Judicial Analysis Court Copy Headnote Facts Arguments Court observation

IN THE HIGH COURT OF CALCUTTA
Manjula Chellur and Arijit Banerjee, JJ.
Gopal Kumar and Anr. - Petitioners
Versus
State of West Bengal and Ors. - Respondents
Constitutional Writ Jurisdiction (Appellate Side) WP No.24555 (W) of 2014, With WP No.25717(W) of 2014 With WP No.27877 (W) of 2014 With WP No.26946(W) of 2014
Decided On : 18-12-2014

Advocates Appeared:
For the Petitioner:Amul Baran Chatterjee and Amit Prakash Lahiri, Advocates.
Sayan De, Advocate, for the petitioner in WP 27866 (W)/14.
For the State (In WP 24555 (W)/14) :Kamalesh Bhattacharyya, Swapan Kumar Pal, Advocates.
For the State (In WP 27877 (W)/14) :Subhabrata Dutta, Advocate.
For the State (In WP 26946 (W)/14) :Sadhan Kumar Haldar and Jaladhi Das, Advocates.
For the Respondent Nos. 5 to 12 (In WP 24555 (W) of 2014):Milon Bhattacharyya, Apurba Kumar Das and S.B. Mukherjee, Advocates.
For the Respondent Nos. 4 to 10 and 13:Partha Chakraborty and Nilanjan Bhattacharjee, Advocates.

Prescribed Authority not required to record satisfaction or reasons in support thereof as regards sufficiency of motion before convening meeting under Section 12(3) of the Act

Headnote:
LOCAL GOVERNMENT - REMOVAL OF PRADHAN OR UPA-PRADHAN - MOTION OF NO CONFIDENCE - SATISFACTION OF PRESCRIBED AUTHORITY - Section 12(3) West Bengal Panchayat Act, 1973 - Whether Prescribed Authority required to expressly record satisfaction that motion conforms to requirements of Section 12(2) before issuing notice convening Gram Panchayat meeting - Held, No
Fact of the Case:

Question of law referred to Division Bench by Single Judge - Whether Prescribed Authority required to record satisfaction regarding compliance of requirements of Section 12(2) of the West Bengal Panchayat Act, 1973 (the Act) before issuing notice convening Gram Panchayat meeting for consideration of motion to remove Pradhan or Upa-Pradhan - Conflicting views of two Single Judges - Ld. Judge held that Prescribed Authority obliged to record satisfaction and reasons in support thereof in office records - Ld. Judge in instant case disagreed and expressed view that incorporation of reasons in office record necessary for consideration of propriety of same in course of judicial review
Finding of the Court:

Prescribed Authority not required to record satisfaction or reasons in support thereof as regards sufficiency of motion before convening meeting - Issuance of notice convening meeting itself indicates satisfaction of Prescribed Authority as regards acceptability of motion - Recording of satisfaction by Prescribed Authority prior to convening meeting would serve no useful purpose and would be of no consequence - Format of notice of meeting prescribed by Rule 5B of West Bengal Panchayat (Constitution) Rules, 1975 does not provide for any scope for recording satisfaction of Prescribed Authority as regards legal validity of motion prior to issuance of notice of meeting
Issues: Whether Prescribed Authority required to expressly record satisfaction that motion conforms to requirements of Section 12(2) of the Act before issuing notice convening Gram Panchayat meeting for consideration of motion to remove Pradhan or Upa-Pradhan
Ratio Decidendi: Language of Section 12(3) of the Act is quite clear and legislature did not require Prescribed Authority to record satisfaction or reasons in support thereof as regards sufficiency of motion before convening meeting - Satisfying himself as regards sufficiency of motion means Prescribed Authority has to ascertain with reference to Section 12(2) whether requirements mentioned therein are satisfied by motion - No subjective exercise involved - No executive or administrative order to be issued by Prescribed Authority by convening meeting - More of a ministerial task - Recording of satisfaction by Prescribed Authority prior to convening meeting would serve no useful purpose and would be of no consequence - Even if Prescribed Authority records satisfaction as to sufficiency of motion when, in fact, such motion does not confirm to requirements of Section 12(2), such motion would be liable to be quashed by Court - Motion will speak for itself and all that court will have to see is whether or not it satisfies requirements of Section 12(2) - Futile and useless exercise to put obligation on Prescribed Authority to record satisfaction in official records as regards sufficiency of motion - Such recording will not change factual scenario or actual contents of motion - Format of notice of meeting prescribed by Rule 5B of West Bengal Panchayat (Constitution) Rules, 1975 does not provide for any scope for recording satisfaction of Prescribed Authority as regards legal validity of motion prior to issuance of notice of meeting
Final Decision: Answered question of law in negative - Made clear that court had not gone into factual merits of any of writ petitions before it - Directed that writ petitions be placed before Single Judge for final disposal on merits in light of opinion expressed on question of law

JUDGMENT :

Arijit Banerjee, J.

A judgment and order dated 10th September, 2014 was passed by the Ld. Single Judge in WP No.24555 (W) of 2014 referring a question of law to a Division Bench. This is why the matter is before us. Similar question of law arises in three other writ petitions being WP 25717 (W) of 2014, WP 27877 (W) of 2014 and WP 26946 (W) of 2014 and accordingly the said three writ petitions have been clubbed together with WP 24555 (W) of 2014.

2. The question of law that arises for our consideration can be formulated as follows:-

"Upon receipt of a motion from the requisite number of members of a Gram Panchayat indicating their intention to remove the Pradhan or the Upa-Pradhan, before issuing a notice convening a meeting of the Gram Panchayat for consideration of the motion and taking a decision on it, whether or not the Prescribed Authority is required to expressly record his satisfaction that the motion conforms to the requirements of Section 12 (2) of the West Bengal Panchayat Act, 1973 (hereinafter referred to as 'the said Act')"?

3. We refrain from discussing the facts of each of the writ petitions since we intend to send back the writ petitions to the Ld. Single Judge for final disposal on merits in the light of the opinion that we express in this judgment on the question of law referred to us.

4. The Ld. Judge was of the view that the Prescribed Authority is obliged to record his satisfaction regarding compliance of requirements of Section 12 (2) of the 1973 Act along with reasons in support thereof in his office records. However, since his view was at variance from the view expressed by another Ld. Single Judge in the case of Firoza Begam v. State of West Bengal reported in 2013 (3) CHN (Cal.) 241, the matter has been referred to us.

5. Before noting the conflicting views of the two Ld. Judges, we set out hereunder sub-Sections 1, 2 and 3 of Section 12 of the said Act.

"12. Motion of no confidence or removal of Pradhan or Upa-Pradhan.-

(1) Subject to other provisions of this section, the Pradhan or the Upa- Pradhan of a Gram Panchayat may, at any time, be removed from his office by the majority of the existing members of the Gram Panchayat, referred to in clause (I) of sub-Section (2A) of Section 4, expressing their lack of confidence against the Pradhan or the Upa-pradhan or recording their decision to remove the Pradhan or the Upa-Pradhan, at a meeting specially convened for the purpose.

(2) For the purpose of removal of the Pradhan or the Upa-Pradhan, one third of the existing members referred to in sub-Section (1) subject to a minimum of three members shall sign a motion in writing expressing their lack of confidence against the Pradhan or the Upa-Pradhan or recording their intention to remove the Pradhan or the Upa-Pradhan, indicating party affiliation or independent status of each of such members and either deliver the motion in person through any of the members of send it by registered post to the prescribed authority; one copy of the motion shall be delivered to the concerned office bearer either by hand or by registered post at the Gram Panchayat office and another copy shall be sent by registered post at his residential address.

(3) The prescribed authority on receipt of the motion shall satisfy himself that it conforms to the requirements of sub-Section (2) and on his satisfaction shall specially convene, by issue of notice, within five working days of the receipt of the motion, a meeting of the Gram Panchayat to be held in its office fixing date and hour of the meeting and sending such notice at least before clear seven days to each of its existing members for consideration of the motion and for taking a decision on it."

6. In the case of Firoza Begam (supra) Samaddar, J. held that Section 12 (3) of the said Act does not cast a mandate upon the Prescribed Authority to record his/her satisfaction, while issuing a notice under that provision that a motion in writing, taken out by a minimum of three members

Click Here to Read the rest of this document

Prescribed Authority not required to record satisfaction or reasons in support thereof as regards sufficiency of motion before convening meeting under Section 12(3) of the Act

Cases Referred (9)