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2019 DIGILAW 10 (CAL)

Binay Adhikari v. State Of West Bengal

2019-01-03

SUBRATA TALUKDAR

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JUDGMENT : SUBRATA TALUKDAR, J. 1. A horse! A horse! My Kingdom for a horse! !King Richard The Third! (Scene IV) A similar scene unfolded at the election of office-bearers to Kurshamari Gram Panchayat (the GP in issue) where between victory and defeat lay, not a horse, but a bolted door. To paraphrase the Scene A door! A door! the GP for a door! Now to turn to the narration of events. 2. Party/Parties is/are represented in the order of their name/names as printed above in the cause title. 3. The three writ petitions, being W.P. 19375 (W) of 2018, W.P. 19807 (W) of 2018 and W.P. 24570 (W) of 2018 are taken up for analogous consideration since all the three writ petitions relate to the election of office bearers of one Gram Panchayat (GP) in issue, i.e. the Kurshamari GP, Mathabhanga, Dist-Cooch Behar. The three writ petitions are referred to hereinafter in the order of their chronological precedence as stated above as W.P.-I, W.P. -II and W.P.-III respectively. 4. The facts of the case pertaining to the three writ petitions are common excepting for the additional point argued by Mr. Saptangshu Basu, Learned Senior Counsel, appearing for the petitioner in W.P.-III, i.e., W.P. 24570 (W) of 2018. The facts are briefly as follows:- 5. That the general elections to the GP in issue were held in May, 2018 and a Certificate of Election was granted to each of the petitioners and the private respondents in the three writ petitions. Therefore, each of the petitioners and the private respondents in the three writ petitions are the elected members of the GP in issue. 6. Pursuant to the Certificate of Election granted to each of the members by the Prescribed Authority (PA) the Block Development Officer (BDO), Mathabhanga, the petitioners and the private respondents, as the case may be, were put on notice by the PA/BDO to attend the meeting “for the taking of Oath and/or for election of Prodhan/Upa-Prodhan of GP” under the relevant provisions of the West Bengal Panchayat (Constitution) Rules, 1975 (for short the 1975 Rules) to be held at the time, place and on the date fixed by the Notice. 7. It would be relevant to mention that the Notice in Form I, inter alia, provided that the meeting will take place on the 13th of September, 2018 at the GP office at 11.00 a.m. 8. 7. It would be relevant to mention that the Notice in Form I, inter alia, provided that the meeting will take place on the 13th of September, 2018 at the GP office at 11.00 a.m. 8. The petitioners in W.P.-II (WP No. 19807(W) of 2018) represented by Mr. Bikash Ranjan Bhattacharyya, Learned Senior Counsel, submit that they were prevented from attending the meeting on the date and time fixed, i.e. the 13th of September, 2018 at 11.00 a.m. Drawing the attention of this Court to a Report of the Presiding Officer (PO) dated the 13th of September, 2018, Mr. Bhattacharyya submits that upon the arrival of the private respondents to W.P.-II, who are 5 (five) in number and belong to a particular group, at the venue of the meeting, the PO was pressurised to commence the meeting on the ground that the 5 (five) members present out of a total of 12 (twelve) elected members, constituted the necessary quorum for proceeding with the meeting as provided by Rule 3(1) of the 1975 Rules. 9. It is submitted that on the 13th of September, 2018 the PO reported that as soon as the proceedings of the meeting were sought to be commenced one of the elected members present out of the 5 (five) closed and bolted the door of the office of the GP. As soon as the door was bolted from inside there was noise of banging on the door from outside. The door was then reopened and the petitioners in W.P.-II, i.e., Mr. Bikash Ranjan Bhattcharyya’s clients, being in all 7 (seven) in number, entered the venue of the meeting at 11.05 a.m. as recorded by the PO in his brief Report of the same date. 10. However, the request for starting the meeting afresh was resisted by the members already present, viz. the private respondents in W.P.-II and between both the groups there occurred the usual altercation. 11. Mr. Bhattacharyya submits that in his brief Report dated 13th of September, 2018, the PO admits that in the melee that erupted between the two groups, the papers connected to the meeting were lost and the PO could not keep in his possession any paper in support of the quorum which was purportedly formed at the meeting on the 13th of September, 2018. 12. 12. It is submitted that the report of the PO dated the 13th September, 2018 was followed up by a detailed Report, also of the PO, sought for by the PA/BDO on the 14th of September, 2018. The detailed Report of the PO pursuant to the Memo No. 1583 of the BDO/PA dated the 14th of September, 2018, according to Mr. Bhattacharyya, narrates the events of 13th of September, 2018; albeit now with a twist. 13. Taking this Court to the communication of the BDO/PA dated 14th of September, 2018, Mr. Bhattacharyya emphasises the suggestive nature of such communication. 14. Having regard to the language used, it would be, therefore, useful to reproduce the communication dated 14th of September, 2018 of the PA/BDO which runs as follows: “Sub:- Detail Report regarding Prodhan & Upa-Pradhan election at Kurshamari GP on 13.09.2018.” This is to inform you that you were engaged as presiding officer for Prodhan & Upa-Pradhan Election at Kurshamari GP on 13.09.2018 vide this office memo no. 1518(3) and dated 07/09/2018. You have already submitted a report regarding the said Election in brief. Now you are requested to submit a detail report regarding the said meeting in writing to the undersigned.” Block Development Officer Mathabhanga-I Dev. Block. 15. Mr. Bhattacharyya submits that in his detailed Report the PO now claims to have completed the election process for the office of the Prodhan but, maintains the position that one of the members of the group of five persons present inside the venue suddenly closed the door of the room from inside. Therefore, after about two minutes with the clock now reading 11.08 am, some persons were observed knocking the door from outside and then at the instance of the PO the door was opened and the petitioners in WP-II entered the room following which the altercation took place. 16. However, the PO, who is also the Sub-Assistant Engineer (SAE, BP) maintains that the election of the Prodhan stood concluded. It was, therefore, not possible to reopen the election of the Prodhan. 17. It was open to the petitioners in WP-II to participate in the proceedings by taking oath from the point of their entry into the room which, the petitioners, have refused. 18. It was, therefore, not possible to reopen the election of the Prodhan. 17. It was open to the petitioners in WP-II to participate in the proceedings by taking oath from the point of their entry into the room which, the petitioners, have refused. 18. The above stand taken by the PO/SAE, BP in his purported detailed Report dated 14th of September, 2018, i.e., on the same date of the communication by the PA/BDO of his Memo also dated 14th of September, 2018 seeking such Report, is challenged by Mr. Bhattacharyya as being de hors the Rules and contrary to the events of 13th September, 2018. 19. Mr. Moloy Kumar Bose, Learned Senior Counsel, appearing for the petitioners in W.P.-I, i.e., WP. 19375 (W) 2018, submits that the process of election of the Prodhan was complete at the time Mr. Bikash Ranjan Bhattacharyya’s clients entered the office room of the GP on the 13th of September, 2018. 20. Mr. Bose gives a different interpretation of the Guidelines relied upon by Mr. Bhattacharyya dated the 9th of August, 2018 issued by the Special Secretary, Department of Panchayats and Rural Development (DPRD), Government of West Bengal to all District Magistrates and District Panchayat Election Officers in the State of West Bengal (except for Districts of Darjeeling and Kalimpong). 21. Particularly relying upon Paragraph 3(1) of the Guidelines dated 9th of August, 2018, Mr. Bhattacharyya had submitted that it is a normal practice for the PO/PA holding a meeting under Rule 3(1) of the 1975 Rules to wait for one hour from the appointed time for the meeting to accommodate members who may, due to any circumstance, arrive late. In the facts of the present case, Mr. Bhattacharyya had argued that it is obvious from both the Reports - brief and detailed - of the PO that the petitioners arrived at the venue within the time provided by the Guidelines (supra). 22. Mr. Bose, Learned Senior Counsel, however ponts out to a different interpretation of the Memo dated 9th August, 2018. Mr. Bose submits that Clause (3) (1) of the Memo dated 9th August, 2018 emphasises the time to be granted by the P.A./P.O., as the case may be, for forming a quorum. 23. In the facts of the present case, Mr. Bose submits, the quorum of five members was already constituted at 11.00 am, which was the time fixed for the meeting. 23. In the facts of the present case, Mr. Bose submits, the quorum of five members was already constituted at 11.00 am, which was the time fixed for the meeting. Therefore, with the formation of the quorum there was no requirement for the P.O. to wait for the writ petitioners in WP-II to make their arrival at the venue of the meeting. 24. It is further submitted that the emphasis in terms of the Acts and the Rules as well as the Guidelines dated 9th August, 2018 is on the process of election. It is pointed out that the P.O. in his detailed Report has stated that the process for election of the Prodhan was complete at the moment when Mr. Bikas Ranjan Bhattacharya’s clients entered the venue of the meeting. 25. Accordingly, it was open to the petitioners in WPII to participate in the meeting to elect other office bearers of the G.P. in issue, including the Upa-Prodhan. 26. It was also open to the petitioners in WP-II to take their respective oaths as prescribed by law. However, since the petitioners in WP-II did not choose to take their oaths and straightaway staked their claim to participate in the meeting from the beginning, the meeting, to the extent it was completed, must be held to be valid. 27. Appearing for the petitioners in WP-III, Mr. Basu, Learned Senior Counsel, raises a separate but connected plea. Mr. Basu submits that under the provisions of Section 11(1) (f) of the West Bengal Panchayat Act, 1973 (for short, the 1973 Act), the Prescribed Authority (P.A.), in this case, the Sub-Divisional Officer (S.D.O.), is entitled to remove an elected member from his office provided such elected member has not made and subscribed an oath or affirmation before the Competent Authority within six months from the date of the election held. 28. In order to profit in this discussion Section 11(1) (f) of the 1973 Act requires to be stated in full: “11. Removal of member of Gram Panchayat :- (1) The prescribed authority may, after giving an opportunity to a member of a Gram Panchayat to show cause against the action proposed to be taken against him, by order remove him from office- (f) If he does not make and subscribe an oath or affirmation before the competent authority under section 197 within six months from the date of his election; or 29. Since the P.A./S.D.O. has found that the petitioners in WP-II have neither made nor subscribed an oath or affirmation of being elected to the G.P. in issue within the period of six months from the date of election in May, 2018 and, such period has expired in November, 2018, the P.A./S.D.O has initiated action to remove such members in exercise of powers under Section 11(1) (f) (supra). The process initiated by the P.A./S.D.O had been allowed to continue by the order of this Court dated 20th December, 2018 in WP-III subject to the final outcome of WP-III. 30. The next submission of Mr. Basu is that the petitioners in WP-II were never prevented or restrained from making an oath or subscribing an affirmation before the Competent Authority to formalize their of their status as elected members of the G.P. in issue. The petitioners in WP-II have chosen not to take the oath or subscribe an affirmation as required by law. 31. On the contrary, the petitioners have participated in the show-cause exercise initiated by the P.A./S.D.O under Section 11(1)(f) of the 1973 Act. In view of such participation, the petitioners in WP-II are now estopped from claiming any immunity from the show-cause process under Section 11(1) (f) (supra). 32. Appearing on behalf of the State Respondents Mr. Siddique, Learned Senior Government Advocate and Mr. Sengupta, Learned State Advocate, submit that the action of the P.O. has been transparent. Although the P.O. arrived at the meeting at 10.30 am, inspite of repeated requests by the petitioners in WP-I, i.e., the five members present, the P.O. did not convene the meeting to start before its appointed time. 33. Therefore, admittedly at 11.00 am when the meeting started the petitioners in WP-II were not present and the P.O. thereafter, upon noticing the quorum, proceeded to declare the result of the election to the office of the Prodhan. Accordingly, it is submitted that both the brief and detailed Reports of the P.O. do not diminish the essential fact that the quorum was constituted at 11.00 am and the petitioners in WP-II were not present at that stage. 34. Learned State Counsel further argue that the petitioners in WP-II have not challenged the show-cause proceedings under Section 11(1) (f) of the 1973 Act. On the contrary they have participated in the show-cause proceedings. 35. 34. Learned State Counsel further argue that the petitioners in WP-II have not challenged the show-cause proceedings under Section 11(1) (f) of the 1973 Act. On the contrary they have participated in the show-cause proceedings. 35. Therefore, the P.A./S.D.O. under Section 11(1) (f) has intimated Learned State Counsel through a forwarding mail as produced by Learned State Advocate, Mr. Sengupta in Court today, that the decision of the P.A./S.D.O. shall be communicated to the noticees as soon as such decision can be communicated in the context of the pending judicial proceedings. 36. Having heard the parties and considering the materials placed, this Court cannot be oblivious to the fact that the requirement of a quorum under Rule 3(1) of the 1975 Rules read with the Guidelines dated 9th August, 2018 is an open quorum and, not a quorum behind closed doors. 37. This Court cannot miss the fact that admittedly at the meeting of 13th September, 2018 the door of the venue of the meeting was closed by one of the members of the group of five present inside the venue without any instruction from the PO. 38. It must, therefore, follow that assuming for the sake of argument that a quorum existed comprising five members initially present at the meeting on 13th September, 2018, the PO had no role to play in recognising such quorum. 39. The so-called quorum then proceeded to operate behind closed doors by which time the other members, i.e., the petitioners in WP-II had arrived. At the time of their entry into the meeting the PO has taken a stand in his detailed Report on the following day, which appears unconvincing when compared to the brief Report of the same date. While in his brief Report the PO claims that papers connected to the quorum were not in his custody, in his detailed Report he treats the election of the Prodhan to be conclusive on the basis of the quorum. 40. This Court does not find any whisper in both the Reports -brief and detailed- of the PO that it was possible to continue with the election process on a quorum established by law. 41. In the event the so-called quorum had existed, the election of other office bearers such as Upa-Prodhan, could be held to be continued even on paper. This Court does not find any whisper in both the Reports -brief and detailed- of the PO that it was possible to continue with the election process on a quorum established by law. 41. In the event the so-called quorum had existed, the election of other office bearers such as Upa-Prodhan, could be held to be continued even on paper. However, from a cumulative reading of the facts it is apparent that the PO failed to exercise any control or take steps required to be taken by him as PO in law to initiate, hold and conclude the meeting on 13th September, 2018. 42. Accordingly, the proceedings of the meeting dated 13th September, 2018 stand set aside. 43. The P.A./B.D.O. is directed to call a second meeting of the GP in issue in accordance with law. 44. In view of the invalidity of the meeting dated 13th September, 2018, the basis of the show-cause notice under Section 11(1)(f) issued against the petitioners in WP-III does not survive. Therefore, the show-cause proceedings against all noticees/Private Respondents to WP-III up to their present stages pending before the PA/SDO also stand set aside. 45. WP 19375(W) of 2018 (WP-I) stands accordingly dismissed. 46. WP 19807(W) of 2018 (WP-II) stands accordingly allowed. 47. WP 24570(W) of 2018 (WP-III) stands accordingly dismissed. 48. Can 8950 of 2018 stands disposed of. 49. There will be no order as to costs. 50. Urgent Xerox certified copy of this order, if applied for, be supplied to the parties, subject to compliance with all requisite formalities.