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2006 DIGILAW 508 (CAL)

NARU GOPAL CHAKRABORTY v. STATE OF WEST BENGAL

2006-08-14

PATHERYA, V.S.SIRPURKAR

body2006
V. S. SIRPURKAR, C. J. ( 1 ) THE appeal is against the order dated 8th August, 2006 whereby the learned Judge passed an interim order directing status quo in respect of the situation in Debipur Gram Panchayat as regards the continuation of its Prodhan in office. Shortly stated, without going into the controversy the Prodhan was served with a notice for holding a meeting to pass a vote of no-confidence. The case of the appellants is that he was served with a notice dated 22nd February, 2006 and was requested to hold a meeting. Another notice dated 13th March, 2006 was sought to be served on him on 15th march, 2006. He was informed that the meeting was fixed on 21st March, 2006 since he had failed to hold the meeting as per requisition dated 22nd February, 2006. On 17th March, 2006 the Prodhan, Mr. Pradip Saha came before this court by way of a writ petition being W. P. 5865 (W) of 2006. However, this court did not grant the stay and permitted the meeting to go on. ( 2 ) ACCORDINGLY, the meeting was held and it is the case of the appellants that fifteen out of twenty-one members voted in favour of the no-confidence vote. Thus, the no-confidence motion was allegedly passed by the brute majority. This was reported under section 16 by the Observer to the Block development Officer who also passed an order on 29th May, 2006 accepting the passing of the no-confidence motion. However, it seems that the said order dated 29th May, 2006 accepting the passing of the no-confidence motion was recalled by the Block Development Officer at the behest of the opinion expressed by the Government Pleader and he passed the recall order on 7th june, 2006. However, it seems that the said order dated 29th May, 2006 accepting the passing of the no-confidence motion was recalled by the Block Development Officer at the behest of the opinion expressed by the Government Pleader and he passed the recall order on 7th june, 2006. ( 3 ) THAT was challenged by the fifteen Councillors and ultimately the two writ petitions being W. P. No. 5865 (W) of 2006, filed by the Prodhan and w. P. No. 8599 (W) of 2006, filed by the fifteen Councilors came to be disposed of by the learned Judge by his common order dated llth July, 2006 wherein the learned Judge took a view that the said Block Development Officer should decide the whole controversy, firstly, regarding as to whether there was any proper service effected for the purpose of holding the meeting and, secondly, whether the no-confidence motion was properly passed or not. It seems that thereafter, an order was passed by Block Development Officer holding that there was no proper service on Prodhan of the requisition and, therefore, no effect could be given to the resolution passed of no-confidence motion in the meeting dated 22th February, 2006. ( 4 ) IT was against this order that a fresh writ petition was filed wherein the learned Judge has passed the order of status quo. The learned Judge while passing the order has said that if the Court restrained the respondent no. 11 (Prodhan) from functioning as Prodhan in the said Gram Panchayat then by virtue of the interim order the Prodhan would be removed from the office for all practical pruposes, granting the relief which is ultimately claimed in the writ petition. The Court, therefore, refused to pass any interim order, as prayed for by the petitioner in the writ petition and ordered status quo resulting in the continuation of Prodhan in the office. ( 5 ) THE learned Counsel appearing on behalf of the fifteen Councillors pointed out that there was in fact a resolution passed by the majority of fifteen Councillors out of twenty-one Councillors expressing the no-confidence and under such circumstances the learned Judge should have been slow to pass the status quo order and thus to continue the Prodhan in his office against whom there was an expression of no-confidence. The learned Counsel argues that in a democratic process the continuation of the Prodhan should not have been ordered by way of status quo. The learned Counsel on merits expressed that in fact the service of requisition was good service, particularly in view of a Circular issued by the State of West Bengal dated 14th september, 2000 in which it was clarified that the service on the office of the Prodhan would be a good service for any purpose under the Act. The learned Counsel says that at least with this Circular and even as per the reported decision of the learned Single Judge of this Court taking the same view expressed in 2002 (3) CHN 193 (Jasoda Mondal vs. State of West Bengal and Ors.), the matter should not have been left undecided or at least a proper action should have been taken against the Prodhan, at least directing his non-continuation during the pendency of the writ petition. ( 6 ) IT is pointed out by Mr. Ganguly on the other hand that this was merely an interim order and the learned Judge had fixed the matter for final hearing on 18th August, 2006 and, therefore, this Court should not firstly interfere. The learned Counsel also argued on merits that by the earlier order dated 11th July, 2006 the main controversy had ended and the controversy had been narrowed down only to the extent as to whether there was a proper service of the requisition fixing the date of the meeting on 21st march, 2006 and further as to whether there was a proper resolution passed for expressing no-confidence. ( 7 ) MR. Ganguly suggests that some papers have been filed at pages 78 to 84 to establish the presence of the Prodhan in the village on the relevant date. Mr. Ganguly says that those are fraudulent papers and, therefore, he suggests that an opportunity should be given to him to file an affidavit. That is not necessary. If it so pleases, the parties would be free to take action in respect of those papers. However, we make it clear that we have not relied upon those papers for the purpose of passing the present order. That is not necessary. If it so pleases, the parties would be free to take action in respect of those papers. However, we make it clear that we have not relied upon those papers for the purpose of passing the present order. ( 8 ) AFTER hearing both the parties, we are of the clear view that the learned judge should not have directed the status quo, particularly in the wake of the no-confidence motion passed by the vast majority of fifteen against nil. It must be remembered that in a democratic process there is no scope for allowing a person who has lost confidence to continue even for a minute after the resolution had taken place. Be that as it may, even if it is held that there was no good service, that would be decided by the learned Judge in the final hearing and in the meantime the learned Judge could have directed the Upa-Pradhan to look after (the affairs of the Panchayat, but once a no-confidence motion was passed and once it was actually accepted on the basis of the Observer's- report by the Block Development Officer by his order dated 29th May, 2006 the learned Judge should have been slow to pass the status quo order and thus to continue the Prodhan in his office. It is true, undoubtedly that the order dated 29th May, 2006 was recalled but there are absolutely no reasons in that order as to why that order was recalled, excepting that that order was being recalled at the instance of the opinion expressed by the Government Pleader. ( 9 ) WE will not express anything on merits of the matter. However, in our opinion the continuance of a person who has prime facie lost confidence of the House even for a day would not be proper and against the spirit of democracy which our institutions must respect. In that view, we only stay the order of status quo and direct that the Prodhan shall vacate his office. In his absence Upa-Pradhan shall act without taking any major decision or policy decision and would go on with the day-to-day administration of the panchayat. The learned Single Judge is requested to dispose of the matter within four weeks or even earlier, if so possible. In his absence Upa-Pradhan shall act without taking any major decision or policy decision and would go on with the day-to-day administration of the panchayat. The learned Single Judge is requested to dispose of the matter within four weeks or even earlier, if so possible. Our expression in this order should not be viewed to the prejudice or to the advantage of any of the parties. ( 10 ) WITH the above observation, the appeal is disposed of treating it as on day's list. The stay application is closed. Appeal disposed of.