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2015 DIGILAW 194 (CAL)

Rajendra Kujur v. State of West Bengal

2015-03-03

ANIRUDDHA BOSE

body2015
Judgment :- Aniruddha Bose, J. 1. Today this matter was listed for considering the prayer for extension of interim order, as the interim order already passed in this matter is lapsing today. At the time of hearing, however, learned Counsel appearing for the parties agreed to disposal of the writ petition at this stage, considering the limited scope of dispute involved in this proceeding. 2. The petitioner was elected as ‘Pradhan’ of Newlands Kumargram Sankosh Gram Panchayat in the district of Alipurduar on 16th August, 2013. 25th September 2014, a requisition notice was issued by eight members of the said Gram Panchayat primarily seeking removal of the petitioner from that post. The Gram Panchayat itself has fourteen members, as it appears from paragraph 7B of the affidavit-inopposition filed on behalf of the requisitionist members. On the basis of the requisition notice, a meeting was convened for considering the motion by the prescribed authority by issuing a notice in Form-1E as per the provisions of the West Bengal Panchayat (Constitution) Rules, 1975. The meeting was scheduled to be held on 21st October, 2014. 3. A supplementary affidavit has been filed to the affidavit-in-opposition affirmed by the respondent no. 4. In this affidavit, it has been stated that the meeting was held on the scheduled date and the motion of no confidence was carried, as majority members had voted in favour of the motion. This writ petition was filed on 14th October, 2014. On 17th October, 2014, an interim order was passed to the effect that convening of the meeting and all resolutions thereat would abide by the result of the writ petition. A further interim order was passed on 22nd October, 2014 by which the authorities were restrained from taking any step on the basis of the impugned notice dated 25th September, 2014 and all consequential actions. The petitioner was permitted to carry on work as Pradhan. This interim order was initially to last till 12th December 2014, but has since been extended from time to time. 4. In course of hearing before me, the only ground on which the notice convening the meeting as also the consequential steps taken in pursuance thereof are sought to be invalidated is that in the requisition notice, party affiliations of the requisitionist members were not disclosed. 4. In course of hearing before me, the only ground on which the notice convening the meeting as also the consequential steps taken in pursuance thereof are sought to be invalidated is that in the requisition notice, party affiliations of the requisitionist members were not disclosed. Stand of the requisitionist members, however, is that prior to issuing the requisition notice, they had taken a resolution in a meeting on the basis of which the said notice was sent. That resolution, which was taken on 22nd September, 2014, was signed by the individual eight members of the Gram Panchayat disclosing their party affiliations. It is also the case of the requisitionist members that while the requisition notice was sent to the prescribed authority the copy of the resolution was also sent. 5. For the purpose of adjudication of this writ petition, provisions of Sections 12 (1), (2) and (3) of the West Bengal Panchayat Act are required to be examined. These provisions specify:- “12. 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 in conforms to the requirements of sub-section (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.” 6. Admitted fact in this proceeding is that the requisition notice did not carry the party affiliation of the issuing members. The question of law which falls for determination in this writ petition is as to whether this omission is mere procedural error, constituting irregularity which could be ignored considering the surrounding circumstances of the case and the majority decision ought to be given effect to in spite of this flaw or not. The petitioner’s case is that disclosure of party affiliation is mandatory provision of the statute and failure to do so would render the requisition notice itself invalid. No meeting could be convened on the basis of such requisition notice. 7. On behalf of the State, it is submitted that this procedural defect would not invalidate the proceeding for removal of the Pradhan. The requirement to specify party affiliation in the requisition notice is a directory provision, and the breach thereof would not be fatal. Ms. Bhattacharya, learned Counsel for the State wants this provision to be construed to be directory on two grounds. Her first contention is that the statute does not specify that failure to disclose party affiliation would render the subsequent steps void. According to her, this factor by itself would require the said provision to be interpreted as a directory provision. The second ground urged by her is that no prejudice has been caused to the petitioner by such non-disclosure as no dispute on defection is involved in this proceeding in terms of Section 213A of the 1973 Act. She has relied on three authorities in support of her submissions, being the cases of (i) Dove Investments (P) Ltd. Vs. Gujarat Industrial Investment Corporation [ (2006) 2 SCC 619 ], (ii) Ram Deen Mauria Vs. State of U.P. [ (2009) 6 SCC 735 ] and (iii) May George Vs. Special Tahsildar & Ors. She has relied on three authorities in support of her submissions, being the cases of (i) Dove Investments (P) Ltd. Vs. Gujarat Industrial Investment Corporation [ (2006) 2 SCC 619 ], (ii) Ram Deen Mauria Vs. State of U.P. [ (2009) 6 SCC 735 ] and (iii) May George Vs. Special Tahsildar & Ors. [ (2010) 13 SCC 98 ]. 8. In the case of Dove Investments (supra), dispute was in relation to registration of transfer of shares under the provisions of the Companies Act, 1956. The Hon’ble Supreme Court in this case had addressed the question as to whether the timeframe prescribed in Section 108(1C) of the Act for compliance of certain formalities relating to transfer of shares was mandatory or directory. It was held in this case that whether a statutory provision shall be construed to be directory or mandatory would depend upon the scheme thereof. Ordinarily a procedural provision would not be mandatory even if the word “shall” is used in relation to observance of such procedure, unless prejudice is caused to a party who questions non-compliance of such provision. 9. In the case of Ram Deen (supra) also this question was considered, and in that case relating to service in an educational institution an application for transfer was not routed through the management of one of the institutions involved, which was prescribed in the statutory provisions. But this default was held to be non-compliance of procedural requirement and found to be breach of a directory provision, and hence not fatal. The judgment of May George (supra) is in relation to non-compliance of the provisions of certain parts of Section 9 of the Land Acquisition Act, 1894 and in that context it was held by the Hon’ble Supreme Court:- “While determining whether a provision is mandatory or directory, in addition to the language used therein, the Court has to examine the context in which the provision is used and the purpose it seeks to achieve. It may also be necessary to find out the intent of the legislature for enacting it and the serious and general inconveniences or injustice to persons relating thereto from its application. The provision is mandatory if it is passed for the purpose of enabling the doing of something and prescribes the formalities for doing certain things.” 10. It may also be necessary to find out the intent of the legislature for enacting it and the serious and general inconveniences or injustice to persons relating thereto from its application. The provision is mandatory if it is passed for the purpose of enabling the doing of something and prescribes the formalities for doing certain things.” 10. The scope of subsection (2) of Section 12 of the 1973 Act was examined by an Hon’ble Division Bench of this Court in W.P.No. 24555(W) of 2014 (Gopal Kumar Vs. State of West Bengal) and this decision was delivered on 18th December, 2014 on reference made to the Hon’ble Division Bench. The reference was made as two Hon’ble Judges of this Court differed in their views on the point as to whether the prescribed authority specified in that provision was required to record his satisfaction or not before convening a meeting for removal of an office-bearer of a panchayat after issue of a requisition notice. In this judgment, the scope of subsection 2 of Section 12 of the 1973 Act was examined by the Hon’ble Division Bench and it was held:- “Section 12(2) of the said Act provides manner in which such a meeting can be requisitioned. It stipulates that one-third of the existing members 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 such office holder. The motion must indicate the party affiliation or independent status of each of the members signing the motion. It must be delivered in person through any of the members or sent by registered post to the Prescribed Authority. One copy of the motion must be delivered to the concerned office bearer either by hand or by registered post at the Gram Panchayat office. Another copy of the motion must be sent by registered post at the residential address of the concerned office bearer. Thus, the requirements of sub-Section 2 are as follows:- (i) One-third of the existing members of the Gram Panchayat subject to a minimum of three members shall sign a motion in writing. (ii) The motion in writing will record their lack of confidence against the Pradhan or the Upa-Pradhan or their intention to remove the Pradhan or the Upa-Pradhan. Thus, the requirements of sub-Section 2 are as follows:- (i) One-third of the existing members of the Gram Panchayat subject to a minimum of three members shall sign a motion in writing. (ii) The motion in writing will record their lack of confidence against the Pradhan or the Upa-Pradhan or their intention to remove the Pradhan or the Upa-Pradhan. (iii) The party affiliation or independent status of each of such members shall be indicated in the motion. (iv) The motion must be delivered in person through any of the members or sent by registered post to the Prescribed Authority. (v) 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. (vi) Another copy of the motion shall be sent by registered post at the residential address of the concerned office bearer. (21) Section 12 (3) provides that the Prescribed Authority upon receiving the motion shall satisfy himself that it conforms to the requirements of subsection 2 and upon such satisfaction shall specially convene, by issue of notice, a meeting of the Gram Panchayat for consideration of the motion and for taking a decision on it. An obligation is, thus, cast on the Prescribed Authority to convene a meeting as per the requisition of the members if he is satisfied that the motion complies with the requirements of sub-Section 2. This is not subjective satisfaction and the Prescribed Authority has no amount of discretion in the matter. It is purely an objective satisfaction and the only obligation of the Prescribed Authority is to check if the motion complies with the six requirements of sub-Section 2 enumerated above. Sub-Section (2) is nothing but a check list and the duty of the Prescribed Authority is to see that the requirements indicated in the check list have been complied with by the requisitionists. If satisfied that the six requirements of sub-Section 2 have been complied with, the Prescribed Authority is duty bound to convene the meeting. Equally, if he finds that anyone or more of the requirements are not complied with then the motion is not legally acceptable and he is duty bound not to convene a meeting on the basis of such deficient motion. Equally, if he finds that anyone or more of the requirements are not complied with then the motion is not legally acceptable and he is duty bound not to convene a meeting on the basis of such deficient motion. (22) In our view satisfying himself as regards the sufficiency of the motion really means that the Prescribed Authority has to ascertain with reference to sub-Section 2 whether the requirements mentioned therein are satisfied by the motion. No subjective exercise is involved therein. No executive or administrative order is to be issued by the Prescribed Authority by convening the meeting. It is more of a ministerial task. In our view, the language of sub-Section 3 is quite clear and the legislature did not require the Prescribed Authority to record his satisfaction or reasons in support thereof as regards the sufficiency of the motion before convening the meeting. We are in agreement with the view of Samaddar, J. in the case of Firoza Begam (supra) that issuance of notice convening the meeting itself indicates the satisfaction of the Prescribed Authority as regards acceptability of the motion.” 11. So far as the subject dispute is concerned, none of the six steps required to be complied with before a meeting is convened and thereafter held for removal of a panchayat functionary has been qualified with a default clause. But this is not the sole test on which the character of a statutory provision would have to be determined on the question as to whether certain steps prescribed in a statute is mandatory or directory in nature. If the requirements of Section 12 (2) are to be examined by applying this test alone, then the entire provision would have to be construed as directory provision. The provision has to be construed in the context of the statutory scheme, as held by the Hon’ble Supreme Court in the judgments referred to above. None of the three decisions cited on behalf of the respondents lay down, as an absolute proposition of law that a procedural provision would always have to be construed being directory in nature. 12. Having regard to the opinion expressed by the Hon’ble Division Bench on this very provision, I am of the view that the provision relating to compliance of the formalities prescribed in Section 12 (2) of the 1973 Act ought to be held mandatory. 12. Having regard to the opinion expressed by the Hon’ble Division Bench on this very provision, I am of the view that the provision relating to compliance of the formalities prescribed in Section 12 (2) of the 1973 Act ought to be held mandatory. If I refer to the context of the Statute, by this provision a member who is elected to a certain post for a specified period of time is permitted to be removed before the end of his tenure by a prescribed procedure. Since the mode prescribed in Section 12 (2) of the 1973 Act relates to steps which are to operate to the prejudice of an elected office-bearer, in my opinion strict adherence to such provision is necessary. The entire process of removal of an office-bearer of a Panchayat, except actual holding of meeting, is procedural. But merely because it is procedural, the Court ought not to undertake a quasi-legislative exercise, and give its own opinion as regards intention of the legislature. Such a course would be permissible, where in a given context, statutory provision may not provide a clear answer on the course to be followed. In this case, there is no ambiguity in the statutory provision. It is not in dispute that there has been deviation from the prescribed statutory mode. If the prescribed procedure for undertaking certain steps is not followed, ordinary rule of interpretation would apply. Moreover, the Hon’ble Division Bench in the case of Gopal Kumar (supra) has observed that the nature of duty to be discharged by the prescribed authority after receiving a requisition notice is ministerial in nature. If the statute mandates a public authority to undertake certain duty which is ministerial in nature, in my opinion strict compliance of the statutory provisions would be necessary. A public authority performing ministerial duty cannot be expected to undertake an exercise to ascertain if there has been substantial compliance of the provisions, or if any omission has caused any prejudice to one complaining of non-observance of such provisions. That would alter the character of the duty he is to perform – as he would have to exercise discretion while taking such decision. To determine whether one of the six requirements of subsection 2 of Section 12 is mandatory or directory, the prescribed authority would be required to apply its mind and engage in the process of subjective satisfaction. That would alter the character of the duty he is to perform – as he would have to exercise discretion while taking such decision. To determine whether one of the six requirements of subsection 2 of Section 12 is mandatory or directory, the prescribed authority would be required to apply its mind and engage in the process of subjective satisfaction. That is not permissible in view of the decision of the Hon’ble Division Bench on this very point. While use of the verb “shall” would not always convey the meaning of a mandate where compliance of certain formalities is specified, in every case the Court cannot substitute the said verb with “may”. That would constitute rewriting the law. 13. The disclosure of party affiliation in a requisition notice is also not an idle formality. If a member is set up by a recognized political party, then such member after election is required to follow party line. Giving up membership of such political party or voting contrary to party directive would attract disqualification. Even if in this case the disqualification issue is not involved, disclosure in a requisition notice of party affiliation in the mode prescribed is an essential element in the process for removal of an office-bearer of a Panchayat. 14. In the background of this factual and legal position, I find that the ratio of the three decisions of the Hon’ble Supreme Court are not applicable in this case. The decision of the Hon’ble Division bench in the case of Gopal Kumar (supra) lays down the law on this point. Learned Counsel for the State had argued that the judgment of the Hon’ble Division Bench in the case of Gopal Kumar (supra) was not on the point involved in this writ petition and in that judgment, the Hon’ble Division Bench was not considering the question as to whether the provisions of subsection 2 of Section 12 are mandatory or directory. It is a fact that the reference to the Hon’ble Division Bench was on a different point. But since the Hon’ble Division Bench has opined on the aspect of the duty of the prescribed authority and construed the provisions of subsection 2 of Section 12, I shall follow the view expressed by the Hon’ble Division Bench on that point. 15. The writ petition is accordingly allowed. But since the Hon’ble Division Bench has opined on the aspect of the duty of the prescribed authority and construed the provisions of subsection 2 of Section 12, I shall follow the view expressed by the Hon’ble Division Bench on that point. 15. The writ petition is accordingly allowed. The impugned notice of the prescribed authority being annexure “P1” to the writ petition is quashed. The consequential steps taken thereof shall also stand invalidated. No effect shall be given to the resolution taken in the meeting of Newlands Kumargram Sankosh Gram Panchayat which was held on 21st October, 2014 for removal of the petitioner as ‘Pradhan’. 16. There shall however be no order as to costs.