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2008 DIGILAW 379 (CAL)

Jadu Hemram v. Goutam Chakraborty

2008-04-08

MANIK MOHAN SARKAR, PRATAP KUMAR RAY

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JUDGMENT: PRATAP KUMAR RAY, J. (1) HEARD the learned Advocates appearing for the parties. (2) THE application for condonation of delay, being CAN. 9267 of 2005, is allowed and the delay stands condoned. (3) CHALLENGING the order dated 8th August, 2005 passed in the writ petition, being W.P. 15142 (W) of 2005, this appeal has been preferred. While hearing of the stay application, by our order dated 18th February, 2005 we decided to dispose of the writ application also along with this appeal as the entire matter rests on the interpretation of the statutory provision. Hence, writ application, appeal and stay application all are taken up for final hearing. (4) BY the impugned order under appeal, the learned Trial Judge restrained the effect of removal decision of some members of the Sthayee samity of the Zilla Parishad concerned on the ground that in the Act, that is, west Bengal Panchayet Act there is no such provision for removal and as such any member of Sthayee Samity could not be removed during tenure as fixed by statute. In adjudicating the issue we have to consider the relevant provision of the law in the field. This appeal has been opposed by the writ petitioner/respondent herein. (5) UNDER Section 171 of the West Bengal Panchayet Act, 1973 in a zilla Parishad there are different Sthayee Samitis as are constituted in the manner as laid down thereto. Sthayee Samity is constituted with some elected members in terms of subsection (2) (b) of Section 171 and by some ex-officio members as stipulated thereto. In the instant case we are concerned with the removal of elected members who became the members of the Sthayee Samity by majority votes of the members of the Zilla Parishad in terms of sub-section (2) (b) of Section 171 of the said Act. The relevant provision of Section 171 (2) (b) of the said Act reads such. "171. Sthayee Samiti.- (2) A Sthayee Samiti shall consist of the following members, namely ;-- (b) without prejudice to the provisions in clause (ba) not less than three and not more than five persons to be elected in the prescribed manner by the members of the Zilla Parishad from among themselves. "171. Sthayee Samiti.- (2) A Sthayee Samiti shall consist of the following members, namely ;-- (b) without prejudice to the provisions in clause (ba) not less than three and not more than five persons to be elected in the prescribed manner by the members of the Zilla Parishad from among themselves. (6) SUCH elected members tenure also has been fixed under sub-section (4) of Section 171 for a period of five years with a rider that the said period could be shortened in the event any member cease to be a member of the Zilla Parishad. In sub-section (7) of section 171 it is provided about removal of the members of a Sthayee Samiti and thereby for filling up the casual vacancy by providing a clause that the State Government will make rules about such removal of the members. (7) THE relevant provision of sub-section (4) and sub-section (7) of section 171 of the said Act reads such. " 171. Sthayee Samiti.- (4) An elected member of a Sthayee Samiti shall hold office for a period of five years or for so long as he continues to be a member of the zilla Parishad, whichever is earlier. (7) The State Government may make rules providing for the removal of members of a Sthayee Samiti including the Karmadhyaksha and for filling up of casual vacancy. " (8) HAVING regard to such provisions, it appears that the members of sthayee Samiti who are elected by the majority decision of the members of the Zillla Parishad get their entry to act as member of the Sthayee Samiti due to the majority decision of the members of the Zilla Parishad. The statute accordingly has provided provision for removal in sub-section (7) by providing scope to make rules by the State Government. Such rule has been framed in sub-rule (6) of Rule 17 of the West Bengal Panchayat (Constitution) Rules, 1975 which reads such. "17. (6) A member of a Sthayee Samiti of a Panchayat Samiti or (Mahakuma parishad or a Zilla Parishad) may, at any time, be removed from office by a resolution of the Panchayat Samiti (the Mahakuma Parishad or the zilla Parishad,) as the case may be, carried by the majority of the existing members of the Panchayat Samiti (the Mahakuma Parisahd or the Zilla parishad,) as the case may be, at a meeting specially convened for the purpose. Notice for such meeting shall be given to the Sub-divisional officer for removal of a member of a Strayee Samity of a Panchayat samiti and to the District Magistrate for removal of a member of a Sthayee samiti of (Mhakuma Parishad or a Zilla Parishad.)" (9) ON a bare reading of the said rule it appears that the elected member of a Sthayee Samity as well as non elected members subject to certain exception thereto about removal of Sabhadhipati etc., could be removed by a majority decision of the existing members of the Zilla Parishad. Procedural law prescribes convening of a meeting specially for that purpose and to serve notice for such meeting to the District Magistrate for removal of a member of sthayee Samiti of a Zilla Parishad. The procedure of meeting as to be convened by the Zilla Parishad is also stipulated in Section 150 of the West Bengal panchayat Act, 1973 which provides that Sabhadhipati is required to convene a meeting on requisition if is filed by the requisitionists, failing which the requisitionists themselves will convene a meeting in terms of second proviso of Section 150 of the said Act. (10) SECTION 150 (1) of the said Act reads such. " 150. Meetings of Zilla Parishad.-(1) Every Zilla Parishad shall hold a meeting in its office at least once in every three months on such date and at such hour as the Zilla Parishad may fix at the immediately preceding meeting : provided that the first meeting of a newly-constituted Zilla Parishad shall be held at such time and at such place within the local limits of the district concerned, as the prescribed authority may fix : provided further that the Sabhadhipati when required in writing by one-fifth of the members of the Zilla Parishad to call a meeting (shall do so fixing the date and hour of the meeting (to be held) within fifteen days after giving intimation to the prescribed authority and seven days notice to the members of the Zilla Parishad) failing which the members aforesaid may call a meeting (to be held) (within thirty-five days) after giving intimation to the prescribed authority and seven clear days notice to the Sabhadhipati and the other members of the Zilla Parishad. Such meeting shall be held at such place (in the office of the Zilla Parishad on such date and at such hour) as the members calling the meeting may decide. (The prescribed authority may appoint an observer for such meeting who shall submit to the prescribed authority a report in writing duly signed by him within a week of the meeting on the proceedings of the meeting. The prescribed authority shall, on receipt of the report, take such action thereon as it may deem fit) : provided also that for the purpose of convening a meeting under section 146, at least one-fifth of the members referred to in clause (ii) of sub-section (2) of section 140 shall require the Sabhadhipati to convene the meeting : provided also that if the Zilla Parishad does not fix at any meeting the date and hour of its next meeting or if any meeting is not held on the date and hour fixed at the immediately preceding meeting, the sabhadhipati shall call a meeting of Zilla Parishad on such date and at such hour as he thinks fit. " (11) FOLLOWING the procedural law and the substantive provision of the law, the majority members of the Zilla Parishad by a requisition meeting as specially convened with due notice to the District Magistrate removed the elected members of Sthayee Samiti by the majority decision. The learned trial judge in the writ application passed the interim order not to give any effect of the said decision which is under challenge in this appeal before us. In the writ application the only point has been taken that there was no scope to remove any elected member of Sthayee Samiti in view of statutory tenure of five years in terms of sub-section (4) of Section 171 of the West Bengal Panchayet Act, 1973. The learned trial Judge accordingly passed the interim order considering that aspect. We are afraid to interpret the law in that angle as has been done by the learned Trial Judge. The learned trial Judge accordingly passed the interim order considering that aspect. We are afraid to interpret the law in that angle as has been done by the learned Trial Judge. It appears from sub-section (4) of Section 171 of the said Act, as quoted above, that an elected member of a Sthayee Samiti shall hold office for a period of five years or so long as he continues to be a member of the Zilla Parishad, whichever is earlier and having regard to sub-section (7) of Section 171 there is scope for removal following the procedure laid down in sub-rule (6) of Rule 17 of the west Bengal Panchayet (Constitution)Rules, 1975 by majority decision of the members of the Zilla Parishad. Hence we are of the view that there was no illegality committed by convening requisition meeting under Section 150 of the said Act by the majority members of the Zilla parishad to remove the elected members of the Sthayee Samiti against whom they had no confidence. The learned Trial Judge, however, held that when under the Act there is no provision for removal, simifar to removal of Prodhan/ upo-prodhan, the elected members of the sthayee Samiti could not be removed till completion of five years tenure as per sub-section (4) of Section 171 of the said Act. It is not correct to say that under the said Act there is no provision for removal of the elected members of the Sthayee Samiti as under sub-section (7) of Section 171 of the said Act provision is there whereby a member of sthayee Samiti could be removed following the procedure as to be prescribed by the State Government and that procedure has been prescribed under sub-Rule (6) of Rule 17 of the West Bengal (Constitution) Rules, 1975. The said rule for removal of any elected member of the Sthayee Samiti by a majority decision of the existing members of the Zilla Parishad cannot be said as ultra vires to the Act as the rule got its power, force and effect in terms of sub section (7) of Section 171 of the West Bengal Panchayet Act, 1973 whereby the legislature has made scope for removal of any elected member of Sthayee samiti. Besides such, entry of a member Sthayee Samity is by election and by majority decision of the members of Zilla Parishad, naturally their exist also could be done by majority decision of the existing members of the Zilla Parishad and there should not be any fetter to exercise such power by the majority members of the Zilla Parishad when they will not be satisfied about the activity of any elected members of Sthayee Samiti. On a careful reading of provision of Act and rule, it is clear that any member of Sthayee Samity could be removed by the members of Zilla Parishad on taking a decision by majority vote. (12) CONSIDERING this aspect of the matter, we are not finding any merit in the writ application. (13) HAVING regard to such, the writ application stands dismissed. (14) THE order under appeal is set aside and quashed. (15) THE appeal is allowed. (16) THE application for stay, being CAN. 9268 of 2005, is thus disposed of. (17) REGISTRY is directed to make an endorsement of dismissal of the writ application in the concerned writ file and to submit a compliance report three weeks hence.