Pabitra Kar vs The State Of West Bengal & Ors
2021 Latest Caselaw 3621 Cal

        IN THE HIGH COURT AT CALCUTTA
                    CONSTITUTIONAL WRIT JURISDICTION
                             APPELLATE SIDE

      PRESENT:

      THE HON'BLE JUSTICE ARINDAM MUKHEREJEE.

                               W.P.A 10552 of 2021


                                   PABITRA KAR
                                         VS.
                     THE STATE OF WEST BENGAL & ORS.


For the petitioner                  ::   Mr. Billwadal Bhattacharyya,
                                         Mr. Debanik Banerjee
                                                                .....Advocates
For the State                       :    Mr. Sirsanya Bandopadhyay,
                                         Ms. Sudeshna Mazumder
                                                                .....Advocates

Heard on                            :    08.06.2021 and 11.06.2021

Judgment on                         :    7th July, 2021.

     Arindam Mukherjee, J.:

1)    In this instant writ petition, the petitioner has challenged a notice

      dated 28th May, 2021 issued by the Prescribed Authority and the

      Block Development Officer (respondent no.3) under the provisions of

Rule 5B of the West Bengal Panchayat (Constitution) Rules, 1975,

(hereinafter referred to as the '1975 Rules').

2) The petitioner's case is as follows:-

a) The petitioner was elected as the Pradhan of Boyal-I, Gram

Panchayat in the District of Purba Medinipur, being the W.P.A . 10552 of 2021

respondent no.4 (hereinafter referred to as the said 'Gram

Panchayat').

b) The respondent nos.5 to 13 are members of the said Gram

Panchayat. The said respondent nos.5 to 13 have passed a

motion of "No Confidence" for removal of the petitioner as the

Pradhan of the said Gram Panchayat.

c) The respondent no.3 on receiving such a requisition pursuant

to the motion of "No Confidence" taken by the said

respondents issued the notice dated 28th May, 2021

(hereinafter referred to as the 'notice') for holding a meeting on

7th June, 2021 at 11:30 A.M at the Boyal-I Gram Panchayat

Office.

d) The petitioner says that the respondent nos.5 to 13 were

required to deliver a copy of the motion in person through any

of the members or send it by Registered Post to the Prescribed

Authority. One copy of the motion was required to be

delivered to the petitioner either by hand or by Registered Post

at the Gram Panchayat office and another copy was required

to be sent by Registered Post at the petitioner's residential

address. This requirement according to the petitioner in view

of the provisions of Section 12 (2) of the West Bengal

Panchayat Act, 1973 (hereinafter referred to the said 'Act') is a

mandatory provision. No notice of such "No Confidence"

motion was either delivered to the petitioner at the office of

the said Gram Panchayat either by hand or by Registered

W.P.A . 10552 of 2021

Post. No copy of such "No Confidence" motion was also sent

by Registered Post at the petitioner's residential address.

e) The petitioner says that for non-compliance of such

mandatory provision, no meeting could have been convened

by the respondent no.3 as indicated in the said notice. Since,

the mandatory requirement has not been complied with the

said notice is in itself an invalid notice and no meeting can or

could have been convened in terms thereof. Any decision

taken at such meeting convened in terms of the said notice,

according to the petitioner is void and invalid.

f) The petitioner also says that ignoring the present situation,

owing to the pandemic, the provisions of the Disaster

Management Act, 2005 and the order issued by the

Government of West Bengal on 15th May, 2021 bearing

no.647-ISS/2M-22/2020 through the Chief Secretary, the

respondent no.3 has issued the notice to convey the meeting.

The action of the respondent no. 3 is as such arbitrary.

g) The decision making process behind issuance of the said

notice is as such faulted and should be interfered with. As a

consequence thereof the said notice has to be quashed and

/or set aside. The petitioner also relied upon a notice issued

by the Prescribed Authority and Sub-Divisional Officer,

Ghatal, Paschim Medinipur by which the meeting scheduled

to be held on 21st May, 2021 at 11 AM in the Meeting Hall of

Ghatal Panchayat Samiti for the removal of Sabhapati of

Ghatal Panchayat Samiti was cancelled. The petitioner says

W.P.A . 10552 of 2021

that the respondent no.3 ought to have followed the procedure

adopted by the Prescribed Authority and Sub-Divisional

Officer Ghatal, Paschim Medinipur and cancelled the meeting

scheduled on 7th June, 2021. The petitioner also says that the

Prescribed Authority Ghatal, Paschim Medinipur had

cancelled the meeting in compliance of a direction issued by

the District Magistrate, Paschim Medinipur under an Order

bearing no. 491/PRD dated 19th May 2021 in adherence to

the order dated 15th May, 2021 issued by the Government of

West Bengal through the Chief Secretary. The petitioner says

that the District Magistrate, Purba Medinipur ought to have

passed a similar order like his counterpart in Paschim

Medinipur for cancelling the meeting. The petitioner has also

referred to a further order dated 29th May, 2021 issued by the

Chief Secretary, Government of West Bengal extending the

order dated 15th May, 2020 till 15th June, 2021 to urge that

even on 7th June, 2021 the restrictions were in force.

h) The petitioner relying upon the Government Orders and the

cancellation memo issued by the Prescribed Authority Ghatal,

Paschim Medinipur says that the respondent no.3 instead of

acting impartially and independently which the said

respondent is bound to do and has failed to act impartially.

The respondent no.3 has acted in a biased manner to side the

respondent nos.5 to 13 in order to give them undue

advantage. The respondent no.3 according to the petitioner

derives power under the said Act and is as such required to

W.P.A . 10552 of 2021

act fairly and transparently. The entire act of the respondent

no.3 is arbitrary and as such is required to be interfered with

by this Court in exercise of its jurisdiction under Article 226

of the Constitution of India.

i) The petitioner also says that the petitioner is not avoiding to

face the "No Confidence" motion but, the situation at the

present is as such that the meeting scheduled on 7th June,

2021 ought to have been cancelled.

3. Respondents' Case:-

a) On behalf of the State respondents (respondent nos.1 to 3), it is

submitted that the writ petition is not maintainable inasmuch

as the petitioner cannot stall a "No Confidence" motion

against him by challenging the notice for holding of a meeting

pursuant to a requisition made after the respondent nos.5 to

13 has passed a motion of "No Confidence". The petitioner

had been appointed as Pradhan by the respondent nos.5 to 13

and as such they can pass a "No Confidence" motion to

remove the petitioner if the majority of the members have lost

confidence in the petitioner as the Pradhan.

b) The petitioner can be removed by a majority of members

following the procedure laid down in Section 12 of the said

Act. Following such provisions, the respondent nos.5 to 13

have passed a "No Confidence" motion as against the

petitioner. The petitioner is, therefor, liable to be removed.

Upon realising that his removal is inevitable, the petitioner is

attempting to raise frivolous technical grounds to invite

W.P.A . 10552 of 2021

interference from this Court. On the issue that the petitioner

can be removed and is not entitled to seek intervention of this

Court against such "No Confidence" motion for petitioner's

removal the State respondents have cited the judgments

reported in 2014(7) SCC 663 [Usha Bharti vs. State of Uttar

Pradesh and Others], 2017(2) CHN 103 [Sujata Bhachhar

(Kirtonia) vs. The State of West Bengal and Others] and the

judgement reported in 2017(2) CHN 258 [Ujjwal Kumar

Singha vs. The State of West Bengal and Others]. The said

respondents have also relied upon a Division Bench

judgement of this Court passed in FMA 1209 of 2015, MAT

242 of 2015 with CAN 1814 of 2015 (Panchu Mandal vs. State

of West Bengal and Ors.) reported in 2016 SCC Online Cal

4950 for the said proposition.

c) The State respondents also submit that the petitioner was

neither available in the office of the said Panchayat to receive

hand service of the motion nor had authorized anyone to

receive the same. The respondent nos.5 to 13 on being

unsuccessful have despatched the copy of the motion to the

petitioner for being served by registered post at the office of

the said Gram Panchayat. A copy of the motion has also been

sent through registered post to the petitioner's residence by

the respondent nos.5 to 13. It, however, appears from the

submission.

W.P.A . 10552 of 2021

d) The State respondents further submit that the meeting as

scheduled on 7th June, 2021 has been convened. In the said

meeting the majority of members of the said Gram Panchayat

have voted for removal of the petitioner. The decision in the

meeting held on 7th June, 2021 has not been published or

been given effected to in view of the interim order dated 4th

June, 2021. The said respondents also stated that this Court

was not inclined to stop the meeting scheduled on 7th June,

2021 as will appear from the Order dated 4th June, 2021

which prima facie establish that this Court was not in favour

of the petitioner. The State respondents, therefore, pray for

dismissal of the writ petition.

4. Petitioner's Reply:-

The petitioner in order to distinguish the judgements cited by

the State respondents has submitted that the petitioner is not

challenging the decision taken by the respondent nos.5 to 13

but the decision making process by which the respondent

no.3 has called and conveyed a meeting pursuant to a

requisition ignoring the provisions of Section 12(2) of the said

Act and also that of Section 72 of the Disaster Management

Act, 2005 which has an overriding effect over all acts. The

petitioner also says that on 4th June, 2021, the Court finding

substance in the petitioner's case was inclined to hear the

matter at length and as such had granted an interim

protection to the petitioner though the holding of the meeting

was not stopped. The Court according to the petitioner did

W.P.A . 10552 of 2021

not stop the holding of the meeting according to the petitioner

as the same would amount to passing of the final relief at the

interim stage without hearing the matter in details. Allowing

the meeting to be held as scheduled, therefor according to the

petitioner should not be construed as the Court leaning in

favour of the respondents against the petitioner.

5. Decision with Reasons:-

i.) The Election of the members of a Gram Panchayat is held

under the provisions of Section 4 of the said Act read with the

provisions of The West Bengal Panchayat Elections Act, 2003

and The West Bengal Panchayat Elections Rules, 2006. In

terms of the provisions of Section 9 of the said Act, the

Pradhan and Upa Pradhan of a Gram Panchayat are elected

by the members of the said Panchayat. The petitioner was

also elected as the Pradhan in the same manner.

ii.) Section 12 of the said Act provides for removal of the Pradhan

by way of a motion of "No Confidence" against the said

Pradhan. There is as such no doubt on a conjoint reading of

Sections 4(2A) and rule 12 (1) of the said Act, that the

members of a Gram Panchayat are also empowered to remove

an elected Pradhan by following the provisions of Section 12

of the said Act which includes passing of a motion of "No

Confidence". The argument of the State respondents that the

petitioner cannot challenge the authority of the members who

have decided to remove the petitioner does not fall for further

scrutiny. This authority is available under the statute. That

W.P.A . 10552 of 2021

apart and in any event the petitioner in the writ petition has

also not challenged the authority of the members to remove

the petitioner. The challenge is on the ground of non-

adherence to the mandatory requirements to be followed for

such removal.

iii.) The procedure to be followed pursuant to a motion of "No

Confidence" having been passed is enumerated in Section 12

(2) of the said Act. The said section lays down formalities to be

complied with which are mandatory. A copy of such motion of

"No Confidence" is required to be delivered in person through

any of the members or be sent by Registered Post to the

Prescribed Authority indicating party affiliation or

independent status of each of such members. A copy of the

said motion is also required to be delivered to the concerned

office bearer. In the instant case, the petitioner (Pradhan) had

to be delivered a copy of the motion either by hand or by

Registered Post at the office of the said Gram Panchayat and

another copy was required to be sent by Registered Post at the

petitioner's residential address. In the instant case, it is

apparent that the Prescribed Authority has received a copy of

the motion in terms of the provisions of Section 12(2) of the

said Act, but, there is no proof produced before this Court to

show that one copy of the motion had been delivered to the

petitioner either by hand or by Registered Post to the

petitioner at the office of the said Gram Panchayat.

W.P.A . 10552 of 2021

iv.) The State respondents say that since the Pradhan was not

available at the office of the Gram Panchayat, he could not be

served by hand and as such one copy of the motion has been

sent by Registered Post to the office of the Gram Panchayat.

On a query from Court, the State respondents show through

virtual mode, the postal receipt to demonstrate despatch of a

copy of notice by registered post to the office of the said Gram

Panchayat for being delivered to the Pradhan.

v.) Although, it is strange that a document which is required to

be produced by the respondent nos.5 to 13 had been

produced by the State respondents but the fact remains that

there is no proof of one copy of such motion having been

delivered to the petitioner by registered post at the office of the

said Gram Panchayat.

vi.) The last portion of Section 12(2) of the said Act provides for

another copy to be sent by Registered Post at the residential

address of the petitioner. Although no such proof has been

produced yet assuming without admitting that the other copy

of the motion as per the second limb of Section 12(2) has been

complied with by only despatch since the word used therein is

"sent" and not "delivered" then also the other copy having not

been delivered either by hand or through registered post the

first limb of service of a copy of the motion on the petitioner is

not complied with. Even if, it is presumed that there has been

service of a copy of the motion in view of the provisions of

Section 27 of the General Clauses Act, 1897 but such

W.P.A . 10552 of 2021

presumption is not accepted where there is a statutory

requirement of service of the motion of mandatory nature

unless the service is proved beyond doubt or the facts are

such that the presumption is inevitable. In the case in hand,

the delivery has not been proved. The facts are not such that

the presumption under Section 27 of the General Clauses Act,

1897 is a natural corollary. That apart despatch at the

petitioner's residential address is also not proved. The

mandatory requirement of Section 12(2) of the said Act is,

therefore, not complied with. Unless both the limbs of delivery

are complied with, the provisions of Section 12(2) which are

indeed mandatory in nature so far as delivery of the office

bearer intended to be limbed in the instant case have not

been complied with.

vii.) The Prescribed Authority on receipt of the motion has to

satisfy himself that the motion conforms to the requirement of

Section 12(2) and on his satisfaction shall specially convene a

meeting of the Gram Panchayat by issuing notice as laid down

in Section 12(3) of the said Act. The notice is required to be

issued within five working days of the receipt of the motion

and under Rule 5B of the 1975 Rules. The notice has to be

sent at least before seven clear days to each of the existing

members for consideration of the motion and for taking a

decision on it.

W.P.A . 10552 of 2021

viii.) The Prescribed Authority, therefor, under Section 12(3) of the

said Act is required himself as to the number of members who

signed the motion, their party affiliation or independent

status in the signed motion received by the Prescribed

Authority from those who have taken the "No Confidence"

motion. The satisfaction as to number of members and the

status of the member can be contended as an administrative

or ministerial work as the Presiding Officer is to see only these

two things in the motion. The Prescribed Authority has to also

satisfy itself as to the service of the notice as envisaged under

Section 12(2) of the Act on the person sought to be removed.

Even if, this satisfaction of the Prescribed Authority is

construed as an administrative or ministerial act then also

the Prescribed Authority while convening a meeting by issuing

notice on requisition is also determining questions affecting

the rights of the person intended to be removed, in the instant

case that of the petitioner. The Prescribed Authority is doing

this as he has a legal authority to do so under the statute.

The Prescribed Authority is therefor, not doing only a

ministerial or an administrative act simplicitor but his act to

convene a meeting upon being satisfied in terms of the

provisions of Section 12(3) of the said Act has the trappings of

quasi-judicial function and/or acts. The Prescribed Authority

is, therefor, required to act judicially. Reliance in this context

may be placed in the judgment reported in AIR 2013 SC 168

(State of Maharashtra and Ors vs. Saeed Sohail Sheikh

W.P.A . 10552 of 2021

and Others) (paragraphs 28 to 38). An administrative or

ministerial work cannot ordinarily be interfered with in

exercise of powers under Article 226 of the Constitution of

India unless there is arbitrariness, irrationality,

unreasonableness, bias and mala fides [See 2007(14) SCC

517 Jagdish Mandal vs State of Orissa and Others

(paragraph 22)], on the other hand the moment the act

and/or function has quasi-judicial trappings, the decision

making process can be interfered with in exercise of power

under Article 226 of the Constitution of India even for some

illegality, perversity or abuse of power apart from the grounds

of interference as to a ministerial or administrative act.

ix.) The Prescribed Authority, therefor, ought to have checked

before issuing the notice to convene a meeting upon receiving

a copy of the motion as to whether a copy of the motion has

been delivered on the petitioner either by hand or through

registered post at the office of the said Gram Panchayat and

another copy of the motion having been sent to the petitioner

by registered post at his residential address. The Prescribed

Authority as apparent from the facts of the case did not apply

his mind to this aspect of the matter when his satisfaction

under the provisions of Section 12(3) of the said Act also

include satisfaction as to compliance of the provisions of

Section 12 (2) of the said Act. Moreover when a statute

provides an act to be done by a particular authority and in a

particular manner, it should only be done by that authority

W.P.A . 10552 of 2021

and in that manner or not at all as held in AIR 1936 PC 253

[Nazir Ahmed vs. King Emperor] which has been followed

consistently by the Hon'ble Supreme Court in several of its

judgements. The Prescribed Authority in the instant case has

failed to do an act as provided under Section 12(2) and 12(3)

of the said Act. Looking at the matter from both the angles

i.e., if it is an administrative action then it is arbitrary and

irrational, if it is quasi-judicial then the action of respondent

no.3 is tainted with illegality for not having done an act in the

manner specified in the statute.

x.) In Usha Bharti (supra) cited by the respondents, the Hon'ble

Supreme Court had considered whether an "Adhyaksh" who

can be related to a Pradhan under the 1973 Act, can or could

be removed before the completion of his full tenure which as

per the 1973 Act is for a period of 5 years. The Hon'ble

Supreme Court while considering this question has also gone

into the aspect of judicial interference in a case where an

"Adhyaksh" is sought to be removed by the majority of the

members of the Panchayat or bodies having similar

nomenclature. In the instant case, it is not in dispute that a

Pradhan cannot be removed before completion of his entire

tenure. I have already held that the 1973 Act provides for

removal of the Pradhan as and when the majority members

decide by passing a motion of "No Confidence". This

judgment, therefore, has no application to the core issue

involved in the instant case i.e., the validity of the notice

W.P.A . 10552 of 2021

dated 28th May, 2021. The other judgements of this Court

relied upon by the respondents follows the ratio laid down in

Usha Bharti. There is no dispute as to the proposition laid

down in Usha Bharti or the judgments of this Court cited by

the respondents. The judgments of this Court, however, for

the same reason are not applicable to the facts of the instant

case.

xi.) The other point urged by the petitioner is the overriding effect

of Section 72 of the Disaster Management Act, 2005 and its

impact on the decision of the respondent no. 3 in issuing the

notice dated 28th May, 2020, particularly in view of the orders

issued by the Chief Secretary, Governmental of West Bengal on

15th May, 2021 and 29th May, 2021. It is correct that during

the pandemic the functioning of various authorities are

regulated by the orders dated 15th May, 2021 and 29th May,

2021 issued by the Chief Secretary, Government of West

Bengal. However, keeping in mind the time period within which

a Prescribed Authority is required to issue a notice upon

receiving a copy of the motion, it cannot be said that there was

a complete embargo on the Prescribed Authority (respondent

no.3) in issuing the said notice for convening a meeting on 7th

June, 2021. At the same time, the Prescribed Authority ought

to have taken note of orders issued by his counterparts in

other District or Zones like that issued by the Prescrbied

Authority and Sub-Divisional Officer, Ghatal, Paschim

Medinipur cancelling the meeting scheduled to be held on 21st

W.P.A . 10552 of 2021

May, 2021 for removal of Sabhapati of the Ghatal Panchayat

Samiti and relied upon by the petitioner.

7. Conclusion:-

The act of issuing the said notice by the respondent no.3 is

unsustainable. The said notice dated 28th May, 2021 issued by

the Prescribed Authority under the provisions of Rule 5B of the

1975 Rules is set aside and/or quashed. Any decision taken at

the meeting held on 7th June, 2021, in terms of the said notice

dated 28th May, 2021 is also invalid, void and nullity.

Since, I have already held for the reasons stated hereinabove

that the action on the part of respondent no.3 is not

sustainable, the overriding effect of Section 72 of the Disaster

Management Act, 2005 as contended by the petitioner does not

fall for further consideration.

The writ petition is allowed. The notice dated 28th May, 2021 is

set aside and/or quashed. No effect can or could be given to

any decision said to have been at the meeting held on 7th June,

2021 in terms of the said notice.

There shall, however, be no order as to costs.

Urgent photostat certified copy of this judgment and order, if

applied for, be supplied to the parties on priority basis after

compliance with all necessary formalities.

(ARINDAM MUKHERJEE, J.)