to the extent of the period for which they were unlawfully removed from office on account of the communication made by the Special Officer to the Block Development Officer, Bhagabanpur-II, Midnapore. 15. On behalf of the respondents Nos. 15. On behalf of the respondents Nos. 14 to 24, it was contended that the writ application was misconceived, inasmuch as, all the controversies between the parties were set of rest by the appointment of the Special Officer who conducted the two meetings for the purpose of removal of the Pradhan and Upa-Pradhan, in keeping with the directions of the Division Bench. 16. It was urged that the submissions made on behalf of the writ petitioners, as also the respondents Nos. 5 to 13, regarding the amended provisions of the third proviso to Section 12 of the West Bengal Panchayat Act, 1973, were entirely erroneous since the first meeting could not be held owing to a Bandh observed in the area on the very date when the first meetings were scheduled to be held. It was urged that the provisions of the third proviso to Section 12 of the aforesaid Act, as •amended, could not be applied to a case where the previous meeting seated for a particular day, could not, in fact, be held for reasons beyond the control of the persons concerned. 17. As to the cancellation of the ballot paper of Smt. Snehalata Debi and a second opportunity being given to her by the Special Officer to cast her vote, it was urged that the same had been done in view of the objections raised by the Pradhan and Upa-Pradhan, as recorded in the report submitted by the Special Officer. 18. It was contended that the meetings had been conducted by the Special Officer fairly and in terms of the directions of the Appeal Court and the same did not merit any interference by this Court. 19. From the submissions made on behalf of the respective parties and the materials on record, I am unable to persuade myself to hold that the Special Officer was incompetent to issue the second set of notices for convening the meetings for the removal of the Pradhan and Upa-Pradhan as per the directions of this Court in view of the amended provisions of the third proviso to Section 12 of the West Bengal Panchayat Act, 1973, which reads as follows:- "12. A Pradhan or an Upa-Pradhan of a Gram Panchayat may, at any time, be removed from the 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 ......... Provided ......... Provided also that if at a meeting convened under this section, either no meeting is held or no resolution removing an office bearer is adopted, no other meeting shall be convened for the removal of the same office bearer within six months from the date appointed for such meeting." 20. On a plain reading of the a mended provisions of the third proviso to Section 12 of the aforesaid Act, extracted above, it appears that the object of such amendment is to prevent repeated meetings of the Gram Panchayat for removal of the Pradhan and Upa-Pradhan. In order to give a harmonious construction to such amendment, it must be held that it could not have been the intention of the legislature to include meetings for the aforesaid purpose which could not be held because of circumstances beyond the control of the concerned parties, as in the instant case. 21. The Bandh observed on the date when the meeting was convened could not have been foreseen by the Special Officer when the said date was fixed by him. 22. The case would have been different if the meetings concerned were not held, although, there was no hindrance in holding the same. To hold otherwise will be to stultify the provisions of Section 12 of the Act, inasmuch as various methods including those which are unlawful, could then be resorted to prevent meetings for the purposes of Section 12 of the Act, so as to bring it within the ambit of the amended proviso for the benefit of a particular group of members of the concerned Gram Panchayat. 23. In my view, the amended provisions of the third proviso to Section 12 of the Act, will have to be applied in normal circumstances where there is no element of force majeure involved. 24. 23. In my view, the amended provisions of the third proviso to Section 12 of the Act, will have to be applied in normal circumstances where there is no element of force majeure involved. 24. Apart from the above, it must also be kept in mind that the meetings were being held pursuant to orders of this Court, and the learned Special Officer was acting in terms of the directions of this Court, which gives a completely different complexion to the matter. 25. The submissions made on behalf of the petitioner and the respondents Nos. 5 to 13 in this regard must, therefore, be rejected. 26. The other ground of challenge relating to the issuance of a second ballot paper by the Special Officer to Smt. Snehalata Debi is also not of much substance, since ultimately it is the majority decision which is to prevail as far as confidence in the Pradhan and Upa-Pradhan is concerned. 27. The decision cited on behalf of the respondents Nos. 5 to 13 in the case of Shri Ram Pyare Chaudhary (supra) does not help the case of the said respondents or the petitioners. 28. In passing it may be mentioned that the Special Officer appears to have over-stepped his authority in communicating the results of the two meetings held by him to the Block Development Officer, Bhagabanpur-II Block, Midnapore, which resulted in the removal from office of the incumbent Pradhan and Upa-Pradhan. The Special Officer would have been well advised not to have communicated the result of the meetings to the Block Development Officer concerned, but such conduct on his part cannot, in my view, be cited as an example of mala fide or bias on his part. 29. The writ application is, in my view, devoid of merit and is, accordingly, dismissed. 30. Since the report of the Special Officer in respect of the two meetings held by him were placed before the Appeal Court and was duly accepted by its order of 18th September, 1995, and the writ application having been dismissed, the respondents concerned will now be at liberty to give effect to the resolutions adopted at the two meetings held by the Special Officer on 8th September, 1995. There will be no order as to costs.