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2010 DIGILAW 193 (CAL)

Md. Basiruddin v. STATE OF WEST BENGAL

2010-02-23

GIRISH CHANDRA GUPTA

body2010
JUDGMENT 1. Undisputed facts of this case are as follows: There are fourteen members in the Tinpakuria Gram Panchayat. Md. Basiruddin was the Pradhan. Eight out of the fourteen members by a notice dated 11th December, 2009, requested the Pradhan to convene a meeting within fifteen days for his removal. The Pradhan failed to convene any meeting as required by those eight members. They, therefore, issued a notice on 29th December, 2009, calling a requisition meeting to be held on 7th January, 2010 at 12 noon. Copy of the notice was given to the prescribed authority, the Block Development Officer. Meeting was held on 7th January, 2010, at the time and place fixed by the notice dated 29th December, 2009, which was attended by eight out of the fourteen members, and a resolution removing the Pradhan was passed unanimous. 2. On 4th January, 2010, the present writ petition was filed challenging the validity of the notices dated 11th December, 2009, and 29th December, 2009. The petition was moved on 6th January, 2010, when an order was passed that the meeting could be held but no effect be given to the resolution which might be adopted until 12th January, 2010. On 11th January, 2010, interim order already passed was extended till 19th January, 2010, and the matter was directed to be listed on 18th January, 2010. The order dated 11th January, 2010, was communicated to the Block Development Officer who is also the prescribed authority by the learned Advocate on record for the petitioner a copy whereof is at page 14 of the supplementary affidavit affirmed on 28th January, 2010, by the petitioner himself. The communication made by the learned Advocate for the petitioner was as follows: "Hon'ble Court has been pleased to extend the interim order till 19.1.2010 at 2.p.m." 3. On 19th January, 2010, the prescribed authority, the Block Development Officer, made a declaration that the meeting held on 7th January, 2010, was valid and the Pradhan Md. Basiruddin stood removed. He addea that the removal of the Pradhan shall be given retrospective effect. By the aforesaid supplementary affidavit validity of the order dated 19th January, 2010, has also been challenged. 4. Mr. Bhattacharyya, learned Advocate advanced the following submissions: (a) By the notice dated 11th December, 2009, the writ petitioner was requested to call a meeting. He, however, was never requested to hold a meeting. By the aforesaid supplementary affidavit validity of the order dated 19th January, 2010, has also been challenged. 4. Mr. Bhattacharyya, learned Advocate advanced the following submissions: (a) By the notice dated 11th December, 2009, the writ petitioner was requested to call a meeting. He, however, was never requested to hold a meeting. Therefore, there was no failure on the part of the Pradhan in discharging his duties which might have entitled the requisitionist 1st to themselves convene a meeting. (b) The notice dated 29th December, 2009, issued by the requisitionist goes to show that a copy thereof was given to the prescribed authority, the Block Development Officer on 29th December, 2009, itself. Whereas the law according to him is that such a notice can be issued only after giving intimation to the prescribed authority. (c) The minutes of the meeting dated 7th January, 2010, does not indicate that any observer was present. Provision has been made for appointment of an observer not as a matter of idle formality. Observer has important functions to discharge which may include (i) to ascertain whether notices have duly been served (ii) whether proper procedure for holding the meeting have been observed. In the present case the observer has filed a report but that report according to him is a product of table work made at office rather than at the meeting held in the office of the concerned Gram Panchayat. (d) And lastly, the order dated 19th January, 2010, passed by the prescribed authority is patently in violation of the order dated 11th January, 2010, passed by the High Court in the presence of the parties and/or their Advocates. 5. The first submission of Mr. Bhattacharyya that the writ petitioner was never requested to hold a meeting has not impressed me for the simple reason that it is not in the power of any Pradhan far less the writ petitioner to hold a meeting. All that he can do is to convene a meeting. After a meeting has been convened the members may choose not to actually hold a meeting. Therefore, the Pradhan was rightly requested to convene a meeting, which he ought to have done, which he regretfully failed to do. The requisitionist by their notice dated 11th December, 2009, had made it clear that they were claiming removal of the Pradhan and he was to convene a meeting for his own removal. Therefore, the Pradhan was rightly requested to convene a meeting, which he ought to have done, which he regretfully failed to do. The requisitionist by their notice dated 11th December, 2009, had made it clear that they were claiming removal of the Pradhan and he was to convene a meeting for his own removal. 6. Mr. Bhattacharyya, learned Advocate submitted that to convene a meeting and to hold a meeting does not mean the same thing. He, in support of his submission relied on two Division Bench judgments of this Court. Mr. Bhattacharjee is right in his submission that to convene a meeting and to hold a meeting do not and cannot connote the same thing. The word "convene" according to Oxford Dictionary means as follows: "Come or bring together for a meeting or activity" 7. The Pradhan could only issue notice to the members for bringing them together for the purpose of a meeting. Whether the members will in fact hold the meeting is a different matter not within the power of the Pradhan. This distinction between convening a meeting and holding a meeting has also been recognised by the statute itself. Last proviso of section 12 provides as follows: "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 appointed for such meeting." 8. Therefore, no lengthy reasoning is required to establish that to convene a meeting and to hold a meeting cannot convey the same meaning. Under the statute the Pradhan was obliged to convene a meeting after he was requested to do so by eight out of the fourteen members of the Gram Panchayat. I am unable to find any infirmity in the notice dated 11th December, 2009, and therefore, the first submission of Mr. Bhattacharjee is rejected. 9. The second submission of Mr. Bhattacharjee is based on the second proviso to section 16 of the West Bengal Panchayat Act, which reads as follows: "16. Meetings of Gram Panchayat.-(1) Even Gram Panchayat shall hold a meeting at least once in a month [in the office of the Gram Panchayat. Bhattacharjee is rejected. 9. The second submission of Mr. Bhattacharjee is based on the second proviso to section 16 of the West Bengal Panchayat Act, which reads as follows: "16. Meetings of Gram Panchayat.-(1) Even Gram Panchayat shall hold a meeting at least once in a month [in the office of the Gram Panchayat. Such meeting shall be held on such date and at such hour as the Gram Panchayat may fix at the immediately preceding meeting:] Provided that the first meeting of a newly-constituted Gram Panchayat shall be held on such date and at such hour and at such place within the local limits of the Gram concerned as the prescribed authority may fix: Provided further that the Pradhan when required in writing by [one-third] of the members of the Gram Panchayat subject to a minimum of [three members] to call a meeting [shall do so fixing the date and hour of such meeting (to be held) within fifteen days after giving intimation to the prescribed authority and seven days' notice to the members of the Gram Panchayat,] 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 Pradhan and other members of the Gram Panchayat. Such meeting shall be held [in the office of the Gram Panchayat on such date and it 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 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 12, at least one-third of the members referred to in clause (i) of subsection (2A) of section 4, subject to a minimum of three members, shall require the Pradhan to convene the meeting: Provided also that if the Gram Panchayat does not fix at any meeting the date and the hour of the next meeting or if any meeting of the Gram Panchayat is not held on the date and the hour fixed at the immediately preceding meeting, the Pradhan shall call a meeting of the Gram Panchayat on such date and at such hour as he thinks fit." 10. From the phraseology used by the statute I am inclined to hold that the requirement of the statute is that the meeting has to be held after giving intimation to the prescribed authority. It is not according to me the requirement of the law that notice of the meeting can be given by the requisitionists only after an intimation in that behalf has been given to the prescribed authority as submitted by Mr. Bhattacharyya. 11. That also is logical because the prescribed authority has no right to vote. Intimation to the prescribed authority is for the purpose of information and appointment of an observer for overseeing orderly conduct of the meeting if that is thought necessary. It cannot, therefore, be said that before any notice is issued by the requisitionist intending to hold a meeting consequent to the failure on the part, of the Pradhan to convene a meeting an advanced intimation has to be given to the prescribed authority as contended by Mr. Bhattacharyya. The second submission is, therefore, rejected. 12. The third submission of Mr. Bhattacharyya has also not impressed me. My attention was not drawn to any rule which requires presence of an observer to be recorded in the minutes of the meeting. The observer appointed by the prescribed authority has no right to participate in the meeting. He has no right to vote. 12. The third submission of Mr. Bhattacharyya has also not impressed me. My attention was not drawn to any rule which requires presence of an observer to be recorded in the minutes of the meeting. The observer appointed by the prescribed authority has no right to participate in the meeting. He has no right to vote. He, as I have indicated earlier is posted there to oversee and to ensure orderly conduct of the meeting. Therefore, his presence need not be recorded in the minutes of the meeting. There is no dispute that eight members did in fact attend the meeting and unanimously adopted the resolution removing the Pradhan. When that is not in dispute, I do not think that any importance may be attached to the third submission of Mr. Bhattacharyya in any event. 13. On the top of that Mr. Barua learned Advocate appearing for the respondent Nos. 10 to 17 the requiaitionist, produced un-served notices sent under registered cover which go to show that the respondent No.6, Affan refused to accept the notice. Similarly, respondent No.7, Humayan Sk. refused to accept the notice. The writ petitioner himself refused to accept the notice. Angura Khatun, the respondent No.8, during the period between 29th December, 2009, and 4th January, 2010, upon repeated visits was found absent from her residence. Same was the case with the respondent No.9 Khatem Ali, he was also found absent upon repeated attempts between 29th December, 2009 and 4th January, 2010, to serve the notice upon him. From three several acknowledgements it appears that on behalf of the respondent No. 15, Nur Islam, notice was received by Abdul Ali. On behalf of the Pradhan, the writ petitioner, notice served additionally under courier was, however, received by one Tarik although notice sent under registered post was not accepted by him. The respondent No.6, Affan also appears to have accepted the notice sent under courier. There is, thus, satisfactory evidence before me to show that the members were duly served with the notice. It is well-settled that refusal to accept is good service. The endorsement of refusal made by the postman raises a presumption of correctness under section 114 of the Evidence Act. The Court is entitled to presume that the endorsement was made in the regular course of the business. There is similar presumption available with respect to the other endorsements made by the postal authorities. The endorsement of refusal made by the postman raises a presumption of correctness under section 114 of the Evidence Act. The Court is entitled to presume that the endorsement was made in the regular course of the business. There is similar presumption available with respect to the other endorsements made by the postal authorities. As regards the members who could not be served in spite of repealed attempts the only inference which can be drawn is that they deliberately avoided service of the notices upon them. No other inference is possible because some of the members including the Pradhan and Affan the respondent No.6, had accepted the service but they did not turn up at the meeting. That goes to show they were not minded to attend the meeting. The observer in his report has indicated the same thing. The observer cannot be expected to write out a report like a professional person. Reports of the observers according to me should not be read with a desire to find fault with them. 14. For the aforesaid reasons the third submission of Mr. Bhattacharyya is rejected. 15. The last submission of Mr. Bhattacharyaa is factually correct. The order dated 11th January, 2010, did in fact provide that the same shall continue till 19th January, 2010, but the prescribed authority was not at fault. Nor was there any intention far less deliberate intention on the part of the prescribed authority to violate any order of this Court. The intimation given by the learned Advocate of the petitioner which I have quoted above was itself misleading and gave the impression that the interim order was valid till 2 p.m. of 19th January, 2010. Since the prescribed authority did not get any order within 2 p.m. of 19th January, 2010, extending the same the impugned order dated 19th January, 2010, was passed at 2.30 p.m. There is, as such, no illegality in that order. There is nothing wrong in giving retrospective effect to the removal of the Pradhan. The Pradhan stood removed on the date of the meeting itself. Effect could not be given to that removal because of an interim order of Court. There is nothing wrong in giving retrospective effect to the removal of the Pradhan. The Pradhan stood removed on the date of the meeting itself. Effect could not be given to that removal because of an interim order of Court. When the interim order ceased to be operative, anything done on the basis of the interim order has to be restort and therefore the removal of the Pradhan has to be given effect from the date when he stood removed in accordance with law. This is also in conformity with the doctrine of restitution. 16. There is, as such, no illegality in giving retrospective effect to the removal of the Pradhan. All the points urged by Mr. Bhattacharyya, have thus been dealt with and are rejected. 17. The writ petition is therefore dismissed. 18. There will be, however, no order as to costs. 19. The records of service of the notice produced by Mr. Bhattacharyya have been perused by Court and returned to him. 20. Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.