The second proviso to Section 105(1) of the West Bengal Panchayat Act, 1973, is directory and not mandatory. The notice of a meeting by the Sabhapati and/or Requisitionists in terms of Form 1B is in continuation of the notice of requisition sent by the requisitionist to the Sabhapati to call a meeting. It was obligatory on the part of the requisitionist to state specifically as to for what purpose such a meeting is to be called.

The judgment of the Court was as follows :-

This writ application has been referred to a Division Bench by N. K. Batabyal, J. in terms of His Lordship's order dated 19.12.95, for the purpose of consideration as to whether the provision of giving seven clear days' notice in the second proviso to Section 105(1) of the West Bengal Panchayat Act, 1973 (hereinafter referred to for the sake of brevity as the 'said Act') is mandatory or directory.

2. The fact of the matter is not in dispute. The writ petitioner is a Sahakari Sabhapati of Khar Gram Panchayat Samity. On or about 28.12.94, a requisition was sent to the Sabhapati of the said Gram Panchayat to convene a meeting for discussion on no confidence against Sabhapati. Pursuant to or in furtherance of the said requisition, Sabhapati did not requisition a meeting. On or about 18.1.95, thereafter the said requisitionists called a meeting for being held on 27.1.95. It appears that notice of the said meeting was sent under registered post to the petitioner, but the same was not served even on 28.1.95. In the meantime, a meeting was held on 27.1.95, in terms whereof by resolution adopted by the large number of the members, Sabhapati was removed. Before the learned Single Judge, it appears, only one question was advanced as to whether in terms of the second proviso appended under Section 105(1) of the said Act, 7 days clear notice is required to be given to all the members' or not. The learned Trial Judge in his referring order had considered the conflicting decisions of this Court and thought it expedient to refer the matter to the Division and pursuant thereto, this matter has been assigned, to this Bench.

3. Mr. Kabir, learned Counsel appearing on behalf of the petitioner, however, before us had raised two contentions in support of this writ application. The learned Counsel submitted that in view of the phraseology used in the second proviso appended to Section 105 of the said Act, service of seven days' notice is mandatory. In any event, the learned Counsel submits that the service of notice upon all the members is mandatory in nature. The learned Counsel secondly contended that in any event, as would appear from the fact as noticed hereinbefore, that whereas in the first notice the requisitionist has stated that the subject matter of the meeting would be no confidence, in the second notice the subject matter was changed to removal of the Sabhapati and thereby the scope of the first notice was enlarged which is not permissible in law. Mr. S. C. Ukil, learned Government pleader, placed before us a report of the observer and submitted on the basis thereof that it appears that the notices were not served upon a few persons. The learned Government pleader supported the first contention of Mr. Kabir; but as regards the second contention, it was submitted that in a democracy, the phraseology 'No Confidence' of Sabhapati and 'removal' of Sabhapati, should be held to have the same meaning. Mr. Sanyal, learned Counsel appearing on behalf of the respondents, however, submitted that the period of notice cannot be mandatory. According to the learned Counsel, in a democracy, notice upon the leader of the party was sufficient and as notices are served for the purpose of enabling the members to attend the meeting, knowledge of the members that a meeting is going to be held, will serve the purpose. According to the learned Counsel, a combined reading of Sections 105, 106 of the said Act and Rule 319 of the West Bengal Panchayat Samity Administrative Rules, 1984 (hereinafter referred to for the sake of brevity as the said 'Rules') read with Form 1B thereof will leave no manner of doubt that at the time of requisition, business of the meeting is not to be mentioned inasmuch as in terms of the said Rules, no form has been prescribed for asking Sabhapati to requisition a meeting in terms of the second proviso appended to Section 105 of the said Act. For the purpose of appreciating the question in