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2000 DIGILAW 28 (CAL)

Sk. Alhamdo v. State of West Bengal

2000-01-17

PRABIR KUMAR SAMANTA

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JUDGMENT Heard the learned Advocates for the respective parties. 2. In presence of the learned Advocates for the parties both the writ petition and the application filed by the private respondents for vacating the interim order are taken up for final disposal. 3. The writ petitioner is the Pradhan of Hizole Gram Panchayat. The respondent Nos. 7 to 24 are the members of the said Gram Panchayat. The respondent Nos. 8 to 11, 15 to 20 and 24 are the members who called for a requisition meeting of the aforesaid Gram Panchayat for the purpose of removal of the writ petitioner. The writ petitioner having failed to convene a meeting within the prescribed period on the requisition of the said respondents, the aforesaid respondents called for a meeting dated 13.9.99 under second proviso to Section 16 of the West Bengal Panchayat Act, 1973 (hereinafter called as the said Act). The said notice of the requisition meeting was challenged by the writ petitioner in an earlier writ petition. Because of an administrative order dated 10.9.99 issued by the Sub-Divisional Officer, Kandi under his Memo No. 1226 (5) dated 10.9.99 postponing all 110 confidence motions till 15.10.99 in view of the parliamentary election in 1999, the said requisitioned meeting was not held on the said date. The earlier writ petition accordingly became infructuous and consequently the writ petitioner withdrew the same. 4. The aforesaid private respondents subsequently issued the notice of intimation dated 8.10.99 to the prescribed authority fixing 25th October, 1999 as the date for such requisition meeting. The said respondents also issued notice dated 13.10.99 to the members of the Gram Panchayat including the writ petitioner/Pradhan intimating the aforesaid date of the meeting for the purpose of the removal of the Pradhan/writ petitioner. The aforesaid notices have been challenged in the present writ petition. 5. It is not in dispute that initially the Pradhan/writ petitioner failed to convene' a meeting on the basis of the requisition made by the aforesaid private respondents for the purpose of removal of the Pradhan. It is also not in dispute that the requisition meeting which was fixed on 13.9.99 at the behest of the requisitionists was not held on the date so fixed. As it appears the said requisition meeting dated 13.9.99 was not held because of the administrative order issued by the concerned Sub-Divisional Officer. It is also not in dispute that the requisition meeting which was fixed on 13.9.99 at the behest of the requisitionists was not held on the date so fixed. As it appears the said requisition meeting dated 13.9.99 was not held because of the administrative order issued by the concerned Sub-Divisional Officer. The impugned requisition meeting dated 25.10.99 as called by the aforesaid requisitionists was obviously pursuant to the provisions of second proviso to Section 16 of the said Act inasmuch as the same had the foundation of not convening a meeting by the Pradhan on the requisition made by the aforesaid private respondents as stated hereinbefore. There is no controversy as to the fact that the impugned notice was not issued by the requisitionists by requiring afresh the Pradhan in writing to call such a meeting under second proviso to Section 16 of the said Act. 6. In view of the aforesaid facts and circumstances, two points were raised by the writ petitioner in support of this writ petition. Firstly, as the said requisitioned meeting dated 13.9.99 was not held on the said appointed date, the aforesaid private respondents were not authorized to call for a second meeting for the self-same purpose within a period of six months from 13th September, 1999 inasmuch as the third proviso to Section 12 of the said Act created a bar in this regard. Secondly, as the requisitioned meeting dated 13.9.99 fixed by the requisitionists themselves was not held that again because of the administrative reason as aforesaid so the private respondents were under obligation to make a fresh requisition in writing to the Pradhan to call such a meeting under second proviso to Section 16 of the said Act and they were not competent to call such meeting by themselves. 7. To deal with the said first point it is necessary to consider both Section 12 and Section 16 of the aforesaid Act in it's proper perspective. The sections read as under :- Section 12. Removal of Pradhan and Upa-Pradhan. 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 purpose. Removal of Pradhan and Upa-Pradhan. 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 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. 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 on other meeting shall be convened for the removal of the same office bearer within six months from the date appointed for such meeting. Section 16. Meeting of Gram Panchayat :- (1) Every Gram Panchayat shall held a meeting at least once in a month (in the office of the Gram Panchayat. Section 16. Meeting of Gram Panchayat :- (1) Every Gram Panchayat shall held 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 proceeding meeting) Provided that the first meeting of a newly constituted Gram Panchayat shall be held (on such date and at 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 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. (Provided also that for the purposes of convening a meeting under Section 12, at least one third of the members referred to in Clause (i) of sub-section (2A) of Section 4, subject to a minimum of three members, shall require the Pradhan to convene the meeting). (The prescribed authority may appoint an observer for such meeting who shall submit to the prescribed authority a report in writing duly signed by him within a week of the meeting on the proceedings of the meeting. The prescribed authority shall, on receipt of the report, take action thereon as it may deem fit). (Provided also that if the Gram Panchayat does not fix at any meeting the date and the hour of the next meeting or if any meeting of the Gram Panchayat is not held on the date and the hour fixed at the immediately preceding meeting, the Pradhan shall call a meeting of the Gram Panchayat on such date and at such hour as he thinks fit). (2) The Pradhan or in his absence the Upa-Pradhan shall preside at the meeting of the Gram Panchayat and in the absence of both for on the refusal of any or both to preside at a meeting, the members present shall elect one of them to be the President of the meeting (3) One third of the total number of members subject to a quorum for a meeting of a Gram Panchayat : Provided that no quorum shall be necessary for an adjourned meeting, (4) All questions coming before a Gram Panchayat shall be decided by a majority of votes: Provided that in case of equality of votes the person presiding shall have a second or casting vote: (Provided further in case of a requisitioned meeting for the removal of a Pradhan or an Upa-Pradhan under Section 12, the person presiding shall have no second or casting vote). Thus, the third proviso to Section 12 and second proviso to Section 16 are the relevant provisions for the present purpose. 8. Section 12 deals with the cases for revomal of Pradhan and Upa-Pradhan of a Gram" Panchayat by the majority of Gram Panchayat members in a meeting of a Gram Panchayat. Section 16 lays down the procedure for calling such a meeting by the members of a Gram Panchayat. 9. Bare reading of second proviso to Section 16 gives a clear indication that the members of a Gram Panchayat subject to a minimum of three members are entitled to require the Pradhan in writing to convene a meeting of the Gram Panchayat. In the event of the failure of the Pradhan to convene such a meeting within 15 days from the date of receipt of such requisition in writing the members them selves would be entitled to call a meeting within 35 days from the date of making such requisition to the Pradhan of the Gram Panchayat. Thus, once a requisition is made in writing to the Pradhan and in spite of such requisition the Pradhan failed to convene a meeting within the time prescribed pursuant to such requisition then the power to call such meeting comes to the hands of the requisitionists and no longer remains within the power of the Pradhan of a Gram Panchayat. There cannot be any doubt whatsoever in this regard. 10. There cannot be any doubt whatsoever in this regard. 10. In this context second and third provisos to Section 12 are very important and relevant. Because second proviso creates a bar for convening a meeting for removal of Pradhan and Upa-Pradhan of a Gram Panchayat within a period of one year from the date of election of the Pradhan or .the Upa-Pradhan. Third proviso further lays down that if a meeting requisitioned by the members as aforesaid of a Gram Panchayat for the purpose of removal of an office bearer is not held of if held but no resolution is passed for removal of such office bearer then no further meeting shall be allowed to be convened for the purpose of removal of such office bearer within six months from the date appointed for such meeting. The above second proviso to Section 12 obviously has the incidence of a reqnisitioned meeting for removal of Pradhan and/or Upa-Pradhan. Because Section 13 provides for election of Pradhan an Upa-Pradhan as the case may be upon it's removal under Section 12 of the said Act. These two provisos therefore postulates two sets of stipulations in relation to a requisitioned meeting for removal of Pradhan and Upa-Pradhan. Those are that if in a requisitioned meeting a Pradhan or Upa-Pradhan is removed and consequently such office bearer is elected in the prescribed manner in a Gram Panchayat then no further meeting shall be allowed to beheld within a period of one year from the date of such election; and in case no requisitioned, meeting is held for the purpose of removal of such office bearer even after it was fixed at the instance of requisitionists or if held no resolution is passed for removal of such office bearer then no further meeting shall be allowed to be held for a period of six months from the date appointed for such meeting for removal of such office bearer. The legislature has, therefore, in it's wisdom prescribed two different time periods for two different sets of circumstances. These two time periods accordingly have bearing on the functioning of a Gram Panchayat by it's office bearers without frequent interruptions. The legislature has, therefore, in it's wisdom prescribed two different time periods for two different sets of circumstances. These two time periods accordingly have bearing on the functioning of a Gram Panchayat by it's office bearers without frequent interruptions. According to the wisdom of the legislature if a new office bearer is elected by the majority members of a Gram Panchayat in a meeting upon removal of the erstwhile office bearer then he should have at least one year time period from the date of his election to function as such. Similarly, under third proviso to Section 12 if a requisitioned meeting though fixed at the instance of the requisitionists is not held by the requisitionists themselves or in such a meeting no resolution could be passed by the majority of members present for removal of such office bearer then it will not be permissible to hold such meeting again 'within a period of six months from the date appointed for such meeting. Such office bearer should have at least six months time to continue as such. Otherwise, it will not be possible for a Gram Panchayat to perform its duties and exercise its power under the statute faithfully and diligently and the same will turn into a circus ring of a toppling game. Third proviso to Section 12 of the said Act, therefore, has the necessary ingredients of some commissions and omissions on the part of the requisitionists for not holding the meeting on the appointed date or of the mandate of the majority members of the Gram Panchayat in such a meeting if held, But such an embargo to hold such requisitioned meeting within the stipulated period of six months as per the third proviso to Section 12 cannot be put in a case where neither the requisitionists committed and/or omitted something resulting in a non-holding of such requisitioned meeting on the date fixed nor where it is still to be proved that the majority members of the Gram Panchayat are not in favour of removal of the office bearer in question. 11. 11. Again second proviso to Section 16 prescribes an outer time limit of 35 days for calling a requisitioned meeting in the manner prescribed therein by the requisitionists themselves in the event of the failure of a Pradhan to call such a meeting within the prescribed periods on the requisition made in writing by such members as stipulated therein of a Gram Panchayat. This time limit of 35 days on the part of the requisitionists should on the reasoning as above be flexible under the circumstances beyond control of the requisitionists. The said time limit cannot be construed to be absolutely inflexible even in cases of force majure or where the said time limit was not maintained not because of any commission and/or omission on the part of the requisitionists themselves. Otherwise, it will be open to an office bearer of a Gram Panchayat to frustrate all attempts to call for a requisitioned meeting of his removal by the requisitionists themselves by instituting litigations in a Court of law or by putting hindrance to the holding of such a meeting within the aforesaid period of 35 days. I, therefore, hold that holding of such a meeting shall in all normal circumstances should be within 35 days but in the circumstances beyond control of the requisitionists the same could be held after the prescribed period of 35 days. 12. If this be the position in law then it cannot be contended that whenever there is no meeting on the date fixed by the requisitionists themselves, there cannot be any further meeting for the self-same purpose within a period of six months from the appointed date of such meeting. On the same reasoning the second proposition on behalf of the writ petitioner/Pradhan must fail. If a requisitioned meeting is not held not because of any commission and omission on the part of the requisitionists, then it should not be treated as not held as per the third proviso to Section 12 of the Act. It would be in the eye of law as if a requisitioned meeting is yet to be convened by the requisitionists after the Pradhan failed to convene such a meeting on the requisition made to him. Therefore, it would also not be necessary to make a fresh requisition in writing to the Pradhan to convene such a meeting. 13. It would be in the eye of law as if a requisitioned meeting is yet to be convened by the requisitionists after the Pradhan failed to convene such a meeting on the requisition made to him. Therefore, it would also not be necessary to make a fresh requisition in writing to the Pradhan to convene such a meeting. 13. In the case in hand the requisitionists issued the notice fixing 13.9.99 as the date for holding the meeting. The local administration, in view of the Parliamentary Election of the year 1999, by an administrative order suspended all no confidence motions of all Gram Panchayats within the State for the period as above which covered the date appointed for such meeting by the requisitionists. The meeting in question was, therefore, not held as the same was beyond the control of the requisitionists. It is not the case that the requisitionists themselves failed to hold the meeting or that such meeting was not held because of the fear and apprehension that the resolution might not pass through or that the requisitionists adopted a dilatory tactics of deferring the said meeting to gain momentum to the issue for removal of the Pradhan. The facts as above clearly indicate that though the requisitions were determined and/ or desirous of holding the meeting on the date fixed but they were not allowed to do so because of the administrative reasons as above. It is also clear that the notice of the requisitioned meeting was soon issued and the date was appointed for such meeting soon after the ban is lifted. In the aforesaid facts and circumstances, the meeting was not held not because of the requisitionists themselves but as held hereinbefore because of the reasons beyond their control. Accordingly, I am of the opinion that third proviso to Section 12 of the said Act should not be made applicable in a situation like the present one. 14. The above administrative order cannot be said to be unreasonable and/or arbitrary nor was it contended as such. Therefore, non-holding of the meeting by the requisitionists was beyond their control and as such, the period of 35 days as prescribed in the second proviso to Section 16 of the said Act cannot be made applicable in the facts and circumstances of the present case. Therefore, non-holding of the meeting by the requisitionists was beyond their control and as such, the period of 35 days as prescribed in the second proviso to Section 16 of the said Act cannot be made applicable in the facts and circumstances of the present case. I am, therefore, of the opinion that in the facts and circumstances as above, the respondents requisitionists were not under any obligation whatsoever to require the Pradhan in writing to call a meeting for the purpose of his removal before issuing the impugned notice fixing the date of such meeting by themselves. 15. In all these views the contentions put forward by the petitioner as above must fail. The writ petition accordingly fails. The same is, therefore, dismissed and all interim orders shall stand vacated. There will, however, no order as to costs. If urgent xerox certified copies of this order is applied for by the parties, the same should be given as expeditiously as possible.