Calcutta High Court (Appellete Side)
Tanuja Begum Laskar vs The State Of West Bengal & Ors on 18 May, 2023
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
(Appellate Side)
M.A.T. 468 of 2022
+
I.A. No. CAN/1/2022
+
IA No: CAN/2/2022
+
IA No: CAN/3/2022
Tanuja Begum Laskar
v.
The State of West Bengal & Ors.
WITH
MAT 486 of 2022
+
IA No: CAN/1/2022
+
IA No: CAN/2/2022
Nemai Sardar & Ors.
v.
The State of West Bengal & Ors.
Before: The Hon'ble Justice Arijit Banerjee
&
The Hon'ble Justice Rai Chattopadhyay
For the Appellant : Mr. Arun Kumar Maiti, Adv.
Mr. Pradip Sardar, Adv.
Mr. Ushananda Jana, Adv.
Mr. Mohit Gupta, Adv.
Mr. R.R. Mohanty, Adv.
Ms. Diya Bain, Adv.
Mr. Tapas Mandal, Adv.
For the State : Mr. Lalit Mohan Mahata, AGP.
Mr. Raja Saha, Sr. Govt. Adv.,
Ms. Tanusri Chanda, Adv.
For the Respondents nos. : Mr. Saptansu Basu, Sr. Adv..
7 to 15 Mr. Sudarshan Ghosh, Adv.
Mr. Suman Agarwal, Adv.
2
For the added Mr. Swarup Banerjee, Adv.
respondents Ms. Kaberi Sengupta Mohanty, Adv.
Ms. Komal Shaw, Adv.
Judgment On : 18.05.2023
Arijit Banerjee, J.:
1. These two appeals are directed against the judgment and order dated
March 29, 2022, whereby the writ petition of the appellant in MAT 468 of
2022, being WPA No. 4584 of 2022, was disposed of. Being aggrieved, the
writ petitioner has filed MAT 468 of 2022. MAT 486 of 2022 has been filed
by four persons claiming to be members of the concerned Panchayat. The
appellant no. 1 in that appeal claims to be the leader of the opposition. The
appellants in MAT 486 of 2022 claim that they were necessary parties to the
writ petition but were not impleaded as respondents. They were thus
deprived of the opportunity of placing their case before the learned Single
Judge. By reason thereof, they have suffered prejudice. They have taken out
an application for leave to appeal against the judgment and order dated
March 29, 2022. We are not inclined to grant such leave. These intending
appellants are essentially supporting the appellant in M.A.T 468 of 2022
who has been heard in extenso on several dates. M.A.T 486 of 2022 along
with the connected applications are accordingly disposed of.
2. The aforesaid intending appellants in M.A.T. 486 of 2022 have also
taken out an application for being added as respondents in MAT 468 of
2022. For the same reason for which we declined leave to appeal to them, we
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reject the application whereby the said persons seek to be added as
respondents in MAT 468 of 2022.
3. The appellant in MAT 468 of 2022 approached the learned Single
Judge challenging a motion dated March 3, 2022, brought by the requisite
number of members of the concerned Panchayat, for removing her from the
office of Pradhan. The appellant/writ petitioner also challenged the notice
dated March 7, 2022, issued by the Prescribed Authority under Rule 5B of
the West Bengal Panchayat (Constitution) Rules, 1975. The grounds on
which the motion and the notice of meeting issued by the Prescribed
Authority were assailed, as would appear from the writ petition, were as
follows:-
"I. For that the Prescribed Authority and the Block Development
Officer Joynagar - I, Block Development at Baharu, District 24
Parganas ignored the provision of Section 12(3) of West Bengal
Panchayat Act, 1973 by not sending the notice before clear 7 days
to your petitioner for consideration of conducing a meeting and for
taking decision on it.
II. For that the Prescribed Authority and Block Development officer
did not observe the compliance of Section 12(2) of the West Bengal
Panchayat Act, 1973 before issuing the notice dated 07.03.2022.
III. For that as per Section 12(3) of the West Bengal Panchayat Act,
1973 the Prescribed Authority and the Block Development Officer,
Joynagar - 1 Block Development, Officer at Baharu, District -
4
South 24-Parganas is duty bound to send the notice within clear 7
days to your petitioner.
IV. For that since the West Bengal Panchayat Act gives a direction
upon the Prescribed Authority to perform the mandatory duty by
issuing notice within five working days from the receiving of the
notice for the purpose of conducting meeting of removal of
Pradhan in the Rajapur Karabeg Gram Panchayat by suppressing
the notice dated 07.03.2022.
V. For that the Prescribed Authority cannot issue notice for
conducting the meeting during the stay period arising out of
C.A.N. 1+2 of 2022 in W.P.A. No. 171 of 2022.
VI. For that the Prescribed Authority cannot issue the notice dated
07.03.2022 since it is not the compliance of solemn order passed
by the Hon'ble Justice Sabyasachi Bhattarcharya on 10.01.2022
in W.P.A. No. 171 of 2022."
4. There appears to have been several rounds of litigation between the
parties hereto. Let us briefly discuss the factual background of the present
litigation.
5. A Motion dated November 23, 2021, for removal of the appellant as
Pradhan was brought by 9 out of 17 members of the Panchayat. Alleging
inaction on the part of the Prescribed Authority, the requisitionists
approached a learned Single Judge of this Court by filing WPA 20743 of
2021. On the day the matter came up before the learned Single Judge i.e.,
5
December 23, 2021, 30 days had elapsed from the date of the motion.
Section 12(10) of the West Bengal Panchayat Act, 1973 (in short the said
Act), required the entire process from receipt of the motion by the Prescribed
Authority to any action finally taken by him to be completed within 30 days.
Accordingly, the learned Judge disposed of the writ petition by granting
leave to the writ petitioners, as prayed for, to bring a fresh motion in
accordance with the provisions of the said Act.
6. The said requisitionists brought a fresh motion of 'no-confidence' and
for removal of the Pradhan (the appellant herein) on December 29, 2021.
Again, alleging that the Prescribed Authority had not taken steps to convene
a meeting in terms of Section 12(3) of the said Act, the requisitionists
approached a learned Single Judge by filing WPA No. 171 of 2022. The said
application was disposed of by an order dated January 10, 2022, with the
following direction:-
"Accordingly, W.P.A. No. 171 of 2022 is disposed of by directing
the respondent no. 6 to convene a meeting in terms of Section
12(3) of the 1973 Act, pursuant to the notice of the petitioners for
moving a motion of no-confidence and/or removal of the Pradhan
within January 22, 2022.
Within five days thereafter, that is, by January 27, 2022, the
respondent no. 6 shall comply with all formalities as contemplated
in sub-section (10) of Section 12 of the 1973 Act by taking such
further action as contemplated therein."
6
7. The appellant herein filed an application being CAN 1 of 2022 for
recall of the order dated January 10, 2022. Another application being CAN 2
of 2022 was also filed by the appellant herein against the writ petitioners in
WPA no. 171 of 2022 (the requisitionists) under Section 340 of the Code of
Criminal Procedure. In the mean time, the requisitionists had filed a
contempt application being CPAN 79 of 2022 for alleged violation of the
order dated January 10, 2022, by which WPA No. 171 of 2022 had been
disposed of.
8. All the three applications were listed before the learned Single Judge
on March 1, 2022. By an order of that date, the two applications of the
present appellant being CAN 1 of 2022 and CAN 2 of 2022 were dismissed
with costs. The contempt application was adjourned. We have not been
apprised of the fate of such contempt application, nor, in our opinion, the
decision in such application would have any bearing on the present
proceedings.
9. It appears that during pendency of the application for recall of the
order dated January 10, 2022, and the application under Section 340 of the
Code of Criminal Procedure, the requisitionists again brought a motion of
no-confidence for removal of the Pradhan on February 1, 2022. By an
interim order dated February 25, 2022, passed in CPAN 79 of 2022, the
learned Single Judge restrained the Prescribed Authority from acting on the
basis of the notice issued by him pursuant to the motion of no-confidence.
7
10. The contempt application being CPAN 79 of 2022 was next listed
before the learned Single Judge on March 10, 2022, whereupon, on the
prayer of the applicants in the contempt application the matter stood
adjourned till March 24, 2022. In the mean time a fresh motion of no
confidence was again brought by the requisitionists who are respondents
herein, for removal of the Pradhan. The Prescribed Authority issued notice
on March 7, 2022, convening a meeting on March 14, 2022.
11. Challenging the notice of motion dated March 3, 2022, and the
Prescribed Authority's notice dated March 7, 2022, the appellant
approached the learned Single Judge in the present round of litigation. The
grounds of challenge as enumerated in the writ petition have been extracted
above. It appears that the writ petition was filed on March 14, 2022. In the
absence of any interim order of restraint, the meeting scheduled for March
14, 2022, was held. Ten members voted in favour of the motion for removal
of the Pradhan. The motion was carried through. Under cover of a letter
dated March 14, 2022, the Prescribed Authority forwarded a copy of the
resolution removing the Pradhan (appellant herein) to the District Panchayat
and Rural Development Officer, South 24 Parganas.
12. By a memo dated March 29, 2022, addressed to the Ex-Pradhan, the
Upa-Pradhan and the Secretary of the concerned Panchayat, the Prescribed
Authority stated as follows:-
"This is to notify that, as The Prodhan of Rajapur Karabeg Gram
Panchayat under Joynagar - I Development Block, has already
8
been removed dated on 14.03.2022 and there is no interference by
the Hon'ble High Court i.c.w. WPA No: 4584 of 2022. The Charge
of the Prodhan, of Rajapur Karabeg Gram Panchayat would be
made over to the Upa-Prodhan, of Rajapur Karabeg Gram
Panchayat as on 01.04.2022 at 11.30 A.M. or as soon as the
business permits.
Notice be effected to the Ex Prodhan, Upa-Prodhan and
the Secretary of the Rajapur Karabeg Gram Panchayat for
completion of the making over of the charge of Prodhan to the
Upa-Prodhan according to law.
Copy of Hand over of Charge should be immediately sent
to the office of the undersigned without fail.
This may be treated as Most Urgent."
13. The learned Single Judge pronounced the judgment and order
impugned in this appeal on March 29, 2022.
14. The learned Judge disposed of the writ petition with the following
observations:-
"16. The impugned requisition was brought on March 3, 2022. The
said requisition does not suffer from any illegality. The requisition
is also not barred by the statute as the earlier
requisitions/motions had not been acted upon. Thus, even if no
liberty had been granted, unless hit by the provisions of Section
9
12(11), the requisitionists were entitled to bring the requisition as
the life of the earlier requisitions had lost their force and had died
a natural death, due to efflux of time. The impugned requisition is
not a consequence of the order passed either in WPA 171 of 2022,
or in WPA 20743 of 2021. Those requisitions expired during the
pendency of the recalling applications.
17. This Court holds that there has been sufficient compliance of
the provisions of Section 12(2) by the requisitionists and the
motion cannot be set aside. The Pradhan was neither available at
his residence nor at his office and, as such, the requisitionists
rightly served the motion upon the Secretary. In addition to the
same, the motion was also sent by registered post to the
panchayat office and the residence. Delivery of the motion upon
the Pradhan, by one mode would be sufficient compliance as has
been held by this Court in similar matters. The law envisages that
the motion has to be delivered either by hand or by registered post
at the panchayat office and sent by registered post to the residence
of the Pradhan. In this case, the motion was delivered upon the
Secretary of the panchayat office, as the Pradhan was not
available.
............
19. With regard to the allegation of non-service of the notice dated
March 7, 2022 issued under Form 1E, Mr. Mahata has produced
the entire records relating to the removal of the petitioner. It
appears that the said notice was not accepted either by the
Pradhan or by the members who were supporting the Pradhan. A
letter to that effect was submitted before the prescribed authority
by Biswajit Singha the special messenger (peon) who went to serve
the notice. It has been further submitted that with the help of the
police officers those notices were affixed at conspicuous places at
the residence of each of the members who had refused the same,
including the Pradhan. The letter of the peon and the photographs
have been produced before this Court.
20. In view of the order dated March 1, 2022 there was no further
restriction on the prescribed authority to issue any notice on the
motion dated March 3, 2022. The law does not prevent the
requisitionists from bringing the motion as the earlier motions had
not been acted upon. An appeal had been preferred from the order
dated March 1, 2022. The Hon'ble Division Bench passed an order
of stay of the order dated March 1, 2022, by an order dated March
15, 2022. The motion had been carried by majority vote on March
14, 2022.
.......
23. Under such circumstances, the Court does not find any defect
in the procedure adopted by the prescribed authority in calling the
meeting for removal of the Pradhan by a notice dated March 7,
2022, on the basis of the motion dated March 3, 2022. The
prescribed authority had satisfied himself with regard to the
service of the motion upon the Pradhan. The prescribed authority
also satisfied himself regarding the other compliances of the
provisions of Section 12(2) of the said Act. Thereafter, the
prescribed authority issued the notice within five working days
from receipt thereof and the meeting had been called on March 14,
2022. There had been sufficient compliance of the provisions of
Sections12(3) and 12(4) by the prescribed authority. The Pradhan
was removed from office by majority vote on March 14, 2022.
24. In my opinion, the provision for removing an elected
representative such as the Pradhan is of fundamental importance
to ensure the democratic functioning of the institution as well as
to ensure transparency and accountability in the functions
performed by the elected representatives. These institutions must
run on democratic principles. In democracy, all persons heading
public bodies can continue provided they enjoy the confidence of
the persons who comprise such bodies. This is the essence of
democratic republicanism. If the Pradhan has lost support of the
majority of the members, she cannot remain in office for a single
day.
.......
26. There was no bar on the part of the requisitionists from
bringing the motion. The motion had otherwise satisfied the
provisions of Section 12(2) of the said Act. Thus, the Court does
not find any irregularity in the procedure adopted by the
prescribed authority. The Pradhan who had been removed by the
majority vote, cannot continue in office for a single day as the
same would not only amount to denial of a democratic process,
but also render the provisions for removal of a Pradhan as
nugatory. The entire functioning of the gram panchayat will be
hampered. Several attempts have been made by the petitioner to
stall such removal. The subject matter of the appeal is neither the
motion dated March 3, 2022, nor the notice dated March 7, 2022.
The order of the Hon'ble Appeal Court was passed on March 15,
2022 staying the operation of the order dated March 1, 2022, but
the motion was moved and carried by the members before the
order was passed by the Hon'ble Appeal Court. The subject matter
before the learned Appeal Court are the earlier motions and the
orders passed by the Hon'ble co-ordinate Benches. The subject
matter of contempt, is a separate cause of action. Whether the
communication of the members and the notice issued by the
prescribed authority on February 1, 2022 amounted to violating
the order of the Court, will be decided by the appropriate court.
The contempt application shall proceed in accordance with law
before His Lordship. Thus, the motion which has been carried on
March 14, 2022 has been done in accordance with law. The
Pradhan has been removed. The same appears from the
communications issued by the prescribed authority, which have
been produced before this Court by the learned Advocate for the
State respondents. All the documents filed in the Court have been
kept on record.
27. Judicial review of administrative action is permissible only on
the grounds of jurisdictional error, procedural impropriety,
procedural irregularity and irrationality. In this case, this Court
does not find that the motion dated March 3, 2022 and the
procedure adopted by the prescribed authority calling the meeting
for removal the Pradhan on the basis of the requisition dated
March 3, 2022, suffers from any of the defects mentioned
hereinabove and as such the Court declines to interfere either with
the said motion or with the notice dated March 7, 2022. The
Pradhan has already been removed by majority vote and the
consequences will follow. This Court refuses to interfere with the
proceedings."
15. Appearing on behalf of the appellant/writ petitioner, Mr. Arun Maiti,
learned Senior Counsel, argued several points. Some of such points may not
have been urged before the learned Single Judge as would appear from the
judgment and order impugned. However, the new points urged are
essentially points of law and hence we are inclined to deal with the same.
The points urged by Mr. Maiti may be summarised as follows:-
(i) Right from the beginning of the issuance of notice of motion, till
the end of the purported resolution removing the Pradhan
(appellant), there has been complete non-compliance of the
provisions of Section 12 of the West Bengal Panchayat Act which
deals with the procedure for removal of Pradhan from his office.
(ii) The notice of motion was dated March 3, 2022. However, it was
delivered to the Prescribed Authority only on March 4, 2022. There
is no explanation as to why on the date of the notice of motion the
same was not delivered to the Prescribed Authority.
(iii) The notice of motion was sent to the Pradhan to an incorrect
residential address. On March 7, 2022, notice of meeting was
made ready by the Prescribed Authority. The messenger/peon
received such notice only on March 8, 2022, for effecting service
on the members of the Panchayat. However, on March 7 itself, all
the 9 requisitionists and another member procured the notice of
meeting, clearly indicating their unholy nexus with the Prescribed
Authority.
(iv) The provisions of Section 12(3) of the Panchayat Act were not
complied with. 7 days' notice was not given to the Pradhan. Only
on March 11, 2022, at 5:38 p.m. the Pradhan received the notice
through Panchayat Mail.
(v) The Prescribed Authority acted irregularly by providing police
assistance for effecting substituted service of the notice of meeting.
There is no such provision in the Panchayat Act or the Rules
framed thereunder.
(vi) No Presiding Officer was appointed in terms of Rule 5B(3) of the
West Bengal Panchayat (Constitution) Rules, 1975.
(vii) The Prescribed Authority did not verify the service return in terms
of Rule 7 of West Bengal Panchayat (Gram Panchayat
Administration) Rules, 2004. The relevant portion of the said rule
reads thus:- "... and the Prescribed Authority before
commencement of the meeting shall ensure that notice has been
duly served to every member in the manner laid down in this
behalf ...". One of the elected members, namely, Rekha Naiya
received the notice of meeting only on March 14, 2022, after the
meeting was held. 6 other members of the Gram Panchayat did not
receive the notice at all. The Prescribed Authority did not ensure
compliance with the provisions of Sections 12(3) and 12(5) of the
Panchayat Act without reasonable or probable cause. This
amounted to malice in law apart from violation of statutory
provisions.
(viii) On March 10, 2022, three office staff were engaged for assisting
the Presiding Officer. In fact however, no Presiding Officer was ever
appointed.
(ix) Since no Presiding Officer was ever appointed, the person who is
alleged to have acted as Presiding Officer at the meeting held on
March 14, 2022, is non-est in law. The meeting held on March 14,
2022, stands vitiated and the resolution for removal of Pradhan
adopted at the said meeting is invalid and void.
(x) There were 17 members of the Gram Panchayat but only ten ballot
papers were shown to have been used in the purported meeting
held on March 14, 2022. Hence, there was non-compliance with
Section 12(6) of the Panchayat Act. Further, the voters did not
caste votes by ballots in terms of Rule 12 of West Bengal
Panchayat (Gram Panchayat Administration) Rules, 2004.
(xi) The list of business was not prepared by the secretary in
consultation with the executive assistant under the instruction of
Pradhan or upa-pradhan as required under Rule 4 of the 2004
Rules.
(xii) According to Rule 6(1) of the 2004 rules, delivery of notice to the
members is to be effected by sending notice through the Secretary
of the Gram Panchayat to each member thereof by a messenger.
This Rule was not adhered to.
(xiii) The presiding member did not verify the service return of the office
copy of the notice of the list of business as required by Rule 7 of
the 2004 Rules.
(xiv) The Secretary of the Gram Panchayat is required to maintain an
attendance Register cum minute Book in Form 2, which was not
done. The Prescribed Authority violated Rule 10 without lawful
excuse which amounts to malice in law.
(xv) Only 10 ballot papers were issued although there were 17
members of the Gram Panchayat. The Presiding Officer did not
sign on the reverse of each ballot paper.
(xvi) Rule 15 of the 2004 rules required the Secretary of the Gram
Panchayat to record the proceedings at the meeting dated March
14, 2022. The Secretary did not do so. The person who recorded
the proceedings was not authorised by the presiding member to do
so.
(xvii) The minutes of the meeting dated March 14, 2022, were not
recorded in the manner prescribed by Section 12(7) of the
Panchayat Act.
(xviii) The executive assistant did not forward a copy of the minutes of
the meeting dated March 14, 2022, to the Prescribed Authority, as
required by Section 12(9) of the Panchayat Act.
(xix) The Prescribed Authority did not take any action in terms of
Section 12(10) of the Panchayat Act.
(xx) There was no election of Pradhan in terms of Section 13 of the
Panchayat Act read with Rules 6(1) of the West Bengal Panchayat
(Constitution) Rules 1975 Rules within 30 days from the date of
casual vacancy having arisen in the post of Pradhan.
(xxi) The Upa-Pradhan continues to act as Pradhan in Charge. This is
detrimental to the interest of the people in. the concerned locality.
(xxii) The performance of the appellant as Pradhan has been
impeccable. Her removal from the post of Pradhan was on account
of bias, prejudice, and in gross violation of the principles of natural
justice.
(xxiii) The whole exercise of power by the Prescribed Authority is the
outcome of malice in law. From the initiation of the proceeding till
the end thereof, the same cannot be said to have been done in
alleged exercise of democratic right of the requisitionists, but in
furtherance of their oblique motive.
16. Mr. Maiti relied on the following decisions:-
(i) Nazir Ahmad v. Emperor, reported at AIR 1936 PC 253, Taylor
v. Taylor (1875) Ch D 426, Selvi J. Jayalalithaa & Ors. v. State of
Karnataka & Ors. reported at (2014) IPLJR (SC) 531, Cherukuri
Mani v. Chief Secretary Govt. of A.P. & Ors. reported at 2005(13)
SCC 722, Chief Information Commr. & Anr. v. State of Manipur &
Anr Civil Appeal Nos. 10787-10788 of 2011 arising out of S.L.P.
(C) 32769/2010, These decisions were relied upon for the proposition
of law that when a statute gives a power to an authority to do a certain
thing in a certain way, the thing must be done in that way or not at all.
Other methods of performance are necessarily forbidden.
(ii) Accountant General, State of Madhya Pradesh v. SK. Dubey &
Anr. reported at (2012)4 SCC 578. Paragraph 23 of the aforesaid
decision was relied upon by learned Counsel, which reads as follows:-
"23. We cannot ignore that the provisions of statute and the rules
are to be read as they are. As stated by Justice G.P. Singh in
Principles of Statutory Interpretation (13th Edition, Chapter 2 page
64), "the intention of the Legislature is primarily to be gathered
from the language used, which means that attention should be
paid to what has been said as also to what has not been said."
[See also Crawford vs. Spooner 4 Moo Ind. App 179 and
Nalinakhya v. Shyam Sunder AIR 1953 SC 148 Para 9 quoting
with approval Crawford vs. Spooner.] we may as well refer to the
observations of this Court in para 10 of State of Kerala vs. K.
Prasad reported in 2007(7) SCC 140 to the following effect:-
".......... It needs little emphasis that the Rules are meant to be
and have to be complied with and enforced scrupulously.
Waiver or even relaxation of any rule, unless such power exists
under the rules, is bound to provide scope for discrimination,
arbitrariness and favouritism, which is totally opposed to the
rule of law and our constitutional values. It goes without
saying that even an executive order is required to be made
strictly in consonance with the rules. Therefore, when an
executive order is called in question, while exercising the power
of judicial review the Court is required to see whether the
Government has departed from such rules and if so, the
action, of the Government is liable to be struck down."
(iii) Messrs. Dwarka Prosad Laxmi Narain v. State of Uttarpradesh &
Ors. reported at AIR 1954 SC 224. This judgment was relied upon in
support of the submission that the Prescribed Authority's actions were
tainted by malice in law. In particular, the following portion of Paragraph 8
of the reported judgment was relied upon:-
"8. .... It was pointed out and with perfect propriety by Mr. Justice
Mathews in the well-known American case of - 'Yick Wo v.
Hopkins', (1886) 118 US 356 at p. 373 (B) that the action or non-
action of officers placed in such position may proceed from enmity
or prejudice, from partisan zeal or animosity, from favouritism and
other improper influences and motives which are easy of
concealment and difficult to be detected and exposed, and
consequently the injustice capable of being wrought under cover of
such unrestricted power becomes apparent to every man, without
the necessity of detailed investigation. In our opinion, the provision
of Clause 4 (3) of the U.P. Coal Control Order must be held to be
void as imposing an unreasonable restriction upon the freedom of
trade and business guaranteed under Article 19(1)(g) of the
Constitution and not coming within the protection afforded by cl.
(6) of the Article."
(iv) Yick W.O. v. Peter Hookins, Sheriff, etc. (In error to the Supreme
Court of the State of California) reported at (1888) 118 U.S. 356 at
page 272(B). The following portion of the judgment was relied upon:-
"..... But it commits to the unrestrained will of a single public
officer the power to notify every person who now employs a steam-
engine in the prosecution of any business in the city of Baltimore
to cease to do so, and, by providing compulsory fines for every
day's disobedience of such notice and order of removal, renders his
power over the use of steam in that city practically absolute, so
that he may prohibit its use altogether. But if he should not
choose to do this, but only to act in particular cases, there is
nothing in the ordinance to guide or control his action. It lays
down no rules by which its impartial execution can be secured, or
partiality and oppression prevented. It is clear that giving and
enforcing these notices may, and quite likely will, bring ruin to the
business of those against whom they are directed, while others,
from whom they are withheld, may be actually benefitted by what
is thus done to their neighbours; and, when we remember that
this action of non-action may proceed from enmity to prejudice,
from partisan zeal or animosity, from favouritism and other
improper influences and motives easy of concealment, and difficult
to be detected and exposed, it becomes unnecessary to suggest or
comment upon the injustice capable of being wrought under cover
of such a power, for that becomes apparent to everyone who gives
to the subject a moment's consideration. In fact, an ordinance
which clothes a single individual with such power hardly falls
within the domain of law, and we are constrained to pronounce it
inoperative and void.' This conclusion, and the reasoning on which
it is based, are deduction from the face of the ordinance, as to its
necessary pendency and ultimate actual operation."
(v) Sri Rajesh Chandra Ghosh v. State of West Bengal, reported at
(2005)2 CAL LT44 (HC). Paragraph 58 of this judgment was placed before
us. The said paragraph reads as follows:-
"58. Mr. Bose in support of his contention relied on two more
decisions the first one is by the U.S. Supreme Court in the case of
YICK & W.V. Peter Hookins (1888) 118 US 356 at page 272 (B) and
a decision in Messers. Dwarka Prosad v. State of Uttar Pradesh
reported in AIR 1954 SC 224. Since the passage from the said
judgment of the U.S. Supreme Court relied upon by Mr. Bose is
quoted with approval in the said judgment of Supreme Court in
Messrs. Dwarka Prosad v. State of Uttar Pradesh reported in 1954
page 224, only the passage of our Supreme Court from the
judgment of His Lordship Mr. Justice Bijon Kumar Mukherjee (as
His Lordship then was) at page 227, in paragraph 8, is referred to
for the present purpose.
"It was joined out and with perfect propriety by Mr. Justice
Mathews in the well known American Case of Wick Wo v.
Hopkins' (1886) 118 US 356 at page 373(B) that the action or
non-action of officers placed in such position may proceed from
enmity or prejudice from partisan zeal or animosity, from
favouritism and other improper, influences and motives which
are easy of concealment and difficult to be detected and
exposed, and consequently the injustice capable of being
wrought under cover of such inrestricted power becomes
apparent to everyman, without the necessity of detailed
investigation."."
(vi) Ravi Yashwant Bhoir v. District Collector Raigad & Ors. reported
at (2012)4 SCC 407. This decision was relied upon to explain what is
"malice in law". Paragraphs 47, 48 and 70 of the reported Judgement were
relied upon, which read as follows:-
"47. This Court has consistently held that the State is under an
obligation to act fairly without ill will or malice in fact or in law.
Where malice is attributed to the State, it can never be a case of
personal ill will or spite on the part of the State. "Legal malice" or
"malice in law" means something done without lawful excuse. It is
a deliberate act in disregard to the rights of others. It is an act
which is taken with an oblique or indirect object. It is an act done
wrongfully and wilfully without reasonable or probable cause, and
not necessarily an act done from ill feeling and spite.
48. Mala fide exercise of power does not imply any moral turpitude.
It means exercise of statutory power for "purposes foreign to those
for which it is in law intended." It means conscious violation of the
law to the prejudice of another, a depraved inclination on the part
of the authority to disregard the rights of others, where intent is
manifested by its injurious acts. Passing an order for unauthorized
purpose constitutes malice in law. (See: ADM. Jabalpur v.
Shivakant Shukla, AIR 1976 SC 1207; Union of India v. V.
Ramakrishnan, (2005) 8 SCC 394; and Kalabharati yjAdvertising v.
Hemant Vimalnath Narichania , AIR 2010 SC 3745).
..............
70. Thus, the instant case has been a crystal clear-cut case of
legal malice and therefore, the impugned orders are liable to be
quashed. The duly elected member/Chairman of the Council could
not have been removed in such a casual and cavalier manner
without giving strict adherence to the safeguards provided under
the statute which had to be scrupulously followed."
17. Appearing for the Prescribed Authority, Mr. Lalit Mohan Mahata,
learned Advocate, placed paragraph 4 of the affidavit of the Prescribed
Authority being the respondent no. 6 in the appeal, affirmed on April 19,
2022. In the various sub-paragraphs under paragraph 4 of the said affidavit,
the prescribed Authority has detailed the steps that were taken pursuant to
the notice of motion being delivered to him by the requisitionists. It may be
helpful to extract paragraph 4 of the said affidavit:-
"(a) It is stated that though there is checkered history relating to
removal of the appellant/petitioner since 23.11.2021 but the
instant appeal is concerned from the date of requisition w.e.f.
03.03.2022.
(b) It is stated that there are all together 17 elected members of
Rajapur-Karabag Gram Panchayat, Post Office - Dakshin Barasat
within the jurisdiction of Jaynagar Police Station in the District of
South 24 Parganas and the official address along with phone
numbers of the elected members as have been recorded in the
official record and furnished by the Executive Assistant, Rajapur -
Karabag Gram Panchayat dated 04.03.2022, Photostat copy of
which is annexed hereto and marked with letter "R-1" to this
affidavit.
(c) On 03.03.2022, 9 elected members issued a motion of
requisition addressed to the office of the answering deponent
which was duly received by the Secretary, Rajapur-Karabag Gram
Panchayat on 03.03.2022, a Photostat copy of which is annexed
hereto and marked with letter "R-2" to this affidavit.
(d) On the self-same date i.e. 03.03.2022, the motion of requisition
was sent through the speed post properly and correctly addressed
to the Pradhan at his official address as well as at the residential
address disclosing the proper address including the correct Pin
Code Nos. Xerox copies of the postal receipts are annexed hereto
and marked with letter "R-3" to this affidavit.
(e) On 04.03.2022, the requisition of the requisitionists was served
to the office of the prescribed authority which was duly received on
04.03.2022, a Photostat copy of which is annexed hereto and
marked with letter "R-4" to his affidavit.
(f) Having received the notice of requisition and being satisfied
relating to the service to the Pradhan at the office of the gram
Panchayat through the Secretary and by speed post to the office of
the Gram Panchayat as well as the residential address on
03.03.2020 as per provisions of Section 12(2) of the West Bengal
Panchayat Act, 1973 as amended up-to-date, the answering
deponent issued notice under Sub-Section (3) of Section 12 of the
West Bengal Panchayat Act, 1973 within 5 working days and
issued notice addressed to the Executive Assistant/Secretary,
Rajapur - Karabag Gram Panchayat on 07.03.2022 regarding
servicing of notice (Form - 1E) for removal of the Pradhan on
14.03.2022 in accordance with law. Photostat copy of the said
order as well as the notice in Form -1E issued by the answering
deponent dated 07.03.2022 are annexed hererto and marked with
letter "R-5" to this affidavit collectively.
(g) It is evident from the service of notice dated 07.03.2022, that
the respondent nos. 7 to 15 and one Kaushalya Naskar have duly
received the notice of the meeting of removal issued by the
answering deponent on 07.03.2022. Photostat copies of the
personal receipts are annexed hereto and marked with letter "R-6"
to this affidavit.
(h) On the self-same date, the Executive Assistant of Rajapur-
Karabag Gram Panchayat, Joynagar-I took steps to serve the
notice dated 07.03.2022 through personal service as per
established procedure but the seven elected members including
the appellant/petitioner refused to accept the said notices and
thereafter, the said Executive Assistant has sent the notice
through Whats app to the appellant/petitioner and three others
whose whats app was available i.e. Nemai Sardar, Sumitra Sardar
and Sulata Halder. Photostat copy of the report of the Executive
Assistant is annexed hereto and marked with letter "R-7" to this
affidavit.
(I) Again on 8th March, 2022, one Sri Biswajit Singha, a Panchayat
Peon of Jaynagar Development Block went to serve the notices to
the 7 elected members who refused to accept the notice under
Form-1E dated 07.03.2022 through Executive Assistant of the
Gram Panchayat namely the appellant/petitioner, Sulata Halder,
Nemai Sardar, Suchitra Sardar, Sudhamay Gayen, Rekha Naiya
and Kattyamuni Halder. They refused to accept the notice of
removal and thereafter, on 11th March, 2022, the said office peon
of the Block Office along with two police personnel went to serve
the notices personally when neither of the elected members nor
their family members accepted the notice and thereby, in presence
of the police, the notice was pasted on the door of the elected
members who refused to accept the notice and has taken the
photographs.
Photostat copies of notice dated 11.03.2022 along with the
Photographs are annexed hereto and marked with letter "R-8" to
this affidavit.
(j) For abundant caution on 11th March, 2022, the office of the
answering deponent again sent the notices through speed post,
Xerox copies of the postal receipts are annexed hereto and marked
with letter "R-9" to this affidavit.
(k) It is pertinent to mention herein that on 10th March, 2022 the
answering deponent issued a letter addressed to the Inspector-in-
charge Joynagar Police Station for deployment of the police for
removal meeting of the Pradhan, Rajapur-Karabag Gram
Panchayat. Xerox copy of the letter dated 10.03.2022 is annexed
hereto and marked with letter "R-10" to this affidavit.
(I) On 14.03.2022, the meeting of no-confidence or removal of the
appellant/petitioner was held at 12 Noon as per scheduled in
terms of the notice dated 07.03.2022 and 10 elected members
were present and removed the Pradhan as per their requisition by
the majority of the elected members by passing a resolution of no-
confidence. Photostat copy of the said resolution dated 14.03.2022
is annexed hereto and marked with letter "R-11" to this affidavit.
(m) It is stated that on 29.03.2022, the answering deponent being
the prescribed authority, Joynagar-I Development Block issued a
letter requesting the appellant/petitioner to handover the charge of
the Pradhan of Rajapur-Karabag Gram Panchayat on 01.04.2022
as per provisions of Sub-section (4) of Section 9 of the West Bengal
Panchayat Act, 1973 and the charge was handed over to the Upa-
Pradhan on 01.04.2022 which was duly intimated to the District
Panchayat and Rural Development Officer, South 24 Parganas.
Photostat copies of the notice dated 29.03.2022 as well as the
order dated 01.04.2022 are annexed hereto and marked with letter
"R-12" to this affidavit collectively.
(n) Thus, it is evident from the facts and circumstances of this
case that there is neither any irregularity or illegality in conducting
the meeting dated 14.03.2022 and by passing a resolution of no-
confidence against the Pradhan and giving effect of the removal as
per provisions of Section 12(10) of the West Bengal Panchayat Act,
1973 in any manner whatsoever."
18. Appearing for the requisitionists, Mr. Saptansu Basu, learned Senior
Advocate submitted that even assuming for the sake of argument, but not
admitting, that there was violation of some statutory provision, that itself
will not persuade the Court to interfere. The aggrieved party must show that
he has suffered prejudice by reason of non-adherence to a statutory
provision. Mr. Basu placed the writ petition and submitted that there is no
pleading of any prejudice having been suffered by the writ petitioner by
reason of alleged short notice or infraction of any statutory provision.
19. Mr. Basu relied on the following decisions:-
(i) Usha Bharti v. State of Uttar Pradesh & Ors., reported at
(2014)7SCC 663. This case was relied upon in support of the
proposition that the provision for removing an elected representative
such as Panchayat Adhaksya is of fundamental importance to ensure
the democratic functioning of the institution as well as to ensure
transparency and accountability in the functions performed by the
elected representative.Mr. Basu relied on paragraphs 26, 30, 44 and 45
of the reported judgment. I will get back to this judgment later.
(ii) Ravi S. Naik, v. Union of India & Ors. reported at AIR 1994 SC
1558. I will revert to this case later in this judgment.
(iii) Escorts Farms Ltd., v. Commissioner, Kumaon Division,
Nainital, U.P. & Ors. reported at (2004)4 SCC 281. This case is also
on the principles of natural justice. I will refer to this decision later in
this judgment.
(iv) Fiayaz Ali v. Secretary (Law) & Ors., reported at 2011 (1) CHN
(CAL) 16. This decision says the same thing as the earlier one.
(v) Canara Bank v. V.K. Awasthy, reported at (2005)6 SCC 321.
Reliance has been placed on paragraphs 7 and 18 of the reported
judgment.
(vi) Om Prakash Mann v. Director of Education (Basic) & Ors.
reported at (2006) 7 SCC 558. Paragraph 9 of the decision was relied
upon.
(vii) Burdwan Central Cooperative Bank Limited & Anr. v. Asim
Chatterjee & Anr., reported at (2012) 2 SCC 641. Paragraphs 19
and 20 of the judgment were relied upon.
(viii) Upananda Chatterjee v. State of West Bengal & Ors.,
reported at (2007) 4 CHN 605. This decision was cited in support of
the proposition that giving of at least 7 days' clear notice for holding a
meeting for removal of the Pradhan is not mandatory. Reliance was
placed on paragraphs 18 to 21 of the reported judgment to which I will
advert later in this judgment.
My view
20. This is yet another desperate attempt by a removed Pradhan to cling
on to the office of Pradhan although she has lost the confidence of the
majority of the members of the concerned Panchayat. I have noticed that
this trend is in the rising. Any resolution by which a Pradhan or Upa-
Pradhan is removed by the majority of Panchayat members is assailed
before the writ Court often on technical and hyper-technical grounds. In a
large number of cases, even the notice of motion submitted by the requisite
number of members, requisitioning a meeting for removal of the
Pradhan/Upa-Pradhan is challenged before the Court on grounds which are
more often than not, frivolous and completely meritless. This trend must be
deprecated.
21. In the present case, the appellant challenged the notice of motion
dated March 3, 2022, and the Prescribed Authority's notice dated March 7,
2022, before the learned Single Judge. The grounds of challenge have been
noted above. We have also noted the relevant observations made by the
learned Single Judge in the order impugned whereby the appellant's writ
petition was dismissed.
22. Primarily four points have been urged before us on behalf of the
appellant. Firstly, the provisions of Section 12 of the West Bengal Panchayat
Act, have not been adhered to by the Prescribed Authority. In particular
sub-Sections 2 and 3 of Section 12 of the Act have been violated. As a
corollary, it has been argued that when a statute prescribes a particular
mode of doing something, that thing must be done following that mode or
not at all. Any other mode of performance is impliedly barred. Secondly, it
has been urged that various provisions of the West Bengal Panchayat
(Constitution) Rules, 1975 and West Bengal Panchayat (Gram Panchayat
Administration) Rules, 2004, have not been followed. In particular, Rule 5(B)
and Rule 6(1) of the 1975 Rules and Rules 4, 6(1), 7 and 15 of the 2004 Rule
have been violated. Thirdly, it has been argued that the performance of the
appellant as Pradhan has been excellent. The process of her removal from
the post of Pradhan is tainted by bias and prejudice against her and is in
gross violation of the principles of natural justice. Finally, it has been
submitted that the exercise of power by the Prescribed Authority is vitiated
by malice in law.
23. Before proceeding further, it may be helpful to notice the provisions of
the 1973 Act as well as the 1975 Rules and the 2004 Rules, which according
to the appellant have been breached by the respondents.
"Section 12 of the West Bengal Panchayat Act, 1973 reads as
follows:-
"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 or 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.
(4) The meeting referred to in sub-section (3) shall be held on
a working day which shall not be later than fifteen working
days from the date of receipt of the motion by the prescribed
authority and the meeting so convened shall not be adjourned
or cancelled except in pursuance of an order or direction of a
competent court or for any other reason beyond control of the
prescribed authority.
(5) Such meeting shall be presided over by an officer, as may
be authorized by the prescribed authority, in the manner as
may be directed by order by the State Government or as may
be prescribed and the presiding officer before commencement
of the meeting shall ensure that notice has been duly served
to every member in the manner laid down in this behalf;
quorum required for such meeting shall be more than fifty per
cent of the existing members referred to in sub-section (1) and
the presiding officers shall not be entitled to vote at the
meeting although he may advise on one or more points of law
without expressing his own views.
(6) If there is no consensus decision in the meeting, voting
shall be held by open ballot wherein each participating
member shall put his full signature or his left thumb
impression to be attested by the leader, referred to in section
213A, of the same political party to which the member
belongs or by the said presiding officer on the reverse side of
the ballot paper.
(7) The minutes of the meeting shall be written by the
Secretary or in his absence, by any other official as
authorised by the presiding officer. Such minutes shall
record in brief names of the members present, the procedure
followed, names of the members who voted for or against the
motion and the decision adopted unanimously or by the
majority of its existing members and shall be signed by him
as well as by the presiding officer.
(8) After the minutes of the meeting is signed by the Presiding
Officer, it shall be read over to all the attending members who
shall thereafter put their signatures or left thumb
impressions, as the case may be, on the minutes in
conformation of the proceedings recorded. Then the presiding
officer shall again put his signature on the same document
after recording the names of members, if any, who have
declined to sign or left earlier and thereafter he shall collect a
copy of the minutes before leaving the premises.
(9) (a) The Executive Assistant or in his absence the Secretary
of the Gram Panchayat shall, within three working days of the
meeting, forward a copy of the minutes of the meeting to the
prescribed authority.
(b) The presiding officer shall also submit a separate report in
writing along with a copy of the minutes of the meeting within
the aforesaid time to the prescribed authority.
(10) On receipt of the minutes of the meeting and the report
under sub-section (9), the prescribed authority shall, within
next five working days, take such action as he may deem fit
and the entire process commencing from submission of
motion to the prescribed authority up to the action finally
taken by him shall be completed within thirty days.
(11) If the motion is not carried by the majority of its existing
members or the meeting cannot be held for want of quorum,
no notice of any subsequent motion for the removal of the
same office bearer shall be taken into cognizance within a
period of one year from the date appointed for such meeting.
[(12) Notwithstanding anything contained in sub-section (1),
no meeting for removal of the Pradhan or the Upa-Pradhan
under this section shall be convened within a period of two
and a half years from the date of election of the Pradhan or
the Upa-Pradhan either at the first meeting following
reconstitution of Gram Panchayat or for filing casual vacancy
in the said office.]
Rules 5B and Rule 6(1) of the 1975 Rules reads as follows:-
"5B. (1) The prescribed authority appointed under Section 12,
Section 101 or Section 146, as the case may be, on receipt of a
legally acceptable motion referred to in sub-section (2) of any of the
aforesaid section, as may be relevant, specially convene a meeting
of the Gram Panchayat or the Panchayat Samity or the Mahakuma
Parishad or Zilla Parishad, as may be appropriate, by issue of
notice in Form 1E.
(2) In the notice referred to in sub-rule (1), the prescribed authority
shall specify the item of agenda and the place, date and hour of
the meeting as may be fixed by him and shall cause copies of such
notice to be sent either by registered post with acknowledgement
due or by special messenger on obtaining acknowledgement of
receipt as may be deemed reasonable by him, at least clear seven
days before the date fixed for the meeting, upon all members
referred to in sub-section (1) of Section 12 or section 101 or
Section 146, as the case may be. He shall also cause to display a
copy of the notice in the notice board of the Panchayat concerned.
(3) The prescribed authority shall authorize in Form 2A an officer
to preside over the meeting referred to in sub-rule (1) and such
officer shall be not below the rank of an Extension officer posted in
a Block in case of a Gram Panchayat, not below the rank of a Joint
Block Development Officer in case of a Panchayat Samity and not
below the rank of an Additional District Magistrate in case of a
Mahakuma Parishad or Zilla Parishad. The prescribed authority
shall hand over the service returns of notices to the presiding
officer before he proceeds for the meeting.
(4) At the appointed hour of the day, the presiding officer shall
take up the business of the meeting on ascertaining and apprising
the members present that the notices have been duly served upon
all members. If he finds at the time that the quorum for the
meeting has not been formed, he may wait for one hour and no
longer reckoned from the appointed hour of the meeting. On the
occasion when the quorum is not formed within such extended
period of one hour, he shall declare the meeting as cancelled and
once he declares so, he shall not hold the meeting afterwards even
if the quorum is formed later on arrival of one or more members.
The fact of cancellation of the meeting shall be recorded in the
minute book referred to in sub-rule (7).
(5) Once quorum is reached, it shall remain valid throughout the
meeting even if one or more members meanwhile depart from the
meeting place.
(6) The presiding officer shall allow a member to join the meeting
at any time before its closure subject to the condition that such
member shall not claim reopening of any earlier stage of the
proceedings already concluded before his arrival.
(7) The proceedings of the meeting shall be recorded by the
Secretary of the concerned Panchayat or in his absence by any
other employee except for Group-D employee as may be authorized
by the presiding officer, in the Attendance Register-cum-Minute
book specially provided by the prescribed authority with his
authentication. Every member on his arrival shall put his
signature or his left thumb impression on the minute book against
his name. The secretary or the employee authorised to record the
proceedings, shall attest such left thumb impression and also
record the time of arrival of each member under the supervision of
the Presiding Officer.
(8) The presiding officer at the initial stage shall read out the
motion brought before the meeting and ask the members present
to express their views. He may state the legal provision on any
related matter raised by any member but shall not express any
view in this regard. When there is no consensus decision in the
meeting, he shall call upon the members to cast their votes
through open ballot system. He shall cause to be prepared as
many ballot papers as there are members present noting the
motion of the meeting and showing two separate columns of 'For'
and 'Against' the motion. The presiding officer shall then put his
full signature with date on the back of each ballot paper and shall
hand over such ballot paper to each member present after
complying with the provision under sub-section (6) of the aforesaid
section relating to signature or left thumb impression with
attestation of the member.
(9) The presiding officer shall ask each member to record his vote
by placing the mark 'x' in the column of 'For' or 'Against' the
motion and to return it to the presiding officer.
(10) Immediately after all ballot papers are received back, the
presiding officer shall, in presence of the attending members,
count them and record the number of votes cast for and against
the motion. The presiding officer may, on demand of a member
show both sides of a ballot paper without allowing any member to
touch it.
(11) The presiding officer may reject a ballot paper which in his
opinion, raises a reasonable doubt as to whether the vote has been
cast 'For' or 'Against' the motion. A note to that effect shall be
recorded by the presiding officer upon the ballot paper so rejected
as well as in the minutes of the meeting and such paper shall not
be counted for decision. However, the presiding officer may not
reject a ballot paper on any flimsy ground or for any minor
procedural defect if the ballot paper is genuine and intention of the
voter is clear.
(12) Although the presiding officer shall announce the number of
votes cast in favour of 'For' and 'Against' the motion, he shall not
formally declare the result or the effect of the meeting. The
presiding officer after recording the entire proceedings of the
meeting in terms of sub-section (7) and then complying with the
provisions of sub-section (8) of any of the Section referred to in
sub-rule (2) shall conclude the meeting.
(13) The presiding officer before leaving the premises shall hand
over a copy of the minutes to the Executive Assistant or in his
absence to the Secretary of the Gram Panchayat, to the Executive
Officer or in his absence, to the joint Executive Officer of the
Panchayat Samiti, to the Executive Officer or in his absence to the
Additional Executive Officer of the Zilla Parishad or Mahakuma
Parishad as the meeting may relate to, for forwarding a copy of the
minute to the prescribed authority in terms of sub-section (9) of
Section 12 or 101 or 146, as the case may be.
(14) Then the presiding officer within three working days of the
meeting shall submit a report in writing along with a copy of the
minutes and all other documents of the meeting to the prescribed
authority who shall, within next five working days, take such
action in terms of sub-section (10) as he may deem fit.
6. (1) As soon as may be but not later than thirty days from the
date of any casual vacancy in the officer of Pradhan or Upa-
Pradhan, Sabhapati or Sahakari Sabhapati or Sabhadhipati or
Sahakari Sabhadhipati by reason of death, resignation, removal or
otherwise, or within such further time as may be allowed by the
District Panchayat Election Officer for reasons to be recorded by
him in this behalf the prescribed authority referred to in sub-rule
(1) of rule 3, sub-rule (1) of rule 4, sub-rule (1) of rule 5, or sub
rule (1) of rule 5A shall call a meeting of all the members eligible to
participate under rule 3, rule 4, rule 5 or rule 5A, as may be
appropriate for the election of a Pradhan or an Upa-Pradhan, a
Sabhapati or a Sahakari Sabhapati a Sabhadhipati or a Sahakari
Sabhadhipati, as the case may be, by fixing a date, place and time
and causing a written notice to this effect in Form 1 to be served
on each such member at least 7 days before the date fixed for such
meeting."
Rules 4, 6(1), 7, 15 of the 2004 Rules read as follows:-
"4. Preparation of a list of business. - The list of business to be
dealt with at every meeting of the Gram Panchayat, except at an
adjourned meeting, shall be prepared by the secretary in
consultation with the Executive Assistant under the instruction of
the Pradhan or, in his absence under the instruction of the Upa-
Pradhan and shall be entered in the book of agenda to be
maintained for the purpose and countersigned by the Pradhan or
Upa-Pradhan, as the case may be.
6. Procedure of delivery of notice to members. - (1) The notice
of the list of business to be transacted at a meeting, an emergent
meeting or a requisitioned meeting of a Gram Panchayat in Form
1, 1A or 1B as the case may be, shall be sent through the
Secretary of the Gram Panchayat to each member of the Gram
Panchayat by a messenger. The messenger shall deliver the notice
to the member to whom it is addressed. In the absence of the
member, the notice may be delivered to an adult member of his
family residing with him. The messenger shall obtain the signature
of the member or the adult member, as the case may be, of his
family residing with him, in the office copy of the notice as a
receipt thereof. If the member is absent and there is no other adult
member of his family to whom the notice may be delivered or a
member or any adult member of his family refuses to receive the
notice, it may be served by affixing on the outer door or some other
conspicuous part of the house of the member in presence of not
less than two witnesses. The service-return containing the
signature of witnesses during such service shall be attached to the
office copy of the notice along with a brief note of the entire
procedure by the Secretary or in his absence by any other
Panchayat employee, other than Gram Panchayat Karmee, duly
authorised by the Pradhan of the Gram Panchayat.
7. Presiding member to verify the service-return of the office
copy of the notice of the list of business.- On the date of
meeting, the Pradhan, the Upa-Pradhan or the presiding member,
as the case may be, shall verify the service-return of the notice
containing the list of business in the office copy and on being
satisfied that the notice has been duly served on all the members,
the business shall be taken up by him for discussion. If the notice
is not served on any one of the members, the meeting may be
postponed and the Pradhan or the Upa-Pradhan may fix another
date by giving fresh notice of seven days on all the members in
Form 3.
15. Person responsible to record the minute. - The proceedings
of a meeting shall be recorded by the Secretary of the Gram
Panchayat or, in his absence, by the Sahayak of the Gram
Panchayat or in their absence by such employee, other than a
Gram Panchayat Karmee of the Gram Panchayat, or in their
absence by such member of the Gram Panchayat as may be
authorised by the presiding member in this behalf."
24. Mr. Maiti, learned Advocate appearing for the appellant has
vociferously argued that 7 days' clear notice of the meeting for testing the
no-confidence motion, as mandated by Section 12(3) of the 1973 Act, was
not given to all the members of the Panchayat. He said that the appellant
received notice of the meeting scheduled for March 14, 2022, only on March
11, 2022 at 5.38 p.m. through Whatsapp. Section 12(2) stipulates that 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 to his residential address. Neither
requirement was complied with.
25. The scheme of the 1973 Act and in particular Section 12 thereof is
commendably balanced. On the one hand it ensures that a meeting for
testing a motion of no-confidence against a Pradhan/Upa-Pradhan shall be
held only upon giving sufficient notice to the concerned office holder and
that no such motion can be proposed excepting by at least one third of the
existing members subject to a minimum of three members. Other directions
have been given in the various sub-sections of Section 12 for the purpose of
ensuring that a fair procedure is followed for removal of an elected office
holder like the Pradhan/Upa-Pradhan. On the other hand, Section 12 also
provides that the Pradhan/Upa-Pradhan of a Gram Panchayat can be
removed at any time by a majority of the existing members of the Gram
Panchayat.
26. Although Section 12(3) of the 1973 Act requires the Prescribed
Authority to give 7 clear days' notice of the proposed meeting to all the
members and the word "shall" is used in that context, that per se does not
make the notice period mandatory. The consequences of a shorter notice are
not mentioned in any of the sub-sections of Section 12. The statutory
provisions in Section 12(3), in my view is a procedural one and even the use
of the word "shall" in such provision will not make it mandatory. It is
nobody's case that the appellant did not receive any notice of the meeting at
all. On her own admission, she received notice by Whatsapp on March 11,
2022, at 5.38 p.m. She stayed away from the meeting obviously because she
knew that the majority would vote against her. She did not suffer any
prejudice by reason of a shorter notice nor any case of prejudice has been
pleaded in the writ petition.
27. The learned Single Judge had called for and perused the records of
the case as would appear from the judgment under challenge in this appeal.
The learned Judge found that the appellant and the members who were
supporting her had refused to accept the notice of the meeting. Under such
circumstances with the help of police officers, the notices were affixed at
conspicuous places at the residence of each of the members who had
refused to accept service thereof, including the appellant herein. The learned
Judge also came to the finding that there was sufficient compliance of sub
Sections 2, 3 and 4 of Section 12 of the 1973 Act and in my view, rightly so.
28. As regards the other point urged by Mr. Maiti, the principle of law that
when a statute requires something to be done in a particular manner, that
thing shall be done in that manner only or not at all, is well established in
our jurisprudence. In the present context, Section 12 of the Panchayat Act
requires the motion for removal of Pradhan/Upa-Pradhan to be delivered to
him/her and prior notice of the meeting to be convened by the Prescribed
Authority for testing the motion, is to be served on all the members of the
Panchayat including the Pradhan/Upa-Pradhan whose removal is sought. In
the present case, admittedly the Pradhan received the motion and also prior
notice of the meeting that was held on March 14, 2022. It is true that 7
days' notice may not have been served on the members of the Pradhan.
However, a Division Bench of this Court in the case of Upananda
Chatterjee v. State of West Bengal & Ors., (supra) has held that 7 days'
clear notice for holding and meeting for removal of the Pradhan is not
mandatory. In paragraphs 18 to 21 of the reported judgment, it was held as
follows:-
"18. We, therefore, agree with the learned Single Judge that the writ
petitioner was not at all prejudiced for the absence of the actual
service of notice upon him, as the law does not provide for actual
service of such notice particularly when he had full knowledge of such
meeting. We are also not impressed by the submission of Mr. Basu
that at the relevant point of time, his client was away from his
residence. If a Pradhan after being asked to convene a meeting for his
removal, instead of calling such meeting, remains away from the
village with the object of avoiding the said meeting in order to
frustrate the process of his removal in accordance with law, a Writ
Court will not entertain his application challenging the legality of such
meeting on the ground of non-service of notice of such meeting.
19. We also agree with the learned Single Judge that the giving of
clear seven days' notice as mentioned in section 16 of the Act is not
mandatory as held by a Division Bench of this Court in case of Aloke
Pramanik v. State of West Bengal, reported in 1996 (1) CLJ 434, while
considering similar provision contained in section 105 of the Act. In
this connection, Mr. Basu, the learned Advocate appearing on behalf
of the appellant placed reliance upon an unreported decision of a
Division Bench of this Court in the case of Sm. Madhumita Biswas v.
State of West Bengal being M.A.T. No. 3686 of 2006, disposed of on
April 5, 2007 where the Division Bench disagreed with the view taken
in the case of Aloke Pramanik (supra), without referring the matter to
the Hon'ble Chief Justice for constitution of a Larger Bench. It is now
settled law that in case of conflict of the decision of two Benches of
equal strength, the former will prevail unless the principle laid down
in the former one has been overruled by a Superior Court or unless
due to change of law, the former one is no longer applicable. The latter
Division Bench, as it appears from the judgement placed before us,
has disagreed with the view taken in the case of Aloke Pramanik on
the ground of misapplication of the principles laid down in the
decision of the Supreme Court in the case of K. Narasimiah v. H.C.
Singri Gowda, reported in AIR 1966 SC 330, to the facts of the said
case and for non consideration of some other decisions of the
Supreme Court laying down the principles to be followed in deciding
whether a statutory provision is mandatory or not. In our view, once a
Division Bench, has taken a stance that a particular decision of the
Supreme Court is applicable in the facts of a case and by relying upon
such decision comes to a conclusion on a particular facts of a case,
the latter Bench, if it intends to disagree in the similar facts, should
refer the matter to the learned Chief Justice for constitution of a
Larger Bench. In this connection, it will be profitable to refer to the
following observations of the Apex Court in the case of State of Bihar v.
Kalika Kuer, reported in AIR 2003 SC 2443:-
"In connection with this observation, we would like to say that an
earlier decision may seem to be incorrect to a Bench of a co-
ordinate jurisdiction considering the question later, on the ground
that a possible aspect of the matter was not considered or not
raised before the Court or more aspects should have been gone into
by the Court deciding the matter earlier but it would not be a
reason to say that the decision was rendered per incuriam and liable
to be ignored. The earlier judgment may seem to be not correct yet
it will have the binding effect on the latter bench of co-ordinate
jurisdiction. Easy course of saying that earlier decision was
rendered per incuriam is not permissible and the matter will have to
be resolved only in two ways--either to follow the earlier decision or
refer the matter to a larger Bench to examine the issue, in case it is
felt that earlier decision is not correct on merits."
20. We are, therefore, unable to follow the latter decision placed before
us by Mr. Basu.
21. In our view, the provisions of giving seven clear days' notice as
mentioned in the second proviso to section 16 of the Act is a directory
provision and not a mandatory one as rightly held in the case of Aloke
Pramanik (supra) while construing a similar provision of the same
statute. It is now settled by the Apex Court that if a particular
statutory provision is a procedural one, even the use of the word
"shall" in such provision will not make it mandatory unless
consequence of disobedience has been indicated in the statute. The
exceptions to the previously mentioned rule of interpretation are in
the cases where there is either "no notice", or "no opportunity" or "no
hearing". In this connection, we may refer to the following
observations of the Supreme Court in the case of State Bank of India
v. S.K. Sharma, reported in AIR 1996 SC 1669 at 1683:--
"A substantive provision has normally to be complied with as
explained hereinbefore and the theory of substantial compliance or
the test of prejudice would not be applicable in such a case.
In the case of violation of a procedural provision, the position is this.
Procedural provisions are generally meant for affording a reasonable
and adequate opportunity to the delinquent officer/employee. They
are, generally speaking, conceived in his interest. Violation of any and
every procedural provision cannot be said to automatically vitiate the
enquiry held or order passed. Except cases falling under 'no notice',
'no opportunity' and 'no hearing' categories, the complaint of violation
of procedural provision should be examined from the point of view of
prejudice viz., whether such violation has prejudiced the delinquent
officer/employee in defending himself properly and effectively."
29. I am in respectful agreement with the principle of law laid down in the
said judgment. I do not find any infraction of any of the sub-sections of
Section 12 of the Panchayat Act in the facts of this case. Although the
decision in Upananda was rendered in the context of the Second proviso to
Section 16 of the 1973 Act which also talks of 7 days' notice to the members
of the Gram Panchayat, the reasoning and logic behind holding that the 7
days' notice is not a mandatory requirement would apply mutatis mutandis
to the 7 days notice mentioned in Section 12(3) of the Panchayat Act.
30. The second point on behalf of the appellant is that Rule 5B and Rule
6(1) of the West Bengal Panchayat (Constitution) Rules, 1975, have been
breached. Rule 5B, which has been extracted above, lays down the
procedure to be followed by the Prescribed Authority for convening a
meeting upon receipt of a motion from the requisite number of members of
the Panchayat for removal of the Pradhan/Upa-Pradhan. One of the points
raised by the appellant is that no presiding officer was appointed by the
Prescribed Authority for the purpose of conducting the meeting. We have
gone through the records. Presiding Officer was appointed. Another point
argued was that only ten ballot papers were issued although there were 17.
This point is also without merit. Ten ballot papers were used as only 10
ballot members attended the meeting, all of whom voted in favour of the
motion for removal of the Pradhan. The remaining ballot papers are there in
the records. The Pradhan and her supporters stayed away from the meeting
and they would be having no personal knowledge of what in fact transpired
at the meeting. From the records produced before us, it does not appear that
there was any violation of Rule 5B of the 1975 Rules.
Rule 6(1) of the 1975 rules requires the Prescribed Authority to call a
meeting for election of a Pradhan/Upa-Pradhan within 30 days or such
extended time as may be allowed by the Post Panchayat election officer, from
the date of the office of Pradhan/Upa-Pradhan falling in vacant by reason of
death/resignation, removal or otherwise. This rule has no bearing on the
conduct of the meeting held for removal of the Pradhan.
31. Rules 4, 6(1) and 7 of the West Bengal Panchayat (Gram Panchayat
Administration) Rules, 2004 pertain to preparation of a list of businesses to
be dealt with at a gram Panchayat meeting, procedure of delivery of notice of
list of businesses to the members and the duty of the presiding member to
verify the service return of the office copy of the notice of the list of
businesses on the date of the meeting. It does not appear that the
appellant/writ petitioner urged before the learned Single Judge that these
Rules were breached. In any event, we are of the view that these rules are
directory in nature and not mandatory for the reasons discussed by the
earlier Division Bench in the case of Upananda Chatterjee v. State of
West Bengal & Ors., (supra). Hence, even assuming for the sake of
argument that Rules 4, 6 and 7 of the 2004 rules were not complied with, in
our opinion, the same would not vitiate the meeting held on March 14,
2022, or the resolution passed in the said meeting.
However Rule 15 of the 2004 Rules indicates which person would be
responsible to record the minutes of the meeting. It does not appear that the
appellant argued before the learned Single Judge that this Rule was
breached.
32. The third point argued by learned Counsel for the appellant is that the
removal of the appellant from the office of Pradhan was completely
unwarranted. The decision is tainted by bias and prejudice against her. Her
performance as Pradhan, at all material times, has been exemplary.
Even assuming that the performance of the appellant was excellent,
once she lost the support of the majority of the members of the Panchayat,
she could no longer continue in the office of Pradhan. This is the democratic
principle which governs the functioning of local self-government institutions.
33. In Usha Bharti v. State of Uttar Pradesh & Ors., (supra) at
paragraphs 26, 30, 44 and 45 of the reported judgment, the Hon'ble
Supreme Court observed as follows:-
"26 We also do not find any merit in the submission of Mr. Bhushan
that the petitioner being a Scheduled Caste lady cannot be removed
through a vote of no-Confidence. We do not find any merit that the
provisions contained in Section 28 would frustrate the provisions for
reservation for the Scheduled Caste Ladies. Even if an Adhyaksha
belonging to one of the reserved categories, the Scheduled Castes, the
Scheduled Tribes and other Backward Classes is removed on the basis
of the vote of no-Confidence, she can only be replaced by a candidate
belonging to one of the reserved categories. Therefore, the submission
of Mr. Shanti Bhushan seems to be focused only on the petitioner, in
particular, and not on the candidates elected from the reserved
categories, in general. The submission is wholly devoid of any merit
and is hereby rejected.
30. We are also unable to agree with the submission of Mr. Bhushan
that a person once elected to the position of Adhyaksha would be
permitted to continue in office till the expiry of the five years' term,
even though he/she no longer enjoys the confidence of the electorate.
To avoid such a catastrophe, a provision for no-confidence, as
observed earlier, has been made in Section 28 of the Act. The extreme
submission made by Mr. Bhushan, if accepted, would destroy the
foundational precepts of democracy that a person who is elected by
the members of the Zila Panchayat can only remain in power so long
as the majority support is with such person."
44. We reiterate the view earlier expressed by this Court in Bhanumati
& Ors v. State of U.P., reported (2010) 12 SCC 1, wherein this Court
observed as follows:-
"57. It has already been pointed out that the object and the
reasons of Part IX are to lend status and dignity to Panchayati Raj
institutions and to impart certainty, continuity and strength to
them. The learned Counsel for the appellant unfortunately, in his
argument, missed the distinction between an individual and an
institution. If a no-confidence motion is passed against the
Chairperson of a Panchayat, he/she ceases to be a Chairperson,
but continues to be a member of the Panchayat and the Panchayat
continues with a newly-elected Chairperson. Therefore, there is no
institutional setback or impediment to the continuity or stability of
the Panchayati Raj institutions.
58. These institutions must run on democratic principles. In
democracy all persons heading public bodies can continue
provided they enjoy the confidence of the persons who comprise
such bodies. This is the essence of democratic republicanism. This
explains why this provision of no-confidence motion was there in
the Act of 1961 even prior to the Seventy-third Constitution
Amendment and has been continued even thereafter. Similar
provisions are there in different States in India."
45. The whole edifice of the challenge to the constitutionality
of Section 28 is built on the status of the petitioner as a member
belonging to the reserved category. It has nothing to do with the
continuance, stability, dignity and the status of the Panchayat
Institutions. In our opinion, the personal desire, of the petitioner to
cling on to the office of Adhyaksha is camouflaged as a constitutional
issue. The provision of no-confidence Motion, in our opinion, is not
only consistent with Part IX of the Constitution, but is also
foundational for ensuring transparency and accountability of the
elected representatives, including Panchayat Adhyakshas. The
provision sends out a clear message that an elected Panchayat
Adhyaksha can continue to function as such only so long as he/she
enjoys the confidence of the constituents."
Therefore, the quality or standard of performance of the appellant as
Pradhan is really of no relevance if she has lost majority support, for
whatever reason. She must quit. Whether or not the majority of the
members are biased or prejudiced against the Pradhan, is not at all
germane.
34. It has also been argued by Mr. Maiti that principles of natural justice
have been violated in the process of removing the appellant from the office of
Pradhan. I do not find any merit in this grievance. Very simply put, the
Pradhan and all members of the Panchayat had adequate prior notice of the
meeting convened by the Prescribed Authority on March 14, 2022. The
appellant and her group did not attend the meeting. 10 out of 17 members
showed up at the meeting and unanimously voted for the appellant's
removal from the office of Pradhan. I find no breach of the principles of
natural justice.
35. As observed by the Hon'ble Supreme Court in the case of Ravi S.
Naik v. Union of India & Ors. (supra), the principles of natural justice are
not immutable but flexible, they are not cast in a rigid mould and they
cannot be put in a legal straight jacket. Unless the complainant can show
that he has suffered prejudice, mere breach of the principles of natural
justice may not entitle him to relief.
36. In Escorts Farms Ltd., v. Commissioner, Kumaon Division,
Nainital, U.P. & Ors. (Supra) at paragraph 64 of the judgment, the Hon'ble
Supreme Court observed as follows:-
"64. Right of hearing to a necessary party is a valuable right. Denial of
such right is serious breach of statutory procedure prescribed and
violation of rules of natural justice. In these appeals preferred by the
holder of lands and some other transferees, we have found that the
terms of government grant did not permit transfers of land without
permission of the State as grantor. Remand of cases of a group of
transferees who were not heard, would, therefore, be of no legal
consequence, more so, when on this legal question all affected parties
have got full opportunity of hearing before the High Court and in this
appeal before this Court. Rules of natural justice are to be followed for
doing substantial justice and not for completing a mere ritual of
hearing without possibility of any change in the decision of the case
on merits. In view of the legal position explained by us above, we,
therefore, refrain from remanding these cases in exercise of our
discretionary powers under Article 136 of the Constitution of India."
37. In Canara Bank v. V.K. Awasthy, (supra) at paragraphs 7 and 18 of
the reported judgment, the Hon'ble Supreme Court observed as follows:-
"7. The crucial question that remains to be adjudicated is whether
principles of natural justice have been violated; and if so, to what
extent any prejudice has been caused. It may be noted at this
juncture that in some cases it has been observed that where grant
of opportunity in terms of principles of natural justice do not
improve the situation, "useless formality theory'' can be pressed
into service.
18. As was observed by this Court we need not to go into "useless
formality theory" in detail; in view of the fact that no prejudice has
been shown. As is rightly pointed out by learned Counsel for the
appellant, unless failure of justice is occasioned or that it would
not be in public interest to do so in a particular case, this Court
may refuse to grant relief to the employee concerned. (see Godde
Venkateswara Rao v. Govt. of A.P. and Ors., AIR (1966) SC 828). It
is to be noted that legal formulations cannot be divorced from the
fact situation of the case. Personal hearing was granted by the
Appellate Authority, though not statutorily prescribed. In a given
case post-decisional hearing can obliterate the procedural
deficiency of a pre-decisional hearing. (See Charan Lal Sahu v.
Union of India etc., AIR (1990) SC 1480)."
38. In Om Prakash Mann v. Director of Education (Basic) & Ors.(Supra),
at paragraph 9 of the reported judgment held as follows :-
"9. By now it is well settled principle of law that the doctrines of
principle of natural justice are not embodied rules. They cannot be
applied in the straitjacket formula. To sustain the complaint of
violation of the principle of natural justice one must establish that
he has been prejudiced by non-observance of the principle of
natural justice. As held by the High Court the appellant has not
been able to show as to how he has been prejudiced by non-
furnishing of copy of enquiry report. The appellant has filed a
detailed appeal before the Appellate Authority which was
dismissed as noticed above. It is not his case that he has been
deprived of making effective appeal for non-furnishing of copy of
enquiry report. He has participated in the enquiry proceedings
without any demur. It is undisputed that the appellant has been
afforded enough opportunity and he has participated throughout
the enquiry proceedings, he has been heard and allowed to make
submission before the Enquiry Committee."
39. In Burdwan Central Cooperative Bank Limited & Anr. v. Asim
Chatterjee & Anr., (supra) at paragraph 19 and 20 of the reported
judgment, the Hon'ble Supreme Court held as follows:-
"19. However, there is one aspect of the matter which cannot be
ignored. In B. Karunakar case, despite holding that non-supply of a
copy of the report of the enquiry officer to the employee facing a
disciplinary proceeding, amounts to denial of natural justice, in the
later part of the judgment it was observed that whether in fact,
prejudice has been caused to the employee on account of non-
furnishing of a copy of the inquiry report has to be considered in the
facts of each case. It was observed that where the furnishing of the
enquiry report would not make any difference to the ultimate outcome
of the matter, it would be a perversion of justice to allow the employee
concerned to resume his duties and to get all consequential benefits.
20. It was also observed in B. Karunakar case that in the event the
enquiry officer's report had not been furnished to the employee in the
disciplinary proceedings, a copy of the same should be made available
to him to enable him to explain as to what prejudice had been caused
to him on account of non-supply of the report. It was held that the
order of punishment should not be set aside mechanically on the
ground that the copy of the enquiry report had not been supplied to
the employee."
40. In the present case, I have already recorded my opinion that there was
no violation of the principles of natural justice. Even assuming that there
was any such violation, the appellant has neither pleaded in the writ
petition nor made any effort to otherwise demonstrate as to what prejudice
she has suffered by reason of breach of the principles of natural justice. The
bottom line is that the appellant ceased to enjoy the support of a majority of
the members of the Panchayat. Therefore she had to vacate office.
41. The final argument of learned Advocate for the appellant, based on
malice in law on the part of the Prescribed Authority, also does not find
favour with me. I have noted hereinabove the judgments cited by learned
Counsel on the point of malice in law. However, with great respect, those
decisions have no manner of application to the facts of the instant case. In
Ravi Yashwant Bhoir v. District Collector Raigad & Ors. (supra), the
Hon'ble Supreme Court observed legal malice or malice in law means
something done without lawful excuse. It is a deliberate act in disregard of
the rights of others. It is an act done with oblique motive. Passing an order
for an unauthorised purpose constitutes malice in law.
Going by the aforesaid meaning of 'malice in law', we do not see how
any act on the part of the Prescribed Authority in the facts of this case, is
tainted by 'malice in law'. Having considered the affidavit filed by the State,
the relevant portion whereof I have extracted in this judgment, and having
gone through the records of the case, I have no doubt in my mind that the
prescribed authority acted in terms of Section 12 of the Panchayat Act. He
acted well within his authority and the four corners of the statute. Hence, I
am of the considered opinion that no malice in law can be imputed to any of
the acts of the Prescribed Authority.
42. In fine, none of the points urged on behalf of the appellant has any
merit. The judgment and order assailed before us is a well-reasoned and
perfectly justified one. I find no infirmity in the judgment and order under
appeal.
43. The appeal and the connected applications are therefore dismissed.
There will be no order as to costs.
44. Urgent certified website copies of this judgment, if applied for, be
supplied to the parties subject to compliance with all the requisite
formalities.
I agree.
(Rai Chattopadhyay, J.) (Arijit Banerjee, J.)
