Research › Search › Judgment

Calcutta High Court · body

2005 DIGILAW 410 (CAL)

MANGAL BURMAN v. STATE OF WEST BENGAL

2005-06-30

JYOTIRMAY BHATTACHARYA

body2005
Jyotirmay Bhattacharya ( 1 ) THE validity of the notice for requisitioned meeting of the Gram panchayat by the requisitionists member for transaction of the business on the agenda regarding removal of Pradhan of No. 5 Bangalbari Gram panchayat vide annexure 'p-7' to this writ petition, is under challenge in this writ petition at the instance of the Pradhan of the said Gram Panchayat. ( 2 ) TEN elected members of the said Gram Panchayat out of 19 members, by their letter dated 8th March, 2005 being annexure 'p-1' to this writ petition, requested the Pradhan of the said Gram Panchayat to convene a requisition meeting for consideration of the agenda regarding removal of pradhan of the said Gram Panchayat within 15 days from the date of receipt of the said notice. The said notice was received by the Pradhan of the concerned Gram Panchayat on 14th March, 2005. ( 3 ) ON receipt of the said notice, the Pradhan of the said Gram panchayat convened a meeting to be held at the office of the concerned gram Panchayat on 29th March, 2005 at 2 p. m. The notice for holding the said meeting on the appointed date was given to the prescribed authority vide letter under reference No. 117/1 (20) 05 dated 21 st March, 2005. Notices were also served upon the members of the said Gram Panchayat by registered post with acknowledgment due intimating them about the schedule, venue and agenda of the said meeting. ( 4 ) ON receipt of the said notice, the prescribed authority by his letter dated 24th March, 2005 intimated the Pradhan of the said Gram panchayat that the meeting which was convened by the Pradhan of the said panchayat is illegal, as the appointed date for holding such meeting was not fixed within 15 days for the date of receiving the notice from the requisitionists whereby the Pradhan was requested to convene such a meeting. ( 5 ) THE Pradhan of the said Gram Panchayat by his letter dated 24th March, 2005 intimated the prescribed authority that since the meeting was convened by the Pradhan fixing the date for holding such meeting on 29th March, 2005 which is within 15 days from the date of receipt of the request from the requsitionists, there was no illegality in calling the said meeting by the Pradhan. ( 6 ) HOWEVER, ultimately the meeting was held as per the schedule on 29th March, 2005 when the said motion was rejected by the majority of the members of the said Gram Panchayat who casted votes in favour of the pradhan by reposing their confidence in the Pradhan. Accordingly, a resolution was adopted in the said meeting. ( 7 ) SUBSEQUENTLY, the requisitionists, viz. , the said ten elected members of the said Gram Panchayat convened a meeting to be held on 8th April, 2005 at 11 a. m. at the office of the said Gram Panchayat on the ground that since the Pradhan did not convene any meeting in the manner in which he was required to call the said meeting under the said Act, a meeting was convened by the requisitionists themselves for transacting the very same business on the agenda regarding removal of Pradhan. ( 8 ) THE validity of the said notice is under challenge in this writ petition on the ground that the said meeting was convened by the requisitionists in violation of the provision as contained in the third proviso to Section 12 of the West Bengal Panchayat Act, 1973. ( 9 ) MR. Gangully, learned Advocate, appearing for the petitioner, submitted that the third proviso to Section 12 of the said Act specifically provides that if, at a meeting convened under the said 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 ) MR. Ganguly further submitted that pursuant to the request made by the requisitionists, meeting was convened by the Pradhan in terms of the provision as contained in Section 16 of the said Act and in fact the meeting was held for the said purpose as per the schedule and a resolution was passed against the motion by the majority of the members. ( 11 ) MR. Ganguly contended that in view of the said resolution adopted by the majority of the members in the said meeting, no further meeting can be convened for removal of the said Pradhan within six months from the date when the said meeting was held. Mr. ( 11 ) MR. Ganguly contended that in view of the said resolution adopted by the majority of the members in the said meeting, no further meeting can be convened for removal of the said Pradhan within six months from the date when the said meeting was held. Mr. Ganguly further contended that even assuming that no such meeting was held on the said date, i. e. , on 29th march, 2005, as alleged by the respondents, still then no further meeting can be held for the said purpose within six months from the date appointed for such meeting in terms of the third proviso of Section 12 of the said Act which prohibits convening of such meeting within six months from the date appointed for holding last of such meeting even if such meeting, in fact, was not held on the said date. ( 12 ) ACCORDINGLY, Mr. Ganguly submitted that the impugned notice being annexure 'p-7' to this writ petition which was issued by the requisitionists is illegal and as such, Mr. Ganguly prayed for quashing of the said impugned notice. ( 13 ) MR. Malay Basu, learned Senior Advocate, appearing for the respondent Nos. 7 to 16, submitted that since no meeting was convened by the Pradhan for the said purpose within 15 days from the receipt of such request from the requisitionists, there was no illegality on the part of the requisitionists for convening the said meeting by the impugned notice which was issued by the requisitionists after the expiry of the statutory period within which the Pradhan was required to convene the meeting for the said purpose in terms of the second proviso to the Section 16 of the said Act. ( 14 ) MR. Basu further submitted that the prescribed authority also did not approve the legality of the calling of the meeting by the Pradhan, as the said meeting was convened by the Pradhan by fixing a date for holding such meeting beyond the statutory period as prescribed under Section 16 thereof. By referring to the notice dated 22nd March, 2005 issued by the pradhan of the said Gram Panchayat being annexure 'p-1' to the application for vacating interim order, Mr. By referring to the notice dated 22nd March, 2005 issued by the pradhan of the said Gram Panchayat being annexure 'p-1' to the application for vacating interim order, Mr. Basu submitted that the said notice is absolutely illegal as it appears from the said notice that the date of holding such meeting which was fixed on 1st April, 2005 was beyond 15 days from the date of receipt of the request from the requisitionists. ( 15 ) BY referring to the notice issued by the Pradhan being annexure 'r-3' to the affidavit-in-opposition filed by the State-respondents and the reply thereto by the prescribed authority being annexure 'r'1' to the said affidavit, Mr. Basu submitted that the Pradhan did to convene any valid meeting in terms of Section 16 of the said Act. Mr. Basu further submitted that the issuance of the notice by the Pradhan on 22nd March, 2005 cannot be denied by the Pradhan at this stage, as the Pradhan did not deny the issuance of the said notice even in his reply to the notice issued by the prescribed authority on 24th March, 2005 wherein reference of the notice issued by the Pradhan on 22nd March, 2005 was given. ( 16 ) THUS, Mr. Basu contended that there was no illegality in issuing the impugned notice by which the meeting was convened by the requisitionists for the said purpose. ( 17 ) MRS. Mutsuddi, learned Advocate, appearing for the State respondents, in fact, adopted the submission of Mr. Basu and supported the contention of the respondents with regard to the validity and legality of the impugned notice. ( 18 ) MR. Ganguly seriously challenged the genuineness of the notice allegedly issued by the Pradhan on 22nd March, 2005 being annexure 'r-3' to the said affidavit-in-opposition. Mr. Ganguly on instruction from his client who was present in Court seriously disputed the genuineness of the signature of his client which is appearing in annexure 'r-3' to the affidavit-in-opposition. Mr. Ganguly contended that the said notice was never issued by his client. ( 19 ) MR. Ganguly further contended that the notice dated 21st March, 2005 by which intimation was given to the prescribed authority for holding such meeting on 29th March, 2005, was issued by the Pradhan under his signature. By drawing my attention to the signature of the Pradhan appearing in the said notice, Mr. ( 19 ) MR. Ganguly further contended that the notice dated 21st March, 2005 by which intimation was given to the prescribed authority for holding such meeting on 29th March, 2005, was issued by the Pradhan under his signature. By drawing my attention to the signature of the Pradhan appearing in the said notice, Mr. Ganguly tried to impress upon this Court that the admitted signature of the Pradhan appearing in the said notice does not bear any similarity with the disputed signature of the Pradhan appearing at annexure 'r-3' to the affidavit-in-opposition. ( 20 ) THUS, Mr. Ganguly by disowning the genuineness of the signature of the Pradhan appearing in annexure 'r-3' to the affidavit-in-opposition reiterated that the calling of the meeting by the Pradhan vide his notice dated 21st March, 2005, being legal and valid, no further meeting could have been convened by the requisitionists, even if it appears that no meeting was held on 29th March, 2005. ( 21 ) HEARD the learned Advocates of the parties. Considered the materials on record. ( 22 ) IT is true that the fate of this writ petition to some extent is dependent upon the decision on the dispute regarding the genuineness of the notice issued by the Pradhan on 22nd March, 2005 being annexure 'r-3' to the affidavit-in-opposition filed by the State. If it is ultimately found that the said notice was issued by the Pradhan, then this Court has no other alternative but to hold that the Pradhan did not convene the meeting to be held within 15 days from the date of receipt of the request from the requisitionists in this regard. On the contrary, if it is found that the said notice was not issued by the Pradhan, then the Court will have to rely upon the notice issued by the Pradhan on 21 st March, 2005 which was admittedly received by the prescribed authority as per their averment made in the affidavit-in-opposition. Thus, if the notice dated 21st March is to be relied upon, then of course this Court will have to draw its conclusion that the pradhan convened the meeting on a day which was within 15 days from the date of receipt of the request from the requisitionists. Thus, if the notice dated 21st March is to be relied upon, then of course this Court will have to draw its conclusion that the pradhan convened the meeting on a day which was within 15 days from the date of receipt of the request from the requisitionists. ( 23 ) CURIOUSLY enough to note that though some of the requisitionists accepted the service of the notice issued by the Pradhan by signing on the acknowledgment card, but still then the said requisitionists, viz. , the respondent Nos. 7 to 16 did not produce the notice which they received, before this Court to substantiate their contention that the notice which they received was in fact issued by the Pradhan on 22nd March, 2005 and not on 21st March, 2005. ( 24 ) LET me now consider the legal effect of both the said notices one by one in the facts of the present case. ( 25 ) EVEN assuming that the notice dated 21st March, 2005 is the only notice which was issued by the Pradhan as claimed by the petitioner, still then can such notice be held as valid within the purview of Section 16 of the said Act ? ( 26 ) LET me consider the validity of the said notice dated 21 st March, 2005 within the scope of the second proviso to Section 16 of the said Act as, in my view, that is the most relevant consideration for deciding the dispute involved in this writ petition. ( 27 ) THE second proviso to Section 16 of the said Act provides that the Pradhan when is required in writing by 1/3rd of the members of the gram Panchayat subject to a minimum of 3 members to call a meeting shall do so by fixing the date and hour of the meeting to be held within 15 days after giving intimation to the prescribed authority and by giving 7 days' notice to the members of the Gram Panchayat. ( 28 ) IN my view, in order to hold that the meeting was validly convened by the Pradhan, the following three conditions must be satisfied :-Firstly, the Pradhan when required in writing by 1/3rd of the members of the Gram Panchayat subject to minimum of three members to call a meeting shall do so fixing the date and hour of the meeting to be held within 15 days form the date of receipt of the request from the requisitionists. Secondly, intimation regarding calling of the said meeting should be given to the prescribed authority. Thirdly, 7 days' notice should be given to the members of the Gram panchayat intimating them about the calling of the said meeting. ( 29 ) THIS being the requirement of the said proviso, this Court will have to examine as to whether the said requirements could be satisfied by the Pradhan in the process of calling the said meeting. ( 30 ) IT is apparent from the writ petition itself that the notice intimating the date of holding the said meeting did not reach at least two of the members of the said Panchayat before the appointed date of holding such meeting. It appears from the acknowledgment cards appearing at page 43 of the writ petition that two of the members of the said Gram Panchayat, viz. , Anisur rahaman and Nurul Islam received the said notices on 1st April, 2005 and 31st March, 2005 respectively. The acknowledgment cards which were annexed to the writ petition show that even the other members of the said gram Panchayat received the notice either on 26th March, 2005 or on 28th march, 2005. The registration slips also show that the notices were posted with the postal authority either on 24th March, 2005 or on 26th March, 2005 or on 28th March, 2005. ( 31 ) THUS, admittedly 7 days' notice as contemplated in the said proviso was not served upon the members of the said Gram Panchayat. It is, however, true that though the service of 7 days' notice upon the members is not mandatory, but sufficient notice in advance of the appointed date for holding such meeting should be given to the members. Purpose of service of notice is to give reasonable opportunity to the members so that they can represent themselves in the meeting. It is, however, true that though the service of 7 days' notice upon the members is not mandatory, but sufficient notice in advance of the appointed date for holding such meeting should be given to the members. Purpose of service of notice is to give reasonable opportunity to the members so that they can represent themselves in the meeting. Thus, non-service of notice at least upon two of the members of the said Gram Panchayat before the appointed date certainly compels the Court to arrive at the conclusion that the meeting was not called by the Pradhan in the manner in which he was required to call the meeting in terms of the second proviso to Section 16 of the said Act. ( 32 ) NON-FULFILMENT of any of the three conditions will invalidate the calling of the meeting. Here in the instant case, I have indicated above that 7 days' notice has not been served upon the members of the Gram panchayat. Though it is true that this Court in the case of Asraf Ali Mondal v. The Block Development Officer and Ors. , reported in (1992)2 Cal HN 229 has held that service of 7 days' notice is not mandatory and as such, the calling of the meeting cannot be invalidated for non-service of clear 7 days' notice, but still then the calling of the meeting cannot be held to be valid unless all the members of the said Gram Panchayat were served with sufficient notice prior to the date appointed for holding such meeting. This condition undoubtedly remains unsatisfied in the present case. As such, this Court holds that the calling of the meeting by the Pradhan even by the notice dated 21st March, 2005, was not legal and valid for the reasons, as aforesaid. ( 33 ) AGAIN looking at the notice dated 22nd March, 2005 allegedly issued by the Pradhan, this Court also holds that the said notice is also illegal as it appears from the said notice that the appointed date for holding such meeting was fixed beyond 15 days after the receipt of the request in this regard from the requisitionists by the Pradhan. ( 34 ) ACCORDINGLY, I hold that none of the said notices can satisfy the conditions for calling a valid meeting within the scope of Section 16 of the said Act. ( 34 ) ACCORDINGLY, I hold that none of the said notices can satisfy the conditions for calling a valid meeting within the scope of Section 16 of the said Act. ( 35 ) THUS, if the calling of the meeting by the Pradhan is held to be not in conformity with the provision as contained in the second proviso to section 16 of the said Act, the restriction on calling the meeting by the requisitionists within six months from the date appointed for holding such meeting as contemplated in the third proviso to Section 12 of the said Act does not come into operation. ( 36 ) IN the aforesaid facts and circumstances, I find no illegality in calling the meeting by the requisitionists by the impugned notice being annexure 'p-7' to this writ petition as the requisitionists called the said meeting after the Pradhan failed to call any meeting in the manner in which he was required to call in terms of the second proviso to Section 16 of the said Act. ( 37 ) BEFORE parting with, I must mention that in view of the decision of this Hon'ble Court in the case of Sk. Alhamdo v. State of West Bengal, reported in (2000) 2 Cal LJ 3 : 2000 WBLR (Cal) 261, the 35 days' time limit as provided in the second proviso to Section 16 of the said Act cannot be construed to be absolutely inflexible even in case of force majure or where the said time limit could not be maintained not because of any commission or omission on the part of the requisitionists themselves, this Court permits the requisitionists to hold a meeting for the said purpose within a period of three weeks from date, as admittedly the said meeting could not be held within the said time limit because of the interim order passed by this Court on 6th April, 2005. ( 38 ) ACCORDINGLY, I do not find any merit in this application, the writ petition thus stands rejected. ( 39 ) THERE will be, however, no order as to costs.