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2008 DIGILAW 1039 (CAL)

Pradhan, Kalabani Gram Panchayat v. Pramila Mandi

2008-12-02

MANIK MOHAN SARKAR, PRATAP KUMAR RAY

body2008
JUDGMENT: RAY, J. (1). Heard the learned Advocates appearing for the parties. (2). Challenging the judgment and order dated 8th April, 2008 passed by the learned trial Judge in W.P. No.16177 (W) of 2007 this appeal has been preferred by the respondents of the writ application. (3). By the impugned judgment under appeal, the learned trial Judge disposed of the writ application directing that so long there would be no resolution in the Panchayat meeting in terms of the Government Order No.21755/Cell-VI/Panch/l)-2/81 dated 15th June, 1981 there would not be any change of site and office of the Gram Panchayat. The said Government Order as relied upon by the learned trial Judge was relating to construction of permanent Panchayat ghar under a scheme. The writ petitioners challenged the notice convening a meeting fixing the venue at new Panchayat office at Kalabani being the notice dated 26th June, 2007 annexed at page 48 of the paper book. It was the case of the writ petitioners who are five in number out of total thirteen members of the Gram Panchayat (one member died) that out of total eleven members present in the meeting dated 15th June, 2007 by a majority decision that is 6:5, it was resolved to shift to shift the Panchayat office/ghar from Talabani to Kalabani. The writ petitioners opposed such resolution taken in the meeting. Along with those five writ petitioners who objected about such change of Panchayat office/ ghar, another member, Smt. Pratima Mahato joined in the writ application. In the reply of opposition it was contended that there was no agenda in the notice convening the meeting about change of Panchayat ghar/office. It was the further contention that the writ petitioner, Smt. Pratima Mahato was absent on the particular date that is on 15th June, 2007 when the resolution was taken for such change. She was served with a notice whereby there was no such agenda for discussion of change of Panchayat ghar/office. The notice dated 7th June, 2007 also has been annexed at page 91 of the paper book. (4). On a bare reading of the said notice it appears that under agenda No. 2 the only point mentioned "for a discussion of development work". The notice dated 7th June, 2007 also has been annexed at page 91 of the paper book. (4). On a bare reading of the said notice it appears that under agenda No. 2 the only point mentioned "for a discussion of development work". But in the meeting dated 15th June, 2007 in terms of the said notice dated 7th June, 2007, agenda was mentioned as "discussion and taking resolution for development work as well as discussion about change of Panchayat office/ghar". It is the contention of the writ petitioners/appellants that the resolution dated 15th June, 2007 was bad in law so far as change of Panchayat office was concerned as it was directly contrary to the provision of statute, namely, West Bengal Panchayat Act, 1973 which provides that the list of business as to be transacted should be sent to each member of Gram Panchayat in the prescribed manner at least seven days before the time fixed for such meeting and no business should be brought before or transacted at any meeting, other than the business of which notice has been issued. It is the further contention that for change/ shift of Panchayat ghar a formal resolution of 2/3rd majority of the total number of existing members should be adopted in terms of the Government Order dated 15th June, 1981. But admittedly it was not done. Considering that the learned trial Judge allowed the writ application and passed the order directing that so long there would be no resolution taken by 2/3rd majority of the total number of existing members, the Panchayat ghar/ office should not be changed. The learned trial Judge relied upon the said Government Order dated 15th June, 1981 which was, a substitution of Paragraph-6 of earlier Government Order dated 4th November, 1975. The original Government Order dated 4th November, 1975 and the substitution as made by the Government Order dated 15th June, 1981 read such:-"Scheme for construction of Panchayat Ghars during the Fifth Plan period. Enclosure to Government order No. 17772/Panch/IG-5/74, 4.11.1975 (1) An Anchal Panchayat should by a registered deed obtain at least two Kathas of land for construction of office building of Anchal Panchayat. (2) The minimum plinth area of the building should be 600 sq. ft. (3) The buildings should have pucca plinth, brick walls with sand and cement plaster and the roofs should be of tiles (not Kholas) or corrugated sheets. (2) The minimum plinth area of the building should be 600 sq. ft. (3) The buildings should have pucca plinth, brick walls with sand and cement plaster and the roofs should be of tiles (not Kholas) or corrugated sheets. (4) The building should contain a meeting hall, an office, room and a verandah.The office room will be used for the Anchal Panchayat Office and the meeting hall for holding meetings and Panchayats Courts. (5) An Anchal Panchayat should bear two-thirds of the cost of construction of the building. One-third of the cost will be paid by Government to the Anchal Panchayat as grant. The total cost of construction of the building (excluding the value of the land) should not ordinarily exceed Rs.21,000/- (Rupees twenty-one thousand). An Anchal Panchayat may, however, spend a larger amount on the construction, but the matching grant from Government will not exceed Rs.7,000/-(Rupees seven thousand) only. (6) The Anchal Panehayat should by a formal resolution select the site and allocate its own contribution for the construction. If several alternative sites are available or if there is a dispute, a selection committee consisting of the Sub-Divisional Officer as Chairman, and the District Engineer-Zilla Parishad, District Panchayat Officer, Block Development Officer and the Prodhan as members will make a final selection of the site. (7) The building plan should be approved by the Zilla Parishad and the construction should be done under the direct control and supervision of the Anchal Panchayats. If necessary, the services of the Sub-Assistant Engineers posted at the Blocks should be utilised by the Anchal Panchayat to check up the work of construction of the building. (8) The building will be property of the Anchal Panchayat and the same should not be utilised for any purpose other than that for which the same will be constructed. The building should not be let out, leased, sold or transferred to any way within the meaning of the Transfer of Property Act, without the sanction of the State Government. (9) The administrative Department will make lump allotment as and when necessary within the budget provision to the Director of Papchayats, West Bengal, for reallotment to the District Panchayat Officer. The building should not be let out, leased, sold or transferred to any way within the meaning of the Transfer of Property Act, without the sanction of the State Government. (9) The administrative Department will make lump allotment as and when necessary within the budget provision to the Director of Papchayats, West Bengal, for reallotment to the District Panchayat Officer. The District Panchayat Officer will draw and disburse the grant to the Anchal Panchayat on obtaining a report from the Panchayat Extension Officer countersigned by the Block Development Officer to the effect that the Anchal Panchayat has incurred expenditure to the extent of 75 per cent of the estimated cost of construction of the "Ghar" (excluding the value of land), the construction is satisfactory and in accordance with the specifications laid down and that the remaining work of construction is likely to be completed with the admissible grant from the Government. (10) The District Panchayat Officer will obtain a completion certificate regarding construction of the building and also a certificate showing utilisation of the Government grant for the purpose for which the same was sanctioned from the Anchal Panchayat. The District Panchayat Officer will forward to the Director of Panchayats with a copy to the administrative Department two separate consolidated statements showing the completion certificate and utilization certificate in respect of all the Anchal Panchayats within the District which received the grant from Government for construction of the Panchayat Ghars", "No. 21755/Cell-IV/Panch/IP-2/81 15.6.81. From: Shri N.R. Haider, I.A.S. Joint Secretary to the Government of West Bengal. To: The Director of Panchayats, West Bengal. Sub: Scheme for construction of Panchayat Ghars. Sir, I am directed by order of the Governor to refer to the Annexure to G. O. No. 17772-Panch/1 G-3/74 dated 4.11.75 sanctioning the Scheme for construction of Panchayat Ghars and to say that the Governor is pleased hereby to order that Para 6 (six) of the said Annexure shall be substituted as follows:-"6. The Gram Panchayat should, by a formal resolution carried by two-third majority of the total number of existing members, select the site and allocate its own contribution for the construction of the office building." 2. This order issues with the concurrence of the Finance Department vide their u/o. No. Group-B, 256 dated 10.6.81. Yours faithfully, Sd/-N.R. Haider Joint Secretary to the Government of West Bengal." (5). This order issues with the concurrence of the Finance Department vide their u/o. No. Group-B, 256 dated 10.6.81. Yours faithfully, Sd/-N.R. Haider Joint Secretary to the Government of West Bengal." (5). It is the contention of the appellant before us that the said Government Order relied upon by the learned trial Judge is applicable with reference to the scheme for construction of Panchayat ghar during the fifth plan period and the same had no applicability in the instant case. It is the further contention that under Section 16 (4) of the said Panchayat Act any question and/or any decision is required to be decided by majority votes only, which was followed to shift the Panchayat ghar. (6). This appeal has been opposed by the respondents/writ petitioners by contending, inter alia, that resolution to shift the Panchayat ghar/office was a resolution on breach of Section 17 of the said Act as in the notice communicating the list of business as was scheduled to be transacted in the meeting dated 15th June, 2007 there was no agenda on "discussion on change of Panchayat ghar/office" and, as such, the absentee member, Smt. Pratima Mahato could not express her views in the meeting when such decision was taken by 6:5 votes. (7). It is the case of the appellant that in the original writ application there was no challenge of the resolution dated 15th June, 2007. But the challenge was a notice wherein the venue of the meeting was fixed at changed office of Panchayat. (8). Having regard to the contention of the parties, the only point is required to be considered as to whether the resolution dated 15th June, 2007 wherein a decision was taken to shift the Panchayat office was a decision in accordance with law. To consider that issue it appears that though in the writ application there was no whisper about the legality and validity of shifting of Panchayat ghar as taken in the meeting of 15th June, 2007 but in the reply a positive point was taken that no notice was served communicating the agenda of shifting of Panchayat office. (9). Having regard to such, we have to consider that point. It is a settled legal position that the points as are taken in the writ application, in the opposition as well as in the reply all are required to be considered by this Court. (9). Having regard to such, we have to consider that point. It is a settled legal position that the points as are taken in the writ application, in the opposition as well as in the reply all are required to be considered by this Court. Reliance is placed to the judgment passed in the case reported in AIR 1965 SC 1578 (judgment of 4 Judges Bench). In the instant case, in para 15 of affidavit-in-reply filed before learned Trial Court, a point was taken that as there was no agenda for discussion of shifting of Panchayat ghar in the notice of meeting dated 7th June, 2007, the resolution as taken in the meeting held on 15th June, 2007 was not legally sustainable. So, we are considering that point under the anvil of Section 17 of Panchayat Act. (10). Section 17 of the said Panchayat Act 1973 reads such:-"17. List of business to be transacted at a meeting.-A list of the business to be transacted at every meeting of the Gram Panchayat except at an adjourned meeting shall be sent to each members of the Gram Panchayat in the manner prescribed at last seven days before the time fixed for such meeting and no business shall be brought before or transacted at any meeting, other than the business of which notice has been so given, except with the approval of the majority of the members present at such meeting. Provided that if the Pradhan thinks that a situation has arisen for which an emergent meeting of the Gram Panchayat should be called, he may call such meeting after giving three days notice to the members: Provided further that not more than one matter shall be included in the list of business to be transacted at such meeting". (11). In Paragraph-10 of the affidavit-in-opposition on behalf of the writ petitioners against the application for vacating the interim order filed by the respondents as affirmed on 20th March, 2008 and in the affidavit- in-reply of the main opposition affirmed on 10th January, 2008 at Paragraph-9 a categorical point was taken that no agenda for shifting of Gram Panchayat office was included in the notice of the meeting as served on 7th June, 2007. Paragraph-9 of the affidavit-in-reply reads such:-"9. Paragraph-9 of the affidavit-in-reply reads such:-"9. That with reference to the statements made in Paragraph-4 (g) of the said opposition, I say that in the meeting dated 15.6.2007, there was no agenda regarding the shifting of the office of the said Gram Panchayat to the Panchayat building at Kalabani Mouja. That in the notice, there was no such agenda but after words when the Pradhan and his associates saw that one of the petitioners namely Pratima Mahato was absent in the said meeting, they forcefully added the sad agenda and took the decision in the absence of all the members of the Gram Panchayat as otherwise they cannot get the majority support of the members of the said Gram Panchayat. That it is further stated that shifting of the Panchayat office as alleged in the said paragraph was not a unanimous decision by 12 members. On the contrary, it is the decision of only 6 members including the respondent No.5 and the petitioners have raised their objection but the agenda was passed in 6:5 votes. Save and except what are stated hereinbefore, I deny and dispute each and every allegation made in Paragraph-4(g) of the said opposition". (12). On a bare reading of Section 17 of the said Act it appears that it is a mandatory provision by incorporating imperative word at the beginning of the sentence "no" so far as restriction of transaction of any business as are not in the agenda. The language used in the statute reads such:- "No business shall be brought before or transacted at any meeting, other than the business of which notice has been so given, except with the approval of the majority of the members present at such meeting". (13). When the statute provides the word "no" at the beginning of the sentence and it starts with negative word, the provision becomes a mandatory irrespective of the fact that consequence of breach has not been prescribed in the statute. In the case Mannalal Khatun v. Kedarnath Khatun and Ors., reported in AIR 1977 SC 536 , a-judgment of 3-Judges Bench, the Apex Court expressed the views on such issue by holding "negative, prohibitory and exclusive words are indicative of the legislative intent when the statute is mandatory. Negative words are clearly prohibitory and are ordinarily issued as a legislative device to make a statutory provision imperative. Negative words are clearly prohibitory and are ordinarily issued as a legislative device to make a statutory provision imperative. Non-compliance of provision, even if not provides any offence, the provision under such test cannot be said as a directory". In the present statue concerned under Section 17 of the Panchayat Act, 1973 there is negative word by identifying the position that no business could be transacted unless there was a notice to that effect. Even by exception clause as mentioned in the statute that by approval of majority members present in a meeting the agenda not included in the notice could be considered, has no factual foundation with material in the decision as taken in the meeting on 15th June, 2007 to save it. On perusal of the resolution it appears that the said meeting proceeded with the idea that it was included in the agenda under Agenda No. 2, which was actually not the real state of affairs. In the meeting there was no approval of the majority members present in the meeting to consider the issue of shifting Gram Panchayat office before discussing the agenda which was not in the notice dated 7th June, 2007. Hence, we are of the view that the mandatory provision under Section 17, was violated and the meeting dated 15th June, 2007 was on breach of Section 17 of the Panchayat Act, 1973. It is a settled legal position that when a mandatory provision is violated/breached, it goes to the root of jurisdiction field and vitiates the entire proceeding. Reliance may be placed in the case 2003 (6) SCC 359 under the cause title (Union of India v. Shibendra Vikram Singh). Due to breach of mandatory provision; accordingly the decision as taken to shift the Panchayat office was a nullity in the eye of law. (14). Reliance may be placed in the case 2003 (6) SCC 359 under the cause title (Union of India v. Shibendra Vikram Singh). Due to breach of mandatory provision; accordingly the decision as taken to shift the Panchayat office was a nullity in the eye of law. (14). Having regard to our finding and observation, we are of the view that there is no necessity for adjudication of this case to discuss the effect of Government Order dated 4th November, 1975 read with Government Order dated 15th June, 1981 on the score whether it is limited under a scheme at a pre-construction stage and not applicable in the post- construction decision or the question whether it is directly on breach of Section 16 (4) of the West Bengal Panchayat Act, 1973 which provides that a decision by majority members only and not by 2/3rd members prescribed in the Government Order dated 15th June, 1981. (15). Hence, the resolution dated 15th June, 2007 so far as the shifting ; of Panchayat office and the notice dated 26th June, 2007 convening meeting of Panchayat members in a new place at Kalabani, both stand set aside and quashed. (16). The writ application is allowed. (17). The finding of learned trial Judge and direction stands modified in terms of our findings and observations above. (18). The appeal stands disposed of accordingly. (19). The application being A.S.T.A. No.43 of 2008 also stands disposed of in view of our aforesaid findings and observations. All interim orders stand vacated.