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2017 DIGILAW 977 (CAL)

Jesmina Bibi v. State of West Bengal

2017-12-13

BISWANATH SOMADDER, MOUSHUMI BHATTACHARYA

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JUDGMENT : BISWANATH SOMADDER, J. 1. Affidavit of service filed in Court today be taken on record. On the prayer of the learned advocate for the appellant, leave granted to correct the cause title of the Memorandum of Appeal. 2. The appeal arises out of a judgment and order dated 7th November, 2017, passed by a learned Single Judge in WP 26214 (W) of 2017 (Jesmina Bibi (Biswas) v. The State of West Bengal & Ors.). The appellant before us was the writ petitioner. 3. The case of the appellant/writ petitioner is that in terms of section 12(3) of the West Bengal Panchayat Act, 1973 (as amended up-to-date) the Prescribed Authority was required to convene a meeting for removal of the Pradhan within five working days from the date of receipt of the notice/motion of requisitioning such meeting. However, according to the learned advocate for the appellant/writ petitioner, his client took over charge as the Pradhan on 17th October, 2017, whereas the notice under section 12(3) of the West Bengal Panchayat Act, 1973 (as amended up-to-date) was dated 23rd October, 2017, which was not within five days from the date of notice of the requisitionists being a notice dated 12th October, 2017. 4. It appears that the learned Single Judge, while considering the interpretation of five working days as held by the Division Bench of this Court in 2017 (1) CHN (Cal) 262 and further relying on (1995) 2 CHN 238 and (2007) 4 CHN 605 , was of the view that the writ petition did not require to be detained any further and found the same to be unmeritorious. Consequently, the writ petition stood dismissed. 5. Before this Bench, the appellant/writ petitioner has raised another point which does not appear to have been specifically considered by the learned Single Judge. It is submitted on behalf of the appellant/writ petitioner that it was on the date of issuance of the notice by the Prescribed Authority, i.e., 17th October, 2017, when the appellant/writ petitioner had actually assumed charge as the Pradhan. As such, there could not have been any cause for issuance of the notice by the requisitionists on 12th October, 2017, requesting the Prescribed Authority to convene a meeting for removal of the appellant/writ petitioner as the Pradhan of the concerned Gram Panchayat. 6. As such, there could not have been any cause for issuance of the notice by the requisitionists on 12th October, 2017, requesting the Prescribed Authority to convene a meeting for removal of the appellant/writ petitioner as the Pradhan of the concerned Gram Panchayat. 6. The records, however, reveal that the appellant/writ petitioner was disqualified from her membership of the Gram Panchayat by an order passed by the Prescribed Authority on 22nd September, 2015. Being aggrieved, she approached the statutory Appellate Authority which passed an order dated 3rd February, 2016. This order become a subject-matter of challenge in a writ petition filed by the appellant/writ petitioner, being WP 2372 (W) of 2016. An order was passed in that writ petition by a learned Single Judge on 13th September, 2017, the effect of which revives the appellant/writ petitioner Jesmina Bibi (Biswas)'s position in the Gram Panchayat as it stood prior to her being disqualified by the order dated 22nd September, 2015, which was passed by the Prescribed Authority and the Block Development Officer, Hariharpara. 7. Although, on behalf of the appellant/writ petitioner, a reference is made to the charge hand over report dated 17th October, 2017, in order to contend that the actual charge was handed back to Jesmina Bibi (Biswas) only on 17th October, 2017, we are of the view that this exercise was purely a ministerial act and even without the physical handing-over of charge on 17th October, 2017, by virtue of the order of the High Court dated 13th September, 2017, passed in WP 2372 (W) of 2016, Jesmina Bibi (Biswas) is deemed to have resumed the office of the Pradhan of the concerned Gram Panchayat on the date of passing of the order itself. 8. In such circumstances as stated above, Jesmina Bibi (Biswas)'s position in law was that of a Pradhan of the concerned Gram Panchayat consequent upon passing of the order dated 13th September, 2017, in WP 2372 (W) of 2016. Therefore, the requisition notice dated 12th October, 2017, remained a valid notice, asking for removal of Jesmina Bibi (Biswas) as the Pradhan of the concerned Gram Panchayat. For reasons stated above, we do not find any merit in the appeal and the application for stay which are liable to be dismissed and are accordingly dismissed. Moushumi Bhattacharya, J. I agree.