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2007 DIGILAW 524 (CAL)

Samsuddin Hossain v. Jakir Hossain

2007-07-16

S.P.TALUKDAR

body2007
Judgment :- (1.) THE petitioner Samsuddin Hossain, as plaintiff filed a suit, being O.S. No. 59/2006 in the learned Court of Civil Judge (Jr. Divn.). Jangipur, Murshidabad. (2.) THE backdrop of the said case may briefly be stated as follows. (3.) NIMTITA Gram Panchayat opposite party No. 13, is a Gram Panchayat, constituted under the West Bengal Gram Panchayat Act. It was reconstituted in May 2003 with 21 members of whom, one Rustam Ali expired without anyone being re-elected in his place. The said Rustam Ali was elected Pradhan and after his death, the plaintiff was elected as Pradhan on 27th August, 2005. Out of envy and political rivalry, defendant Nos. 2 to 12 being led by defendant No. 1 issued a notice asking the plaintiff to convene a meeting within 15 days to discuss about no confidence and for adopting resolution thereto (4.) THE said notice was not served upon the plaintiff. It was followed by a further notice dated 26.9.2006 which was served upon the plaintiff whereby he was informed that defendant Nos. 1 to 12 wanted to hold a meeting on 4.10.2006 for the purpose of removal of the plaintiff from the post of the pradhan of the said Gram Panchayat. He filed a suit being O.S No. 57/2006 before the learned 2nd Court of Civil Judge (Jr. Divn.), Jangipur, challenging the legality and validity of the notices dated 5.9.2006 and 26.9.2006 whereby he was asked to convene a meeting. (5.) LEARNED Court by order dated 27.9.2006 granted injunction restraining the defendants in the said suit from holding a meeting for removal of the plaintiff from the post of Pradhan, Nimtita Gram Panchayat on 4.10.2006 or on any other dated till 19.10.2006. (6.) DEFENDANTS in the said suit appeared on 19.10.2006 and filed an application praying for passing decree in favourof the plaintiff on admission. They did not oppose continuation of the injunction order passed on 27.9.2006, which was again extended till 1.11.2006 and fixed the said date for hearing of the defendants application. (7.) IT could be learnt that the defendants were contemplating to remove the plaintiff from the post of the Pradhan of the Gram Panchayat and with that intention issued notice to the plaintiff requiring him to convene a meeting for his removal. (7.) IT could be learnt that the defendants were contemplating to remove the plaintiff from the post of the Pradhan of the Gram Panchayat and with that intention issued notice to the plaintiff requiring him to convene a meeting for his removal. (8.) APART from the fact that the injunction order was in force, Section 12 of the West Bengal Gram Panchayat Act does not permit convening any meeting for removal of any office bearer within six moths from the date appointed for the meeting earlier convened. (9.) IN such circumstances, plaintiff filed the instant suit being O. S. No. 59/2006 praying for a declaration that the said notice dated 20th October, 2006 is illegal, invalid as well as for other reliefs. (10.) AN application under Order 39 Rules 1 and 2 read with Section 151 of the C.P. Code was then filed. Defendants contested the same by filing written objection. It was specifically claimed that the subject-matter of the earlier suit, being notice dated 5. 9. 2006 and dated 26.9.2006, was found to be not in accordance with law and as such, no meeting was held in pursuance to the said notices. Subsequently, defendant Nos. 1 to 12 unitedly sent notice dated 20th October, 2006 for removal of the Pradhan. (11.) IN response to such application, defendant Nos. 1 and 2 filed a written objection denying, inter alia, the material allegations made by the plaintiff in the suit. It was specifically claimed that since the earlier notices dated 5.9.2006 and 26.9.2006 were subsequently found to be strictly not in accordance with law, no meeting in pursuance to the same was held. It was further claimed that the order passed by the learned Court in connection with 0. S. No. 57 of 2006 relates to notices dated 5.9.2006 and 26.9.2006 and any order passed in the said suit does not bind any other notice, it was further claimed that the said application for injunction was not maintainable and prayer was made for dismissal of the same. (12.) LEARNED Trial Court by order dated 13.11.2006 dismissed the application praying for temporary injunction. Being aggrieved by such judgment and order of dismissal, the plaintiff, as appellant, preferred a miscellaneous appeal. An application for injunction was filed in connection with the said appeal being Misc. Appeal No. 8 of 2006. (12.) LEARNED Trial Court by order dated 13.11.2006 dismissed the application praying for temporary injunction. Being aggrieved by such judgment and order of dismissal, the plaintiff, as appellant, preferred a miscellaneous appeal. An application for injunction was filed in connection with the said appeal being Misc. Appeal No. 8 of 2006. Learned Appellate Court by order dated 15.11.2006 rejected the said application for injunction with costs. (13.) BEING aggrieved by the said order passed by the learned Trial court as well as by the learned Appellate Court, the plaintiff, as petitioner, approached this Court with an application under Article 227 of the Constitution. (14.) MR. Milon Chandra Bhattacharjee, appearing as learned Counsel for the petitioner, at the very outset, submitted that both the learned Courts below failed to appreciate the matter in its proper perspective. He submitted that Section 12 of the West Bengal Panchayat Act could not be properly appreciated by the said learned Courts. (15.) SECTION 12 of the West Bengal Panchayat Act, 1973 reads as follows:-"a Pradhan or an Upa-Pradhan of a Gram Panchayat may, at any time, be removed from the office by a resolution of the Grarn panchayat carried by the majority of the existing members of the Gram panchayat at a meeting specially convened for the purpose. Notice of such meeting shall be given to the prescribed authority. Provided. . . . . . . . . . . . . . . . . . Provided. . . . . . . . . . . . . . . . . . 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 of appointed for such meeting. " (16.) MR. Bhattacharjee on behalf of the petitioner thus submitted that since no meeting could be held nor any resolution removing an office bearer was adopted, there was no scope for convening any other meeting for removal of such office bearer within six months from the date appointed for such meeting. " (16.) MR. Bhattacharjee on behalf of the petitioner thus submitted that since no meeting could be held nor any resolution removing an office bearer was adopted, there was no scope for convening any other meeting for removal of such office bearer within six months from the date appointed for such meeting. (17.) IT appears from the materials available on record, as annexed to the present application that 12 persons claiming to be the members of the nimtita Gram Panchayat by notice dated 5.9.2006, addressed to the present petitioner expressed their dissatisfaction in his functioning as a Pradhan of the said Gram Panchayat. They requested him to convene a meeting within 15 days of receipt of the said notice. This was followed by the notice dated 26th September, 2006. This was in the context of the petitioners failure to respond to the earlier notice dated 5.9.2006. By the subsequent notice date 26.9.2006, the petitioner was informed by those 12 members of the Panchayat being majority members in a Panchayat comprising of 21 members (with one having subsequently expired) that a meeting would be held on 4.10.2006. The agenda was indicated in the said notice itself and it related to removal of the petitioner from the post of Pradhan. (18.) SUBSEQUENTLY, an application was filed before the learned Court in connection with earlier suit being O.S. No. 57/2006 stating therein that since both the said notices dated 5.9.2006 and 26.9.2006 were not strictly in accordance with law, the meeting which was scheduled to be held on 4.10.2006, was declared as cancelled. (19.) THE second phase of the intra committee struggle started with the issuance of the notice dated 20th October, 2006 whereby the petitioner was again asked to convene a meeting within 16 days of receipt of the said notice. (20.) THE subject-matter of the said notice was indicated therein. This was followed by the notice dated 7.11.2006 by which a meeting was virtually scheduled to be held on 16.11.2006. (21.) THE agenda was discussion on removal of the petitioner from the post of Pradhan of Nimtita Gram Panchayat and taking decision on that. (22.) THE petitioner rushed to the Civil Court once again with the grievances, as ventilated earlier. This was followed by the notice dated 7.11.2006 by which a meeting was virtually scheduled to be held on 16.11.2006. (21.) THE agenda was discussion on removal of the petitioner from the post of Pradhan of Nimtita Gram Panchayat and taking decision on that. (22.) THE petitioner rushed to the Civil Court once again with the grievances, as ventilated earlier. (23.) IT was submitted on behalf of the petitioner that the third proviso of section 12 of the West Bengal Panchayat Act clearly stands in the way of conducting a fresh meeting in the manner as was attempted by the defendants. This aspect was taken into consideration by the learned Trial court. The learned Court took the view that the third proviso of Section 12 cannot be put in a case where neither the requisitionists committed and/or omitted something resulting in the non-holding of such requisitioned meeting on the date fixed nor whether it is still to be proved that the majority members of G.P. are not in favour of removal of the office bearer in question. (24.) ACCORDING to learned Trial Court, if such a meeting could not be held due to circumstances beyond control of the requisitionists, the third proviso of Section 12 of the W.B. Panchayat Act will not be attracted. Learned trial Court was not, inclined to hold that the notice date 20th October, 2006 is not hit by the third proviso of Section 12 of the West Bengal Gram panchayat act. (25.) IT appears that the learned Appellate Court while rejecting the application for injunction filed before it and finding that the petitioner has a good prima facie case was swayed by the fact that 12 elected Gram panchayat Members out of 20 were not supporting the petitioner. In such circumstances, the learned Appellate Court was of the view that the balance of convenience is not in favour of the petitioner seeking injunction. (26.) MR. Bhattacharjee, as learned Counsel for the petitioner, referred to the Division Bench judgment of this Court in the case of Raghunath Manna and Anr. v. State of West Bengal and Ors., reported in 2001 (1) Cal. LJ 647, in support of his contention that if one meeting is called on the basis of the notice of requisitionists, no such meeting can be held before expiry of six months. Deriving inspiration from the decision in the case of Aleya Sk. v. State of West Bengal and Ors., reported in 2001 (1) Cal. LJ 647, in support of his contention that if one meeting is called on the basis of the notice of requisitionists, no such meeting can be held before expiry of six months. Deriving inspiration from the decision in the case of Aleya Sk. v. The State of West Bengal and Ors., reported in 2003 (1) Cal. LJ 677, Mr. Bhattacharjee contended that calling of the second meeting for the same purpose within a period of six months from the date of first meeting is not permissible under the West Bengal Gram Panchayat Act, (27.) IN this context, attention of the Court was further invited to the decision of the learned Single Bench of this Court in the case of Dilip bhattacharya v. State of West Bengal and Ors. , reported in 1996 (2) Cal. LJ 188. The relevant observation of the learned Single Bench in the said case may be set out as follows:-"on a plain reading of the amended provisions of the third proviso to Section 12 of the aforesaid Act, it appears that the object of such amendment is to prevent repeated meetings of the Gram Panchayat for removal of the Pradhan and Upa-Pradhan. In order to give a harmonious construction to such amendment, it must be held that it could not have been the intention of the legislative to include meetings for the aforesaid purpose which could not be held because of circumstances beyond the control of the concerned parties, as in the instant case. " (28.) IT was further observed that the amended provisions of the third proviso to Section 12 of the Act, will have to be applied in normal circumstances where there is no element of feree majeure involved. (29.) ON the other hand, Mr. Bhattacharjee, appearing as learned Counsel for the opposite parties, sought to place reliance upon the Division Bench judgment of this Court in the case of Mustakim Hossain v. The State of west Bengal and Ors., reported in 1997 (II) CHN 180 , while contending that the words at any time employed in Section 12 of the West Bengal Gram panchayatact, 1973 should receive a wider connotation. The learned Division bench in the said case was of the view that the proviso has no independent existence in absence of the main section and the said proviso cannot be read in derogation of the main section. It was thus observed that a harmonious construction, therefore, should be made keeping in view only the preamble of the statute but the objects and reasons thereof. (30.) IN the facts and circumstances of the present case, there is no doubt that the petitioner, as plaintiff rushed to a Civil Court challenging the notice whereby a meeting for his removal was called. There was an order of injunction in the said case in favour of the present petitioner. But subsequently, the defendants in the said suit approached the learned Court and practically washed their hands of. While doing so, they virtually admitted that the two notices, which were under challenge were strictly not in accordance with law. Such a reaction on the part of the defendants by no stretch of imagination could be brought within the scope and ambit of a circumstance beyond their control. (31.) LEARNED Trial Court, in fact, proceeded in a manner which incidentally widened the scope of circumstances beyond control to virtually an impermissible extent. As regards the order passed by the learned Appellate court in connection with the Miscellaneous Appeal in response to an application under Order 39 Rules 1 and 2 read with Section 151 of C.P. Code it can be said that there had been failure to consider the matter in its proper perspective and it proceeded in a manner which cannot have any support in the eyes of law. (32.) IN such circumstances, I am unable to brush aside the grievances, as ventilated on behalf of the petitioner, in this case. This Court is of the considered opinion that the subsequent meeting having been called before expiry of the period of six months from the appointed day of the first meeting, it was hit by the proviso in Section 12 of the West Bengal Gram Panchayat act. Thus, the orders impugned are set aside. The present application being C.O. No. 4326 of 2006 is allowed. (33.) SINCE the date, which was scheduled for holding the meeting in response to the notice date 7.11.2006, has also expired, it is open to the parties to take necessary action in accordance with law. Thus, the orders impugned are set aside. The present application being C.O. No. 4326 of 2006 is allowed. (33.) SINCE the date, which was scheduled for holding the meeting in response to the notice date 7.11.2006, has also expired, it is open to the parties to take necessary action in accordance with law. (34.) IT may, however, be mentioned that the learned Trial Court may proceed in accordance with law without being influenced by any observation made hereinbefore. There is no order as to costs.