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1999 DIGILAW 519 (CAL)

Resida Khatoon v. Block Development Officer

1999-09-23

GORA CHAND DE, VINOD KUMAR GUPTA

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JUDGMENT 1. This appeal is directed against the order dated 7th September, 1999 passed by the learned Single Judge whereby he, even though allowed the meeting called on for 9th September, 1999 to be held, restrained the appellants from giving effect to the resolution which was to be adopted in that meeting without the leave of the Court. The appellants before us, 8 in number, are the members of the Panditpota 2, Gram Panchayat, P.O. Amaljhari, District, Uttar Dinajpur. It is their contention that by a notice dated 16th August, 1999, they had requisitioned a meeting for removal of the Respondent No. 1 as the Pradhan of the Gram Panchayat and the meeting was scheduled for 9th September, 1999. But the learned Single Judge vide the impugned order stayed the implementation of the resolution which was to be adopted in that meeting. 2. Mr. Bhattacharjee, learned Advocate for the Respondent No. 1 has submitted that the order under appeal passed by the learned Single Judge was based on a patent defect as occurring in the notice requisitioning the meeting for removal of the Pradhan. According to Mr. Bhattacharjee, this notice was defective inasmuch as it was in violation of the mandatory requirement of law contained in Section 12 of the West Bengal Panchayat Act, 1973 and since the notice itself was defective, the meeting scheduled for 9th September, 1999 based on this notice also was also illegal and therefore, any resolution moved, passed of adopted in such an illegal meeting based on such a legally defective notice was bad in law. The learned Single Judge, therefore, according to Mr. Bhattacharjee, passed the order under appeal correctly staying the implementation of any such resolution adopted in any such meeting held on 9th September, 1999. 3. Mr. Bhattacharjee also submits that requirement of law as contained in Section 12 of the West Bengal Panchayat Act, 1973 is that a notice requisitioning the meeting for removal of a Pradhan or Upa-Pradhan of a Gram Panchayat must only state the object as removal and nothing more or nothing else, and that if a notice contains any mention that the Pradhan or Upa-Pradhan has lost the confidence of the members and on that basis his removal was being sought, the notice becomes defective and in violation of Section 12 of the Act. Reliance has been placed on two Division Bench judgments of this Court, one in the case of Kitabuddin Seikh vs. Daud Hossain & other, 1995(1) Cal LJ 198, and the other in the case of Royhan & other vs. Chamatkar Malitya & other, 89 CWN 1044. Very strong reliance is also placed on a Single Bench judgment of this Court in the case of Rati Kanta Giri vs. State of West Bengal & other, 98 CWN 989. 4. In so far as the two Division Bench judgments are concerned, we find that in both these judgments, the point involved was that the notice requisitioning the meeting did only mention about the lack of confidence or mentioned no confidence in the Pradhan and on that basis, the meeting was being called; alternatively, in these two judgments, the point to be concerned was with regard to the resolution adopted in the meeting itself which had only expressed no confidence against the Pradhan and had not passed any resolution specifically removing him from the office. None of the points decided in these two judgments therefore is applicable and attracted in our case. 5. The Single Bench judgment however, in the case of Rati Kanta Giri (supra), very strongly relied upon by Mr. Bhattacharjee, clearly deals with the question canvassed by Mr. Bhattacharjee and covers the point involved in the present case. We shall deal with it a little later. 6. The notice dated 16th August, 1999 by which the meeting was called for on 9.9.1999 in Bengali, translated in English, reads as under: – "Notice of Requisitioning Meeting To The respectable Pradhan, Panditpota No. 2, Gram Panchayat, P.O. Amaljhari, P.S. Islampur, District Uttar Dinajpur Sir, We, the undersigned, being the majority of the elected members of Panditpota No. 2, Gram Panchayat do inform you that you as the Pradhan of the Panditpota No. 2, Gram Panchayat has lost the confidence of the majority of the elected members. So, you are requested to convene a special meeting of the Panditpota No. 2, Gram Panchayat within 15 days of the receipt of this letter in which the only agenda would be no confidence on the Pradhan and his removal. Yours faithfully, (1) Bhupen Karmakar (2) Md. So, you are requested to convene a special meeting of the Panditpota No. 2, Gram Panchayat within 15 days of the receipt of this letter in which the only agenda would be no confidence on the Pradhan and his removal. Yours faithfully, (1) Bhupen Karmakar (2) Md. Kubad Alam (3) Jaghmohan Sharma (4) Suresh Sarkar (5) Magna Uraon (6) Resida Khatoon (7) Sakuntala Singh (8) Laxmi Hemram Copy to: The B.D.O., Islampur Date: Place: Panditpota No. 2, Gram Panchayat Office." 7. It is clear from a bare perusal of this notice that the requisitionists, after expressing no confidence in the Pradhan (Respondent No. 1), had requisitioned a meeting specifically for the purpose of his being removed from office. In, the case of Rati Kanta Giri (supra), the learned Single Judge has disapproved of the issuance of such a notice and, with reference to Section 12 of the Act, has held that such a composite notice is not envisaged under Section 12 of the Act and on that ground had quashed the notice in the aforesaid case by holding it to be illegal. 8. After very careful consideration of the entire matter and on giving our very deep thought to the point involved, and on careful perusal of the judgment of the learned Single Judge in Rati Kanta Giri (supra), we feel that the view taken by the learned Single Judge with regard to the interpretation of Section 12 of the Act is not correct. 9. Section 12 of the West Bengal Panchayat Act, 1973 reads thus: – "Subject to the other provisions of this section, a Pradhan or an Upa-Pradhan of a Gram Panchayat may, at any time, be removed from office by a resolution carried by the majority of the existing members referred to in Clause (i) of sub-section (2A) of Section 4 at a meeting specially convened for the purposes. Notice of such meeting shall be given to the prescribed authority. 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, 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. Provided further that no meeting for the removal of the Pradhan or the Upa-Pradhan under this section shall be convened within a period of one year from the date of election of the Pradhan or the Upa-Pradhan. 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." 10. What is clearly discernible from a bare reading of Section 12 is that a Pradhan or a Upa-Pradhan of a Gram Panchayat may be removed from the office by a resolution carried by the majority of the existing members at a meeting specifically convened for this purpose and that notice of such meeting shall be given to the prescribed authority. Section 12 has to be read with Section 16 of the Act. A cumulative reading of these two sections clearly suggests that for removal of a Pradhan from office, adoption of a resolution by the majority of the existing members at a meeting specifically convened for this purpose is a mandatory requirement by law. No Pradhan or Upa-Pradhan can be removed from Office unless this is done. A combined reading of these two sections further suggests that no meeting for removal of the Pradhan shall be held unless notice of such a meeting in the manner prescribed in these two sections is given. The net effect therefore is that this mandatory requirement of law shall be met if a notice stating the object of proposed removal of the Pradhan or Upa-Pradhan is issued given by the requisitionists in accordance with the manner prescribed in Section 12 read with Section 16 of the Act. The net effect therefore is that this mandatory requirement of law shall be met if a notice stating the object of proposed removal of the Pradhan or Upa-Pradhan is issued given by the requisitionists in accordance with the manner prescribed in Section 12 read with Section 16 of the Act. The requirement of the law shall be clearly met if the removal of the Pradhan or Upa-Pradhan is mentioned as an agenda item for consideration and adoption of that meeting. If such a notice stating, over and above the removal as an agenda item, also mentions the fact that the requisitionists have lost the confidence in the Pradhan or Upa-Pradhan, therefore, they are seeking his removal from the office and for the said purpose of removal, a meeting is being called, the notice cannot be termed as defective or in violation of the requirement of law as contemplated in Section 12 read with Section 16 of the Act. In fact, if at all, the reasons for removal either being lack of confidence, or no confidence, or any other factor, would make the notice more comprehensive. By stating this, the members of the Gram Panchayat as well as the office holder sought to be removed shall be informed the reasons for removal so that when the meeting is actually convened, the members have a clear prior notice that they shall discuss the resolution in the light of the facts being mentioned as grounds for such removal as are occurring in the notice. We must hastern to add that we should not be construed as having held that such mentioning of such a ground is a mandatory requirement. We are only staying that if a ground of lack of confidence or no confidence happens to be mentioned in the notice, over and above the fact of removal and the purpose for which the meeting is being called is the removal, the notice is not vitiated. The view taken by the learned Single Judge in the case of Rati Kanta Giri (supra), therefore, does not commend to us to be a good proposition of law and we, accordingly, overrule the same. 11. For what has been stated above, the appeal succeeds and the application for stay is also allowed. The order of the learned Single Judge is set aside. 11. For what has been stated above, the appeal succeeds and the application for stay is also allowed. The order of the learned Single Judge is set aside. We direct that the resolution adopted in the meeting held on 9th September, 1999 be carried out and implemented, with all consequential actions taken by the prescribed authority, all of course being subject to be in accordance with law, rules and regulations. 12. Since nothing else remains to be done in the matter, the learned Advocates for the parties submit and agree that the writ application be also disposed of. 13. We, accordingly, dispose of the appeal, the application for stay and the writ application, but without any order as to costs. Any person feeling aggrieved by the implementation of the resolution shall be at liberty to take appropriate legal steps, permissible under law and if so advised. Let urgent xerox certified copy of this order be given to the learned Advocates for the parties.