Ajit Kumar Samanta vs The State Of West Bengal And Others
2022 Latest Caselaw 2444 Cal

                           In the High Court at Calcutta
                          Constitutional Writ Jurisdiction
                                   Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya



                               W.P.A 5288 of 2022

                               Ajit Kumar Samanta

                                        Vs.

                      The State of West Bengal and others



     For the petitioner                  :     Mr. Kishore Dutta,
                                               Mr. Dibyendu Chatterjee,
                                               Ms. Reshmi Ghosh

     For the State                       :     Mr. Srijan Nayak,
                                               Mrs. Rituparna Maitra

     For the respondent nos. 12,

14, 15, 17, 18, 19, 23, 24 & 26 : Mr. Kamalesh Bhattacharya, Mr. GoutamDey, Mr. Rajesh Naskar, Mr. D. Sarkar, Ms. Ankita Ghosh

Hearing concluded on : 27.04.2022

Judgment on : 29.04.2022

Sabyasachi Bhattacharyya, J:-

1. The writ petition has been filed primarily challenging the order dated March

10, 2022 passed by the Prescribed Authority and Sub-Divisional Officer

(SDO), Tamluk, District- Purba Medinipore, vide Memo No.164/SDO-

T/GEN, whereby the petitioner's application for taking appropriate action

against three members of the Gram Panchayat, being respondent nos. 14,

17 and 22, was turned down.

2. The petitioner was elected as Pradhan of the Raghunathbari Gram

Panchayat in the year 2018. On December 24, 2021, the petitioner was

served with a notice under Rule 5-B(2) of the West Bengal Panchayat

(Constitution) Rules, 1975 (hereinafter referred to as 'the 1975 Rules') for a

meeting of the Gram Panchayat for consideration of a motion for removal of

the petitioner as Pradhan in view of the lack of confidence on January 4,

2022. The meeting was thereafter postponed and subsequently fixed on

February 7, 2022. After getting a copy of the notice of such meeting, the

petitioner moved a writ petition bearing WPA No.1315 of 2022 before this

Court and a Co-ordinate Bench, by its order dated February 4, 2022,

disposed of the writ petition by setting aside the notice of 'No Confidence

Motion', granting the requisitionists liberty to bring a fresh requisition as

per the provisions of Section 12(2) of the West Bengal Panchayat Act, 1973

(for the sake of brevity, 'the 1973 Act').

3. On February 5, 2022, the Block Development Officer (BDO), Panskura-I

Development Block issued a notice inviting the petitioner and other

members of the Gram Panchayat about the cancellation of a fresh meeting

for removal of the petitioner as Pradhan, which was scheduled to be held

February 7, 2022.

4. On February 9, 2022, a notice under Section 5-B(2) of the 1975 Rules was

served on the petitioner to attend another meeting for consideration of no

confidence motion against the petitioner/Pradhan, to be held on February

21, 2022.

5. On February 10, 2022, the petitioner filed an application under Section

11(1)(d) of the 1973 Act before the BDO, Panskura-I for removal of three of

the respondents, from their membership of the Panchayat, on the ground

that they had not attended three consecutive meetings of the Gram

Panchayat in spite of service of notice.

6. Subsequently, the petitioner made an application before the SDO, Tamluk

for removal of the Gram Panchayat members on February 12, 2022 on

similar ground. The proceeding before the SDO was still pending for

disposal at the time of filing of the writ petition. In the meantime, on

February 18, 2022, the concerned SDO wrote a letter to the BDO,

Panskura-I Development Block to consider the matter regarding removal of

the three members and to submit a report by seven days.

7. During pendency of the application for removal of the members, the BDO

issued an order of removal of the petitioner/Pradhan on February 21, 2022,

stating that, in terms of Section 12(2) of the 1973 Act, for the purpose of

removal of the Pradhan of the Raghunathbari Gram Panchayat, six

members, as per Clause I of sub-section (2-A), had submitted a 'no

confidence motion' in writing against the petitioner on February 8, 2022 and

that it was found from the report of the Presiding Officer dated February

21, 2022, along with minutes of the meeting, that the motion was duly

supported by the majority of the existing members, that is, the nine

members present out of the fifteen existing members of the Raghunathbari

Gram Panchayat.

8. As per such direction, the petitioner handed over the charge to Ranju

Mondal (Hazra) who was the Upa-Pradhan. On February 21, 2022,when the

petitioner was absent, another removal proceedings of the petitioner, from

the Raghunathbari Gram Panchayat, was initiated, despite the pendency of

the application for removal of the three members.

9. The petitioner moved another writ petition bearing WPA No.3660 of 2022

against the order dated February 21, 2022, seeking the cancellation of the

said order. On March 4, 2022, a Co-ordinate Bench dismissed the writ

petition expressing the opinion that the petitioner had failed to show any

illegality in the requisition or in the action of the prescribed authority.

10. On March 4, 2022, one Bapan Das was appointed as Pradhan of the

concerned Gram Panchayat but, according to the writ petitioner, has still

not taken charge of the Panchayat. On March 8, 2022, the BDO was served

with a copy of the letter of the Upa-Pradhan of the said Gram Panchayat

stating that the newly appointed Pradhan was not taking charge.

11. On March 10, 2022, vide Memo No.164/SDO-T/GEN, the SDO, Tamluk

passed an order turning down the application of the petitioner for removal of

the three members on the ground that the notices of the meetings dated

January 24, 2022 and February 1, 2022 were sent to the members of the

Gram Panchayat through registered post which was not in accordance with

the provisions laid down in Rule 6 of the West Bengal Panchayat (Gram

Panchayat Administration) Rules, 2004 (in brief, 'the 2004 Rules').The

present writ petition has challenged the said order.

12. Learned senior counsel appearing for the petitioner contends that in view of

the notices dated January 24, 2022 and February 21, 2022 having been

actually served, although via registered post, the SDO acted without

jurisdiction in dismissing the petitioner's application for removal on the

ground of non-service of notices on the relevant dates.

13. It is contended that although service by registered post is not specifically

enumerated in Rule 6 of the 2004 Rules, the same operated as a substituted

mode and constituted substantial compliance of Rule 6. It is contended

that the purpose of a notice is to impart knowledge and the prior formalities

before substituted service, as stipulated in Rule 6, were substantially

complied with by the petitioner. In view of the refusal of the said addressees

to accept service, the same were only sent by registered post instead of

affixation, which was a technical flaw at best. Since such service was

effected successfully, the purpose of service of notice was served. Hence, the

impugned order of dismissal of the removal application ought to be set

aside.

14. Learned counsel next submits that the SDO had not looked into the relevant

documents and the notices which indicated substantial compliance of Rule

6.

15. By placing reliance on Section 11(1)(d) of the 1973 Act, learned senior

counsel appearing for the petitioner submits that the absence of a member

from three consecutive meetings itself operates as removal of the member.

16. It is submitted that since Section 11(1)(d) contemplates the absence from

three consecutive meetings as the criterion for removal, as on the date when

the no confidence motion was moved against the petitioner, the three

members, who had voted against the petitioner already stood disqualified as

members in view of their absence in three consecutive meetings. Hence, it

is argued, the SDO ought to have considered such circumstances and

allowed the application for removal of the petitioner and three members,

which would operate retrospectively to vitiate the election itself.

17. Learned counsel appearing for the respondent-authorities submits that the

provisions of Rule 6 of the 2004 Rules were not complied with at all. There

was no affixation of notice as envisaged in the said provision. Moreover, the

service return containing witnesses' signature was not attached to the

notice as per the said provision. Both the above were necessary modalities

of service as per Rule 6.

18. Moreover, it is argued that Section 11(d) takes effect only upon an order

being passed removing the member from the office, and not automatically,

on the third instance of absence.

19. A perusal of Section 11(1) clearly indicates that the Prescribed Authority

may, after giving an opportunity to a member of a Gram Panchayat to show

cause against the action proposed to be taken against him, by order remove

him from office on the grounds as mentioned therein. Clause (d) of sub-

section (1) stipulates absence from three consecutive meetings of the Gram

Panchayat without leave to be one of the grounds of removal. Thus, the

relevant date of removal is the date of the order and not the mere

occurrence of the ground.

20. If the petitioner's contention is to be accepted and it is to be held that the

mere absence on the third occasion would itself disqualify the membership

of the member, it would lead to a patent absurdity, since, in that event,

such member would not get any opportunity to show cause at all, in

contravention of Section 11 (1).

21. Assuming a hypothetical situation when no order of removal is passed at all

despite the concerned member being absent from three consecutive

meetings, the removal would never occur, since the criteria of Section 11 (1)

are not met. Thus, such removal is dependent on the passing of the order,

that too only after giving an opportunity to the absentee member to show

cause. Hence, by no stretch of imagination can it be deduced that the

removal occurs automatically on the third day of absence of a member, even

before an opportunity to show cause is given to her/him and an order is

subsequently passed for her/his removal.

22. The presumption in law is that the Legislature enacts laws in its wisdom

and being aware of the implications thereof. Rule 6 of the 2004 Rules clearly

contemplates the exact mode of service. It is well-settled that if an action is

to be taken under a statute, it has to be done in the manner as prescribed

in the statute. In the present case, the petitioner did not comply with the

provisions of Rule 6 inasmuch as the service was sought to be effected

through registered post, without resorting to any affixation of the notice on

the outer door of the house of addressee and/or on the notice board. That

apart, no service return containing the signature of witnesses was attached

to the notice at all. Hence, the SDO acted well within his authority and

jurisdiction and in consonance with law in passing the impugned order

dated March 10, 2022.

23. Thus, the writ petition fails.

24. Accordingly, WPA No.5288 of 2022 is dismissed on contest, without any

order as to costs.

25. Urgent certified copies of this order shall be supplied to the parties applying

for the same, upon due compliance of all requisite formalities.

( Sabyasachi Bhattacharyya, J. )