Samar Samanta and Another vs State of West Bengal and Others

Prabir Kumar Samanta, J.—A short but tricky question arises for answer in this writ petition. In view of the settled position of law that Pradhan and Upa-Pradhan of Gram Panchayat cannot be removed in a single" meeting whether a requisition in writing by the members of a Gram Panchayat asking the Pradhan of the Gram Panchayat to call for a meeting for the purpose of removal of both Pradhan and Upa-Pradhan will invalidate all subsequent proceeding therefore which though were in due compliance of the provisions of law. The facts which are germane for this case are as follows Out of total 19 members of Koutala Gram Panchayat 10 members by a letter dated 22-11-93 informed the Pradhan, the respondent No. 8 herein, that both the Pradhan and Upa-Pradhan have no confidence of the majority members and accordingly they asked him to convene a meeting of the Gram Panchayat for their removal Within 15 days Upon receipt of the said letter dated 22-11-93 the Pradhan did not convene the meeting The said 10 members convened two separate requisition meetings on 23-12-93 by two separate notices dated 14-12-93. The requisition meeting for removal of the Pradhan was fixed at 1 p.m. on 23-12-93 while the requisition meeting for removal of the Upa-Pradhan was fixed at 1-30 p.m. on the same date The prescribed authority sent an observer to the said meetings dated 23-12-93 who was present in the meetings, Pradhan and Upa-Pradhan of the Gram Panchayat were removed by respective resolutions adopted by the 10 members of the Gram Panchayat in the respective meetings held separately Such resolutions were adopted unanimously by secret voting. After the removals of both Pradhan and Upa-Pradhan as aforesaid the writ petitioner No. 1 was appointed as an acting Pradhan u/s 9(6) of the West Bengal Panchayat Act. 1973 (hereinafter called as the Act) by the District Magistrate and the prescribed authority requested the removed Pradhan to make over charge of the office of the Pradhan to the petitioner No. 1. The removed Pradhan, it is alleged did not make over charge to the petitioner No. 1. Thereafter the prescribed authority duly fixed 4-3-94 for election of Pradhan and Upa-Pradhan of the said Gram Panchayat. The prescribed authority presided over the said election on 4-3-94 and in presence of the members the election was held and in such election the petitioner No. 1 was elected as the Upa-Pradhan of the Gram Panchayat. After the aforesaid election the removed Pradhan, the respondent No. 8, on 29-3-94 made an application u/s 209(3) of the Act before the District Magistrate, South 24-Parganas for setting aside the said two resolutions for removal of Pradhan and Upa-Pradhan. Immediately thereafter the removed Upa-Pradhan of the said Gram Panchayat, the respondent No. 9 herein, moved a writ petition in this Court which was disposed of by an order dated 29-4-94 with a direction upon the District Magistrate, South 24-Parganas to dispose of the said application filed by the respondent No. 8 for setting aside the two resolutions dated 23-12092 and the election dated 4-3-94 as aforesaid in accordance with law and by giving opportunity of hearing to ail the parties interested therein.

In pursuance of such direction the District Magistrate took up the said application for consideration in presence of the interested parties and by an order dated 27-5-94 cancelled the two resolutions passed separately on 23-12-93 for removal of Pradhan and Upa-Pradhan of the said Gram Panchayat and also the consequent elections of Pradhan and Upa-Pradhan on 4-3-1994. The District Magistrate was of the opinion that the notice dated 22-11-93 by the 10 members of the Gram Panchayat seeking to remove both Pradhan and Upa-Pradhan was bad in law both under Sections 12 & 16 of the Act and the Government Notification No. 530 dated 8-2-94 made in respect thereof. The cancellation of the aforesaid resolutions for removal dated 23-12-93 and the election dated 4-3-94 was communicated to the petitioners including the members of the Gram Panchayat by the B.D.O., Mathurapur-II by his Memo No. 573 dated 31-5-1994.

Both the aforesaid order of the District Magistrate dated 27-5-94 and the said communication dated 31-5-94 by the B.D.O. Mathurapur II have been challenged in this writ petition.

Mr. Asok De, learned Advocate appearing on behalf of the petitioners upon reference to (1) 1944(1) CHN 423, In re: Mihir Mondal and Ors., contended that law as it stands merely provides that the Act does not contemplate removal of Pradhan and Upa-Pradhan in one meeting and two separate meetings are required to be held for the said purposes upon two separate notices having been given in support thereof. In this particular case two separate notices were issued for two separate meetings and two separate resolutions were taken, accordingly, there was no illegality whatsoever in the meetings so held separately for the purpose of removal of Pradhan and Upa-Pradhan separately. Mr. De further upon placing his reliance in (2) 1995 (2) CLJ 327, Rafikul Mondal v. State of West Bengal and Qrs., contended that Pradhan being the statutory authority was under statutory obligation to call for the meetings by complying with the provisions of law and in a case like this by fixing two separate meetings for the purpose of removal of Pradhan and Upa-Pradhan which he failed to do for which the petitioners themselves called two separate meetings in accordance with law. Mr. De further argued that the composite notice dated 22-11-1993 asking the Pradhan to call for a meeting of the Gram Panchayat for the purpose of removal Pradhan and Upa-Pradhan was not an invalid notice altogether for which the Pradhan was not required to act at all but a notice of intention of the majority members of the Gram Panchayat which should have been acted upon by the statutory authority by complying with the provisions of law.

Mr. De further contended that the said requisition dated 22-11-1993 was at best an irregular one but the meetings were held separately in due compliance of the provision of law and therefore the irregularity, if there be any, was regularised. Therefore, irregularities which are capable of being regularised will not vitiate the meetings and the resolutions taken in pursuance thereof.

Mr. Samar Dutta, learned Senior Advocate appearing on behalf of the respondent Nos. 8 and 9 supported the said order passed by the District Magistrate, South 24-Parganas upon reference to second proviso of Section 16 of the Act. Mr. Dutta contended that in view of the said second proviso the Pradhan would be required to call a meeting only on the requisition in writing made by the members of the Gram Panchayat subject to a minimum of 3 members. The requisition in writing dated 22-11-93 by ten members of the Gram Panchayat was for a meeting for the purpose of removal of both Pradhan and Upa-Pradhan of the Gram Panchayat and as such the Pradhan was neither entitled to call meetings separately for removal of Pradhan and Upa-Pradhan nor he could call a meeting with two agenda for the purpose of removal of Pradhan and Upa-Pradhan. In support of such contention Mr. Dutta relied on a Division Bench judgment of this Court reported in (3) 1995(1) CLJ 198, Kitubuddin Sekhe v. Daud Hossein.

Mr. Dutta further challenged the legality and validity of the resolution for removal of Pradhan and Upa-Pradhan in the two meetings dated 23-12-93 on other ground such as that notices of the aforesaid two meetings were not served upon all other members or the Gram Panchayat. Mr. Dutta further referred to the second proviso of Section 16 of the Act and Rule 7 of the West Bengal (Gram Panchayat Administration) Rules, 1981 (hereinafter called as the Rules 1981) and contended that 7 clear days notice of the meeting to the other members of the Gram Panchayat is mandatory and in the absence of such 7 clear days notice to the members of the Gram panchayat the meetings on 23-12-93 were no meetings in law and therefore the resolutions are not the resolutions of valid meetings.

The validity of the meetings dated 23-12-93 was further challenged by Mr. Dutta With much emphasis to the meaning of the word "meeting". Mr. Dutta referred to the dictionary meaning of the word "meeting" as given in Shorter Oxford Dictionary, and contended that before taking resolution there must be a discussion amongst the members present Mr. Dutta further upon reference to the body of the resolution contended that since it did not disclose that the members present in the meetings dated 23-12-93 held a discussion amongst themselves on the issue so the resolutions without any discussion are not valid resolutions in the eye of law. Consequently Mr. Dutta referred to the provisions of opinion on any resolution it shall be put to vote. Mr. Dutta contended that it presupposes a discussion amongst members present in the meeting in the floor of the meeting itself. Lastly Mr. Dutta attacked the resolutions by contending out even when there was no difference of opinion on the resolution amongst members present in the said meetings then there was no occasion for taking resolution by secret vote. Accordingly, it was also urged that the resolution taken in the said meeting were in violation of provisions of the aforesaid Rule 12 of the said Rule 1981 and therefore the same should not be sustained.

For the purpose of decisions on the issues it is necessary to look into the relevant provisions of law, Section 12 of the Act authorities the majority of the existing members to remove either the Pradhan or the Upa-Pradhan from his office in a meeting of a Gram Panchayat specialty convened tor the purpose Section 16 of the Act regulates meetings of Gram Panchayat and further prescribes the mode and manager in which the meetings of Gram Panchayat including a requisition meeting for removal of Pradhan or the Upa-Pradhan will be called and held. In particular second proviso to Section 16 deals with requisition meeting which is quoted hereunder:

Provided further that the Pradhan when required in writing by (one third) of the members of the Gram Panchayat subject to a minimum of (three members) to call a meeting (shall)..do so fixing the date and hour of the meeting) within fifteen days after giving intimation to the prescribed authority and seven days notice to the members aforesaid may call a meeting (within thirty five days) after giving intimation to the prescribed authority and seven clear days notice to the Pradhan and other members of the Gram Panchayat Such meeting shall be held (in the office of the Gram Panchayat on such date and at such hour) as the members calling the meeting may decide.

Third proviso to Section 16 makes only distinction that for the purpose of convening a meeting u/s 12 the members as referred to in Clause 1 of sub section (2A) of Section 4 shall be entitled to require the Pradhan to convene a meeting but not one third of the total members.

Chapter III of West Bengal Panchayat (Gram Panchayat Administration) Rules, 1981 deals with the meetings of a Gram Panchavat Rule 5 days down that at least 7 days notice of the list of business to be transacted at every meeting except an emergent meeting of a Gram Panchayat shall be sent to each member of the Gram Panchayat in Form-1. An emergent meeting may be called after giving 3 days notice to the members in Form-1A.

Rule 6 deals with the mode and manner m which notice of meeting of Gram Panchayat will be served upon the members and/or will be displayed.

Rule 7 prescribes that on the dale of the meeting the presiding member will verify the service return of the office copy of the notice of the list of business to be transacted in the meeting and on being satisfied the business of the meeting will proceed. In the event, the notice is not served on any of the members then the meeting shall be adjourned and shall be held on any other date to be fixed by the Pradhan or the Upa-Pradhan and for such adjourned meeting too a fresh seven days notice shall have to be served upon all the members in Form-3.

The forms prescribed under the aforesaid rules are Form-1, 1A and form-3 which are in respect of notice of meeting of Gram Panchayat which will include a meeting for the purpose of removal of Pradhan or the Upa-Pradhan. No other forms have been preserved either under the statute or under the rates as aforesaid Thus upon reading of the aforesaid sections and the rules as above it is clear that the statute elaborately deals with the notice of meeting both in respect of form and in the manner in which it with be served upon the members. Such procedure no doubt applies in respect of a meeting for removal of Pradhan and Upa-Pradhan u/s 12 of the Act. But however the aforesaid sections and the rules do not prescribe any form for requisition whereby at least 1/3rd of the members referred to in Clause (1) of sub-section (2A) of Section 4 subject to a minimum of 3 members shall require the Pradhan to convene a meeting for removal of Pradhan or Upa-Pradhan. Second proviso of Section 16 makes abundantly clear that once a requisition for meeting is made by complying with the third proviso to Section 16, then? will be a meeting is made by complying with the third proviso to Section 16, then? will be a meeting which may be called either by the Pradhan or by the members themselves who made the requisition in writing. Therefore, the requisition in writing to convene a meeting u/s 12 of the Act is not at all a notice of meeting because by such requisition it is not known whether Pradhan will call the meeting or the members wilt have to call the meeting on the failure of the Pradhan to call such meeting.

The said requisition in writing has therefore to be looked into on the basis of general principles of law. This requisition in writing is not itself a notice of meeting for the purpose of removal of Pradhan or the Upa-Pradhan of a Gram Panchayat. On the general principle of law such requisition in writing merely brings in to the knowledge of the statutory authority the intention of the majority members to call a meeting of the Gram Panchayat either for the purpose of Section 12 of the Act or for any other purposes. Therefore, the true test to construe such requisition would be the meaning which it conveys

In this particular case such requisition clearly conveyed that majority members intend to remove the Pradhan and Upa-Pradhan. Such intention being clear to the statutory authority it was his statutory obligation to place the intention of the majority members in a meeting of a Gram Panchayat. If the statute did not permit him to place both the agenda in a meeting, then he could have placed either of them. On the contrary, if the statutory authority would have acted within the parameters of law by calling a meeting u/s 12 of the Act for removal of either of them or by fixing two separate meetings for removal of both of them could it be called to have exercised power beyond the statute? It is not known to law that the statutory authority will either act contrary to law on the requisition of others or not at all but will not act in accordance with law. It is trite to say that a person holding pubic office cannot exempt himself from the admonitions of public duty under the statute. The contentions of Mr. Dutta that en the basis of such requisition. Which was for one meeting, the Pradhan was unable to call a meeting with two agenda of removal of Pradhan and Upa-Pradhan nor could he call two separate meetings as the requisition was not for such, have no legs to stand upon.

17 Once it is accepted there is no difficulty in holding that though the requisition in writing forms the initial move for calling meeting u/s 12 of the Act but the proceeding subsequent thereto are to be considered in the light of the law prescribed there for but not purely on the basis either of the contents or of the forms of the requisition for which no law has been prescribed in the Statute. The proceeding subsequent to the requisition law being not solely dependent upon the requisition, the irregularity if there be any, in the requisition, if regularised in the proceeding there for with not vitiate the proceeding.

So far as the contention of Mr. Dutta that the resolutions were not proceeded by discussions amongst members present in the meetings it is to be noted that the respondent No. 8 in his said application before the District Magistrate did not raise any such plea nor in the affidavit-in-opposition filed in this Court. Such plea was raised only at the hearing of this writ petition. The judgment cited by Mr. Dutta reported in (4) AIR 1987 All 226, Manage Ram v District Panchayat Raj Officer Prescribed Authority, Saharanpur & Ors., is also not a decision on the point. In Paragraph 4 of the said judgment it Was stated that Clause (3) of Rule 33 of U.P. Panchayat Raj Rules, 1947 deals with the procedure to be followed in such a meeting which provides that the Presiding Officer of the meeting is to allow the motion to be moved and discussed. Neither Section 12 of the Act, nor Rules 12 & 13 of the Rules 1981 provide for Such discussion in a meeting. The aforesaid provision of the Act and the Rules merely provide for a resolution and only if there is difference of opinion on any resolution then it shall be decided by voting. The said Rules 12 & 13 of the Rules 1981; Which are quoted hereunder do not speak of any discussion on the motion like the U.P. Rules:

Rule 12: Resolutions pressed for division. If there is difference of opinion on any resolution it Shall be put to vote. Every such resolution shall be recorded in'' full in the minute book together with the number of members voting for or against the resolution.

Rule 13 : Manner of voting.

When a question is put to vote, the presiding member shall decide the manner in which the members shall cast their votes; (....)

It is therefore not necessary to take records to the dictionary meaning of the word "meeting" when the statute is explicitly dear about, the procedure to be adopted in the meeting.

The judgment reported in 1995(1) CLJ 198 (supra) does not come in aid of the contentions of Mr. Dutta that the resolutions for removal of Pradhan and Upa-Pradhan by secret voting were bad in law. In Paragraph 20 of the said judgment it was held that under the then proviso to Rule 13 of the said Rules. 1981, which is also applicable in the case in hand, it is not mandatory that the resolution for removal of Pradhan or Upa-Pradhan must be by secret voting. In that case unanimous resolution for removal by the members present in the meeting was challenged because such resolution was not taken by secret voting under proviso to Rule 13 of the said Rule 1981 Repelling the contentions it was held that in view of the unanimous resolution by the members present in the meeting there was no scope for application of the proviso to Rule 13 of the said rules. The said decision does not necessarily imply that if in spite of unanimous resolution by the members present in the meeting if the same is part to secret voting then the said resolution will be bad in taw.

Lastly, the contention of Mr. Dutta that the notices of the meetings dated 23-12-93 were not served upon all the other menders of the Gram Panchayat also cannot be accepted in view of toe report of the observer namely the Extention Officer (Panch) Mathurapur-II, South 24-Parganas appointed by the prescribed authority for those two meetings which clearly states that the members, named in the aforesaid application u/s 209(3) of the said Act of the respondent No. 8, refused to receive the notice of the requisition meeting upon tender. Furthermore, it does not appear from the impugned order that such plea of non service of notice to the other meetings named in the said application was specifically agitated at the hearing of the said application before the District Magistrate. The said question being related to facts cannot be allowed to be raised for the first time in this writ petition. Thus all the contentions on behalf of the respondent Nos. 8 and 9 fail.

Accordingly, the impugned order dated 27-5-1994 by the District Magistrate South 24-Parganas cannot be sustained and the same is therefore set aside and consequently the communication dated 31-5-1994 by the Block Development Officer Mathurapur-II, Companirthek, South 24-Parganas contained in Memo No. 573(19) is quashed.

The prescribed authority is directed to see that the petitioner No. 1 is restored to the post of Pradhan and the petitioner No. 2 is restored to the post of Upa-Pradhan in pursuance of the election dated 4-3-1994 in respect of Koutala Gram Panchayat and the charges of the respective offices are made over to them forthwith. It is made clear that this will not however prevent the members of the Gram Panchayat from taking further steps for removal of the Pradhan and Upa-Pradhan in accordance with taw. It is also made clear that the petitioners will be entitled to operate the Bank Account of the Koutala Gram Panchayat

The writ petition is thus allowed and there will be no order as to costs.