Rustam Ali vs State of West Bengal and Others

Jyotirmay Bhattacharya, J.—Thirteen (13) members out or Twenty one (21) requested the Pradhan of Nimtita Gram Panchayat to convene a meeting for discussion on the agenda regarding removal of the Pradhan. In spite of receipt of the said request the Pradhan being the petitioner herein admittedly did not convene the meeting for discussion on the said agenda in terms of the provision as contained in Section 16 of the West Bengal Panchayat Act, 1973.

Since the Pradhan failed to convene the meeting within the period as prescribed under the statute, the said 13 members of the said Gram Panchayat requsitioned the meeting for the said purpose.

The notice, by which the said meeting was convened by the requisitionists is appearing at page 41 being Annexure p-8 to this writ petition.

The said notice is under challenge in this writ petition at the instance of the Prodhan who defaulted in discharging his statutory obligation.

Mr. Bhattacharyya, learned Advocate appearing for the petitioner, submits that a proceeding has already been initiated for removal of 5 members, namely, Shipra Haider, Tarani Kanta Das, Zakir Hossain, Roshanara Bibi and Anisur for declaring them to be disqualified as they disobeyed the whip of the particular political party to which they belong. Such a proceeding which was initiated against the said members u/s 213A of the said Act at the instance of the leader of the particular political party, is admittedly pending for consideration before the prescribed authority.

Mr. Bhattacharyya, submits that in view of the pendency of the proceeding u/s 213A of the said Act, the meeting which is scheduled to be held on 20th May, 2005 for removal of Pradhan should be postponed till the disposal of the said proceeding as the decision of the members of this Panchayat with the participation of those members against whom a proceeding u/s 213A of the said Act is pending, cannot reflect the real decisive views of the members of this Panchayat.

The Bhattacharya further submits that in the event those member are ultimately removed in the said proceeding then views to be expressed by them in the said meeting for removal of Prodhan, cannot be taken into account because of the cessation of their membership. In effect Mr. Bhattacharya wants to submit that as if the removal of this said members u/s 213A of this said Act takes retrospective effect from the date when the acts complained of against them, occured.

Mr. Bhattacharyya, ultimately submits before this Court that even the meeting may be permitted to be held as per the schedule but no effect should be given to the resolution to be adopted in the said meeting till the time of taking the ultimate decision by the prescribed authority in the pending proceeding for removal of five members u/s 213A of the said Act.

In support of his submission Mr. Bhattacharyya relied upon an unreported decision of a single Bench of this Court passed on 4th March, 2005 in AST 224 of 2005 wherein his Lordship though permitted such meeting to be held as per the schedule in accordance with law but postponed the publication of the result thereof till the disposal of the proceeding u/s 213A of the said Act.

Mr. Chatterjee, learned Advocate appearing for the respondent Nos. 7 to 17, 19 and 25 refuted the submission of Mr. Bhattacharyya by submitting that the participation of those members in this proceeding for removal of this prodhan cannot be denied because of pendency of the proceeding against them u/s 213A of this said Act.

Mr. Chatterjee further submits that the removal of the said members takes effect when ultimately the prescribed authority declares them to be disqualified under the said provision. Mr. Chatterjee placed the entire provision of Section 213A of the said Act before this Court to show that there is no provision under which a member against whom such proceeding u/s 213A aforsaid Act is pending, can be placed under suspention unlike in the case of a proceeding u/s 213A of the said Act wherein a provision for suspension has been provided against such members who is charged with any of the offences as specified in the said provision.

Thus Mr. Chatterjee submits that in the absence of any specific provision for suspension for any offences as contemplated in Section 213A of the said Act, a member against whom a proceeding for removal is pending u/s 213A of the said Act, cannot be excluded from taking part in any proceeding in the said Panchayat.

Heard the learned Advocates of the parties and considered the materials on record.

Admittedly a proceeding for removal of 5 members belonging to a particular political party is awaiting for considering before the prescribed authority at the instance of the Leader of the political party to which those five members belong on the ground that they have disobeyed the party''s whip and joined the other political party by defection.

It is also an admitted position that no decision has yet been taken by the prescribed authority regarding the said proceeding u/s 213A of the said Act.

On consideration of the entire provision u/s 213A of the said Act, it appears that no provision has been made therein for placing such members under suspension during the pendency of the said proceeding unlike in a proceeding u/s 213B of the said Act wherein provision for placing certain members under suspension under certain circumstances has been provided.

Admittedly no complaint has been made against those five members for any offence for which those members can be placed under suspension u/s 213B afforesaid Act.

When the legislature, its own wisdom has not included any provision for placing such members under suspension during the pendency of proceeding u/s 213A of the said Act, this Court can neither place them under suspension nor can prevent them form exercising their right of membership in any proceeding in the Panchyat during the pendency of the said proceeding. As such participation of those members in the proceeding for removal of the Pradhan, cannot be excluded during the pendency of the proceeding u/s 213A of the said Act. Thus if their participation cannot be excluded lawfully, the decision which will be taken on the agenda regarding the removal of the Pradhan with their participation, can neither be suspended till the time of taking the ultimate decision u/s 213A of the said Act nor can it be ignored even after their removal subsequently in the said proceeding.

In order to examine as to whether the proceeding for removal u/s 213A is connected with the proceeding for removal of Pradhan in anyway of not, this Court will have to examine first as to whether the order of removal of members under 213A of the said Act can be given prospective effect or retrospective effect.

Section 213A of this said Act provides that removal will take effect form the date when the member is declared to be disqualified. u/s 213A(12) an appeal is provided against this order or removal passed by the prescribed authority.

Section 213A(13) provides that the order passed by the authority appointed under sub-section (12) in appeal, shall be final.

The scheme for removal as provided in Section 213A of this said Act makes it clear that removal cannot be made retrospectively. If that be so, then until and unless a member is removed by the order of the prescribed authority or by the appellate authority, as the case may be, his participation in the proceeding of the Panchayat cannot be avoided.

In the aforesaid circumstances, I find no merit in this application.

But before parting with, I must indicate that I have carefully perused the unreported decision cited by Mr. Bhattacharyya but in my view no ratio has been laid down in the said decision on interprepration of the extant provision of law. The decision which was given in a particular set of facts in connection with a proceeding u/s 213 of this said Act which has no application in the facts and, circumstance of the instance case.

Thus I find no merit in this application. The application thus stands rejected.

The prescribed authority is however, directed to decide the said proceeding u/s 213A of the said Act as early as possible, by maintaining the time schedule as mentioned in the said provision, but in any case the disposal of this said proceeding should not be diferred beyond four weeks form the date of communication of this order.

There will be no order as to costs.

Urgent xerox certificate copy of this order, if applied for, be given to the parties as early as possible.