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2015 DIGILAW 151 (CAL)

Sanaullah Sk. v. State of West Bengal

2015-02-20

ANIRUDDHA BOSE

body2015
JUDGMENT : Aniruddha Bose, J. The dispute in this writ petition is in relation to the proposal for removal of the Pradhan of Begunbari Gram Panchayat under Beldanga-1 Panchayat Samity in the district of Murshidabad. The twelve petitioners before me claim to be elected members of that Gram Panchayat. On 24th December, 2014, they addressed a communication to the prescribed authority, being the Block Development Officer of Beldanga Block 1 requiring him to take appropriate step for removal of the Pradhan, who is respondent no. 7 in this writ petition. This notice was issued in accordance with Sub-section (2) of Section 12 of the West Bengal Panchayat Act, 1973. That notice, it appears, suffered from a defect in that the party affiliation of the signatories was not disclosed therein. 2. Subsequently a fresh notice was issued on 29th December, 2014 by the requisitionist members. The prescribed authority convened the meeting by issuing a memorandum dated 30th December, 2014 and that meeting was scheduled to be held on 7th January, 2015. The respondent no. 7 had brought an action before this Court in the form of a writ petition which was registered as W.P. 35(W) of 2015 (Allah Rakha Sk. v. State of West Bengal & Ors.) seeking invalidation of the requisition notice on the ground that the said notice carried stigmatic allegations against the writ petitioner therein and was not a notice expressing "lack of confidence" simpliciter. 3. The respondent no. 6 to 17 in that writ petition, who are writ petitioners in this proceeding in course of hearing of that writ petition submitted that they would not press the requisition notice considering the defect involved in the notice in question. That writ petition was disposed of by this Court, holding inter alia:- "In such circumstances, the meeting convened in pursuance of the requisition notices of the respondent nos. 6 to 17 shall stand invalidated and the aforesaid requisition notices shall be permanently stayed. On behalf of the respondent nos. 6 to 17, liberty was prayed for to issue fresh requisition. I d not think any specific leave or liberty from the Court is necessary to initiate any action which may be permissible otherwise under the law. It shall be open to the members of the Panchayat to take such steps as may be permissible under the law." 4. 6 to 17, liberty was prayed for to issue fresh requisition. I d not think any specific leave or liberty from the Court is necessary to initiate any action which may be permissible otherwise under the law. It shall be open to the members of the Panchayat to take such steps as may be permissible under the law." 4. On 9th January, 2015 the writ petitioners sought to bring a new motion for removal of the respondent no. 7 by requiring the prescribed authority to convene a fresh meeting on the ground that they had lost confidence on the respondent no. 7, being the present Pradhan. Under the provisions of Sub-section 12 of Section 12 of the West Bengal Panchayat Act, 1973, there is a bar on convening a meeting for removal of the Pradhan or Upa-pradhan within a specified time limit. On 9th January, 2015, the date on which the motion was sought to be initiated by the requisitionist members, the said provision, as applicable provided:- "(12) Notwithstanding anything contained in sub-section (1), no meeting for removal of the Pradhan or the Upa-Pradhan under this section shall be convened within a period of one year from the date of election of the Pradhan or the Upa-Pradhan either at the first meeting following reconstitution of Gram Panchayat or for filling casual vacancy in the said office." 5. With effect from 13th January, 2015 however the West Bengal Panchayat (Second Amendment) Act, 2014 became operational, having been notified in the Official Gazette. By the amendment Act, the aforesaid Sub-section 12 was replaced by the following provision:- "(12) Notwithstanding anything contained in sub-section (1), no meeting for removal of the Pradhan or the Upa-Pradhan under this section shall be convened within a period of two and a half years from the date of election of the Pradhan or the Upa-Pradhan either at the first meeting following reconstitution of Gram Panchayat or for filling casual vacancy in the said office." 6. On 14th January, 2015 the prescribed authority had issued the notice convening the meeting for consideration of the motion for removal of/lack of confidence against Pradhan and that meeting was scheduled to be held on 22nd January, 2015. On 14th January, 2015 the prescribed authority had issued the notice convening the meeting for consideration of the motion for removal of/lack of confidence against Pradhan and that meeting was scheduled to be held on 22nd January, 2015. But this notice convening the meeting was subsequently cancelled by the prescribed authority by issuing a memorandum bearing number 136(22) dated 16th January, 2015 on the ground of the West Bengal Panchayat (Second Amendment) Act, 2014 having become operational. It is this notice of cancellation, a copy of which has been made Annexure "P6" to the writ petition which is under challenge in this writ petition. 7. The question which arises for determination in this proceeding is as to whether in the instant case, the amended provision of Section 12 of the 1973 Act would be applicable or not. In the event the amended provision is made applicable, the time gap prescribed therein would bar convening a meeting for removal of the Pradhan. This is the admitted position. On behalf of the petitioners, Mr. Jahan, learned Advocate argued that since the removal process had been set in motion, on issue of the first notice contemplated in Sub-Section (2) of Section 12 of the 1973 Act, the intervening amendment cannot be made applicable and the law as it prevailed at the time the requisitionists had made their request to the prescribed authority shall be the law guiding the question of removal of the respondent no. 7. A decision of the Supreme Court in the case of State of Bihar & Ors. v. Mithilesh Kumar reported in 2010(13) SCC 467 has been cited on behalf of the petitioners in support of this submission. It has been held in that judgment: "Reference was also made by the learned counsel to the decision of this Court in N.T. Devin Katti v. Karnataka Public Service Commission wherein it was reiterated that where selection process was initiated by issuing advertisement inviting applications, selection normally should be regulated by the rules and orders then prevailing. It was also emphasised that service jurisprudence provides that normally amendments effected during the pendency of a selection process operate prospectively, unless indicated to the contrary by express language or by necessary implication." 8. He has also relied on a judgment of this Court delivered in the case of Asoke Sawoo v. State of West Bengal reported in 2012(3) Calcutta Law Journal, 482. He has also relied on a judgment of this Court delivered in the case of Asoke Sawoo v. State of West Bengal reported in 2012(3) Calcutta Law Journal, 482. In this judgment, it has been held by the Division Bench:- "In the case of The Secretary of the Managing Committee, Kalinagar Girls' High School, Nadia v. Archana Ghosh (Saha) & Ors., (supra) the Division Bench proceeded on he basis of the decision of the Hon'ble Apex Court in the case of Y.V. Rangaiah, ( AIR 1983 SC 852 ), State of Rajasthan v. R. Dayal, [ (1997) 10 SCC 419 ] and Arjun Singh Rathore v. B.N. Chaturvedi, [ (2007) 11 SCC 605 ]. In the aforesaid decisions, the Hon'ble Apex Court while dealing with the case of promotion held that the date of accrual of vacancy was the material date and Rules prevalent on that date would govern the process of promotion to be undertaken." 9. Founding their case on the ratio of these two authorities, it was contended on behalf of the petitioners that the process for removal ought to be guided by law which prevailed on the date the requisitionist members requested the prescribed authorities to convene the meeting and the applicable statutory provision dealing with the case of removal would be the provision which prevailed at the time of issue of the requisition notice. 10. The established principle of construction is that a statute is always prospective in nature, unless the legislature mandates retroactive operation in respect of a particular legislation. The Court however can construe certain provision to be retrospective in special circumstances if an applicant can claim to have acquired vested legal right to be considered as per the law prevailing before an amendment becomes an operational. In service jurisprudence, this interpretation is often given in cases to protect a candidate from being ineligible on change of law guiding eligibility criteria after commencement of a selection process. Both these judgments have been rendered while dealing with service related disputes. But the tool of interpretation applied in the said two decisions, in my opinion, cannot be imported into statutory provisions guiding convening of meetings, without any provision saving proceedings commenced before the amendment taking effect. The Court ought to give effect to a statutory provision in the manner framed by the lawmakers. But the tool of interpretation applied in the said two decisions, in my opinion, cannot be imported into statutory provisions guiding convening of meetings, without any provision saving proceedings commenced before the amendment taking effect. The Court ought to give effect to a statutory provision in the manner framed by the lawmakers. The amended provision specifically bars convening of a meeting within a period of two and half years from the date of election of a Pradhan or Upa-Pradhan. It was after the point of time when this amended provision became applicable, the prescribed authority had issued the notice convening the meeting. The principle applicable to service jurisprudence that the date of vacancy or the date of commencement of selection process is the relevant date for determining the applicable legal provision relating to eligibility of a candidate would not be the guiding principle in the instant case as the provisions of the amended Act give a clear indication as to what is meant or intended by the legislature. There is no scope of any further interpretation of legislative intent in this case. Right to remove a Pradhan vested in elected members of a Gram Panchayat does not originate from a source superior to the ordinary legislative process. It is a right originating from the 1973 Act, and would have to be exercised in the manner laid down by the statute. The elected members of a Gram Panchayat do not have any unencroachable legal right to remove a Pradhan of a Panchayat. The statutory provision on this point is clear. Thus the petitioners' case in my opinion cannot be sustained. The decision taken by the prescribed authority on 16th January, 2015 cancelling the meeting convened is sustained. 11. The writ petition stands disposed of in the above terms. 12. There shall however be no order as to costs. 13. Urgent photostat certified copy of this order be given to the parities expeditiously, if applied for.