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2015 DIGILAW 183 (CAL)

Renuka Hansda v. State of West Bengal

2015-02-26

ANIRUDDHA BOSE

body2015
JUDGMENT : Aniruddha Bose, J. 1. The writ petitioner questions the legality of a proceeding undertaken for her removal from the post of 'Pradhan' of Jagdala Gram Panchayat in the district of Malda. The requisition notice expressing loss of confidence in her, by which the prescribed authority was requested to convene a meeting for her removal was issued on 29th August, 2014. The Gram Panchayat has fifteen members in total, and seven members had signed the requisition notice. The prescribed authority convened the meeting by issuing a notice on that very date and the meeting was scheduled to be held on 16th September, 2014. On 15th September, 2014, an interim order was passed in this writ petition permitting holding of the meeting and the respondents were given liberty to take stop gap measures in accordance with law on the basis of the outcome of the meeting but they were restrained from proceeding further on the basis of the resolution which was to be adopted in the scheduled meeting. This interim order was initially directed to subsist till 22nd September, 2014 but has subsequently been extended from time to time. Mr. Banerjee, learned senior counsel appearing for the petitioner questioned the validity of the said two notices, the first one being the requisition notice, a copy of which has been made annexure P to the writ petition, and the second one being the notice issued by the prescribed authority convening the meeting, the copy of which has been made annexure P-1 to the writ petition. 2. The impugned notices are assailed on three grounds at the time of hearing of the writ petition. The first ground urged on behalf of the petitioner is that in a single notice the requisitionist members could not ask for convening a meeting for loss of confidence and also removal of the Pradhan. On this point, Mr. Banerjee has relied on a judgment of this Court in the case of Rati Kanta Giri v. State of West Bengal & Ors. (98 CWN 989). On this point, Mr. Banerjee has relied on a judgment of this Court in the case of Rati Kanta Giri v. State of West Bengal & Ors. (98 CWN 989). His further submission is that the prescribed authority acted in this matter in undue haste, first on the aspect of satisfying himself as regards compliance of the provisions of sub-sections (2) and (3) of Section 12 of the Panchayat Act, 1973 and on issuing the notice convening the meeting on the same day the authority had received the requisition notice, being 29th August, 2014. The third ground on which the impugned notices are sought to be invalidated is that the requisition notice involved is a barren notice, disclosing no reason as to why the requisitionist members have lost confidence in the Pradhan. Corollary argument is advanced as regards the requisition notice and it has been submitted that there cannot be a requisition meeting for confidence of the members having been lost in the past in respect on an office-bearer. Loss of confidence, according the petitioner must relate to situation prevailing at the point of time of issue of the requisition notice, but not in relation to events occurring at the distant past. 3. For considering the submissions of Mr. Banerjee, it would be necessary to refer to the text of the requisition notice issued by the seven members of the concerned Gram Panchayat. The requisition notice reads: "We are the elected members of Jagdala G.P. under Bamangola Development Block we lost the Confidence upon the Pradhan Jagdala G.P. Named-Mrs. RENUKA HASDA. Hence we like to remove her from the chair of Pradhan Jagdala G.P. Hence you are requested to convene a requisitioned meeting for the above purpose. This is for favour of your kind information and necessary Action please." (reproduced verbatim) 4. In the Judgment of Rati Kanta Giri (supra), it was held by an Honble Single Judge of this Court: "Having considered the submissions made on behalf of the respective parties, it appears to me that the submissions made on behalf of the petitioner have some force in view of the fact that, although, no confidence and removal are inextricably related to each other, the two are, however, distinguishable matters and are to be considered separately. It is quite correct, as Mr. It is quite correct, as Mr. Bhattacharjee has pointed out, that removal would follow no confidence, but that does not mean that removal can be equated with no confidence. This aspect of the matter was considered in the case of Soleman Shah by A.N. Ray J, as his Lordship then was, and as mentioned hereinbefore, such decision was looked upon with approval by the Division Bench while disposing of the writ application of Royhan & Ors. v. C. Maltiya & Ors. (Supra)." 5. In that judgment, the learned Judge had made the distinction between "loss of confidence" and "removal" and held that for the purpose of removal of an office-bearer, the motion of no confidence is to precede the motion for removal. The notice by which the requisitionist members had requested convening of meeting for consideration of the question of "no confidence" and "removal" of the Pradhan was quashed. 6. This judgment was delivered in the context of Section 12 of the Panchayat Act, 1973, and the said provisions, as it prevailed at that point of time has been brought to my notice by the learned counsel for the State-respondents. At that point of time the said provision stipulated: "S.12. Removal of Pradhan and Upa-Pradhan. A Pradhan or an Upa-Pradhan of a Gram Panchayat may, at any time, be removed from office by a resolution of the Gram Panchayat carried by the majority of the existing members of the Gram Panchayat at a meeting specially convened for the purpose. Notice of such meeting shall be given to the prescribed authority: Provided that at any such meeting while any resolution for the removal of the Pradhan from his office is under consideration, the Pradhan, or while any resolution for the removal of the Upa-Pradhan from his office is under consideration, the Upa-Pradhan, shall not, though he is present preside and the provisions of sub-section (2) of Section 16 shall apply in relation to every such meeting as they apply in relation to a meeting from which the Pradhan or, as the case may be, the Upa-Pradhan is absent." 7. There has been amendments thereafter of Section 12 of the 1973 Act and at present sub-sections (1), (2) and (3) of Section 12, which are relevant for adjudication of this writ petition reads:- "Motion of no confidence or removal of Pradhan or Upa-Pradhan. There has been amendments thereafter of Section 12 of the 1973 Act and at present sub-sections (1), (2) and (3) of Section 12, which are relevant for adjudication of this writ petition reads:- "Motion of no confidence or removal of Pradhan or Upa-Pradhan. - (1) Subject to other provisions of this section, the Pradhan or the Upa-Pradhan of a Gram Panchayat may, at any time, be removed from his office by the majority of the existing members of the Gram Panchayat, referred to in clause (i) of sub-section (2A) of section 4, expressing their lack of confidence against the Pradhan or the Upa-Pradhan or recording their decision to remove the Pradhan or the Upa-Pradhan, at a meeting specially convened for the purpose. (2) For the purpose of removal of the Pradhan or the Upa-Pradhan, one-third of the existing members referred to in sub-section (1) subject to a minimum of three members shall sign a motion in writing expressing their lack of confidence against the Pradhan or the Upa-Pradhan or recording their intention to remove the Pradhan or the Upa-Pradhan, indicating party affiliation or independent status of each of such members and either deliver the motion in person through any of the members or send it by registered post to the prescribed authority; one copy of the motion shall be delivered to the concerned office bearer either by hand or by registered post at the Gram Panchayat office and another copy shall be sent by registered post at his residential address. (3) The prescribed authority on receipt of the motion shall satisfy himself that it conforms to the requirements of subsection (2) and on his satisfaction shall specially convene, by issue of notice, within five working days of the receipt of the motion, a meeting of the Gram Panchayat to be held in its office fixing date and hour of the meeting and sending such notice at least before clear seven days to each of its existing members for consideration of the motion and for taking a decision on it." 8. As would be evident from a comparative analysis of the provisions of the statute which prevailed at the time the decision was delivered in the case of Rati Kanta Giri (supra) and the provisions applicable at present, originally the expression no confidence or loss of confidence was not included in the said provision of the statute. As would be evident from a comparative analysis of the provisions of the statute which prevailed at the time the decision was delivered in the case of Rati Kanta Giri (supra) and the provisions applicable at present, originally the expression no confidence or loss of confidence was not included in the said provision of the statute. It was opined in that judgment that though loss of confidence and removal are inextricably linked, removal could not be equated with no confidence. But the legal provisions in the context of which the above-referred judgment was delivered has undergone substantial alteration now. 9. In sub-section 1 of Section 12 of the Act, the expressions removal and lack of confidence have been employed by the lawmakers interchangeably, to convey the same implication. Focus of the said provision is on removal and expressing loss or lack of confidence appears to be an optional measure which the requisitionist members may undertake for removal of the office bearer upon whom they have lost confidence. Recordal of decision to remove a Pradhan by the requisite majority is sufficient for effecting removal of the Pradhan. It is not necessary for that purpose to specifically express loss of confidence. A plain reading of the statutory provision would imply that in the event in the requisition notice the members altogether omit to express lack or loss of confidence, but only record their decision to remove an office bearer, that act would be sufficient for convening a meeting to remove the Pradhan or the Upa-Pradhan from the office. The distinction between the two acts, one expressing loss of confidence and the other recording the decision to remove an office-bearer has been effaced out by the legislative provision on amendment of the provisions of Section 12 of the 1973 Act effected by the West Bengal Panchayat (Amendment) Act, 2010. In the event the requisitionist members express lack of confidence in an office-bearer, as specified in Section 12 of the Act and also record their decision to remove such office-bearer in the same meeting, preceded by a requisition notice recording both these expressions, such acts would not be rendered invalid. Using both these expression may constitute use of surplusage, but in such a case, it would be not be fatal to the notice or the subsequent resolution carrying the motion. Using both these expression may constitute use of surplusage, but in such a case, it would be not be fatal to the notice or the subsequent resolution carrying the motion. In my opinion, an office bearer can be removed on expression of 'lack of confidence' of the majority of the members and also on recordal of their decision to remove him in the same meeting, and a requisition notice may request the prescribed authority for convening a meeting for both these purposes. Two separate meetings need not be convened for such purpose, as per the provisions of Section 12 of the 1973 Act, as applicable at present. 10. The second limb of submission of Mr. Banerjee was on use of past tense in the last line of the notice in which the requisitionist members indicated that they had lost confidence in the Pradhan, who is the petitioner before me. But loss of confidence has to relate to an event occurring before the members lose their confidence. The requisition notice would have to be issued after such confidence has been lost. Mr. Banerjees submission is that an intransitive verb should have been used. I do not accept this argument. I do not find any grammatical or constructional error in framing the requisition notice. Loss of faith would have to be complete before a requisition notice is issued. Secondly, as per the provisions of Section 12(1) of the 1973 Act, recordal of decision to remove by itself is sufficient for effecting removal of the concerned office-bearer. 11. If it could be demonstrated from the surrounding circumstances that the events causing loss of confidence had occurred in some distant past, that could have been a factor to question the validity of the notice. But no such material has been produced before me at the time of hearing. As regards the allegation that the notice in question is a barren notice and does not disclose the reason as to why the requisitionists seek removal of the Pradhan, the requirement of law is that such notice can only express loss of confidence or decision to remove an office bearer. There cannot be any stigmatic allegation in such a notice. This view has been taken by a Division Bench of this Court in the case of Ujjal Mondal v. State of West Bengal & Ors. (2013 (1) CHN (Cal) 458). There cannot be any stigmatic allegation in such a notice. This view has been taken by a Division Bench of this Court in the case of Ujjal Mondal v. State of West Bengal & Ors. (2013 (1) CHN (Cal) 458). On this count also I do not find the said requisition notice to be flawed. 12. The third point argued on behalf of the petitioner is on undue haste with which the prescribed authority acted in this matter. From the materials, I find an element of hurriedness on the part of the prescribed authority in issuing the notice convening the meeting on the same date he received the requisition notice. But for that reason the notice convening the meeting, which was otherwise issued in accordance with law cannot be invalidated. Satisfaction of the prescribed authority upon receiving a requisition notice is not required to be specifically recorded under the law before convening the meeting for removal. This is a ministerial act in substance. No mala-fide can be attributed to the prescribed authority for acting with certain degree of speed on receiving a requisition notice of this nature. The ultimate test on the question of removal of a Pradhan, provided all the legal pre-conditions stands satisfied, is the view of the majority of the members of the Gram Panchayat. In the instant case, the majority decision thus ought to prevail. 13. The writ petition shall accordingly stand dismissed. 14. Interim order passed in this matter shall stand dissolved. There shall, however, be no order as to costs.