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2018 DIGILAW 263 (CAL)

Abdul Hamid Molla v. State of West Bengal

2018-02-15

SUBRATA TALUKDAR

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JUDGMENT : 1. Party/parties are represented in the order of their name/names as printed above in the cause-title. 2. The matter was placed for consideration yesterday i.e. 14th February, 2018 and placed for further consideration today. 3. The relevant and essential arguments of the appearing parties can be reduced to the primary point as to whether the existing members of the local Gram Panchayat (GP) in issue were served with the notice of meeting of the no confidence motion (for short the said meeting) in the manner and, within the period specified by Section 12(3) of the West Bengal Panchayat Act, 1973 (for short the 1973 Act). 4. Mr. Majumdar, learned Counsel, ably assisted by Mr. Kundu, learned Advocate, argues that it will be transparent from the record that the notice of the meeting was actually received by the writ petitioners on the 6th of February, 2018. Therefore, the meeting, which was proposed and thereafter held on 13th February, 2018, is voidable on the ground in terms of the law laid down through a line of judicial authorities that excluding the first and the last dates (of the notice of the meeting), a clear seven days, as statutorily required, are not provided. 5. Mr. Majumdar further submits that the record as produced in Court on behalf of the Respondents/State /Prescribed Authority (PA/BDO) in issue, demonstrates that the writ petitioner No. 3 received the notices on behalf of the writ petitioners nos. 1 to 6, including himself, by hand on the 6th of February, 2018. 6. Although it is admitted that the writ petitioner no. 3 received the notice by hand on the 6th of February, 2018, the calculation of seven clear days from the date of the acknowledgement of the notice to the date of the meeting does stand fulfilled in terms of Section 12(3)(supra). 7. The next point urged by Mr. Majumdar is that the notice was thereafter sent by Registered Post on 7th February, 2018 which again, has the prejudicial effect of reducing the seven clear days required under Section 12(3)(supra). 8. In the course of his arguments, Mr. Majumdar relies upon the pronouncement of this Court dated 25th January, 2018 in WP No. 25754 (W) of 2017 with its analogous/ connected writ petitions and application. 9. Mr. 8. In the course of his arguments, Mr. Majumdar relies upon the pronouncement of this Court dated 25th January, 2018 in WP No. 25754 (W) of 2017 with its analogous/ connected writ petitions and application. 9. Mr. Datta, learned State Counsel, with commendable brevity confines his arguments to the quantum of period of notice as required under Section 12(3). On the first date of hearing, i.e. the 14th February, 2018, learned State Counsel produced a report of the PA/BDO which, inter-alia, pointed out to the transmission of the notice of the meeting as required under Section 12(3)(supra). The report reads as follows:- “1. On 31.01.2018 The Secretary, South 24 Parganas District Committee, Communist Party of India (M) has submitted a petition under sub-section (7) of section 213A of West Bengal Panchayat Act 1973 for disqualification of three existing members of the same political party. 2. On 01.02.2018 The Prescribed Authority and Block Development Officer, Joynagar-I Development Block has received a petition for motion of removal of Prodhan, Bamangachi Gram Pachayat signed by 9 existing members. 3. On satisfaction, the Prescribed Authority and Block Development Officer, Joynagar-I Development Block on 05.02.2018, issued a notice to all the members informing the date, place and time of the motion of removal meeting. The notice has been delivered to 10 (Ten) existing members on 05.02.2018. Other 2 (Two) members namely Dipali Haldar and Janmenjoy Sardar have received the notice on 06.02.2018 at Dipali Haldar’s home at 6:00 am and 6:05 am. But the rest 6(Six) members namely (a) Asit Sardar, (b) Bina Rani Naiya, (c) Krishna Haldar, (d) Rina Haldar, (e) Sunita Haldar and (f) Abdul Hamid Molla did not received the notice by themselves. But, the rest 6(six) members requested the messenger of Block Development Officer, Joynagar-I to handed over the notice in favour of them to Janmenjoy Sardar at Dipali Haldar’s home. The messenger several times talked with Abdul Hamid Molla and other members on his own mobile phone as well as Dipali Haldar’s phone. But the members informed the messenger that they will come to Dipali Haldar’s home shortly and will collect the notices from Janmenjoy Sardar. In the mean time the Sahakari Savapati of Joynagr-I Panchayat Samity Mr. Sahalam Laskar called Ms. Dipali Haldar and on her mobile the messenger talked with the said Sahakari Savapati. But the members informed the messenger that they will come to Dipali Haldar’s home shortly and will collect the notices from Janmenjoy Sardar. In the mean time the Sahakari Savapati of Joynagr-I Panchayat Samity Mr. Sahalam Laskar called Ms. Dipali Haldar and on her mobile the messenger talked with the said Sahakari Savapati. The Sahakari Savapati also requested the messenger to serve the rest 6 (Six) notices to Janmenjoy Sardar. The messenger ultimately handed over the rest notices to Jonmenjoy Sardar. On 07.02.2018 the notice has been sent to all members of Bamangachi Gram Panchayat through registered with AD. The clear intention of the applicant members of this writ petition is to jeopardize or diversified the procedural activity of the Prescribed Authority. Hence, the members has deliberately de-motivated the messenger.” 10. Mr. Datta, therefore, argues that there stands a clear recording by the PA/BDO that the notice was refused to be received by the writ petitioners on the 5th of February, 2018 i.e. the date of announcement of the notice of the meeting, although 10 other existing members of the GP received it from the hands of the messenger of the PA/BDO on the same date, i.e. 5th of February, 2018. 11. Mr. Datta sought for and, was granted leave on 14th February, 2018 to file a further Report, as advised, on the sequence of events covering the receipt of notice on 6th of February, 2018. Pursuant to the leave granted (as above), Mr. Datta files a further report of the PA/BDO which includes the statement in vernacular of the appointed messenger. 12. Taking this Court to the statement in vernacular addressed to the PA/BDO dated 6th of February, 2018 of the appointed messenger as received on 6th of February, 2018, Mr. Datta argues that there is no ambiguity on the part of the messenger in pointing out that the writ petitioners refused service of the notices on 5th of February, 2018. Therefore, computation of the notice period should commence from the date of such avoidance/refusal, i.e. 5th February, 2018 and, even in the legal scenario where the first date of announcement and last date of the meeting are not publicly declared general State holidays but, only a Saturday and Sunday which qualify to be non-working but not, non-clear days, the period provided under Section 12(3) (supra) stands satisfied. 13. Appearing for the requisitionists, Mr. 13. Appearing for the requisitionists, Mr. Haldar, learned Counsel, submits that it has been a consistent view taken by judicial authorities that a democratic process once allowed to be completed on its own by participation of the elected members ought not to be interdicted by Court. Mr. Haldar places reliance upon the authorities reported in Usha Bharti vs. State of U.P. AIR 2014 SC 1686 , Krishna Dhar and Others vs. State of W.B. and Others, (2012) 4 Cal. LT 10 (HC) and Naru Gopal Chakraborty and Others vs. State of W.B. and Others, AST No. 687/06, for the above recorded proposition. 14. Mr. Haldar submits that the writ petitioners did have knowledge of the notice and participated in the meeting on 13th of February, 2018. 15. The meeting resulted in a particular resolution against the writ petition No. 7 and in terms of the democratic process such resolution requires to be respected. 16. At this stage, Mr. Kundu, learned Advocate led by Mr. Majumdar, seeks to draw an apparent inconsistency between the report of the PA/BDO and the report of the messenger of the PA/BDO, as recorded above. 17. Mr. Kundu points out that the report is not clear as to whether the petitioner no. 3/Janmanjoy Sardar received the notice at his own home or at the home of the respondent No. 7/Dipali Halder. Therefore, it is argued that the computation of 7 days should not take notice of the purported refusal as stated by the messenger (supra) but from the date of actual acknowledgement on the 6th of February, 2018. 18. Having heard the parties and considering the materials placed, this Court arrives at the following findings:- (A) That the notice is dated 5th of February, 2018. (B) That the notice was attempted to be served on all the existing members of the GP on 5th February, 2018 and, such is the report/statement of the messenger. (C) That the messenger has reported that the notice was refused on behalf of the writ petitioners and, was thereafter received on the next date by the writ petitioner No. 7/Dipali Halder and the writ petitioner no. 3/Janmanjoy Sardar on behalf of himself and, on behalf of the writ petitioner nos. 1, 2, 4, 5 and 6. (C) That the messenger has reported that the notice was refused on behalf of the writ petitioners and, was thereafter received on the next date by the writ petitioner No. 7/Dipali Halder and the writ petitioner no. 3/Janmanjoy Sardar on behalf of himself and, on behalf of the writ petitioner nos. 1, 2, 4, 5 and 6. (D) Since receipt of the notice is not denied, this Court finds merit in the contention of the messenger that the refusal to acknowledge the receipt took place on the 5th of February, 2018. It is immaterial whether such refusal took place at the home of Dipali Halder or, at the home of Janmanjoy Sardar, the petitioner Nos. 7 and 3 respectively, since the said writ petitioners Nos. 7 and 3 were physically present both at the time of refusal and, subsequently at the time of acknowledgement. (E) That there is, therefore, prima facie, to the mind of this Court, no inconsistency between the report of the PA/BDO dated 13th February, 2018 and, the statement of the messenger produced in Court today dated 6th February, 2018. (F) That the seven clear days would, therefore, commence keeping the 5th of February, 2018 as the date of commencement of the notice and, the 13th of February, 2018 as the date of the meeting, both dates to be excluded from the computation. The ratio of the decision in WP No. 25754 (W) of 2017 (supra) does not squarely apply to the subsequent developments, although connected to the self-same GP and, this Court has no reason to include a Saturday and Sunday as part of non-clear days. To the mind of this Court, the ratio of the decision in WP No. 25754 (W) of 2017 (supra) depended heavily on the fact that in between the date of the announcement of notice and the date of the meeting, there were three red letter days, i.e. general public holidays, of which the PA/BDO was required to be in cognisance, prior to sending the notice of the meeting which fact, however, does not appear to be pari materia to the present subsequent facts. 19. Accordingly, the interim order stands modified. The parties shall be at liberty to give effect to the minutes of the resolution dated 13th February, 2018 pending the ultimate adjudication. 20. Affidavits are invited, if advised. 21. 19. Accordingly, the interim order stands modified. The parties shall be at liberty to give effect to the minutes of the resolution dated 13th February, 2018 pending the ultimate adjudication. 20. Affidavits are invited, if advised. 21. Let Affidavit-in-Opposition be filed within a period of three weeks from date; reply within two weeks thereafter. 22. Liberty to mention strictly upon notice to the other sides. 23. Urgent Photostat certified copies of this order, if applied for, be given to the parties upon compliance of all necessary formalities.