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2017 DIGILAW 426 (CAL)

Madhai Chandra Mondal v. State of West Bengal

2017-04-27

HARISH TANDON

body2017
JUDGMENT : Mr. Harish Tandon, J. The petitioner is challenging the order dated October 24, 2016 issued vide Memo No. 2320-A (21/BDB/2016) by the prescribed authority removing him from the post of a Pradhan of Dhapdhapi-II Gram Panchayat with immediate effect and to hand over the charge to Upapradhan within five days from the date of issuance of the said letter. 2. Indubitably, the petitioner was elected as nominated candidate of Communist Party of India (Marxist) and was later on elected as the Pradhan of the said Gram Panchayat. The said Gram Panchayat consists of 13 members out of which 7 members were elected as nominated candidates of the CPI(M) and the rest belong to All India Trinamool Congress (TMC). A notice dated September 27, 2016 was issued by the prescribed authority, which was received by the petitioner on the next date whereby and where under the petitioner was notified that a meeting of the said Gram Panchayat was scheduled to be held on October 21, 2016 at 2 PM. The prescribed authority issued the said notice as 7 members expressed their No-Confidence against the petitioner which includes one of the members elected as nominated candidate of CPI(M). 3. A disqualification petition was filed to the prescribed authority on October 4, 2016 by the leader of the said political party in the Panchayat on October 4, 2016. Since, no action was taken on disqualification petition, the petitioner moved a writ petition being WP 24537(W) of 2016 before this Court. On October 18, 2016, the writ petition was disposed of directing the prescribed authority to dispose of the said petition within a period of one week from the date of the communication of this order which was communicated to the Block Development Office on October 19, 2016. In absence of any restraint from conducting the meeting on October 21, 2016 the said meeting was held at the scheduled place and the petitioner and his other nominated candidates casted their votes. The petitioner alleges that though they reached the place in scheduled time but was surprised to find that the other members belonging to the other political party including the disqualified member already casted their votes and were not present thereat. 4. The petitioner alleges that though they reached the place in scheduled time but was surprised to find that the other members belonging to the other political party including the disqualified member already casted their votes and were not present thereat. 4. The petitioner states that the petitioner and the other members were allowed to cast their votes but their request to strike out the presence of the other members who were not physically present at the scheduled time was turned out. It is further stated that one Shyam Sundar Chakraborty, Sahasabhapati of the Baruipur Panchayat Samity along with some local people forcibly entered into the meeting hall in presence of the police officers and did not allow the presiding officer to continue with the meeting any more and drove him out of the venue. The petitioner and other members of the Panchayat immediately issued a letter dated October 21, 2016 to the Block Development Officer informing the aforesaid illegalities and called his intervention to declare such meeting to be illegal and be not given effect to. 5. On October 24, 2016, the petitioner came to learn that the prescribed authority issued a show-cause notice to the Executive Assistant of the Panchayat, which was uploaded on the official website, but later on removed. By Memo No. 2312/BDB/16 dated October 24, 2016, the petitioner was directed to hand over the charge of the Gram Panchayat to Upapradhan being the disqualified member. The petitioner protested the alleged arbitrary action of the prescribed authority in his letter dated October 27, 2016 pointing out the irregularities and illegalities committed in the meeting dated October 21, 2016. The petitioner received another letter vide Memo No. 2330/13/BDB/16 dated October 25, 2016 for convening a meeting on November 9, 2016 for electing a new Pradhan as the petitioner had been removed from the post of Pradhan in the said meeting dated October 21, 2016. 6. The challenge is thrown to the said Memos dated 24.10.2016 and 25.10.2016 primarily on the ground that the entire action is violative of the provisions of the West Bengal Panchayat Act, 1973 and the prescribed authority acted in haste to achieve the sinister purpose of removing the petitioner from the post of the Pradhan. 7. The instant writ petition was moved on 07.11.2016 and a direction was passed upon the prescribed authority, the respondent no. 7. The instant writ petition was moved on 07.11.2016 and a direction was passed upon the prescribed authority, the respondent no. 2 herein, to file report in the form of an affidavit in response to the allegations made in the writ petition and such report must specifically deal with whether any of the requisitions were present on the date scheduled for holding the meeting for removal of the petitioner from the post of Pradhan. The Court further passed an interim order staying the operation of the order dated October 24, 2016 by which the petitioner was illegally removed from the post of the Pradhan for a period of 3 weeks. The said interim order was extended from time to time until the matter is finally heard. 8. The prescribed authority submitted the report in terms of the said order. The sum and substance of the report as would appear therefrom is that on the basis of the No-Confidence expressed by the 7 members of the Gram Panchayat, the prescribed authority issued a notice in prescribed form in terms of Section 12(3) of the said Act. The meeting was held on the said date at the scheduled time and the petitioner and the other members casted their votes on the ballot paper by putting their respective signatures. 7 members voted in favour of the motion and the 6 against and by majority the motion for removal of the petitioner from the post of the Pradhan was passed. The said respondent denied the allegation of the petitioner that the 7 members were not present at the scheduled time. The said allegation is incorrect, which would be evident from the attendance register-cum-minute book. All the actions were taken strictly in conformity with the provision of the Act and therefore the allegation made in the writ petition lacks substance. It is further indicated in the said report that the alleged disqualified member was called for hearing on 24.10.2016 and after affording an opportunity of hearing an order was passed rejecting the allegation made against him vide Memo No. 2413/(4)/BDB/16 dated 11.11.2016. 9. On the conspectus of the aforesaid facts Mr. It is further indicated in the said report that the alleged disqualified member was called for hearing on 24.10.2016 and after affording an opportunity of hearing an order was passed rejecting the allegation made against him vide Memo No. 2413/(4)/BDB/16 dated 11.11.2016. 9. On the conspectus of the aforesaid facts Mr. Bikash Ranjan Bhattacharya, learned Senior Counsel appearing for the petitioner submits that the meeting held on 21st October, 2016 is bad as the requisitions were not present at the scheduled time and the authority compelled the petitioner and his supported members to cast the vote on the said date. It is further submitted that the notice issued by the prescribed authority is not in conformity with sub-Section 2 of Section 12 of the Act as no copy of the motion was delivered to the petitioner and his supported members. 10. It is further submitted that the minutes of the meeting were never read over to all attending members nor their signatures were obtained thereon as required under sub-Section 8 of the said Section. It is vehemently submitted that the Memo dated 24.10.2016 issued upon the Upapradhan to take charge from the petitioner is issued prior to the issuance of the Memo by which the petitioner was removed from the post of the Pradhan, which shows that the authorities acted in haste and in blatant violation of the provisions of the said Act. 11. It is further submitted that the language used in Section 12 of the Act obligated the prescribed authority to follow the procedure which is mandatory in nature and therefore any departure therefrom would entail the actions or steps taken to be illegal and liable to be quashed. In support of the aforesaid contention the reliance is placed upon a judgment of the Apex Court in case of Dove Investment Pvt. Ltd. & Ors. v. Gujarat Investment Corporation & Anr. Reported in (2006) 2 SCC 619 and Ram Deen Maurya (DR) v. State of Uttar Pradesh & Ors. Reported in (2009) 6 SCC 735 . It is strenuously submitted that if the conditions are mandatorily required to be followed, the nonobservance thereof would be fatal and placed reliance upon a judgment of the Apex Court in case of Laxmi Verma v. State of Maharashtra & Anr. reported in (2010) 5 SCC 329 . 12. Reported in (2009) 6 SCC 735 . It is strenuously submitted that if the conditions are mandatorily required to be followed, the nonobservance thereof would be fatal and placed reliance upon a judgment of the Apex Court in case of Laxmi Verma v. State of Maharashtra & Anr. reported in (2010) 5 SCC 329 . 12. On the other hand, the learned Advocate appearing for the respondents submits that the report would clearly show that the prescribed authority followed all the requirements of the provision of law in proceeding to convene a meeting for removal of the Pradhan on the basis of the requisition by the majority members of the Gram Panchayat and therefore cannot be impinged. It is further submitted that the Gram Panchayat is run on a democratic principle and if the majority members lost confidence on the Pradhan, Section 12 of the Act permits such action to be taken and therefore the petitioner cannot have any legal basis to challenge the same. It is thus submitted that sub-Section 2 of Section 12 of the Act requires the signing of a motion by ?rd of the existing members and even if the name of the defecting member the removed therefrom, yet the motion confirms to the said provision having signed by more than ?rd members of the said Gram Panchayat. It is further submitted that the defecting member is not disqualified by the competent authority as the petition filed by the political party was turned down by an order dated 11.11.2016. 13. Mr. Bhattacharya, however, submits that the Pradhan cannot hold the post if the majority members voted against him and No-Confidence motion was passed and placed reliance upon the unreported judgments of the Division Bench of this Court in case of Panchu Mandal v. State of West Bengal & Ors. [FMA 1209 of 2015 (MAT 242 of 2015)], Minara Bibi & Ors. v. Muslima Bibi & Ors. (MAT 2098 of 2014 with CAN 11741 of 2014), Putul Gayen & Ors. v. Pijush Bairagi & Ors. (MAT 1596 of 2016 with CAN 8885 of 2016). It is further submitted that the petitioner cannot challenge the meeting after having participated and lost therein. It is, thus submitted that the writ petition deserves dismissal. 14. v. Muslima Bibi & Ors. (MAT 2098 of 2014 with CAN 11741 of 2014), Putul Gayen & Ors. v. Pijush Bairagi & Ors. (MAT 1596 of 2016 with CAN 8885 of 2016). It is further submitted that the petitioner cannot challenge the meeting after having participated and lost therein. It is, thus submitted that the writ petition deserves dismissal. 14. On the conspectus of the facts narrated here-in-above and the said submissions advanced by the respective counsels the point which emerged therefrom is whether the meeting dated October 21, 2016 is bad, having convened in contravention to the provisions of Section 12 of the Act. 15. Before proceeding to deal with the point urged in the instant writ petition it would be relevant and profitable to quote Section 12 of the Act as under: "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 it 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. (4) The meeting referred to in sub-section (3) shall be held on a working day which shall not be later than fifteen working days from the date of receipt of the motion by the prescribed authority and the meeting so convened shall not be adjourned or cancelled except in pursuance of an order or direction of a competent court or for any other reason beyond control of the prescribed authority. (5) Such meeting shall be presided over by an officer, as may be authorized by the prescribed authority, in the manner as may be directed by order by the State Government or as may be prescribed and the presiding officer before commencement of the meeting shall ensure than notice has been duly served to every member in the manner laid down in this behalf; quorum required for such meeting shall be more than fifty per cent of the existing members referred to in sub-section (1) and the presiding officer shall not be entitled to vote at the meeting although he may advise on one or more points of law without expressing his own views. (6) If there is n consensus decision in the meeting, voting shall be held by open ballot wherein each participating member shall put his full signature or his left thumb impression to be attested by the leader, referred to in section 213A, of the same political party to which the member belongs or by the said presiding officer on the reverse side of the ballot paper. (7) The minutes of the meeting shall be written by the Secretary or in his absence, by any other official as authorized by the presiding officer. (7) The minutes of the meeting shall be written by the Secretary or in his absence, by any other official as authorized by the presiding officer. Such minutes shall record in brief names of the members present, the procedure followed, names of the members who voted for or against the motion and the decision adopted unanimously or by the majority of its existing members and shall be signed by him as well as by the presiding officer. (8) After the minutes of the meeting is signed by the presiding officer, it shall be read over to all the attending members who shall thereafter put their signatures or left thumb impressions, as the case may be, on the minutes in confirmation of the proceedings recorded. Then the presiding officer shall again put his signature on the same document after recording the names of members, if any, who have declined to sign or left earlier and thereafter he shall collect a copy of the minutes before leaving the premises. (9)(a) The Executive Assistant or in his absence the Secretary of the Gram Panchayat shall, within three working days of the meeting, forward a copy of the minutes of the meeting to the prescribed authority. (b) The presiding officer shall also submit a separate report in writing along with a copy of the minutes of the meeting within the aforesaid time to the prescribed authority. (10) On receipt of the minutes of the meeting and the report under sub-section (9), the prescribed authority shall, within next five working days, take such action as he may deem fit and the entire process commencing from submission of motion to the prescribed authority up to the action finally taken by him shall be completed within thirty days. (11) If the motion is not carried by the majority of its existing members or the meeting cannot be held for want of quorum, no notice of any subsequent motion for the removal of the same office bearer shall be taken into cognizance within a period of one year from the date appointed for such meeting. (11) If the motion is not carried by the majority of its existing members or the meeting cannot be held for want of quorum, no notice of any subsequent motion for the removal of the same office bearer shall be taken into cognizance within a period of one year from the date appointed for such meeting. (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.]." 16. The said Section relates to a motion of No-Confidence or removal of the Pradhan and Upapradhan. Sub-Section 1 of Section 12 of the Act signifies the legislative intent that in a democratic set up the Pradhan or Upapradhan of a Gram Panchayat do not enjoy an unfettered right to remain in the said post until the term expires. They can be removed from their office if the majority of the existing members of the Gram Panchayat expressed their lack of confidence at the meeting specially convened for such purpose. Under sub-Section 2, ?rd of the existing members subject to minimum of 3 members are competent to sign motion in writing expressing their lack of confidence against the Pradhan and shall either deliver the motion in person through any of the members or send by registered post to the prescribed authority. The prescribed authority on receipt of the said motion after satisfying himself the pre-requisite conditions shall convene a meeting for such purposes upon issuing a notice within 5 working days of the receipt of the motion and convene a meeting in the office of the Gram Panchayat fixing the date and hour and such notice must be sent at least clear 7 days before to each of the existing members. There is an embargo on the prescribed authority to adjourn or cancel the said meeting except when an order or direction is passed by the competent Court or on any other reason beyond the control of the said authority. There is an embargo on the prescribed authority to adjourn or cancel the said meeting except when an order or direction is passed by the competent Court or on any other reason beyond the control of the said authority. The minutes of the meeting shall be written by the Secretary or any other Officer duly authorised in this regard by the Presiding Officer recording the brief names of the members present and voted for an against the motion and the decision adopted therein by the majority which shall be signed by him as well as the Presiding Officer. The resolution adopted and recorded in the meeting shall be read over to all the attending members who shall thereafter put their signatures or the thumb impression as the case may be followed by the signature of a Presiding Officer on the said document and if any member or members declined to sign or put the impression, such fact would also be recorded therein. The copy of the said minute would be forwarded to the prescribed authority within 3 working days of the meeting who shall within next 5 working days take action as may require and the entire process shall be completed within 30 days therefrom. The other provisions of the said Section is not relevant in the present context and it would not be necessary to deal with the same. 17. Admittedly, the Gram Panchayat consists of 13 members and out of which 7 members were elected as nominated candidate of the CPI(M) and the 6 of the TMC. One of the members of the CPI(M) showed its dissentient with the working of the Pradhan i.e. the petitioner herein and put his signature along with the other 6 members belonging to TMC. Sub-Section 2 of Section 12 of the Act requires a motion in writing to be submitted to the prescribed authority by ?rd of the existing member and therefore it cannot be said that such motion is bad for want of requisite members. The petitioner has not challenged the notice as a requisite member has not signed the motion but felt aggrieved by the defection of one of the members belonging to particular political party to have joined the camp of another political party. The petitioner has not challenged the notice as a requisite member has not signed the motion but felt aggrieved by the defection of one of the members belonging to particular political party to have joined the camp of another political party. What is sought to be contended by the petitioner in the instant writ petition that a member who earned disqualification has been permitted to participate in the meeting and vote in favour of the No-Confidence Motion. Section 213A of the Act contains an exhaustive provision pertaining to the disqualification on the change of the political party to remain as a member of the Panchayat. There is no doubt that the member will earn disqualification if he voluntarily gives up his membership from the recognised political party or exercise voting rights contrary to the manner of voting of the majority members set up by such recognised political party in such Panchayat. Such disqualification is not automatic but subject to disqualification by the prescribed authority by recording proper reasons after giving a reasonable opportunity of hearing to the said member. During the pendency of the instant writ petition the prescribed authority rejected the application filed by the political party as the said member categorically stated that he is still the member of the said political party and has not joined the other political party. The said order is not the subject matter of challenge in the instant writ petition and therefore this Court does not make any observations on the legality and/or sustainability of the said order. The fact remains that the application for disqualification of the said member stood rejected and therefore the petitioner cannot take shelter under the plea of disqualification. 18. On the issue that the Presiding Officer did not act strictly in terms of the sub-Sections 7 and 8 of Section 12 of the Act, this Court does not find any legal justification. The reports submitted by the authority expressly indicates that the petitioner along with the supported members casted the vote and also put his signature on the attendance register-cum-minute book. The resolution taken in the said meeting is recorded in the minutes signed by the Presiding Officer, which contains the signature of all the members present therein. The reports submitted by the authority expressly indicates that the petitioner along with the supported members casted the vote and also put his signature on the attendance register-cum-minute book. The resolution taken in the said meeting is recorded in the minutes signed by the Presiding Officer, which contains the signature of all the members present therein. It is, therefore, not open to the petitioner to say that the minutes was not signed in presence of the Secretary or any other officials authorised by the Presiding Officer and read over to all attending members. There is no substance in the submission of the petitioner that the signatures appearing in the attendance register-cum-minute book contain the initial of the Secretary of the Gram Panchayat in the last column which is conspicuously absent against the name of the petitioners. The last column relates to a signature attested by the Secretary, which is not the mandatory requirement in any sub-Section of Section 12 of the Act. The signatures of all the members present at the meeting are put on a single sheet and therefore the absence of initial cannot invalidate the meeting or the resolution taken therein. The documents annexed in the report and the signatures of the petitioners and supporting members contained therein has not been denied expressly though have been done evasively. 19. In view of the above, the writ petition is dismissed. 20. However, there shall be no order as to costs.