Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 205 (CAL)

Jalal Seikh v. STATE OF WEST BENGAL

2010-02-25

SYAMAL KANTI CHAKRABARTI

body2010
JUDGMENT 1. IN the instant writ petition the petitioner Jalal Seikh has claimed that he is a cultivator living within Tenya-Baidyapur Gram Panchayat, P.O. Tenya, District Murshidabad. The Government introduced Jawhar Rojgar Yojona through three tire Panchayat system of the States and instructed to start plantation in different Panchayat area by engaging experienced persons in plantation and maintenance. 2. ACCORDINGLY, the petitioner entered into an agreement with the then Pradhan, Tenya-Baidyapur Gram Panchayat on 22.10.1988 with the following terms and conditions :- "That as per the Scheme of Jawhar Rojgar Yojona from Nowapara Antur Shala to site of Powa gram in both side of the road the plantation work has been completed by the authority of Tenya-Baidyapur Gram Panchayat. For maintenance of such plant, Jalal Seikh son of Jehed Seikh the inhabitant of Village Nowapara has been entrusted the responsibility for a period of six months on payment of daily wages and after six months said Seikh will not entitled any wages. It may be noted herein that in accordance with law only that person will maintain the said plant. That ownership of 1/2 share of such plant would be in favour of the said person. That with the permission of Gram Panchayat and Forest Department he would have the right to remove the trees according to his share and the panchayat will make plant in those places at their own costs and expenses. It was also mentioned that when the age of the said trees would be 12 to 15 years Jalal Seikh according to his share would done his right to lop the trees and get his share of 1/2 of the total trees" In terms of such agreement the petitioner planted more than 2,000 trees namely, Sishu which were matured and could be beneficial for the locality. So on 12th November, 2008 he made a prayer to the Block Development Officer, Bharatpur-ll Development Block (the respondent no. 5 herein) for grant of permission to appropriate 50 per cent share of the trees planted in the year 1988 in between Nowapara Antur Shala and towards Powagram Village. 3. So on 12th November, 2008 he made a prayer to the Block Development Officer, Bharatpur-ll Development Block (the respondent no. 5 herein) for grant of permission to appropriate 50 per cent share of the trees planted in the year 1988 in between Nowapara Antur Shala and towards Powagram Village. 3. ON 14th November, 2008 he also made detailed representation to the Pradhan of local Panchayat (the respondent No. 7 herein) for grant of permission to allow him to lop 50 per cent of the share of the total trees maintained by him as per agreement but both the above respondents refused or neglected to consider his prayer. 4. THE further case of the petitioner is that the respondent No. 7 without disposing his prayer issued an auction notice dated 30.12.2008 inviting general public to be present in the office of the Gram Panchayat on 01.01.2009 at 2:30 p.m. for an open auction of 24 dead Sishu trees situated within the area in between the house of Kalu Seikh of Village Nowapara and towards Subhederpur Road with certain terms and conditions and forwarded the same to the Block Development Officer, Bharatpur-ll Gram Panchayat for wide circulation. On the date of such auction more than 35 living trees were cut down by the persons allegedly declared as the highest bidder in presence of respondent No. 7 in the midst of protest by the present writ petitioner with large number of local inhabitants. On 2nd January, 2009 he made another representation to the Block Development Officer, Bharatpur-ll for taking necessary steps against such illegal auction since the petitioner is the owner of 50 per cent of total planted trees as per such agreement. But the said respondent No. 5 also remained silent and so on 14th January, 2009 the petitioner along with some villagers of the locality submitted a joint representation to the Range Officer of the concerned forest range (the respondent No. 6 herein) and the SDO, Kandi, Murshidabad (the respondent No. 4 herein) seeking necessary reliefs. They also filed a mass petition dated 15th January, 2009 to the District Magistrate, the respondent No. 2 herein, for causing an enquiry and for taking appropriate legal action against the persons involved in the said illegal act. But all these representations yielded no fruitful result as a consequence he has sought for intervention of this Hon'ble Court under Article 226 of the Constitution. But all these representations yielded no fruitful result as a consequence he has sought for intervention of this Hon'ble Court under Article 226 of the Constitution. The respondent No. 7 has opposed the move and contended that he took charge of his office of Pradhan in June, 2008 and he was not connected in any way with the alleged offence. There is also no document to show that as per agreement the present writ petitioner is entitled to get 50 per cent of the sale proceeds realised by way of impugned tender on 01.01.2009. Further the Pradhan has taken action in accordance with the West Bengal Rural Employment Guarantee Scheme, 2006 undertaken by the Pradhan and Rural Development Department, Government of West Bengal and sold dead trees only to give effect to various provisions of the said rural employment scheme of 2006 under intimation to ail concerned. Therefore, there is no merit in this writ petition which is liable to be dismissed. 5. THUS the questions involved in this case are, (a) Whether the impugned auction dated 01.01.2009 constituting a breach of agreement dated20.10.1988 and mandatory provisions of Sections 5 and 6 of the West Bengal Trees (Protection and Conservation in Non-forest Areas) Act, 2006, is illegal and violative of the principles of natural justice and abuse of the authority of Pradhan of Gram Panchayat ; (b) Whether the Pradhan of a Gram Panchayat and others can be prosecuted under Section 11 of the said Act on account of his failure to maintain records of the Gram Panchayat as assigned under Section 34 of the West Bengal Panchayat Act, 1973 and for holding auction without complying provision of Sections 5 and 6 of the West Bengal Trees (Protection and Conservation in Non- forest Areas) Act, 2006 and (c) Whether the petitioner is entitled to 50 per cent of the sale proceeds of disposed of Sishu trees as per his agreement dated 22nd October, 1988. 6. AT the outset the existence and validity of the agreement dated 22nd October, 1988 in favour of the present writ petitioner should be taken into consideration. Annexure P-1 to the writ petition is a copy of such agreement dated 22.10.1988 executed by and between the writ petitioner Jalai Seikh and the Pradhan, Tenya-Baidyapur Gram Panchayat in presence of witnesses Tapan Kanti Das and Sakshi Gopal on a non-judicial stamp paper of Rs. 10/-. Annexure P-1 to the writ petition is a copy of such agreement dated 22.10.1988 executed by and between the writ petitioner Jalai Seikh and the Pradhan, Tenya-Baidyapur Gram Panchayat in presence of witnesses Tapan Kanti Das and Sakshi Gopal on a non-judicial stamp paper of Rs. 10/-. From the reverse of this non-judicial stamp paper it appears thai the said stamp paper was purchased in the name of Tenya- Baidyapur Gram Panchayat and not by the writ petitioner. It bears official sea of the Pradhan and so prima facie shows execution of a document under seat and signature of the respondent No. 7. For the sake of convenience English rendering of the recital of the said agreement in substance is stated below : - That under the Jawhar Rojgar Yojona the task of planting trees from Nowapara Antar Shala to Powa village on either side of the road is being completed. For maintenance of such plants the writ petitioner, Jalai Seikh, son of Jehad Seikh of Nowapara village is entrusted for a period of six months on payment of daily wages and thereafter he will not be entitled to any wages. It is further stipulated that the said person, i.e., the writ petitioner will be entitled to moiety share of those plantation and subject to the permission of the Gram Panchayat and, authorised department concerned he will be entitled to cut the trees under clear stipulation that in place of those cutting of trees he will at his own cost make provision for a forestation and that he would be entitled to claim such right only after attaining of the age of 12 to 15 years of those plants. 7. IN the paragraph No. 6 of his Affidavit-in-Opposition the Pradhan has denied existence of such written agreement and stated as follows :- "...............And after took over the charge as Pradhan of Tenya Baidyapur Gram Panchayat no records has been found in the Panchayat regarding the agreement of the persons of 50/50 share. The letter of agreement dated 22nd October, 1988 issued by the then Pradhan in his own will. I further say if any steps taken by the said Benevolent Scheme of 'Jawhar Rojgar Yojona' it must be recorded in the record book of the Panchayat" 8. The letter of agreement dated 22nd October, 1988 issued by the then Pradhan in his own will. I further say if any steps taken by the said Benevolent Scheme of 'Jawhar Rojgar Yojona' it must be recorded in the record book of the Panchayat" 8. THUS the Pradhan has denied existence of such agreement by the then Pradhan as existence thereof was not found in the record book of the Panchayat but copy of the same has been produced by one of the parties to such agreement. It is surprised to note that since the present writ petitioner has filed a copy of agreement purported to have been executed by the former Pradhan, there should have been a genuine endeavour on the part of the present Pradhan to seek confirmation or denial of the execution of such agreement from his predecessor and the witnesses to the agreement who are near at hand. Section 34 of the West Bengal Panchayat Act, 1973 determines his duty in the following way :- "Section 34. Powers, functions and duties of Pradhan and Upa-Pradhari.- (1) The Pradhan shall – (a) be responsible for the maintenance of the records of the Gram Panchayat; (b) have general responsibility for the financial and executive administration of the Gram Panchayat; (c) exercise administrative supervision and control over the work of the staff of the Gram Panchayat and the officers and employees whose services maybe placed at the disposal of the Gram Panchayat by the State Government;...................." 9. THEREFORE, it is imperative on the part of the Pradhan to maintain and preserve all records of the Gram Panchayat in succession and one cannot absolve himself from discharging such statutory duty without reasonable cause. 10. IT also appears from paragraph No. 3(a) of such Affidavit-in- Opposition that the present Pradhan, the respondent No. 7 herein has assumed charge of the Pradhan from his predecessor after removal of his predecessor from office on the basis of notice from 9 members out of 16 members in the last week of July, 2008 and has not executed any charge report with or without receipt of records. This he has done at is peril. This he has done at is peril. Under the above circumstances the present Pradhan being in charge of all records of Panchayat is answerable to the .existence or nonexistence of any document executed by his predecessor, copy of which is available but original of which is expected to be preserved in the office of the Panchayat. There is no denial that Jawhar Rojgar Yojona was not in existence at the time of execution of the said agreement on 22.10.1988. There is also no averment that the disputed plantation was undertaken by the Panchayat in 1988 with some other agencies. When the respondents are selling some plants in 2008 it is their bounden duty to ascertain who planted and nourished those trees and whether there is any obligation to be discharged before selling those trees or not. 11. THE respondents particularly the respondent No. 7 In this case is totally oblivious of such question though the writ petitioner submitted the application to the Block Development Officer, Bharatpur-II on 12.11.2008 with copy to the Pradhan, i.e., the respondent No. 7 seeking permission for cutting those trees and for enjoying moiety share therein as per previous agreement annexed therewith. It appears that the said letter was received by both the Block Development Officer, Bharatpur-ll, i.e., the respondent No. 5 herein, on 14.11.2008 over signature and seal of the Secretary of Tenya-Baidyapur Gram Panchayat on the same date. Yet without deciding the matter the respondents proceeded with their auction sale of the disputed trees. Thus from the conduct of the respondent it is apparent that they have tried to ignore the existence of any written contract between the writ petitioner and the previous Pradhan though a copy of the agreement was produced before them by the party. Where the Pradhan being custodian of official record denies existence of an agreement executed by his predecessor in office without making proper enquiry, it will be presumed that he is willfully denying the existence of such agreement on account of his failure to discharge bounden duties cast upon him by letter dated 14.11.2008 of the writ petitioner (Annexure P-3 to the writ petition). 12. I find that there is no reason to disbelieve execution of such agreement subsisting between the writ petitioner and the Gram Panchayat now headed by the respondent No. 7. 12. I find that there is no reason to disbelieve execution of such agreement subsisting between the writ petitioner and the Gram Panchayat now headed by the respondent No. 7. I also conceive that in absence of any averment in the Affidavit-in-Opposition to the contrary I have no other alternative but to hold that in terms of such agreement the plantation was undertaken and maintained by the present writ petitioner for a continuous period of about 20 years to the knowledge of the Gram Panchayat up to 2008 Without any interruption from their end or any of the respondents. Therefore, without setting his claim and without relieving him of the responsibilities of maintenance of the trees, respondent cannot move for auction of the trees standing in the disputed area. Now circumstances under which the auction of the trees within the aforesaid plantation was conducted may be looked into. 13. IT appears from the averment of the writ petitioner that on 30th December, 2008 the local Panchayat issued the purported auction notice by fixing 01.01.2009 as the date for auction of 24 numbers of Sishu trees and some other trees which were maintained by the petitioner but on the date of auction more than 35 living trees were cut down by the persons who were declared as highest bidders in absence of the Pradhan of the Gram Panchayat. Annexure P-4 to the writ petition is the said auction notice dated 30.12.2008 bearing memo No. 226(4)(EW/2009/Tenya-Baidyapur GP). By such notice the date of auction was fixed on 01.01.2009 at 2:30 p.m. in the office of the Gram Panchayat. Thus apparently the notice was issued and forwarded to the office of the Block Development Officer, Bharatpur-ll, Station Master, Tenya-Baidyapur Railway Station, Post Master, Tenya Post Office and Office Notice Board for wide publication with a request to display it in their notice boards leaving only one day for taking necessary action by all concerned. The necessity and urgency of issuing such a notice giving only one days' notice before auction does not at all convey any bona fide intention of the Pradhan for wide circulation of the notice and for ventilation of such news to all intending participants for augmentation of resource and reasonable time was also hot given to all people of the locality to take notice of such tender well in advance and to participate in it. 14. 14. IT appears from annexure-A-5 to the Affidavit-in-Opposition filed by the respondent No. 5 that on 26.12.2008 he sent a registered letter to the writ petitioner informing that there is no trace of records regarding his prayer for maintenance of the trees planted on either side of the road from Antur Shala Nowapara village to for and as such the said letter could not be considered. IT seems that prayer of the writ petitioner was refused. From the said letter it would be proved that the respondent received the letter dated 14.11.2008 addressed to the respondent No. 5 by the writ petitioner (Annexure P-3 to the writ petition). From the recital of this petition it will appear that in the said petition he sought permission of the local Panchayat for cutting some living and dead trees in terms of the Agreement of 1988 and to determine his claim of entitlement of 50 per cent share of the sale proceeds. The very answer given in response to such letter as in Annexure A-5 of the Affidavit-in-Opposition indicates that it is absolute denial of a bona fide claim on flimsy ground and rejection of the prayer without actually considering the substance of such prayer is equally arbitrary. In his letter bearing No. 105/TBGP/09 dated 20.02.2009 the respondent No. 5 has admitted that in 1987/88 aforestation scheme was undertaken under Jawhar Rojgar Yojona at Nowapara village but relevant documents are not traceable in the office of the Gram Panchayat. As a consequence, they are unable to unearth the total number of siblings planted under such scheme at the behest of the Gram Panchayat. This sort of submission is a clear admission of the negligence and carelessness on the part of the Gram Panchayat officials who were in charge of the custody of official records of the Panchayat which is a statutory obligation as indicated above. In the said letter the Pradhan has tried to evade his own responsibility on grounds of disappearance of relevant documents from his office and relied upon statement of local people and claimed in the said letter that only on personal interest his predecessor might have executed such agreement with the writ petitioner and entrusted him to maintain the siblings without tacit knowledge of the Panchayat. By such denial, I think, the statutory duty cast upon the Panchayat cannot be evaded. By such denial, I think, the statutory duty cast upon the Panchayat cannot be evaded. From the conduct of the Pradhan as reflected in his reply as well as Affidavit-in-Opposition and the recital of the correspondence between the writ petitioner and the Pradhan it appears without any doubt that the claim of the writ petitioner has been relegated to the background without reasonable cause and without assigning any cogent reason and the auction was conducted on 01.01.2009 arbitrarily which constitutes a breach of Agreement dated 22.10.1988. Therefore, he has rightly approached the Writ Court seeking proper remedies which is maintainable in law. 15. THERE is discrepancy regarding total number of trees proposed to be sold by auction. As per auction notice dated 30.12.2008 there shall be sale of 22 dead Sishu trees. In another proceeding dated 06.11.2008 of the meeting of the Panchayat the number was shown as 23 (Annexure A-7 to the Affidavit-in-Opposition by the respondent No. 7). Again in his report dated 18.11.2008 to the Range Officer, Kandi Forest Range the Pradhan has intimated that 22 died Sishu trees were going to be sold in auction for which the Range Officer was requested to take necessary action. The report of the Range Officer regarding condition of the trees is not forthcoming before such auction sale. The action taken by the Range Officer is also not forthcoming. The said letter also suggest that in hot haste the respondents tried to dispose of the trees by auction without observing usual formalities and norms. 16. SINCE the Pradhan has failed to offer statutory explanation for refusal to entertain the representation of the writ petitioner before selling of the trees by auction with short notice of one day without any urgency, I hold that the right accrued in favour of the writ petitioner by virtue of the subsisting agreement dated 22.10.1988 is a denial of natural justice and breach of contract and the manner in which the aforesaid auction sale was conducted is an abuse of the authority of Panchayat Pradhan. My attention has been drawn to the relevant provisions of the West Bengal Employment Guarantee Scheme, 2006 showing the duties and responsibilities of the local Panchayat Which includes aforestation and preservation of forest tree, plantation of tree etc. My attention has been drawn to the relevant provisions of the West Bengal Employment Guarantee Scheme, 2006 showing the duties and responsibilities of the local Panchayat Which includes aforestation and preservation of forest tree, plantation of tree etc. under item No. 4.2 to be read with objects for creation of wealth and assets of rural area under item No. 2 but in the said guarantee scheme there is no provision for rescinding any past contract with the Panchayat to give effect to these new provisions. Therefore, I hold the act of the Panchayat cannot be treated as an action taken under the West Bengal Rural Employment Guarantee Scheme, 2006 having entrustment upon Panchayat to ignore any contractual obligation. 17. SO far as the penal action is concerned it is to be considered in the light of inconsistency with existing procedure. The procedure for obtaining permission to fell trees in rural areas which shall include areas under Gram Panchayat within the meaning of Section 5(2) are set out in Section 6 of the West Bengal Trees (Protection and Conservation in Non- forest Areas) Act, 2006 both the Sections are quoted below :- "Section 5. The procedure for obtaining permission to fell trees in rural areas which shall include areas under Gram Panchayat within the meaning of Section 5(2) are set out in Section 6 of the West Bengal Trees (Protection and Conservation in Non- forest Areas) Act, 2006 both the Sections are quoted below :- "Section 5. Permission to fell trees.-(1) A competent authority may, on receipt of an application from a person to fell a tree or otherwise dispose of any tree, for such purposes as may be prescribed, and on being satisfied with regard to the legality of documents towards the proof of ownership or lease of the land on which such tree stands and after making an inquiry, in such manner as maybe prescribed, grant permission, in writing, to fell tree: Provided that no such permission shall be granted, if it is found on inquiry that the nature or character of the land may change or the mode of use of the land may alter, unless the person concerned produces the conversion certificate obtained from the Collector concerned under the provisions of Section AC of the West Bengal Land Reforms Act, 1955: Provided further that in the Sadar sub-division, Kalimpong sub-division and Kurseong sub-division of the district of Darjeeling, no such permission shall be required, if a raiyat obtains permission under provisions of Section 4A of the West Bengal Land Reforms Act, 1955, read with Rule 474 of the West Bengal Land and Land Reforms Manual, 1991 : Provided also that the competent authority shall within three days from the date of receipt of application, give permission of felling of trees, if it constitute such immediate danger, as may be prescribed to any person or property. (2) Notwithstanding anything contained in sub-section (1), no permission shall be required if felling of trees is undertaken for not more than three trees at a time in rural areas : Provided that felling of trees shall not be undertaken in a particular plot of land more than once in a year. Explanation I.-For the purposes of this section "rural area" shall include all areas under Gram Panchayat and exclude the areas under Municipality, Notified Area Authority or Municipal Corporation. Explanation II -For the purposes of this section "Municipality" and "Notified Area Authority" shall have the same meaning as defined in the West Bengal Municipal Act, 1993" "Section 6. Explanation I.-For the purposes of this section "rural area" shall include all areas under Gram Panchayat and exclude the areas under Municipality, Notified Area Authority or Municipal Corporation. Explanation II -For the purposes of this section "Municipality" and "Notified Area Authority" shall have the same meaning as defined in the West Bengal Municipal Act, 1993" "Section 6. Procedure for obtaining permission to felt trees.-1 (1) Every application under Section 5 shall be in writing giving particulars of the tree, the details of the plot of land on which the tree is located and the reasons for felling the tree and shall be accompanied with such fee, as may be prescribed. (2) The competent authority shall, on receipt of an application in respect of any tree, issue an acknowledgement to the applicant, and after making inquiry, shall dispose of the application, within forty-five days of the receipt of such application, either giving permission to fell such tree or rejecting the application giving reasons there for. (3) Every permission to fell tree shall, granted under this Act, be in such form and subject to such conditions, including taking of security for undertaking plantation for trees, as may be prescribed: Provided that in the case of tea garden such permission shall be subject to the condition that the sale proceeds be utilized strictly for the purpose of welfare of the labourers of tea garden on the basis of a specific scheme framed under the provisions of the Plantations Labour Act, 1951.'' 18. THE consequences of violation of such provision are enumerated in Section 11 of the Act which is quoted below :- "Section 11. Penalty for felling of trees.-(1) Whoever fells or causes to be felled any tree or cuts, uproots or otherwise disposes of any fallen tree, in contravention of the provisions of Section 4, or contravenes any condition of any permission granted under this Act, shall be punished with imprisonment which may extend to one year or with fine which may extend to five thousand rupees or with both and until the plantation of requisite number of trees are undertaken, shall be fined for each day of default of fifty rupees. (2) If any person, or development agency or the benevolent activists, or the entrepreneur of the promoter, as the case may be, fails to implement the plantation plan as approved under sub-section (4) of Section 9, shall be punished with imprisonment which may extend to two years or with fine which may extend to ten thousand rupees or with both." There is no plausible explanation forthcoming from the Range Officer, Kandi, i.e., the respondent No. 6 herein, regarding the fate of the mass petition filed by the writ petitioner along with 30 other persons of the locality praying for taking proper penal action against the persons who have cut the trees on 01.01.2009 (Annexure P-6 to the writ petition). Thus the provisions laid down in Section 11 of the West Bengal Trees (Protection and Conservation in Non-forest Areas) Act, 2006 has also not been followed in the instant case and by misplacing the application dated 14.11.2008 (Annexure P-3 to the writ petition) the procedure to be adopted in the instant case under Sections 5 and 6 of the said Act have also been frustrated by the Pradhan without reasonable cause. 19. IT appears from Annexure A-8 to the Affidavit-in-Opposition filed by the Pradhan that the sale proceeds of the auction amounting to Rs. 5,300/- has been deposited in Account No. 30709407372. Therefore, as Tier the contract the present writ petitioner is entitled to get 50 per cent of such sale proceeds, i.e., Rs. 2,650/-. Since the Panchayat is a local self- government it had certain responsibilities to the general public and the office bearers and the officers who control the Panchayats cannot evade their responsibilities and neglect in following the rules and regulations framed by the Government to give effect to various policies as well as to the contract lawfully entered into for and on behalf of the focal self-government machinery. Unfortunately all the respondents in their turn neglected and failed to discharge their duties relating to representation of local people including the writ petitioner. Therefore, it is justified to claim penal action against the person responsible for such intentional lapses. 20. Unfortunately all the respondents in their turn neglected and failed to discharge their duties relating to representation of local people including the writ petitioner. Therefore, it is justified to claim penal action against the person responsible for such intentional lapses. 20. THEREFORE, I find sufficient merit in this writ petition which should be allowed to prevent miscarriage of justice and abuse of the authority reposed in the office of the Pradhan concerned and to compensate the writ petitioner who has been compelled to approach the Court for seeking relief arising out of his contractual right accrued against the local Panchayat represented by Pradhan. The respondent Nos. 2, 5 and 7 are, accordingly, directed to refund the auction sale proceeds amounting to Rs. 2,650/- with cost of this proceeding which is assessed at Rs. 5,000/-, i.e., total Rs. 7,650/-to the writ petitioner within one month from the date of receipt of this order. The respondent Nos. 1 and 6 are directed to take necessary action against the respondent No. 7 for non-compliance of Section 5 and 6 of the said Act of 2006 and Section 34(1)(a) of the West Bengal Panchayat Act, 1973. The writ petition is thus disposed of.