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2016 DIGILAW 725 (CAL)

Bapi Halder v. Monoranjan Naskar

2016-09-15

BISWANATH SOMADDER, SIDDHARTHA CHATTOPADHYAY

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JUDGMENT : Biswanath Somadder, J. 1. By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the application for stay and disposed of as follows:-- The impugned judgment and order dated 12th August, 2016, passed by the learned Single Judge reads as follows:-- "Let the affidavit-of-service filed in Court today be kept with the record. Heard Mr. Bhattacharyya, the learned Advocate for the petitioner and Mr. Gupta, the learned Additional Advocate General for the State respondents as well as Mr. Bhattacharyya, the learned Advocate for the respondent No. 7. The petitioner is the Pradhan of Krishnachandrapur Gram Panchayat. He challenges the notice of meeting on motion issued by the prescribed authority, i.e. the respondent No. 4 herein on the ground that the requisitionists had not sent any notice to the petitioner in terms of section 12(2) of the West Bengal Panchayat Act. He had collected on copy from the office of the prescribed authority. The other point of challenge is that the notice of meeting on motion was delivered to the petitioner on August 6, 2016 and the meeting has been held on August 12, 2016 thereby violating the provisions of section 12(3) of the said Act. Mr. Gupta has right now no instruction. He prays for some accommodation to obtain the relevant instruction from the appropriate authority. The respondent No. 4 is directed to file a report in the form of an affidavit in response to the grounds of challenge to the holding of the meeting on motion on the next date of hearing. The report must specifically disclose how the prescribed authority satisfied himself about the compliance of the requirement of sections 12(2) and (3) of the West Bengal Panchayat Act. I have been informed by Mr. Bhattacharyya that a meeting had actually been held on August 12, 2016 at 2 p.m. and the petitioner has been removed. Since I am prima facie satisfied about the statements made by the petitioner in the writ petition which he has affirmed as true to his knowledge I am of the view that the petitioner has been able to make out a prima facie case of the grant of an interim order. Since I am prima facie satisfied about the statements made by the petitioner in the writ petition which he has affirmed as true to his knowledge I am of the view that the petitioner has been able to make out a prima facie case of the grant of an interim order. In such view of it the respondent No. 4 shall not give any further effect to the result of the meeting held today, inasmuch as he shall restrain himself from holding any further meeting for the election of the new Pradhan, till September 2, 2016 or until any other order whichever is earlier. Let this matter appear in the Supplementary List on August 26, 2016. The petitioner is directed to communicate the gist of the order to the respondent No. 4 forthwith and the respondent No. 4 shall act on such communication without insisting on production of a certified copy of the order." 2. The appellants before this Court were the private respondent Nos. 7 to 13 before the learned Single Judge. The appellants - as requisitionists - signed a motion in writing expressing their lack of confidence against the Pradhan of the concerned Gram Panchayat. A copy of such motion was delivered to the Prescribed Authority, as also the Pradhan of the concerned Gram Panchayat. It was contended before the learned Single Judge that the notice was never sent to the writ petitioner, being the Pradhan, in terms of section 12(2) of the West Bengal Panchayat Act. The Pradhan had collected one copy of the notice from the office of the Prescribed Authority. 3. The records, however, reveal that a copy of the motion was sent by Registered Post at the residential address of the Pradhan, but he refused to accept service. Section 12(2) of the West Bengal Panchayat Act mandates that 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 is required to be sent by Registered Post at the residential address of the Pradhan. In the facts of the instant case, the notice which was sent by Registered Post was refused to be accepted by the Pradhan at his residential address. Such refusal amounts to good service in view of the well settled position in law in respect of service of notice. In the facts of the instant case, the notice which was sent by Registered Post was refused to be accepted by the Pradhan at his residential address. Such refusal amounts to good service in view of the well settled position in law in respect of service of notice. In so far as a copy of the notice required to be delivered to the Pradhan is concerned, the endorsement in writing at page 87 of the stay application clearly reveals that such attempt of personal delivery failed due to refusal to accept delivery. As such, the statutory requirements of section 12(2) of the West Bengal Panchayat Act, have been duly complied with. 4. The other point which appears to have been urged before the learned Single Judge is in respect of the meeting having been held on 12th August, 2016, was in violation of the provision of section 12(3) of the West Bengal Panchayat Act. The provision of section 12(3) of the West Bengal Panchayat Act postulates the following conditions which are required to be fulfilled. The first condition is that the Prescribed Authority, on receipt of the motion, shall satisfy himself that it conforms to the requirements of sub-section (2). Upon arriving at such satisfaction, the Prescribed Authority shall convene a meeting of the Gram Panchayat by issuance of a notice within five working days of the receipt of the motion. The last condition that is required to be fulfilled is that such notice of meeting of the Gram Panchayat is required to be "sent" at least before clear seven days to each of the existing members for consideration of the motion and for taking a decision on it. 5. The records of the case reveal that the Prescribed Authority received the motion on 26th July, 2016. The notice for holding of the meeting was issued on 1st August, 2016, i.e., within five working days. The notice convening meeting was "sent" on 1st August, 2016, itself, i.e., before clear seven days of holding of the meeting. 5. The records of the case reveal that the Prescribed Authority received the motion on 26th July, 2016. The notice for holding of the meeting was issued on 1st August, 2016, i.e., within five working days. The notice convening meeting was "sent" on 1st August, 2016, itself, i.e., before clear seven days of holding of the meeting. Although it has been contended by the respondent/writ petitioner that the notice of the Prescribed Authority was "received" on 6th August, 2016, while the meeting was scheduled to be held by 12th August, 2016 and as such, it was less than clear seven days, this Court is of the view that the statute provides for "sending" of such notice by the Prescribed Authority at least before clear seven days to each of the existing members and not "receipt" of such notice within clear seven days. There is a fundamental difference between the two. If the intention of the legislature was that the existing members of the Gram Panchayat were required to 'receive' the notice convening meeting from the Prescribed Authority at least before clear seven days from the date and hour of the meeting, the legislature would not have used the expression of "sending such notice" and would have instead used the phrase or expression, "and ensure receipt of such notice". Since the legislative intention is quite clear from a plain reading of section 12(3) of the West Bengal Panchayat Act, 1973, this Court is of the view that in the facts of the instant case, the statutory requirements envisaged under the said provision of law have been duly complied with. 6. It may not be out of place - at this stage - to observe that the object of introducing sub-sections (1), (2) and (3) under section 12 in the West Bengal Panchayat Act is only to ensure that a motion of no confidence for removal of a Pradhan or an Upa-Pradhan is brought about and executed through a transparent democratic process which ensures elimination of any clandestine design being evolved to oust either of them. In order to further this object, the Prescribed Authority as well as the concerned office bearer is required to be given adequate and effective notice of such motion. The law additionally ensures elimination of frivolous motion. [See Krishna Dhar & Ors. In order to further this object, the Prescribed Authority as well as the concerned office bearer is required to be given adequate and effective notice of such motion. The law additionally ensures elimination of frivolous motion. [See Krishna Dhar & Ors. v. The State of West Bengal & Ors., reported in (2012) 4 Cal LT 10 (HC).] 7. In the facts of the instant case, it further appears that the respondent/writ petitioner has already been removed as the Pradhan of a Gram Panchayat. A Gram Panchayat must run on democratic principles. In democracy, all persons heading such public bodies can continue to hold office provided they enjoy the confidence of the persons who comprise such bodies. This is the essence of the democratic republicanism. In this context, one may take notice of the observations made by the Supreme Court in the case of Usha Bharti v. State of U.P. & others., reported in AIR 2014 SC 1686 : (2014) 7 SCC 660. 8. For reasons stated above, this Court is of the view that the judgment and order dated 12th August, 2016, passed by the learned Single Judge is liable to be set aside and is accordingly set aside. The writ petition, being W.P. 15750 (W) of 2016, also stands dismissed. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.