Supriya Shit vs State Of West Bengal & Ors
2023 Latest Caselaw 7264 Cal

                     IN THE HIGH COURT AT CALCUTTA
                       Constitutional Writ Jurisdiction
                               Appellate Side

Present :-   Hon'ble Justice Amrita Sinha


                              WPA 22334 of 2023

                                  Supriya Shit
                                      Vs.
                          State of West Bengal & Ors.

For the writ petitioner        :-    Mr. Sabyasachi Chatterjee, Adv.
                                     Mr. Pintu Karar, Adv.
                                     Mr. Sabab Uddin Naskar, Adv.
                                     Ms. Sayani Manna, Adv.

For the State                  :-    Mr. Amal Kumar Sen, Ld. AGP
                                     Ms. Sahina Sumi, Adv.

Hearing concluded on           :-    29.09.2023

Judgment on                    :-    18.10.2023


Amrita Sinha, J.:-


      The petitioner is a reserved category candidate who contested the

Panchayat General Elections, 2023 and has been declared as the returned

candidate. The seat of Pradhan in the subject Gram Panchayat is reserved for

the Scheduled Caste category member. None of the elected members but for the

petitioner belongs to the reserved category.


      The Board of the Panchayat could not be constituted on the day of

election of Pradhan as none proposed the name of the petitioner for the seat of

Pradhan.


      The petitioner contends that as she is the sole reserved category member,

and, as such, she ought to be elected for the seat of Pradhan uncontested,

irrespective of the fact whether her name is proposed or not. Prayer has been

made for electing the petitioner as Pradhan of the Gram Panchayat.


      Learned advocate representing the State respondents has obtained

instruction from the Block Development Officer ('BDO' for short), Egra - I

Development Block. Instruction reveals that on the date of the meeting, all the

seven directly elected members were present and they ascribed their signature

in the resolution book. The quorum being attained, the proceedings of the

meeting started. The Presiding Officer administered oath to all the elected

members. For election of Pradhan the Presiding Officer called upon all the

seven members to propose the names of the candidates eligible for election of

Pradhan. None proposed any name of any candidate for the office of the

Pradhan. Thus, the election to the office of the Pradhan stood postponed until

further order. The election of the Upa-Pradhan was, however, held as per the

prescribed guidelines.

The Presiding Officer relies upon Rule 3(7)(a)(ii) of the West Bengal

Panchayat (Constitution) Rules, 1975 and the Order no. 4481(22/PN/O/I/1E-

03/2023) dated 27th July, 2023 issued by the Panchayat and Rural

Development Department wherein it has been mentioned that for election to

the offices of the Pradhan, the reservation policy has to be strictly followed.

Normally, a proposal shall not be entertained by the Presiding Officer, unless it

is seconded by another member. But, when an office is reserved for a specified

category and only one member has been elected from a seat reserved for that

specified category and also no other member elected from any other category or

an unreserved category is proposed for election of such office, it will not be

necessary for the proposal in respect of the member elected for the seat

reserved for the specified category, to be seconded by another member and on

being proposed she or he may be declared uncontested by the Presiding Officer.

As the aforesaid provision requires a proposer in favour of the candidate

to be elected as Pradhan and as none proposed any name(s) for the office of

Pradhan, accordingly the BDO sought for a clarification from the District

Panchayat and Rural Development Officer, Purba Medinipur.

Specific query forwarded by the BDO was whether proposer is mandatory

in cases where there is only one member belonging to the reserved category for

which the seat of Pradhan is reserved? Whether any member can propose

his/her own name in case where he/she is the only member belonging to a

reserved category for which the office of Pradhan is reserved, if there is no other

proposer proposing his/her name? If proposer is mandatory and the reserved

category candidate cannot propose his/her own name and there is no other

proposer, then what will be the procedure of election to the office of the

Pradhan?

In response to the above queries, the District Panchayat Rural

Development Officer forwarded a communication dated 7th August, 2013 by the

Department of Panchayats and Rural Development wherein it has been

mentioned that in the existing Rules of 1975, there is no provision for a

member of a panchayat body to propose her/himself as candidate for election

to the office of Pradhan, Upa-Pradhan, Sabhapati, Sahakari Sabhapati.

The District Panchayat and Rural Development Officer also forwarded the

memo dated 10th August, 2023 by the Commissioner, Panchayats and Rural

Development wherein it has been mentioned that if the procedure of election to

the office of the Pradhan cannot be observed for any reason, then the

clarification laid down in the letter no. 3816/PN/O/I/1A-6/05 dated 27th

August, 2009 of the Joint Secretary, Panchayats and Rural Development

Department should be followed.

The letter dated 27th August, 2009 mentions that if none proposes any

name for election of Pradhan then the election shall remain stayed and the

Upa-Pradhan will hold the charge of the Pradhan. The Presiding Officer, relying

upon the order mentioned in the letter dated 27th August, 2009, has adjourned

the election of the Pradhan sine die.

The Learned advocate for the State has submitted that a stalemate

condition persists in the said Panchayat and a mechanism has to be worked

out to resolve the issue.

I have heard the rival submissions made on behalf of both the parties

and have perused the documents relied upon by them.

Out of the seven members in the subject gram panchayat, all six

members from the general category belong to a particular political party,

whereas a single member, who belongs to the reserved category, is from the

opponent political party. None of the six members are open to the member from

the rival political party to hold the office of Pradhan. It is for this reason that

none proposed the name of the petitioner, the sole reserved category candidate

otherwise eligible for election to the office of Pradhan.

According to Article 243(d) of the Constitution of India 'Panchayat' means

an institution (by whatever name called) of self-Government constituted under

Article 243B for the rural areas. Article 243G of the Constitution lays down the

powers, authority and responsibilities of Panchayat. The Panchayats are meant

to function as institutions of self-Government and such law may contain

provisions for the devolution of powers and responsibilities upon Panchayats,

at the appropriate level, subject to certain conditions as may be specified. The

Panchayat is responsible for the preparation and implementation of plans and

schemes for economic development and social justice as may be entrusted to

them. Article 243H provides power to the Panchayats to impose taxes and

funds. The Panchayat is authorized to levy, collect and appropriate such taxes,

duties, tolls and fees in accordance with the procedure subject to the

prescribed limitations.

The West Bengal Panchayat Act, 1973 was enacted to reorganize,

strengthen and expand the activities of Panchayats in rural areas of West

Bengal to enable them to act as units of self-Government and to strive for socio

economic development and securing social justice for the people and to provide

for matters connected therewith.

Section 9 of the aforesaid Act provides for the Pradhan and Upa-Pradhan.

Section 9(1) lays down that every Gram Panchayat shall, at its first meeting in

which a quorum is present, elect, in the prescribed manner, one of its members

to be the Pradhan and another member to be the Upa-Pradhan of the Gram

Panchayat. There is a provision for reserving the office of the Pradhan and the

Upa-Pradhan.

Section 19 of the Act mentions the obligatory duties of the Gram

Panchayat, Section 20 lays down the transferred duties of Gram Panchayat,

Section 21 deals with the regulatory duties of Gram Panchayat, Section 21A

prescribes the complementary duties of Gram Panchayat. Funds are provided

at the disposal of the Gram Panchayat by the State Government for

performance of the functions and duties under Sections 20 and 21.

The above provisions give a fair idea of the importance of the Gram

Panchayat. The Panchayat is meant to perform a variety of duties on regular

basis for the socio economic development of the constituency of the Panchayat.

It implies that the Panchayat is a very vibrant body and is supposed to be

functioning normally with the aid and assistance of all its members. The

Pradhan is the first member of the Gram Panchayat. The Pradhan has to bear

the responsibility of the Panchayat and ensure that the same is functioning

smoothly and the residents of the Gram Panchayat are duly taken care of. The

grievances and the issues in the Gram Panchayat are required to be addressed

by the members of the Gram Panchayat including the Pradhan. The Panchayat

is a collective body headed by the Pradhan.

In the instant case the members of the Gram Panchayat have failed to

arrive at a consensus for electing the Pradhan. The office of Pradhan being

reserved for a particular category of candidate; the majority members are

unwilling to propose the name of the scheduled category candidate as she is

from the rival political party. The members/ electors of the constituency may

not be able to avail all facilities in the absence of the Pradhan. Though the Upa-

Pradhan is in charge of the office of the Pradhan, but the Upa-Pradhan cannot

be expected to continue to hold charge of the office of the Pradhan for eternity.

An alternative has to be devised so that an elected member can take up the

responsibility to perform as the Pradhan. As on date a stalemate condition is

prevailing and the Presiding Officer has adjourned the meeting for election of

Pradhan sine die.

The Act is not clear whether the said reserved category candidate can

propose herself to be elected as Pradhan. The guidelines prescribed by the

Government require a proposal for election to the offices of the Gram

Panchayat. The guidelines make it very clear that the reservation policy is to be

strictly followed. If the guideline of the Government is to be implemented, in

that event, the office of the Pradhan is to be filled up by any elected member

from the Scheduled Caste category and at the same time the said elected

member has to be proposed by any of the other elected member.

The dictionary meaning of the expression 'propose' means to offer or to

suggest. The guideline of the State Government does not bar self-proposer. If

occasion so arises, an elected candidate otherwise eligible for holding the office

of Pradhan, in the absence of a proposer, may propose his/her name for

election to any of the offices of the Panchayat. The guidelines mention that the

proposal need not be seconded by any other member if the seat is reserved for

a specified category and the said candidate may be declared elected

uncontested. There is no reason as to why the aforesaid explanation may not

be availed of in case none proposes the name of the sole elected member of the

specified category for holding the office reserved for that specified category.

The fact that ultimately the decision(s) adopted by the sole reserved

category rival member will deliberately not be accepted by the other members

who are in majority and issues may be stretched to such extent that the day to

day functioning of the Gram Panchayat will become non-workable, is a different

matter altogether. If all the members of the Gram Panchayat arrive at a

consensus and unanimously elect the reserved category candidate ignoring

his/her political affiliation, then the Gram Panchayat may function smoothly

and normally but if the situation is contrary, then each and every action of the

Pradhan will be opposed by the elected members. A non-functional or non-

workable Gram Panchayat will not enure to the benefit of anybody.

Rule 20 of the West Bengal Panchayat Elections Act, 2003 provides a

leeway. It lays down that in case of non-availability of persons of reserved

category for filling up the office of Pradhan so reserved, a person of that

reserved category may be co-opted to fill up that office after swearing in an oath

of affirmation and such person so co-opted shall have to be elected within six

months from the date of his co-option in regard to that office against a suitable

casual vacancy of that body.

If the position of the Gram Panchayat is such that the Pradhan cannot be

elected, then provision of co-option may be availed of. The very idea of availing

the provision for co-option is to elect the head of the representative body,

otherwise there may be several other difficulties in overall functioning of the

Panchayat. A headless body ought not to be allowed to continue for long. The

electors of the Gram Panchayat will be the worst sufferers for they will be

deprived of the benefits of the schemes or projects meant for the socio

economic development of the gram panchayat.

Though Section 20 appears to be applicable only in the case of non-

availability of an elected member of that specified category, but although in the

instant case the scheduled category member is available but it has to be kept

in mind that the sole reserved category member does not enjoy the support of

the remaining six members of the Gram Panchayat. If the sole reserved

category member does not enjoy the support of the remaining six members of

the Gram Panchayat, then conflicts and differences between the rival groups on

regular basis cannot be ruled out. It will be an absolutely unhealthy

environment within which the members may have to perform. To avoid such an

unworkable situation, the option to co-opt a member from the specified

category may be a viable one.

The Presiding Officer ought not to shrug off his responsibility by merely

adjourning the issue of election of Pradhan sine die. The same is not a solution

to the problem faced by the Panchayat. Such a position ought not to be

permitted to continue for long. It can also not be expected that the sole

reserved category elected member will switch her political affiliation and join

the other members. If a mechanism is not evolved soon, then the issue will

persist.

The case at hand may not be a solitary instance facing crisis as

highlighted hereinabove. There may be several other Gram Panchayats facing

identical issues. The State Government ought to adopt a policy decision and

formulate guidelines which may be followed by the Gram Panchayats if

occasion so arises. It may not be proper for the Court to devise formula to

overcome the crisis. Decision ought to be taken by the State Government in the

executive level to end the crisis.

In view of the above, the instant writ petition is disposed of by directing

the Panchayats and Rural Development Department to formulate a policy and

frame supportive guidelines in the light of the discussions made hereinabove so

that the same may be uniformly applied to all the three tiers of the panchayat if

occasion so arises.

A decision shall be taken in the matter at the earliest but positively

within a period of six weeks from the date of communication of this order.

The Presiding Officer shall take steps for election of Pradhan in

accordance with the guidelines to be framed by the Department.

The writ petition stands disposed of.

No costs.

Urgent certified photocopy of this judgment, if applied for, be supplied to

the parties or their advocates on record expeditiously on compliance of usual

legal formalities.

(Amrita Sinha, J.)