Md. Abu Sattar Molla v. State of West Bengal — 1996 DIGILAW 30 (CAL)

Judgment Prabir Kumar Samanta, J.: 1. The writ petitioner was the Prodhan of Kholapota Gram Pal1chayat, P.S. Basirhat, District-24-Pags (N). The said Prodhan lost his majority in a requisition meeting dated 24th April, 1995. In the said requisition meeting three members of his party supported the motion while the other members of his party remained absent in the said requisition meeting dated 24th April, 1995. Accordingly, the writ petitioner made a representation to the prescribed authority for taking action under s. 213A of the said Act against said three members of the Gram Panchayat. Prior to that the writ petitioner by a letter dated 21st April, 1995 addressed to the Sub-Divisional Officer, Basirhat, made complaints against four members of the Panchayat under s. 11(1)(d) of the West Bengal Panchayat Act, 1973 (hereinafter called as the said Act) alleging that they were absent from several consecutive meetings of the Gram Panchayat. 2. Challenging the resolution of removal of the petitioner from the post of Prodhan taken in the said requisition meeting dated 24th April, 1995 the writ petitioner moved a writ petition being C.O. No. 4719 (W) 1995. The same upon hearing the parties thereto was disposed of by an order dated 8.5.96 with a direction upon the B.D.O. concerned to decide the disputes under s. 11(1)(d) and s. 213A of the said Act and to pass a reasoned order after hearing the parties in accordance with law. 3. The concerned Block Development Officer, Basirhat II ultimately by an order dated 26th May, 95 directed the writ petitioner to hand over his charge to the Upa-Prodhan of the Gram Panchayat concerned in terms of sub-so (4) of S. 9 of the Act upon his removal from the post of Prodhan in the aforesaid requisition meeting dated 24th April, 1995. The writ petitioner further challenged the said order of the B.D.O. concerned in a writ petition being C.O. 8688 CW) 95 which again was disposed of on 16th June, 1995 with the following order: "Keeping in view the facts and circumstances of this case, the following directions are given :- As the impugned order is not a reasoned order, the same cannot be sustained and is accordingly set aside. The Block Development Officer, Basirhat-II being the prescribed authority shall pass a reasoned order after giving an opportunity of hearing to all concerned. The Block Development Officer, Basirhat-II being the prescribed authority shall pass a reasoned order after giving an opportunity of hearing to all concerned. In the event, the B.D.O. considers after hearing all the parties that he is not a prescribed authority he is directed to send all records to the S.D.O., Basirhat, who according to the B.D.O., is the prescribed authority and the S.D.O., Basirhat, after giving an opportunity of hearing to all parties shall pass a reasoned order, in terms of the observations made by this court in its earlier order dated 8.5.96. The writ application is disposed of with the aforementioned observations." 4. In pursuance to the aforesaid order of this Hon'ble Court both the matters arising out of s. 11(1)(d) and s. 213A of the said Act were placed before the B.D.O., Basirhat II for taking necessary action. By a composite order dated 30.8.95, the B.D.O., Basirhat-II dealt with both the proceedings as aforesaid under s. 11(1)(d) and s. 213A of the said Act. In respect of the proceeding arising out of complaint of the writ petitioner under s. 11(1)(d) of the Act against some members of the Gram Panchayat, the B.D.O., as it appears from the said order, entered into the merits of the dispute by taking evidences of the parties and also by making his findings thereon. The said B.D.O. had thereafter forwarded his findings to the prescribed authority namely, Sub Divisional Officer, Basirhat for disposal of the said proceeding as per the direction of the Hon'ble Court. In respect of the proceeding arising out of the complaint under s. 213A of the said Act the said B.D.O. being the prescribed authority however rejected the same on the grounds stated therein. This composite order dated 30.8.95 made by the said B.D.O., Basirhat-II in both the proceeding under s. 11(1)(d) and s. 213A of the said Act as aforesaid has been challenged in this writ petition. 5. In the proceeding arising out of the coniplaint of the writ petitioner under s. l1(l)(d) of the said Act 4 members of the Gram Panchayat concerned were involved of which only two namely, Minai Bhatoo and Smt. Anjali Gian were made parties in this writ petition leaving aside the other two members namely Shyamal Sailo and Abu Osman Sardar. 5. In the proceeding arising out of the coniplaint of the writ petitioner under s. l1(l)(d) of the said Act 4 members of the Gram Panchayat concerned were involved of which only two namely, Minai Bhatoo and Smt. Anjali Gian were made parties in this writ petition leaving aside the other two members namely Shyamal Sailo and Abu Osman Sardar. In the absence of the said two other members the writ petitioner cannot successfully challenge the order passed in the proceeding under s. 11(1)(d) of the said Act unless the proceeding on the face of the records is without jurisdiction or is otherwise nullity in the eye of law. Upon reference to the order of this Hon'ble Court dt. 16th June, 1995 made in C.O. 8688(W) of 1995, it is clear that this Hon'ble Court directed the B.D.O. concerned to send all records to the S.D.O. Basirhat-II in the event Block Development Officer is not the prescribed authority for the purpose of disposal of the proceeding under s. 11(1)(d) of the said Act. It was further directed that in such event the S.D.O. Basirhat II will pass a reasoned order in the said proceeding after giving an opportunity of hearing to all the parties involved therein. The impugned order dt. 30th August, 1995 made by the said B.D.O. clearly indicates that though he is not the prescribed authority under s. 11(l)(d) of the said Act but then he entered into the merits of the disputes arising out of the said provision of the Act and made findings thereon and thereafter forwarded the proceeding along with the said findings to the S.D.O., Basirhat II for disposal. It has not been disputed by either of the parties that the B.D.O. is not the prescribed authority under the said provision of the Act. The said B.D.O. being not the prescribed authority under the statute was not competent to proceed in the matter under the said provision of the said Act and to make findings thereon. Therefore, the entire actions on the part of the B.D.O. concerned were beyond his jurisdiction both under the provision of the statute as also in terms of the order of this Hon'ble High Court as aforesaid. Therefore, the entire actions on the part of the B.D.O. concerned were beyond his jurisdiction both under the provision of the statute as also in terms of the order of this Hon'ble High Court as aforesaid. Since the actions on the part of the B.D.O. in this regard are absolutely beyond his competence and jurisdiction so the observations and/ or findings made thereto are void in law, and the same remains to be void in law without reference to the parties to the dispute. In this view of this matter, the observations and/or findings made by the B.D.O. by its order dt. 30.8.95 in respect of the proceeding under s. 11(1)(d) of the said Act are set aside. However, the S.D.O. will be free to decide the disputes arising therefrom de novo and without any reference to the findings and observations made by the B.D.O. of Basirhat II in this regard in accordance with law and particularly in terms of the observations and/or directions made by this Hon'ble Court in its order dt. 16.6.96 as aforesaid. 6. The other part of the impugned order dt. 30.8.95 made by the B.D.O., Basirhat II relates to the proceeding under s. 213A of the said Act. The allegations were made by the writ petitioner against the respondent Nos. 3 to 5 of this writ petition for exercising their voting right contrary to the manner of voting by the majority members of his party in the aforesaid requisition meeting dt. 24.4.95. The B.D.O. Basirhat II rejected the petition of the writ petitioner mainly on two folds grounds. Firstly, that the writ petitioner failed to submit at the hearing of the proceeding documents mentioned in sub-so (3) of S. 213A of the said Act. Secondly, the writ petitioner could not establish by evidence that the manner of voting by his party members for the purpose of the requisition meeting dt. 24.4.95 was decided by virtue of a notice dt. 18.4.95 by the writ petitioner by imposing a directive upon his followers not to attend the meeting scheduled on 24th April, 1995 in the name and style of party whip. 7. 24.4.95 was decided by virtue of a notice dt. 18.4.95 by the writ petitioner by imposing a directive upon his followers not to attend the meeting scheduled on 24th April, 1995 in the name and style of party whip. 7. In respect of the first part of reasonings as aforesaid it is worthwhile to mention that by a further amendment of the said Act by West Bengal Panchayat (Amendment Act) 1995 (Act 2 of 1995) which came into force on 28th December, 1994 a second proviso was added to sub-so (3) of S. 213A which reads as follows :- "Provided further that the prescribed authority referred to in sub-s. (1) shall not refuse to accept or to rely on, the documents furnished by the Leader merely on the ground that the resolution selecting the Leader was not adopted within one month from the date of the first meeting of the Panchayat or within one month from the date on which this section comes into force, as the case may be, or that the documents as aforesaid were not furnished to him within fifteen days from the date of such selection". In view of such amendment complaint under S. 213A as made by the writ petitioner against the said respondents cannot be thrown out merely because the particulars under sub-so (3) of S. 213A were not furnished before the prescribed authority. But such view will not help the writ petitioner to get the reliefs as prayed for in this writ petition for cancellation of the memberships of the respondent Nos. 3 to 5 in the said Gram Panchayat on the grounds stated hereinafter. 8. The prescribed authority lost sight of sub-so (7) of S. 213A of the said Act in disposing of the proceeding under s. 213A of the said Act. 3 to 5 in the said Gram Panchayat on the grounds stated hereinafter. 8. The prescribed authority lost sight of sub-so (7) of S. 213A of the said Act in disposing of the proceeding under s. 213A of the said Act. Said sub s. (7) of s. 213A is quoted hereunder :- "The Leader of any recognised political party referred to in sub-section (3) may at any time file a petition endorsed by the General Secretary, or, if there is no General Secretary, the Secretary, of the district unit of such recognised political party to the prescribed authority referred to in sub-so (1), stating that (a) one or more members of such recognised political party have (i) voluntarily given up his or their membership of such recognised political party, or (ii) have exercised the voting right contrary to the manner of voting of the majority members set up by such recognised political party in Panchayat, or (b) the member referred to in sub-so (4) has voluntarily given up his membership of the recognised political party that set him up, or (c) the member referred to in sub-so (5) has joined a recognised political party on the expiry of six months from the date of election, and that such member or members should be declared to be disqualified under sub-s. (1) and should be removed from the Panchayat. 9. Said sub-section provides that a petition, by the Leader of the political party• in the Gram Panchayat though may be filed at any time under the provision of s. 213A, but should be endorsed by the General Secretary, or, if there is no General Secretary, the Secretary of the District Unit of such recognised political party. Such a petition u/s. 213A of the said Act forms the basis for taking action of removal of a Panchayat member from his membership from the Panchayat concerned. This provision in substance is a provision for taking penal action against defaulting members and therefore mandatory. Therefore, no discretion is left to the prescribed authority concerned for liberal construction of the said provision. In this particular case evidently the application of the writ petitioner was not endorsed in terms of sub-so (7) of s. 213A of the said Act. Such a petition is not permissible under the statute. Non-compliance of such requirement under the statute makes the petition non est in the eye of law. In this particular case evidently the application of the writ petitioner was not endorsed in terms of sub-so (7) of s. 213A of the said Act. Such a petition is not permissible under the statute. Non-compliance of such requirement under the statute makes the petition non est in the eye of law. The prescribed authority having found that the petition had not been endorsed as per sub-so (7) of s. 213A of the said Act should not have entertained the same, far less to have decided the same on merits. Where a statute requires that a thing shall be done in the prescribed manner or form, then its deliberate and conscious violation or breach will render the thing void in the eye of law. Therefore, the application of the writ petitioner being not in conformity with the provision of the statute the findings and/or the disposal of the same has no effect or validity in the eye of law. Accordingly, the entire proceeding on the basis of the said application of the writ petitioner is nullity and is therefore set aside. 10. However, since the said provision of sub-so (7) of s. 213A of the said Act does not provide a time limit for making such application, the writ petitioner will be at liberty to make an application afresh under the said provision of the Act by complying with all the requirements prescribed therein, if he so choses, before the prescribed authority. In the event, such an application is made by the writ petitioner then the prescribed authority will dispose of the same in accordance with law as expeditiously as possible and preferably within 8 weeks from the date of receipt of such petition from the writ petitioner by giving reasonable opportunity of hearing to all the parties involved in the dispute and by passing a reasoned order therein. With these observations, the impugned order dated 30th August, 1985 made b) the Block Development Officer, Basirhat II in the proceedings as aforesaid both under s. 111(1)(d) and s. 213A of the said Act is set aside and this writ petition is disposed of accordingly with the observations as made hereinabove. Impugned order set aside and writ application disposed of with liberty to the petitioner to file afresh petition under s. 213A in accordance with law.