Calcutta High Court (Appellete Side)
Sephali Barman vs The State Of West Bengal & Ors on 9 July, 2021
S/L 28
09.07.2021
Court. No. 19
GB
W.P.A. 11036 of 2021
Sephali Barman
Vs.
The State of West Bengal & Ors.
(Through Video Conference)
Mr. Debabrata Acharya.
... for the Petitioner.
Mr. S. Nayak,
Mrs. Rituparna Maitra.
... for the Private Respondents.
Mr. Jahar Lal Dey,
Mr. Shamimul Bari.
... for the State.
The petitioner has challenged the Form-1E issued
under the provisions of West Bengal Panchayat
(Constitution) Rules 1975.
According to the petitioner the notice of meeting was
not issued within five working days. It appears that the
requisition notice was served upon the prescribed authority
on June 22, 2021. The notice was issued under the Form-1E
of the West Bengal Panchayat (Constitution) Rules, 1975 on
June 28, 2021. On 26th and 27th June were holidays, June 26
being a Saturday. Thus, the first contention of the petitioner
with regard to the notice under Form-1E dated June 28, 2021
being beyond the period of five working days is not accepted.
Mr. Acharya, learned advocate appearing on behalf of
the petitioner submits that Saturdays are working days for
the office of the BDO as the writ petition was accepted on a
Saturday. From the records, I find that the notice was
accepted on July 3, 2021, which was the first Saturday of the
week and not an official holiday.
The next contention of the petitioner is that the notice
specifies that the meeting would be held on July 9, 2021 to
consider the motion for removal of the Pradhan for lack of
confidence against the Pradhan. According to Mr. Acharya,
the motion for removal of the Pradhan and a meeting for
expressing "no confidence" against the Pradhan had to be
two different processes and could not be done in one single
agenda. This argument of Mr. Acharya is not in consonance
with the provisions of Section 12(2) of the West Bengal
Panchayat Act. The section provides that the requisitionists
can sign a motion in writing expressing their intention to
remove the Pradhan or express their lack of confidence. This
'or' cannot be read as disjunctive. A purposive interpretation
of this provision of the law would be that the requisitionists
can bring a motion for removal of the Pradhan on account of
their lack of confidence in their Pradhan. Such lack of
confidence will be tested on the floor on the date of the
meeting specially requisitioned for the said purpose and
consequently by a resolution of majority of the members the
Pradhan can be removed from his office.
The third contention of Mr. Acharya is that the notice
does not record the subjective satisfaction of the prescribed
authority. This contention is not accepted. The court refers to
a Division Bench Judgment in the matter of Gopal Kumar
versus State of West Bengal, reported in 2015 (1) CHN Cal
445. The relevant portion of the judgment is quoted below:
"(22) In our view satisfying himself as regards the
sufficiency of the motion really means that the
Prescribed Authority has to ascertain with reference to
sub-Section 2 whether the requirements mentioned
therein are satisfied by the motion. No subjective
exercise is involved therein. No executive or
administrative order is to be issued by the Prescribed
Authority by convening the meeting. It is more of a
ministerial task. In our view, the language of sub-
Section 3 is quite clear and the legislature did
not require the Prescribed Authority to record
his satisfaction or reasons in support thereof
as regards the sufficiency of the motion before
convening the meeting. We are in agreement
with the view of Samaddar, J. in the case of
Firoza Begam (supra) that issuance of notice
convening the meeting itself indicates the
satisfaction of the Prescribed Authority as
regards acceptability of the motion.
(23) We feel that we would be adding words to the
statute if we opine that the Prescribed Authority must
record his satisfaction and reasons in support therein
prior to issuance of notice convening meeting. This
would be impermissible in view of the established
principle of law regarding interpretation of statutes as
amplified by the decisions of the Honble Apex Court
discussed above.
(24) We have checked up the Panchayat Act and/or
equivalent legislation of several other States including
Assam, Bihar, Himachal Pradesh, Karnataka, Kerala,
Panjub, Rajasthan and Uttar Pradesh. None of such
legislations provide for the Prescribed Authority to
record his satisfaction as regards the sufficiency of a
motion convening a meeting.
(25) We further feel that recording of satisfaction by
the Prescribed Authority prior to convening a meeting
would serve no useful purpose and would be of no
consequence. Even if the Prescribed Authority records
his satisfaction as to the sufficiency of a motion when,
in fact, such motion does not confirm to the
requirements of sub-Section 2, such motion would be
liable to be quashed by the Court. The motion will
speak for itself and all that the court will have to see is
whether or not it satisfies the requirements of sub-
Section 2. Hence, it would be a futile and useless
exercise to put an obligation on the Prescribed
Authority to record his satisfaction in his
official records as regards sufficiency of the
motion. Such recording will not change the
factual scenario or the actual contents of the
motion.
(26) It is also significant that the format of the notice
of meeting i.e. form 1E prescribed by Rule 5B of the
West Bengal Panchayat (Constitution) Rules, 1975
does not provide for any scope for recording the
satisfaction of the Prescribed Authority as regards the
legal validity of the motion prior to issuance of notice
of meeting.
(27) In view of the discussion above we are of the
opinion that it was not the intention of the legislation
to impose any obligation on the Prescribed Authority
to record satisfaction regarding legal acceptability of a
motion submitted under section 12(2) of the said Act
before issuance of a notice of meeting under section
12(3) of the said Act. We are of the view that it is not
necessary for the Prescribed Authority to record any
such satisfaction and we agree with the view of the Ld.
Judge in the case of Firoza Begam (Supra) that
issuance of notice of meeting itself indicates such
satisfaction. We answer the question of law referred to
us accordingly."
The Pradhan has been elected by a democratic process
and the persons who elected the Pradhan have a right to
remove him if they lack confidence in him. That is the
principle of democratic republicanism in our country. In this
case, the majority has lost their confidence on their leader
and the Panchayat Samity cannot be allowed to function in a
state of deadlock or non-cooperation especially during this
pandemic situation where the Panchayat Samity has a vital
role to play with regard to welfare, sustenance, medication,
health facilities and vaccination of the local people.
In the decision of Firoz Alam & Ors. versus State of
West Bengal & Ors. the Hon'ble Division Bench of this Court
has also held that the notice under Form-1E was itself an
indication of the subjective satisfaction of the prescribed
authority.
Under such circumstances this writ petition is
disposed of without any order in favour of the petitioner.
Accordingly, the writ petition is disposed of.
However, there will be no order as to costs.
All the parties are directed to act on the basis of the
server copy of this order.
(Shampa Sarkar, J.)
