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2006 Supreme(Cal) 621
High Court Of Calcutta
Jyotirmay Bhattacharya, J.
LUTFA BEGUM - Appellant
Versus
STATE OF WEST BENGAL - Respondent
WP 20116 (W) Of 2006
Decided On : 09/20/2006
The prescribed authority has the jurisdiction to verify the service report and examine whether the notice of the requisitioned meeting was duly served upon all the members.
Headnote:
LOCAL GOVERNMENT - REMOVAL OF PRADHAN - PANCHAYAT - WEST BENGAL PANCHAYAT ACT, 1973 - SECTIONS 12, 16 - WEST BENGAL PANCHAYAT (GRAM PANCHAYAT ADMINISTRATION) RULES, 2004 - RULE 7 - NOTICE FOR REQUISITION MEETING - SERVICE OF NOTICE - VALIDITY OF MEETING - JURISDICTION OF PRESCRIBED AUTHORITY - LOCUS STANDI OF PETITIONERS - MAJORITY DECISION.
Fact of the Case:
Members of a Gram Panchayat challenged the legality of a requisition meeting held for the removal of the Pradhan, alleging that the notice for the meeting was not served upon all members as required by law. The prescribed authority had disapproved the resolution passed in the meeting on this ground and directed the members to take further action as per the Act and rules. The members then issued a second notice for a meeting to be held on a subsequent date.
Finding of the Court:
1. The notice issued by the members for the first meeting was not illegal as it was not issued within one year from the date of election of the Pradhan, as alleged by the petitioners. The second proviso to section 12 of the Act prohibits convening a meeting within one year from the date of election, but it does not prohibit the service of notice for requisitioning a meeting within that period. 2. The prescribed authority had the jurisdiction to verify the service report and examine whether the notice of the requisitioned meeting was duly served upon all the members. The submission of the report by the observer to the prescribed authority and the steps required to be taken thereon were not an empty formality. 3. The petitioners, being members of the Gram Panchayat, were not affected by the removal of the Pradhan and did not have any locus standi to challenge the majority decision taken for his removal.
Issues: 1. Whether the notice issued by the members for the first meeting was illegal as it was issued within one year from the date of election of the Pradhan. 2. Whether the prescribed authority had the jurisdiction to verify the service report and examine whether the notice of the requisitioned meeting was duly served upon all the members. 3. Whether the petitioners had the locus standi to challenge the majority decision taken for the removal of the Pradhan.
Ratio Decidendi: 1. The second proviso to section 12 of the Act prohibits convening a meeting within one year from the date of election, but it does not prohibit the service of notice for requisitioning a meeting within that period. 2. The prescribed authority had the jurisdiction to verify the service report and examine whether the notice of the requisitioned meeting was duly served upon all the members. The submission of the report by the observer to the prescribed authority and the steps required to be taken thereon were not an empty formality. 3. The petitioners, being members of the Gram Panchayat, were not affected by the removal of the Pradhan and did not have any locus standi to challenge the majority decision taken for his removal.
Final Decision: The writ petition was rejected. The interim order passed earlier was vacated. The prescribed authority was directed to take the ultimate decision on the resolution adopted in the meeting held on 5th September, 2006 in accordance with law positively within a week from the date of communication of the order.
( 1 ) TWO members of No. 5 Bangalbari Gram Panchayat who did not participate in the requisitioned meeting held for removal of the Pradhan, have filed this writ petition, challenging the propriety of the order passed by the prescribed authority on 24th August, 2006, whereby the members of the said Gram Panchayat were requested to take necessary action as per act and rules as the resolution which was adopted in the meeting held on 21st August, 2006 was not approved as the notice of the requisition meeting was not served upon all the members as per Rule 6 (1) of the West Bengal panchayat (Gram Panchayat Administration) Rules, 2004.
( 2 ) THE legality and/or validity of the subsequent notice by which ten members of the said Gram Panchayat requisitioned a meeting for the very same purpose to be held on 5th September, 2006, has also been challenged in this writ petition.
( 3 ) LET me give the short background of this case which is necessary for appreciation of the dispute involved in this writ petition.
( 4 ) TEN members out of 19, by their notice dated 7th August, 2006 requested the Pradhan of the said Gram Panchayat to convene a requisition meeting for transacting the business on the agenda of removal of Pradhan. On receipt of the said notice, the Pradhan, by his notice dated 11th August, 2006 convened a requisition meeting for the said purpose to be held at the office of the said gram Panchayat at 1 p. m. on 21st August, 2006.
( 5 ) A meeting was held on the said date in the presence of the observer sent by the prescribed authority. Ten members supported the said motion. Six members did not support the said motion. Other three members remained absent in the said meeting. Thus, the agenda regarding removal of Pradhan was passed by the majority members.
( 6 ) THE said resolution, however, was not approved by the prescribed authority as he found that the notice of the requisitioned meeting was not served upon all the members in accordance with the provision as contained in section 16 (1) of the West Bengal Panchayat Act, 1973. As such, the members were requested to take further steps as per Act and the rules framed thereunder.
( 7 ) IMMEDIATELY thereafter, ten members of the said Gram Panchayat again issued another notice dated 28th August, 2006 convening a meeting for the aforesaid purpose to be held at the office of the said Gram Panchayat at 11-30 a. m. on 5th September, 2006.
( 8 ) THE order of the prescribed authority and the notice issued for the second time for holding the requisition meeting, are under challenge in this writ petition.
( 9 ) MR. Roy, learned Advocate, appearing for the petitioners, submitted that the notice which was served upon the Pradhan on 7th August, 2006 by which the Pradhan was requested to convene a requisition meeting for the aforesaid purpose was illegal and inoperative as the said notice was issued within one year from the date of election of the Pradhan. The Pradhan was elected on 9th August, 2005 and as such, the said notice which was issued on 7th August, 2006 by the requisitionists, was illegal, as the same was issued in violation of provision of section 12 of the said Act.
( 10 ) THIS submission of Mr. Roy does not appeal to this Court at all for two-fold reasons which are as follows: firstly, the Pradhan, instead of challenging the legality of such notice on the aforesaid ground, acted upon the said notice by calling a requisition meeting vide his notice dated 11th August, 2006 by which he convened a meeting to be held on 21st August, 2006. Thus, when the Pradhan acted upon the said notice, the Pradhan cannot challenge the legality of the said notice. In fact, 'the Pradhan has not challenged the legality of the said notice. It is only the petitioners who are the members of the Gram panchayat have challenged the legality of the said notice on the aforesaid ground.
( 11 ) NOW a question may crop up in this connection that there cannot be any waiver against
