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2019 DIGILAW 527 (CAL)

Majibar Rahaman Mia v. State of West Bengal

2019-04-24

ARINDAM MUKHERJEE, BISWANATH SOMADDER

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JUDGMENT : Biswanath Somadder, J. 1. This review has been preferred in respect of a judgment and order dated 25th February, 2019, passed by this Court in CAN 562 of 2019 in MAT 71 of 2019 (Binay Adhikari & Anr. vs. The State of West Bengal & Ors.). 2. The cause title of the review reveals that it has been preferred by the private respondents in the appeal, namely, Majibar Rahaman Mia and seven others. The records reveal that the judgment and order dated 25th February, 2019, was rendered in the presence of all the parties. By the said judgment and order the appeal along with the connected application was disposed of in the following manner :- "This being the admitted position and taking into consideration the facts and circumstances of the instant case, we are of the view that the concerned Prescribed Authority should issue fresh show cause notices against the private respondents nos. 8 to 15 in terms of section 11(1)(f) of the West Bengal Panchayat Act, 1973 and proceed further in the matter strictly in accordance with law. If the election of the Pradhan or Upa-Pradhan of the concerned Gram Panchayat has been held in the meanwhile upon taking into account the votes of the private respondent nos. 8 to 15, such election cannot be considered valid in the eye of law till the proceedings under section 11(1)(f) of the West Bengal Panchayat Act are concluded by the Prescribed Authority. The appeal and the application for stay stand disposed of accordingly." 3. According to the review applicants while disposing of the appeal this Court did not take into consideration as to whether quorum under Rule 3(1) of the West Bengal Panchayat (Constitution) Rules 1975, was formed along with the guidelines dated 9th August, 2018 and if formed, whether there was an open quorum or a quorum behind closed doors. The review applicants have contended that the order passed by this Court on 25th February, 2019, was based on a report which states, inter alia, that show cause notices to eight (8) elected members of Kurshamari Gram Panchayat under Mathabhanga-I Development Block, were issued under section 11(1)(f) of the West Bengal Panchayat Act, 1973. The review applicants have contended that the order passed by this Court on 25th February, 2019, was based on a report which states, inter alia, that show cause notices to eight (8) elected members of Kurshamari Gram Panchayat under Mathabhanga-I Development Block, were issued under section 11(1)(f) of the West Bengal Panchayat Act, 1973. According to the review-applicants the Block Development Officer, Mathabhanga-I Development Block, by a letter dated 12th February, 2019, issued to the Executive Assistant of Khursamari Gram Panchayat had directed the said Executive Assistant to hand over charge as per the first meeting of Khursamari Gram Panchayat, held on 4th February, 2019. This very document and the joint notices of the meeting of taking oath by the elected members of the panchayat issued by the Prescribed Authority and Block Development Officer dated 22nd January, 2019, fixing the date of meeting on 4th February, 2019 at the Gram Panchayat office had never been brought on record by the State respondents while filing report in the form of an affidavit before this Court on 25th February, 2019. 4. The question, therefore, which arises for consideration now is whether these are good grounds for review of the judgment and order dated 25th February, 2019. 5. A bare perusal of the judgment and order dated 25th February, 2019, reveals that the only issue which came up for consideration in the facts and circumstances of the case was whether the concerned Prescribed Authority could have at all dropped the case which was initiated against the private respondent nos. 8 to 15 (being the review-applicants herein), particularly, when the admitted position revealed that they being the newly elected Gram Panchayat members of Kurshamari Gram Panchayat did not make or subscribe an oath or affirmation before the competent authority in terms of section 197 of the West Bengal Panchayat Act, 1973, within six months from the date of their election. This Court found that the issue was answered clearly in the report in the form of an affidavit filed by the Prescribed Authority, being the Sub-Divisional Officer, Mathabanga Sub-Division, District Cooch Behar. This Court found that the issue was answered clearly in the report in the form of an affidavit filed by the Prescribed Authority, being the Sub-Divisional Officer, Mathabanga Sub-Division, District Cooch Behar. From paragraph 3 of the said report it had appeared that the Prescribed Authority received a report from the Block Development Officer, Mathabhanga-I dated 12th December, 2018, regarding making and subscribing oath, wherefrom it was ascertained that eight (8) newly elected Gram Panchayat members did not make or subscribe an oath or affirmation before the Competent Authority as mandated under section 197 of the West Bengal Panchayat Act, 1973, within six months from the date of their election, which, prima facie, attracted the provisions of section 11(1)(f) of the West Bengal Panchayat Act, 1973. This being the admitted position and taking into consideration the facts and circumstances of the case, this Court was of the view that the concerned Prescribed Authority should issue a fresh show cause notices against the private respondent nos. 8 to 15 in terms of section 11(1)(f) of the West Bengal Panchayat Act, 1973 and proceed further in the matter strictly in accordance with law. This Court also held that if the election of Pradhan and Upa-Prodhan of the concerned Gram Panchayat had been held in the meanwhile, upon taking into account the votes of the private respondent nos. 8 to 15 (being the review-applicants herein), such election could not be considered valid in the eye of law till the proceedings under section 11(1)(f) of the West Bengal Panchayat Act were concluded by the Prescribed Authority. 6. Although, the Code of Civil Procedure does not strictly apply in respect of proceedings under Article 226 of the Constitution of India, the principle analogous thereto certainly applies in certain cases. So far as review is concerned, the procedure required to be followed has been clearly spelt out in Order XLVII of the Code of Civil Procedure, 1908. A plain reading of the said provision of law reveals that only in certain set of limited fact situations, a review lies. So far as review is concerned, the procedure required to be followed has been clearly spelt out in Order XLVII of the Code of Civil Procedure, 1908. A plain reading of the said provision of law reveals that only in certain set of limited fact situations, a review lies. In the facts of the present case, on a plain reading of the judgment and order dated 25th February, 2019, we do not notice any mistake or error apparent on the face of record or that the review applicants have been able to demonstrate sufficient reason before this Court to review the judgment and order dated 25th February, 2019. That apart and in any event, this is not a case whether there has been any discovery of new or important matter of evidence, which, after the exercise of due diligence, was not within the knowledge of the review-applicants or could not be produced by them at the time when the judgment and order was passed. 7. For reasons stated above, the review is liable to be dismissed and stands accordingly dismissed along with the connected application. I agree. : Arindam Mukherjee, J.