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2004 DIGILAW 537 (CAL)

ASHA LATA BARMAN v. STATE OF WEST BENGAL

2004-08-11

GIRISH CHANDRA GUPTA

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GIRISH CHANDRA GUPTA, J. ( 1 ) A requisition dated 23rd July, 2004 signed by 9 out of 17 members of the panchayat was served upon the pradhan asking her to convene a meeting for her removal on the ground that she had lost confidence of the members, challenging the aforesaid requisition the present writ petition has been filed for a declaration that the said requisition dated 23rd July, 2004 is non est in the eye of law; for a consequential order quashing the same. ( 2 ) MR. Sikdar, learned Advocate appearing in support of this writ petition made the following submissions:- (a) A combined notice of no-confidence and removal is not permissible under Section 12 of the West Bengal Panchayat Act, 1973. ( 3 ) IN support of his submission he relied on a judgment of this Court in the case of Ratikanta Giri v. State of West Bengal and Others reported in 98 Calwn 989 : (b) It was submitted that the judgment cited by him is binding on this Court and in support of this proposition he cited another judgment of the Apex Court in the case of Vrajlal Ratilal v. Shah Balu Ben, reported in 2001 (5) SCC 179. ( 4 ) MR. Mondal, learned Advocate appearing for the private respondents submitted that Section 12 has no manner of application. It was a notice issued by 9 out of 17 members under Section 16 of the West Bengal Panchayat Act. The Pradhan is obliged to convene a meeting and in case she fails to do so, the members themselves can convene a meeting as perthe provisions of Section 16. He submitted that the question of removal will be decided at the meeting and then the law will take its own course. ( 5 ) AFTER hearing the learned Advocates this Court is of the view that the first submission advanced by the learned Counsel appearing for the petitioner is not well founded. Neither Section 12 nor Section 16 of the West Bengal Panchayat act (hereinafter referred to as the said Act) contains any provision that a combined notice cannot be issued. There is no indication whatsoever in either of the aforesaid two sections that there cannot be two agendas in one meeting. Neither Section 12 nor Section 16 of the West Bengal Panchayat act (hereinafter referred to as the said Act) contains any provision that a combined notice cannot be issued. There is no indication whatsoever in either of the aforesaid two sections that there cannot be two agendas in one meeting. Such an interpretation is also not permissible regard being had to Section 17 of the said act and the rules and forms made thereunder pursuant to Section 224. Section 17 contemplates two types of meeting, ordinary and emergent. In the case of an ordinary meeting a clear 7 days notice is required whereas in the case of an emergent meeting a 3 days notice is required. Rule 4 of the W. B. Panchayad (Gram Panchayat Administration) Rules, 1981 (hereinafter referred to as the said Rules) provide for preparation of the list of business and Rule 5 provides for length of notice for an ordinary and emergent meeting as also the forms of such notices i. e. Form 1 and 1a respectively. Form 1 suggests that there can be more than one agenda in an ordinary meeting. But in the case of an emergent meeting one can say that Form No. 1a suggests that there can be only one agenda. ( 6 ) A requisition for convening a meeting for removal of the Prodhan contemplates issuance of a 7 days notice under the second and the third proviso of Section 16 (1) of the said Act. Therefore a meeting for removal of the Prodha n is treated to be an ordinary meeting. There is therefore no reason to think that there cannot be more than one agenda in such a meeting. ( 7 ) MOREOVER the requisition issued by the private respondents contains only one agenda that is removal of the Prodhan. "no-Confidence" is according to the requisitionists the reason for removal and not itself an agenda. ( 8 ) IT is true that in the case of Ratikanta Giri an identical question was urged on behalf of the petitioners therein. In that case what was held by this court was that no confidence and removal are two different concepts. I am in respectful agreement with the view expressed therein. No-Confidence and removal are certainly two different concepts which would also be evident from Article 164 of the Constitution which provides as follows:-"164. In that case what was held by this court was that no confidence and removal are two different concepts. I am in respectful agreement with the view expressed therein. No-Confidence and removal are certainly two different concepts which would also be evident from Article 164 of the Constitution which provides as follows:-"164. Other provisions as to Ministers: (1)The Chief Minister shall be appointed by the Government and the other Minister shall be appointed by the Governor on the advice of the chief Minister, and the Ministers shall hold office during the pleasure of the Governor. Provided that in the States of Bihar, Madhya Pradesh and Orissa, there shall be a Minister-in-Charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classed or any other work. (2) The Counsel Minister shall be collectively responsible to the legislative Assembly of the State. (3) Before Ministers enters upon his office, the Governor shall administer to him the oaths of office and secrecy according to the forms set out for the purpose in the Third Schedule. (4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister. (5) The salaries and allowances of Ministers shall be such as the legislature of the State may from time to time by law determine and, until the Legislature of the State so determines, shall be as specified in the second Schedule. " ( 9 ) THE Council of Ministers hold office during the pleasure of the Governor and a vote of No-Confidence has nothing to do in the matter. However following the convention of the parliamentary democracy, as soon as a vote of No- confidence is passed and a resolution is carried, the Council of Ministers shall resign on their own. That is the tradition which has held the filed in this country as also in the U. K. Whether the resignation will be accepted by the Constitutional head, whether the Ministry will be removed from office, is however, a different matter and that is in the discretion of the Constitutional Head. That is the tradition which has held the filed in this country as also in the U. K. Whether the resignation will be accepted by the Constitutional head, whether the Ministry will be removed from office, is however, a different matter and that is in the discretion of the Constitutional Head. In spite of there being a resolution of No-Confidence, the Counnil of Ministers can be directed by the Constitutional Head to carry on until an alternative is found ortill such time as the Constitutional Head may decide. In the case of U. N. R. Rao v. Smt. Indira gandhi reported in AIR 1971 SC 1002 it was contended that the Council of ministers had no right to remain in office after the House had been dissolved. This contention was negatived. In Paragraph 9 of the judgment their Lordships observed". . . . under Article 75 (2) they hold office during the pleasure of the president. The President has not said that it is his pleasure that the respondents shall not hokl office. " It is, thus self evident that No-Confidence and removal are two different things. They are by no means synonymous. ( 10 ) AS I already have indicated hereinabove that the Council of Ministers following the parliamentary convention on their own as a matter of practice put in their resignation as and when a motion of No-Confidence is carried. But, in the present case the situation is the opposite. The petitioner knowing that she is unable to defeat a motion of No-Confidence has come up before this Court challenging the requisition itself so that a meeting can be avoided. The object to say the least is most undemocratic. ( 11 ) IN the case of Ratikanta Gin this Court did not decide that a combined notice for No-Confidence and removal cannot be issued. It is, however, true that a notice requesting the Prodhan to call a meeting for removal on the ground that he had lost confidence was quashed. It was, however, quashed on concession made by the learned Advocate appearing for the State-respondents. The Court has not given any finding with regard to the question of law raised in that matter. ( 12 ) THE learned Counsel for the petitioner submitted that I should also follow the order passed in that case and pass an identical order. It was, however, quashed on concession made by the learned Advocate appearing for the State-respondents. The Court has not given any finding with regard to the question of law raised in that matter. ( 12 ) THE learned Counsel for the petitioner submitted that I should also follow the order passed in that case and pass an identical order. I am unable to do so because here there is no concession. ( 13 ) THE second submission made on behalf of the petitioner is equally without any merit. That the Court is bound by a judgment of Co-ordinate Bench is a well settled proposition of law. What has been missed by the learned Counsel is the fact that what binds the Court is the ratio of the judgment and not the order which is passed in the peculiar facts of that case. In Ratikanta's case this Court did not lay down the law that a notice asking the Prodhan to convene a meeting for removal of the Prodhan on the ground that he has lost confidence is not permissible under Section 12 or 16 of the W. B. Panchayat Act, 1973. Therefore, there is nothing which binds me. The judgment of the Supreme Court cited by the learned Counsel for the petitioner has not laid down any lawto the contrary. Their Lordships of the Apex Court quoted the view expressed by a learned Single judge of the Gujarat High Court and disapproved the same. The view expressed by the learned Single Judge was as follows:-"learned Counsel for the petitionerthen submitted that if I am inclined to take a different view in the matter, this revision may be referred to a larger Bench. This request is rejected as I consider this unnecessary. " ( 14 ) THE question of taking a different view will arise provided a view has been taken. In the case of Ratikanta no view was taken by this Court and the orderwas passed on concession as would appearfrom Paragraph 6 of the judgment reported in 98 Calwn 989. ( 15 ) REFERENCE in this regard can also be made to the case of Director of settlements A. P. v. Mr. In the case of Ratikanta no view was taken by this Court and the orderwas passed on concession as would appearfrom Paragraph 6 of the judgment reported in 98 Calwn 989. ( 15 ) REFERENCE in this regard can also be made to the case of Director of settlements A. P. v. Mr. Apparao reported in 2002 (4) SCC 638 Paragraph 7 wherein Their Lordship laid down the law as follows:-"the statements of the Court on matter other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the question before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has declared law it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. " ( 16 ) BOTH the submissions made by the learned Counsel for the petitioner have thus failed. The petition is, therefore, dismissed. There shall, however, be no order as to costs. ( 17 ) LET affidavit of service filed by the petitioner be kept on record. Urgent xerox certified copy of the order, if applied for, be supplied expeditiously.