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2000 Supreme(Cal) 53
High Court Of Calcutta
Basudeva Panigrahi
MOHINUDDIN BISWAS - Appellant
Versus
STATE OF WEST BENGAL - Respondent
W. P. 20697 Of 1999
Decided On : 01/28/2000
BIDYUT BARAN BISVAS, K.K.MITRA, Mrinal Kanti Das, SAIBAL K.ACHARYA, Sumitra Das Gupta
The 7 clear days' notice requirement under section 16(2) of the West Bengal Gram Panchayat Act, 1973, is directory, not mandatory. The service of notice within 7 days of the meeting is sufficient, and any irregularity in the notice does not invalidate the meeting if it does not cause prejudice to the petitioner.
Headnote:
WEST BENGAL GRAM PANCHAYET ACT, 1973 - SECTION 16 (2) - NOTICE FOR MEETING - VALIDITY - 7 CLEAR DAY'S NOTICE NOT MANDATORY BUT DIRECTORY - SERVICE OF NOTICE WITHIN 7 DAYS OF MEETING SUFFICIENT - IRREGULARITY IN NOTICE DOES NOT INVALIDATE MEETING IF NO PREJUDICE CAUSED - REMOVAL OF PRADHAN BY TWO-THIRDS MEMBERS OF GRAM PANCHAYET VALID.
Fact of the Case:
Petitioner, elected as Pradhan of Kapasdanga Gram Panchayat, challenged notices issued by members seeking to convene a meeting for a vote of no confidence and his removal. He argued that the notices were illegal, malafide, and not in accordance with the West Bengal Gram Panchayat Act, 1973, and the rules framed thereunder.
Finding of the Court:
The court held that the 7 clear days' notice requirement under section 16(2) of the Act was directory, not mandatory. The service of notice within 7 days of the meeting was sufficient, and any irregularity in the notice did not invalidate the meeting if it did not cause prejudice to the petitioner. The court also upheld the validity of the removal of the Pradhan by two-thirds of the members of the Gram Panchayat.
Issues: 1. Whether the 7 clear days' notice requirement under section 16(2) of the West Bengal Gram Panchayat Act, 1973, is mandatory or directory. 2. Whether the service of notice within 7 days of the meeting is sufficient. 3. Whether an irregularity in the notice invalidates the meeting if it does not cause prejudice to the petitioner. 4. Whether the removal of the Pradhan by two-thirds of the members of the Gram Panchayat is valid.
Ratio Decidendi: 1. The court relied on a Division Bench judgment of the same court, which held that the 7 clear days' notice requirement is directory, not mandatory. The court reasoned that the object of the notice is to enable the petitioner to attend the meeting, and this object was achieved as the petitioner admittedly received the notice within 7 days of the meeting. 2. The court held that the service of notice within 7 days of the meeting was sufficient, as the petitioner did not suffer any prejudice due to the shortage of time. 3. The court held that an irregularity in the notice does not invalidate the meeting if it does not cause prejudice to the petitioner. 4. The court upheld the validity of the removal of the Pradhan by two-thirds of the members of the Gram Panchayat, relying on a Supreme Court judgment which held that this provision is not unconstitutional and is necessary to safeguard against an arbitrary exercise of the power of removal.
Final Decision: The court dismissed the petition, holding that the petitioner had lost his right to continue in the post of Pradhan after losing the support of the majority of members in the Panchayat.
( 1 ) THIS case has been filed for issuance of a writ of mandamous to cancel, withdraw and rescind the notice dated 02-12-1999 whereby the date of requisition meeting was fixed on 09-12-1999 being annexure 'b' to the writ petition and allow the petitioner to perform the duties and functions of the Pradhan of Kapasdanga Gram Panchayet within P. S. Beldanga, district Murshidabad.
( 2 ) THE factual matrix leading to this case is as follows :"the petitioner and the respondents 7 to 22 were elected as members of Kapasdanga Gram Panchyet in the election held on 28th May, 1999. The petitioner was then elected as Pradhan by securing the majority votes of 13 members out of 17 members of the said Panchayet. From the date of his election as Pradhan he was smoothly performing the functions and duties as such. But unfortunately he came to learn from his secretary on 12-11-1999 that a notice had been issued by 9 members of the Gram Panchyet to him requesting for convening a meeting of no confidence. It has been, however, strongly pleaded that the notice was never served upon the Pradhan for the aforesaid purpose. It has also been submitted that the said notice dated 08-11-1999 was highly illegal, malafide and not in accordance with law as there was no agenda and or any allegation of no confidence against the petitioner. "
( 3 ) THE petitioner was also asked by another notice on 02-12-1999 sent by 8 members asking him to hold a meeting on 09-12-1999 for removal of the Pradhan. The second notice was also not in accordance with the provisions of the West Bengal Gram Panchayet Act, 1973, so also the rules framed thereunder. There was no 7 clear day notice from the date of issue till the date of meeting which is highly illegal, improper, malafide and unconstitutional.
( 4 ) THE petitioner filed this case on 07-12-1999. The date of the requestion meeting was fixed to 9th December, 1999. This Court passed an order that even though the meeting shall be held on the appointed day, the resolution taken thereof should not be given effect to till 22nd December, 1999. On 21st December, 1999 there was an order passed by the Court directing the parties to maintain the status quo as of previous day but the petitioner shall not incur any major expenditure more than Rs. 1,000.
( 5 ) THE private respondents have filed an affidavit-in-opposition by denying all the material allegations stated in the writ petition. It has been inter alia stated that when the petitioner failed to hold a meeting for re-moval of the Pradhan of the said Panchayet, the private respondents accordingly convened a meeting whereby a resolution of vote of no confidence was passed against the petitioner by majority on 09-12-1999. Another ground has been stated in the affidavit-in-opposition that in the notice dated o2-12-1999 the majority members called requisition meeting for the removal of Pradhan to be held on 09-12-1999. The petitioner received such notice on 06-12-1999 by putting the signature in the acknowledgment card.
( 6 ) THE petitioner was holding the post of Pradhan in a democratic process. Once he lost the confidence of the majority members he should step down from the office with a view to give way to other member who could be democratically elected by majority, since the majority members already passed a resolution, the Pradhan who was removed by the vote of no confidence has had no right again to approach the Court. With these averments they have pleaded for dismissal of the writ petition.
( 7 ) MR. Kashikanta Maitra, the learned senior Advocate were ingenuously advanced his contention by stating that in a democratic set up, the procedure for holding a meeting as per statute must be maintained and followed once there was departure from the procedure then, even assuming any such meeting was held the outcome of such meeting shall turn out nothing but illegality. In this particular case help of some hard core goons had been obtained, therefore, such
