Alaya Khatun vs The State

Dilip Kumar Seth, J.—The Petitioner has challenged the notice contained in Annex. ''P4'' by which 10 members had requisitioned the Pradhan to convene a special meeting for removal of the Pradhan. The learned Counsel for the Petitioner contends that previously another such notice was issued but the same had been recalled by the self same members on August 4, 2000, before such special meeting was convened. He also points out that one of the members having not attended three consecutive meetings without the leave of the Pradhan, he had become disqualified and therefore the proceeding u/s 11 is pending before the prescribed authority. In such circumstances, according to him, the notice contained in Annex. ''P4'' cannot be issued in quick succession in law and that until the decision in the proceeding u/s 11 is arrived at, the person against whom the proceeding is pending cannot be a signatory to the notice for convening any meeting specially for removal of the Pradhan u/s 12. On this ground he assailed the said notice for quashing the same.

I have heard the learned Counsel appearing for the Petitioner as well as the private Respondents and the State Respondents respectively at length.

The Third Proviso of Section 12 prohibits a fresh meeting for the period of six months next, in case the meeting having been specially convened no meeting could be held or no resolution could be adopted removing the Pradhan. But the said third proviso to Section 12 could not be attracted in a case where the same has not been convened. In the present case before the meeting can be convened the notice was withdrawn. Thus there was no meeting convened in order to attract the mischief provided in the Third proviso to Section 12. At the sometime there cannot be any embargo to withdraw the notice before the same is acted upon.

In the present case, there is nothing to indicate that the said notice was acted upon before August 4, 2000. Thus, recalling the notice was absolute, in the absence of mischief of Third proviso to Section 12, there is no embargo to call a fresh meeting.

So far as the question of pendency of the proceeding u/s 11 is concerned the effect of removal takes place only when the order is passed in tray of Sub-Section (1) of Section 11. By reason of the provisions contained in Sub-Section (2) there is a right to prefer an appeal, in case appeal is preferred and in the appeal stay of the order for removal is asked for and in case any stay is granted the order of removal will remain inoperative till the stay survives or the appeal is decided as the case may be. In case the appeal is disposed of the order of removal shall become effective on the expiry of the stay or the appeal is decided affirming the order of removal. Then the same would become final by reason of Sub-Section (3). The scheme of Section 11 clearly indicates that removal becomes effective only when the order is passed. The Act does not provide any provision in which it can be held that initiation of the proceeding would operate as stay in respect of exercising the right by a member.

Therefore, there is no infirmity in the issuing of the notice since the right of such members does not cease merely on the initiation of the proceeding u/s 11, and the right continues till the order of removal becomes final and effective.

Thus, there is no infirmity in the notice impugned.

This writ petition is, therefore, dismissed without, any order as to costs.

Leave is given to the parties to take down the gist of this order for communication.

Writ petition dismissed.