Calcutta High Court (Appellete Side)
Sakibul Hoque vs The State Of West Bengal & Ors on 29 September, 2021
29.09.2021
Court No. 19
Item no.09
CP
WPA 15486 of 2021
Sakibul Hoque
Vs.
The State of West Bengal & Ors.
(via video conference)
Mr. Joydip Kar, Sr. Adv.
Mr. Samim ul Bari
Mr. R. Pattanayak
... for the Petitioner.
Mr. Sabyasachi Chatterjee
Mr. Sufi Kamal
Mr. Gazi Faruque
Ms. Srijita Biswas
.....for the respondents 7 to 18.
Mr. Jahar Lal De
Mr. Supratim Dhar
....for the State.
Ms. Cardina Roy
...for the respondents 5 & 6.
Leave is granted to the learned advocate-on-
record for the petitioner to add the requisitionists
who have been left out by mistake here and now.
This writ petition has been filed challenging the
notice under Form 1E of sub-rule (2) of Rule 5B of
the West Bengal Panchayat (Constitution) Rules,
1975, issued by the prescribed authority. The notice
is dated September 7, 2021 and the meeting was
scheduled on September 16, 2021, for removal of the
Upa-Pradhan. From a subsequent communication of
the prescribed authority to the Secretary of the
Kshempur Gram Panchayat, it appears that the
notice was actually sent on September 10, 2021 to
the authority for communication to the members.
According to Mr. Kar, learned senior advocate
appearing on behalf of the petitioner, who is one of
the members of the said gram panchayat, the notice
and the meeting held on the basis thereof suffer from
illegality in view of the violations of the provisions of
Section 12(3) of the West Bengal Panchayat Act,
1973 (hereafter referred to as the said Act). According
to him 7 clear days notice has not been given. Many
of the members had not been able to attend the
meeting and cast their vote and the result of such
meeting and all consequential actions pursuant to
the said meeting stood vitiated in view of the
irregularities.
Mr. Chatterjee, learned advocate appearing on
behalf of the requisitionists, submits that this court
has already held in several judgments that the
provision for providing clear 7 days notice is a
directory provision and the said order has not been
interfered with in appeal. His next submission is that
the petitioner lacks the locus in view of the fact that
neither the pradhan nor the upa-pradhan who are
aggrieved by the result of the meeting, have
challenged the said process.
Mr. De, leaned advocate appearing on behalf of
the State respondents, submits that even if the
petitioner had voted, the result of the meeting would
remain the same. Out of 17 members 10 members
voted in favour of the motion and the motion was
carried. The other 6 members who have not voted in
favour of the motion are also not before this court
alleging that the voting right could not be exercised
due to insufficient time in view of the 4 days notice
instead of 7 days notice.
Having considered the rival contentions of the
parties, as this court has already taken a prima facie
view that the provisions of providing 7 clear days
notice is not mandatory and because the meetings
have already been held and the effect has been given
to the removal of the pradhan and upa-pradhan,
there is no scope for any interim order. Any action
taken subsequent to the said meeting shall abide by
the result of this writ petition. The point of
maintainability is kept open. Pendency of the writ
petition will not prevent the prescribed authority
from proceeding in accordance with law within the
time frame prescribed for election of the new pradhan
and upa-pradhan.
Let affidavit-in-opposition be filed within two
weeks after the Puja Vacation. Reply thereto, if any,
to be filed within one week thereafter.
Liberty to mention.
In the affidavit-in-opposition, the prescribed
authority shall clarify the actual meaning and
purport of the notice dated September 10, 2021
which is annexure P-10 to the writ petition. The
prescribed authority will also annex the records of
the voting pattern.
Parties are directed to act on the
communication of the learned advocates.
(Shampa Sarkar, J.)
