Abdur Rajjak vs State of West Bengal

Dilip Kumar Seth, J.—The petitioner had challenged convening of the meeting through requisition by a group of members of the same Panchayat on the ground that the said meeting was being convened within six months from the date when another meeting was held for removal of the Prodhan where no resolution could be adopted attracting the 3rd proviso of s. 12 of the West Bengal Panchayat Act, 1973. By an order dated March 30, 2000, the said petition was dismissed by a learned Single Judge of this Court. An appeal was preferred being M.A.T. no. 1059 of 2000. The said appeal was allowed by an order dated August 22, 2000, on the ground that the point raised in the writ petition with regard to the mischief of 3rd proviso to s. 12 of the Panchayat Act were not dealt with: Therefore, the order dated March 30, 2000, was set aside and the matter was remanded for fresh decision by the appropriate Court. This is how the matter has come before this Court.

Mr. Milon Bhattacharjee, the learned counsel for the petitioner submits that no meeting under s. 12 could be convened for removal of the Prodhan within six months next after a meeting so convened could not be held or though held, no resolution removing the Prodhan could be adopted. He contends that in order to convene such meeting 1/3rd of the members of the Panchayat subject to minimum of 3 is required for the purpose of requisitioning such meeting. In the present case there were 5 members and as such the 3rd proviso to s. 16 was satisfied and a meeting was convened and held, attracting the mischief of 3rd proviso to s. 12. According to him the provisions contained in 2nd proviso is only a formalities with regard to the procedure for the purpose of convening a meeting which is not mandatory but directory. Any lapse of the procedure provided therein would not invalidate the meeting neither it will take away the case from the mischief of 3rd proviso to s. 12. Whether notices were served or not is immaterial. According to him, 3rd proviso to s. 12 does not lay down any condition. Therefore, it has to be understood in the general term in which the expression ''meeting convened'' has been used in the said 3rd proviso. The generic meaning is to be accepted and no specific interpretation having regard to the 2nd proviso to s. 16 could be applied for the purpose of application of 3rd proviso to s. 12. As such according to him, the meeting could not be held legally.

Mr. Chittaranjan Chakraborty, the learned counsel for the respondent, on the other hand, contends that 3rd proviso to s. 12 prescribes that at a meeting convened under s. 12 if no meeting is held or if no resolution removing the office bearers is adopted then the provision of 3rd proviso to s. 12 is attracted. Thus a meeting is to be convened under- s. 12. But s. 12 has not provided any procedure for convening the meeting. Section 12 is the substantial section which provides the power. The procedure is laid down in s.16. Thus whenever a meeting is convened under s. 12 the procedure laid down therefore in s. 16 is to be followed. Section 16 provides the procedure in which a meeting is to be convened. The scheme of s.16 sub-s. 1 by providing several proviso had made, it clear that a meeting is to be convened in conformity with the provisions provided therein. According to him, unless the provisions of s. 16 sub-s. 1 is conformed it can not be said that a meeting under s. 12 was convened. Even if the 2nd proviso to sub-s. 1 of s. 16 is directory still then the same has to be followed and at least there must be a substantial compliance so as to term a meeting to have been convened under s. 12. In the facts and circumstances of the present case the provisions contained in sub-s. 1 of s. 16 having not been complied with there was no meeting convened in the eye of law. He then contends that the alleged meeting held by the petitioner purported to be a paper transaction only to preempt the meeting sought to be convened by the respondents. In fact there was no meeting in reality. He then contends that the petitioner had also filed a suit for the self same relief in the Civil Court being Title Suit no. 57 of 2000 filed on March 27, 2000, before the Court of the learned Civil Judge, Junior Division, 3rd Court, Diamond Harbour. Therefore, he can not prosecute parallel proceedings for the same relief before this Court apart from being guilty of suppression of fact in not disclosing the filing of the Civil suit. Thus the conduct of the petitioner does not appear to be fair for which appropriate steps should be taken against him.

Mr. Milon Bhattacharjee, on the other hand, contends in reply that the petitioner had affirmed this writ petition before this Court on March 27, 2000, when the suit was not filed. Therefore there was no scope for disclosing the factum of filing the suit. Therefore, there was no suppression of material fact.

I have heard the respective counsel for the petitioner and the respondents as well as the State at length.

Let us examine the question of suppression of material fact first. It appears that the writ petition was affirmed on March 27, 2000. The application for injunction in support of the civil suit filed before the Civil Court was also affirmed by the petitioner on March 27, 2000. The distance of Diamond Harbour is not as such that it is possible to be present in both the Courts in course Of the same day. Therefore, there is no scope for alleged impersonation against the petitioner. Be that as it may, in order to file a suit a plaint is to be prepared and an application for injunction is also to be drafted and those are to be done at the instructions of the petitioner himself who is the plaintiff in the suit. It is very difficult to presume that after having affirmed the writ petition in this Court the petitioner could travel to Diamond Harbour and instruct the lawyer there and get the plaint prepared and a suit is filed and also the application for injunction drafted and affirmed in course of the same day. In any event the petitioner knew that he is going to file a suit immediately after affirming the affidavit before this Court. It can not be said that the petitioner had suddenly on the spur of a moment filed the suit. He must have been determined to file the suit, otherwise he had no business to travel to the Civil Court at Diamond Harbour and file the suit. It must be appreciated that the petitioner had a mastermind a cleverly calculated a strategy in order to avoid the impact of suppression of fact. He has instructed his counsel in-this Court to prepare a writ petition and got it affirmed simultaneously instructing his counsel in the Civil Court to keep a plaint and application for injunction prepared and ready so that he can affirm both on the same day. Thus the petitioner had maneuvered the Court by his-sheer ingenious move masterminded by a very intelligent mind.

Be that as it may, the question of suppression of fact can not be overruled when the petitioner refrains from disclosing the factum of filing of the suit in the proceedings in the appeal where he ought to have disclosed the factum of filing of the suit. Thus it can not be ruled out that the petitioner has suppressed the fact. At the same time it must be borne in mind that the petitioner by his mastermind stroke had purported to maneuver the Court and persued two parallel proceedings simultaneously before two forums.

Now let us examine the other condition with regard to the convening of the meeting.

In the absence of any material it is very difficult for this Court to presume that the papers brought before this Court with regard to convening of the meeting by the petitioner were manufactured or are mere paper transactions. These facts have since been disputed. This Court, sitting in writ jurisdiction, can not go into such question. But the fact remains that a meeting as convened by 5 persons who had adjourned the meeting on the ground that the notices were not served on others and that no intimation was sent to the prescribed authority. Admittedly, the notice of the said meeting was not served on any of the remaining members of the Panchayat other then those 5 members who had adjourned the, meeting.

Section 12 provides for removal of the Prodhan. However, the said provision does not provide the mechanism for convening such meeting. The procedure for convening such meeting has since been provided in s. 16 sub-s. 1. Thus in order to attract the mischief of 3rd proviso to s. 12 a meeting has to be convened and at a meeting so convened either no meeting is held or no resolution removing the office bearer is adopted then only the mischief of 3rd proviso to s. 12 is attracted.

This expression ''at a meeting convened'' in this section calls upon an interpretation for the purpose of attracting the mischief of 3rd proviso to s. 12 in the facts of the present case. Section 16 in sub-s. 1 prescribes how a meeting is to be convened. The 2nd proviso deals with convening of meeting for removal of a Prodhan. In the first part of 2nd proviso it is necessary to give a notice to the Prodhan for convening a meeting for removal of the Prodhan. In this case such a notice alleged to have been given and the Prodhan has not convened the meeting after which a meeting was requisitioned by 5 members of the Panchayat. It is thus the 2nd part under which the meeting can be requisitioned on the failure of the Prodhan to convene a meeting. If the Prodhan had convened the meeting what would be the situation is not necessary to be examined within the scope of this case.

The 2nd part of the second proviso to s. 16(1) prescribes that such requisition meeting is to be held within 35 days from the first notice given to the Prodhan after giving intimation to the prescribed authority and 7 clear days notice to the Prodhah and other members of the Panchayat. Thus this provision prescribes 3 members conditions, namely, (a) that such requisition meeting is to be held within 35 days from the first notice, (b) that such requisition meeting can be called only after giving intimation to the prescribed authority and (c) that such meeting can be requisitioned after giving 7 clear days notice to the Prodhan as well as other members of the Gram Panchayat.

The expression ''other'' members of the Gram Panchayat'' means all the remaining members other than the Prodhan, namely, to the persons who are requisitioning the meeting as well as the persons other than those requisitioning the meeting. Unless all these three conditions are fulfilled it can not be said that a meeting is validly convened. Even if we accept the proposition advanced by Mr. Bhattacherjee that the provisions contained in 2nd proviso to s. 16(1) is hot mandatory and is directory then also the question of 35 days time may be relaxed or 7 clear days notice may also be relaxed, though I am not holding the same or laying down any principle with regard to the said proposition, yet the intimation to the prescribed authority can not be obliterated or overlooked or dispensed with nor the notice to the Prodhan and other members of the Gram Panchayat cap be ruled out or emitted. These are the pivots on which the entire scheme of convening the meeting rests. Therefore, it is not possible to accept the contention of Mr. Bhattacherjee to the extent that a meeting has been convened even though no notices were issued either to the members or to the prescribed authority.

In the resolution itself the 5 members who had requisitioned the said meeting had recorded that only those 5 persons along with the Prodhan were present in the meeting and there was a finding that there was no intimation to the prescribed authority and that notices were not served on other members and therefore the meeting was adjourned in the absence of non-compliance of s. 16(1). Thus the requisitions, namely, the said 5 members had themselves had admitted that in the absence of the intimation to the prescribed authority and the notices Jo the other members the meeting was not properly convened and therefore it was adjourned.

It is therefore clear and unambiguous that the meeting was not properly convened or in other words, no meeting could be said to have been convened. The question of holding of meeting or adopting any resolution depends on the convening of the meeting. If no meeting is convened then there is no question of adjournment of the meeting or holding of the meeting or adoption of any resolution. The 3rd proviso to s. 12 requires that at a meeting convened under s. 12 if no meeting is held or if no resolution removing the office bearer is adopted then the six month''s mischief or prohibition would be attracted. The expression ''at a meeting convened'' means a meeting convened according to 2nd part of second proviso to s. 16(1).

However, Mr. Bhattacherjee had pointed out that intimation to the prescribed authority Was given but no observer was present. However, it is not necessary that an observer must be present in such a meeting. The word ''may'' appearing in the 2nd proviso with regard to the presence of observer is not mandatory. It is directory. In the absence of an observer it would not make the meeting invalid or it can not be said that the meeting was not convened.

However, so far as the notice to the other members is concerned, that can not be overlooked. If such a proposition is accepted in that event in order to preempt the move of the opposite side, a designing Prodhan may manage through his supporters to convene a meeting without giving any notice to other members and adopt a resolution of any kind in order to attract the mischief of the 3rd proviso to s. 12. It would be then giving a tool in the hands of design a people to frustrate the entire scheme of s. 12 and s. 16 and thereby suppress the democracy. Every designing Prodhan would thus device a mode to preempt any move to remove him with the help of his supporters if he could manage 1/3rd of them subject to minimum of 3. There would be every scope then to allow such designed people to create and manufacture documents for such purpose.

Obviously, in the facts and circumstances of the case, therefore no meeting was convened by the said 5 members in which the petitioner was present. Therefore, the alleged meeting, even if held or adjourned or not held, will not attract the mischief of 3rd proviso to s. 12.

Mr. Bhattacherjee has relied on a decision in the case of Bhagarathi Co-operative Joint Farming Society v. Howrah Zilla Parisad 87 C.W.N. 981, and relies on the ratio laid down in para. 7 thereof in order to contend that unless there is a specific penal provision contained in a statute the same can not be interpreted to mean that the provision is mandatory. On the other hand, the provision would be directory.

The above decision does not help Mr. Bhattacherjee. In the said decision it was ultimately laid down that whether a provision would be directory or not would depend upon the nature and effect of the prescription and the intention of the legislature as would appear from the scheme of the statute. As observed earlier, from the scheme of the statute even it is held that the provision is directory still then there are certain basic foundation which can not be overlooked altogether and brushed aside only on the ground that those provisions are directory. The basic feature, as intended by the legislature, makes it clear that absence of notice to other members and the Prodhan can not at all be overlooked so as the case of intimation to the prescribed authority. Though, however, there might be scope of holding that the other provisions contained therein to be directory. Since I am not called upon to determine the same, I refrain from recording any observation with regard thereto and from laying down the ratio therefor.

Thus the writ petition fails and is accordingly, dismissed. But only in view of the fair stand taken by Mr. Bhattacherjee and confessions made in the Court, this Court refrains from making any uncharitable remarks against the petitioner on his conduct as discussed hereinbefore.

There will be no order as to costs.

If an urgent xerox certified copy of this order is applied for the same may be supplied as early as possible.