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2006 Supreme(Cal) 759
High Court Of Calcutta
Jyotirmay Bhattacharya, J.
GOLSAN BIBI - Appellant
Versus
STATE OF WEST BENGAL - Respondent
W. P. 21107 (W) Of 2006
Decided On : 12/01/2006
AMAL BARAN CHATTERJEE, Ashis Kumar Sanyal, D.N.CHATTERJI, Haridas Das, MD.HAFIZ, PRATIM KUMAR CHATTERJEE, SOUMIK GANGUYL
The Upa-Pradhan can discharge the duties of the Pradhan during the period of his suspension so long as the majority numbers do not opt for selection of a temporary Pradhan as per clause (b) of section 213B(2) of the West Bengal Panchayat Act, 1973.
Headnote:
WEST BENGAL PANCHAYAT ACT, 1973 - SECTIONS 9(4), 213B(2)(A), 213B(2)(B) - UPA-PRADHAN - SUSPENSION OF PRADHAN - TEMPORARY PRADHAN - SELECTION - VALIDITY - UPA-PRADHAN CAN DISCHARGE THE DUTIES OF THE PRADHAN DURING THE PERIOD OF HIS SUSPENSION SO LONG AS THE MAJORITY NUMBERS DO NOT OPT FOR SELECTION OF A TEMPORARY PRADHAN AS PER CLAUSE (B) OF SECTION 213B(2) OF THE SAID ACT.
Fact of the Case:
The petitioner, who is the Upa-Pradhan of the Hizole Gram Panchayat, challenged the validity of a notice issued by eleven out of seventeen members of the Gram Panchayat, convening a meeting for the selection of a temporary Pradhan under section 213B(2)(b) of the West Bengal Panchayat Act, 1973. The Pradhan of the Gram Panchayat was placed under suspension under section 213B of the Act and the Upa-Pradhan took over the charge of Pradhan.
Finding of the Court:
The court held that the provision contained in section 213B(2)(b) of the Act is an independent provision which is not controlled by clause (a) thereof as clause (b) starts with a non-obstante clause. Clause (b) of section 213B(2), thus can operate independently notwithstanding any provision contained in clause (a)thereof. Selection of temporary Pradhan during the period of suspension of pradhan, is permitted under section 213B(2)(b) of the said Act.
Issues: Whether the Upa-Pradhan can discharge the duties of the Pradhan during the period of his suspension when the majority numbers do not opt for selection of a temporary Pradhan as per clause (b) of section 213B(2) of the said Act.
Ratio Decidendi: The court held that the Upa-Pradhan can discharge the duties of the Pradhan during the period of his suspension so long as the majority numbers do not opt for selection of a temporary Pradhan as per clause (b) of section 213B(2) of the said Act. The court further held that the Pradhan is an elected post and whenever the majority decides to select a Pradhan even for temporary period, the Upa-Pradhan cannot object to such selection in view of the non-obstante clause contained in clause (b) of section 213B(2) of the said Act.
Final Decision: The court rejected the writ petition and held that the notice issued by the eleven members of the Gram Panchayat for convening a meeting for the selection of a temporary Pradhan was valid.
( 2 ) THE Pradhan of the said Gram Panchayat was placed under suspension under section 213b of the said Act, with effect from 13th January, 2005 as he was detained in police custody in connection with a criminal proceeding for a period exceeding forty-eight hours.
( 3 ) PURSUANT to the order passed by the prescribed authority on 13th January, 2005 being Annexure P-1 to this writ petition, the Upa-Pradhan took over the charge of Pradhan on 13th January, 2005 and since then she has been discharging the functions and duties of the Pradhan. The prescribed authority, in its said order dated 13th January, 2005, directed the Upa-Pradhan to discharge the functions of the Pradhan until Pradhan resumes his charge and if situation so arises.
( 4 ) ADMITTEDLY, the Pradhan is still under suspension and as such he has not yet resumed his charge.
( 5 ) PROBLEM started when the eleven members of the said Gram Panchayat, by their notice dated 17th August, 2006, requested the Upa-Pradhan to convene a meeting for selection of Pradhan so that the selected Pradhan can act temporarily until the office bearer placed under suspension is reinstated in his office or is subsequently removed or vacates the office by resignation or otherwise in conformity with the provisions of the Act and the rules made thereunder.
( 6 ) SINCE the Upa-Pradhan ignored the said notice and did not convene any meeting for the said purpose, the said eleven members issued another notice on 8th September, 2006 being Annexure P-3 to this writ petition, by which a requisitioned meeting was convened, to be held at the office of the said Gram panchayat at 12. 00 noon on 18th September, 2006 for the said purpose.
( 7 ) THE validity of the said notice has been challenged by the Upa-Pradhan in this writ petition.
( 8 ) MR. Sanyal, learned Advocate appearing for the petitioner submitted that since the Upa-Pradhan was given the charge of the office of the Pradhan by the prescribed authority under sub-section (4) of section 9 of the said Act, she cannot be removed from the office of the Pradhan until a new Pradhan is elected and assumes his office or until the Pradhan resumes his duties, as the case may be.
( 9 ) MR. Sanyal submitted that since admittedly neither a new Pradhan has yet been elected nor the Pradhan has yet resumed his duties, her right to exercise the powers, perform the functions and discharge the duties of the Pradhan cannot be disturbed.
( 10 ) MR. Sanyal further submitted that selection of Pradhan under section 213b (2) (b) of the said Act cannot be opted by the members of the Gram panchayat when the Upa-Pradhan was given the charge of the office of the pradhan under section 9 (4) of the said Act.
( 11 ) MR. Chatterjee, learned Advocate appearing for the private respondents supported the impugned notice by submitting that since the provision contained in section 213b (2) (a) of the said Act is subject to the provision of section 213b (2) (b) of the said Act and section 213b (2) (b) also starts with non-obstante clause, the provision contained in section 213b (2) (b) is not controlled by the provision of section 213b (2) (a) of the said Act. According to Mr. Chatterjee there is no illegality in the impugned notice as the said notice was issued by the members of the said Gram Panchayat in exercise of their right of selection of the Pradhan for a temporary period so long as the Pradhan remains under suspension.
( 12 ) HEARD the learned Advocates of the parties considered the materials-on-record.
( 13 ) SINCE the fate of this writ petition hinges upon the interpretation of the provisions of section 9 (4) as well as s
