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2016 DIGILAW 936 (CAL)

Abdul Ahad v. State of West Bengal

2016-11-28

BISWANATH SOMADDER, SANKAR ACHARYYA

body2016
JUDGMENT : Biswanath Somadder, J. - 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. 2. The appeal arises out of an order dated 15th July, 2016, passed by the learned Single Judge in W. P. 12527 (W) of 2016. By the said order, the writ petition was dismissed. Against the said order, the writ petitioner has preferred the instant appeal. 3. The facts of the case reveal that the writ petitioner was a Pradhan of Jalalpur Gram Panchayat, which is situated in the district of Malda. He assumed charge on 23rd August, 2013 and continued till he was removed from his office on 15th July, 2016. W. P. 12527 (W) of 2016, was filed on 13th July, 2016. The principal prayers in the said petition are set out herein below. "b) Issue writ in the nature of Mandamus, by directing the respondent no. 5 to take decision in the matter of removal of the private respondent nos. 7 to 10 on the basis of the application dated 16.06.2016, 17.06.2016 and 20.06.2016 of the petitioner as in Annexures P-3 & P-6 above; (c) Issue writ in the nature of Mandamus setting aside the letter dated 30.06.2016 being Annexure P-1 by which the respondent nos. 7 to 17 expressed their desire to remove our petitioner and/or requested the Block Development Officer to hold the meeting for moving no confidence motion; (d) Issue writ in the nature of Mandamus setting aside the notice of motion dated 04.07.2016 issued by the Block Development Officer for holding meeting for removal of Prodhan; (f) Issue writ in the nature of Mandamus directing the prescribed authority to consider the letter dated 22.06.2016 and 04.07.2016 before giving effect to the requisition letter dated 30.06.2016; (g) Issue writ in the nature of Mandamus directing the prescribed authority not to give any effect in case any meeting is conducted on 15.07.2016 as per annexure P-2 and any subsequent resolution adopted thereto till disposal of the writ petition." 4. When the writ petition was taken up for consideration, the learned Single Judge proceeded to observe, inter alia, that the writ petition contains no merit whatsoever. It was further observed that the points of challenge to the notice for removal of the petitioner did not deserve any serious consideration. When the writ petition was taken up for consideration, the learned Single Judge proceeded to observe, inter alia, that the writ petition contains no merit whatsoever. It was further observed that the points of challenge to the notice for removal of the petitioner did not deserve any serious consideration. The learned Single Judge, thereafter, proceeded to dismiss the writ petition by observing that it was devoid of any merit, giving reasons, in support. However, after dismissal of the writ petition, the learned Single Judge went on to observe that it would not prevent the appropriate authority from disposing of the writ petitioner's application under section 11(1)(d) within a certain time-frame. 5. The question of law which comes for consideration in the facts of the instant case is whether the writ petitioner can be removed as Pradhan of a Gram Panchayat by its members even when an application seeking removal and/or disqualification of some of those members, being the requisitionists, was pending before an appropriate authority. This Court proceeds to answer the issue. 6. It is an admitted position in the instant case that on the date when the writ petitioner was removed as Pradhan of the concerned Gram Panchayat on the basis of requisition made by some of its members, an application taken out by the writ petitioner seeking removal and/or disqualification of some of those members, being the requisitionists, was pending consideration before the appropriate authority. It is also the admitted position that the requisitionists were not disqualified at the point of time when the motion of removal of the writ petitioner as Pradhan was put to vote. 7. If one accepts the argument advanced by the appellant/writ petitioner, it would mean to the effect that a person could be convicted and sentenced even before a trial has commenced. A Division Bench of this Court, in a fairly recent judgment (while following an earlier Division Bench judgment rendered in the case of Subodh Kumar Bari v. State of West Bengal, reported in 2001 (1) CLJ 512) has observed, inter alia, as follows in Ujjal Mondal v. State of West Bengal, reported in 2013 (1) CHN 458 (paragraphs 32 and 33): - "32. Now the second point regarding right of members against whom complaints are pending seeking disqualification from membership, whether may file any requisition notice for removal of complainant is being considered. Now the second point regarding right of members against whom complaints are pending seeking disqualification from membership, whether may file any requisition notice for removal of complainant is being considered. To answer this question we need not to wait more. 33. It is a basic principle of law that punishment in the nature of disqualification cannot be imposed by debarring somebody to exercise his power as a member or to exercise his rights and responsibilities as a member, so long no order of disqualification is passed. If the members against whom complaints are pending are debarred to bring requisition notice, the consequential effect would be that disqualification clause is being imposed upon them prior to adjudication of complaints seeking disqualification, which under the law is not permissible. The Division Bench judgment as referred to by respondents has dealt with that issue and we are also holding the same view." 8. Thus, the issue is no more res integra having been clearly answered in the affirmative. As such, there is no justifiable reason as to why the Court of Appeal should entertain the instant appeal against the judgment and order passed by the learned Single Judge. 9. The appeal and the application are, therefore, liable to be dismissed and are accordingly dismissed. Photostat certified copy of this order, if applied for, be given to the learned advocates for the parties. Acharyya, J. - I agree.