Amulya Mondal vs State Of West Bengal and Others

Dipankar Datta, J.—The petitioner is the Pradhan of Surajpur-I Gram Panchayat comprising of a total of 14 members. Eight members thereof issued a notice dated 18-07-07 calling upon the petitioner to convene a meeting for discussion on the issue of "No Confidence''''. Admittedly, the petitioner did not convene any meeting within 15 days of receipt of such requisition. Consequently, notice dated 04-08-07 was issued by the requisitionists convening a meeting on 13-08-07 at 11.00 a.m. in the office of the said panchayat for discussion on the issue of the petitioner''s removal from the office of Pradhan. This notice has been called in question by the petitioner in the present petition. Mr. Ganguly, learned Counsel representing the petitioner has raised two points in support of the petition.

Firstly, he contended that meeting in pursuance of the impugned requisition notice ought not to be held on 13-08-07 since, it was not served on the petitioner. Non sendee of notice being in breach of the statutory provision, according to him, any action taken on the basis of such un-served notice would be bad.

Secondly, he contended that when the Pradhan was called upon to convene a meeting for discussion on the issue of "No Confidence", the requisitionists according to him could not have issued notice convening a meeting for discussion on the issue of the petitioner''s removal from the office of Pradhan. In support of his submission that ''No Confidence'' cannot be equated with ''Removal'', Mr. Ganguly relied on the Division Bench decisions of this Court reported in 101 CWN 413 : Kitabuddin Sk. vs. Daud Hossain and 89 CWN 1044 : Soleman Shah vs. Director of Panchayat.

He, accordingly, prayed for quashing of the notice dated 04.08.07.

Mr. Dasgupta, learned Counsel appearing for the State respondents submitted that the issue as to whether a meeting for removal of the Pradhan can be convened by the requisitionists when the Pradhan himself was not called upon to convene a meeting for such purpose but was called upon to convene a meeting for a discussion on the issue of ''No Confidence'' is no longer res integra. In this connection, he referred to the decision of a learned Single Judge of this Court in W.P. No. 7307 (W) of 2000 (Dabir Mondal vs. State of West Bengal) dated 12-06-02.

Mr. Bihani, learned Counsel representing the requisitionists submitted that the notice dated 04-08-07 had been despatched to the petitioner by registered post on the same date and in support thereof he placed before this Court the postal receipt. He, accordingly, contended that the action of the requisitionists cannot be faulted merely because the petitioner contends not to have received the said notice. So far as the other point raised by Mr. Ganguly is concerned, he submitted that the same has not been taken in the grounds of the petition and the petitioner in the absence of any pleading in this respect cannot be said to have been prejudiced in any manner whatsoever. He further submitted before this Court that since a meeting was duly held on 13-08-07 wherein a resolution was carried by the majority of the members removing the petitioner from the office of Pradhan, technical objections as raised by the petitioner ought not to be allowed to prevail over the will of the majority. Consequently, he prayed for dismissal of the petition.

In reply, Mr. Ganguly reiterated his arguments as noted above and further submitted that notice of the requisition meeting ought to have been served on the petitioner in the manner laid down in Rule 6 of the West Bengal Panchayat (Gram Panchayat Administration) Rules, 195''. (hereafter the said Rules). The said Rules having been followed in the breach, he contended that the writ petition ought to be allowed.

Having heard learned Counsel for the parties and considering facts and circumstances of this case, this Court is of the considered view that the writ petition does not call for exercise of writ powers.

The writ petition has been affirmed on 07-08-07. In paragraph 16 of the petition, the petitioner has pleaded non-receipt of the notice dated 04-08-07. However, copy of the requisition notice dated 04-08-07 has annexed to the petition. In such circumstances, it is clear that at leas: on 07-08-07, the petitioner had knowledge aliunde that a requisition meeting would be held on 13-08-07 for discussion on the issue of his removal from the office of Pradhan of the said panchayat. The petitioner has not pleaded prejudice due to non-tender of the notice dated 13.8.07 on him personally. In the absence of any pleading regarding prejudice suffered by him due to such non-service, it cannot be contended that the notice dated 04.08.07 is bad. It has been held in the decision reported in 2007 (2) CLT 91 : Gopal Sarkar vs. State of West Bengal that unless prejudice is shown to have been suffered by a notice in the absence of service of notice, the Court of Writ ought not to interfere in such case. This Court is in respectful agreement with the view expressed therein. Hence it is held that such non-service is not fatal for invalidating the meeting scheduled for 13-08-07.

That apart this Court is satisfied that copy of the notice was duly despatched to the petitioner by the requisitionists by Registered Post on 04-08-07. The statute does not prescribe a particular manner of service of requisition notice on the Pradhan and the other members of the gram panchayat. In view thereof, despatching the requisition notice by Registered Post to the concerned members cannot be held faulty or defective. The requisitionists had done whatever was required to be done by them but for postal delay, they cannot be faulted. The objection raised on the ground of non-receipt of requisition notice being untenable, stands overruled.

The contention regarding non-service of notice in the manner prescribed in Rule 6 of the said Rules stands overruled in view of the decision of this Court in A.S.T. No. 907 of 2007 (Upananda Chatterjee vs. State of West Bengal) decided on 24-07-2007 wherein it has been held as follows:

"Having heard learned Counsel for the parties and considering the materials on record, this Court is of the considered view that no case for interference has been made out by the petitioner. Reference to Rule 6 of the said Rules by his learned Counsel is absolutely misplaced. It relates to business to be transacted at a meeting or an emergent meeting of a gram panchayat for which notice is to be issued in Form 1 or in Form 1A. as the case may be. The meeting which was called by the requisinonists on 29-06-07 is neither a meeting for which notice is to be issued in Form 1 nor an emergent meeting for which notice is to be issued in Form 1A. On the contrary, the meeting proposed to be held on 29-06-07 was a requisition meeting called by the requisitionists for the purpose of removal of the Prodhan and was specially convened for such purpose, notice, wherefor is not required to be given either in Form 1 or Form 1A Sending of notice to the petitioner being the Prodhan by registered post instead of sending it to him by the Panchayat Secretary through a messenger cannot be faulted by any stretch of imagination. Ratio of the decision in Sanjay Singh supra) relied on does not help the petitioner in any manner on the contrary, it militates against the argument advanced on his behalf. This contention, therefore, stands over-ruled".

Regarding the other ground of challenge raised by Mr. Ganguly, this Court finds that Mr. Dasgupta is correct in contending that the issue is no longer res Integra.

While considering the writ petition of Dabir Mondal (supra) bearing W.P. No. 7307 (W) of 2007 (which was ultimately disposed of on 12-06-02), Hon''ble P. K. Samanta. J. (as His Lordship then was) had formulated three questions, viz.

A. Whether a notice of a requisition meeting by the requisitionsts themselves, under third part of the second proviso to Section 16(1) of the West Bengal Panchayat Act, 1973 which, emanates from the failure of the Prodhan to convene a meeting under second part of the second proviso to Section 16(1) must restrict it''s agenda to the precise agenda that was indicated in the first requisition made in writing to the Prodhan by the requisitionists themselves ?

B. When the notice of a requisition meeting by the requisitionists themselves under third part of the second proviso to Section 16(1) has been issued in compliance with the provision thereof with the specific agenda for removal of Prodhan and/or Upa-Prodhan, as the case may be, and all concerned have the clear, unambiguous information about the matter ''business to be discussed in such a meeting and where such, matter or business is an obvious corrolary to the business for which a requisition was made in writing by the requisitionists to the Prodhan to call a meeting and such Prodhan failed to convene a meeting in accordance with the second part of second proviso to Section 16(1) of the Act whether such a notice would be an invalid notice in law ?

C. What would be the effect of a resolution if passed for removal of Prodhan and Upa-Prodhan, as the case may be, in such a requisitioned meeting called by the requisitionists themselves under third part of second proviso to Section 16(1) of the Act?

and referred the same for decision by a Division Bench of this Court. The order of His Lordship has been reported in 2000(2) CHN 695.

The Division Bench comprising Hon''ble Ashok Kumar Mathur, C.J. (as His Lordship then was) and Hon''ble Subhro Kamal Mukherjee, J. by judgment dated 19-03-02 answered the reference in the following words :

"***** In short, the controversy which was sought to be raised was that the requisitionists convened the meeting for passing a resolution of no confidence against the Prodhan whereas on 30th May, 2000 the agenda was for removal of the Prodhan. This could not be done and a support was sought from a decision of this Court in the Case of Menoka Haider & Ors. vs. The State and Ors. reported in Calcutta Weekly Notes, Volume 99 at Page 427. The Learned Single Judge observed that this decision requires reconsideration by the Division Bench. Therefore, he has referred three questions for answer before this Court.

In the case of Menoka Haider &. Ors. vs. The State & Ors. (Supra) the Learned Single Judge field that a requisition meeting on the basis of earlier notice was not a meeting in the eye of law because the Prodhan did not give a 7 days clear notice. It was held that as per Section 16(1) of the Act the agenda for the purpose of calling a meeting has to be stated. On the failure of the Prodhan to call a meeting under second part of the proviso the requisitionists can convene a meeting under the third part of the said proviso. But whereas in the instant case the only agenda was the proposal of no confidence against the Prodhan and there was no notice of his removal. In annexure ''A'' there was no mention about removal of the Prodhan within the four corners of the said Notice but it appears from the annexure ''G'' that the main agenda of the requisition meeting is the proposal for removal of Prodhan from his post. Therefore the learned Judge observed that the question is whether annexure ''G'' which is in continuation of annexure ''A'' can contain something which was not there in annexure ''A''. The learned Judge relying on the earlier decision of this Court in the Case of Royhan and Ors. vs. Chamatkar Malitya and Ors. (FMAT No. 3683 of 1984) reported in Calcutta Weekly Notes, Volume 89, Page 1044 held that the Prodhan was not liable to be removed from his post against resolution of no confidence, whereof there was no mention of any agenda for removal of the Prodhan.

The question is. whether the motion of no confidence and the motion of removal are two different things, or they are synonymous with each other. When a motion for no confidence is moved and if it is carried out, the effect is the same. In matters of elected offices certain procedure is laid down for removal of such elected persons. The only way to remove a Prodhan or a Upa-Prodhan is by way of a Motion of No Confidence against such incumbent. When the agenda is for the removal of Prodhan, the Prodhan can only be removed when the House passes a Resolution by a majority of no confidence in the Prodhan. If the Resolution is of no confidence against the Prodhan and if it is passed, the result will be removal of Prodhan. Therefore, the word ''removal'' or ''lack of confidence'' are, synonymous with each other in the present context. The view taken by the learned Single Judge in Menoka Haider''s Case (Supra) does not appear to be laying down the correct law on this subject. A Division Bench of this Court in F.M.A.T. No. 214/95 has taken the same view and observed: "In our view the notice of removal and no-confidence is the same".

In this connection our attention was also invited to a decision of the Case of Soleman Shah vs. Director of Panchayat, Burdwan &� Ors., reported in 70 CWN P. 1088. In that Case it was observed that removal is a serious charge and it has to be specifically mentioned. A notice which does not mention removal is a mis-leading notice. It was observed that a resolution of removal without specific notice of removal is bad in law and therefore His Lordship had held that such resolution is bad on that count. So far as the proposition that there is no notice far removal of the Prodhan and a resolution is passed to that effect that would certainly be serious lapse because the party will be taken by a surprise and such serious lapse cannot validate an illegal resolution.

In the Case of Royhan and Ors. vs. Chamatkar Malitya and Ors. (Supra) Their Lordships observed that in case there is no notice for removal or No Confidence Motion against the Prodhan or Upa-Prodhan, no Resolution can be passed far removal of or lack of confidence in the Prodhan or Upa-Prodhan, as the case may be. This was the, ratio laid down in Soleman Shah''s Case and the same was followed in this Case.

After reviewing the aforesaid Cases, we are of the opinion that the wording of the Resolution, like removal or no confidence, amounts to the some and simply because when a Meeting is sought to be requisitioned for passing Resolution for Non Confidence and a Notice for calling the meeting for removal of the Prodhan amounts to same, the use of two different phraseology like ''removal'' or ''no confidence'', will not invalidate the notice or resolution.

Therefore, we answer all the three questions, by holding that the wording of the Notice calling the meeting for ''removal'' and ''no confidence'', is not contradictory; they are synonymous with each other and the effect is the same. In case the Motion of ''No Confidence'' is passed, the result would be the removal of Prodhan or Upa-Prodhan, as the case may be *****

It was on the basis of this decision given by the Division Bench that the order dated 12-06-02 referred to by Mr. Dasgupta was passed.

In this connection a recent decision of a learned Single Judge of this Court reported in 2007(1) CHN 584: Abdul Wadud vs. Block Development Officer, Nabagram, Murshidabad & Ors., may be referred to wherein the same view was followed.

Applying the law laid down by the authorities as referred to above, it has to be examined whether the impugned notice is susceptible to invalidation or not.

By the notice dated 18-07-07, no doubt the Prodhan was called upon to convene a meeting to discuss the issue of ''No Confidence''. He did not convene any meeting in pursuance thereof. Since the Pradhan did not opt to convene a meeting within 15 days from date of receipt of such notice, the occasion arose for the requisitionists to call a meeting themselves. The notice of meeting clearly indicated that the issue of discussion was the petitioner''s removal from the office of Prodhan. The petitioner as well as other members of the gram panchayat were, therefore, clearly put an notice regarding the subject matter of discussion in the requisition meeting. Had a resolution been passed removing the petitioner from the office of Prodhan without indicating his "removal" as the subject matter of discussion in the meeting, the situation would have been otherwise. The ratio laid down by the decisions referred to above squarely fits in with the facts of this case and on the authority of these decisions, the objection to the impugned notice cannot be sustained. The decisions in Kitabuddin Sk. (supra) and Rayhan (supra), however, are clearly distinguishable on facts and hence have no application in the present case.

For the reasons aforesaid, this Court finds no merit in the writ petition and consequently it stands dismissed. However, parties shall bear their own costs. Urgent photostat certified copy of this judgment, if applied for, be furnished to the applicant within 3 days from date of putting in requisites therefore.

Dipankar Datta, J.

Later:

Learned Counsel of the petitioner prays for stay of operation of the judgment and order. This Court finds no reason to grant such prayer which stands refused.