ALOKE PRAMANIK Vs. STATE OF WEST BENGAL & ORS.
LAWS(CAL)-1996-2-38
HIGH COURT OF CALCUTTA
Decided on February 19,1996

Aloke Pramanik Appellant
VERSUS
STATE OF WEST BENGAL AND ORS. Respondents


Referred Judgements :-

MD. ASRAF ALI MONDAL V/S. THE BLOCK DEVELOPMENT OFFICERS & ORS. [REFERRED TO]
RAFIKUL MONDAL V/S. STATE OF WEST BENGAL AND OTHERS [REFERRED TO]
MONTREAL STREET RAILWAY CO. V/S. NORMANDI [REFERRED TO]
SAMARENDRA GOSWAMI V/S. THE DAHUK GRAM PANCHAYAT AND OTHERS [REFERRED TO]
K NARASIMHIAH VS. H C SINGRI GOWDA [REFERRED TO]
UNION OF INDIA VS. KHAZAN SINGH [REFERRED TO]
Union of India UOI VS. Kanti Tarafdar [REFERRED TO]



Cited Judgements :-

SAMIUL ISLAM VS. STATE OF WEST BENGAL [LAWS(CAL)-2014-9-78] [REFERRED TO]
NIRMAL DAS VS. STATE OF WEST BENGAL [LAWS(CAL)-1996-7-52] [REFERRED TO]


JUDGEMENT

S.B. Sinha, J. - (1.)This writ application has been referred to a Division Bench by N.K. Batabyal, J. in terms of his Lordship's order dated 19.12.95, for the purpose of consideration as to whether the provision of giving seven clear days' notice in the second proviso to Sec. 105(1) of the West Bengal Panchayat Act, 1973 (hereinafter referred to for the sake of brevity as the 'said Act') is mandatory or directory. The fact of the matter is not in dispute. The writ petitioner is a Sahakari Sabhapati of Khar Gram Panchayat Samity. On or about 28.12.94, a requisition was sent to the Sabhapati of the said Gram Panchayat to convene a meeting for discussion on no confidence against Sabhapati. Pursuant to or in furtherance of the said requisition, Sabhapati did not requisition a meeting. On or about 18.1.95, thereafter the said requisirionists called a meeting for being held on 27.1.95. It appears that notice of the said meeting was sent under registered post to the petitioner, but the same was not served even on 28.1.95. In the meantime, a meeting was held on 27.1.95, in terms whereof by resolution adopted by the large number of the members, Sabhapati was removed. Before the learned Single Judge, it appears, only one question was advanced as to whether in terms of the second proviso appended under Sec. 105(1) of the said Act, 7 days clear notice is required to be given to all the members or not the learned Judge in his referring Court and thought it expedient to refer the matter to the Division and pursuant thereto, this matter has been assigned, to this Bench.
(2.)Mr. Kabir, learned Counsel appearing on behalf of the petitioner, however, before us had raised two contentions in support of this writ application. The learned Counsel submitted that in view of the phraseology used in the second proviso appended to Sec. 105 of the said Act, service of seven days' notice is mandatory. In any event, the learned Counsel submits that the service of notice upon all the members is mandatory in nature. The learned Counsel secondly contended that in any event, as would appear from the fact as noticed hereinbefore, that whereas in the first notice the requisitionist has stated that the subject matter of the meeting would be no confidence, in the second notice the subject matter was changed to removal of the Sabhapati and thereby the scope of the first notice was enlarged which is not permissible in law. Mr. S.C. Ukil. learned Government pleader, placed before us a report of the observer and submitted on the basis thereof that it appears that the notices were not served upon a few persons. The learned Government pleader supported the first contention of Mr. Kabir but as regards the second contention, it was submitted that in a democracy, the phraseology 'No Confidence' of Sabhapati and 'removal' of Sabhapati, should be held to have the same meaning. Mr. Sanyal, learned Counsel appearing on behalf of the respondents, however, submitted that the period of notice cannot be mandatory. According to the learned Counsel, in a democracy, notice upon the leader of the party was sufficient and as notices are served for the purpose of enabling the members to attend the meeting, knowledge of the members that a meeting is going to be held, will serve the purpose. According to the learned Counsel, a combined reading of Ss. 105, 106 of the said Act and Rule 319 of the West Bengal Panchayat Samity Administrative Rules, 1984 (hereinafter referred to for the sake of brevity as the said 'Rules') read with Form 1B thereof will leave no manner of doubt that at the time of requisition, business of the meeting is not to be mentioned inasmuch as in terms of the said Rules, no form has been prescribed for asking Sabhapati to requisition a meeting in terms of the second proviso appended to Sec. 105 of the said Act. For the purpose of appreciating the question involved in this application, the relevant provisions may be noticed : -
101. A Sabhapati or a Sahakari Sabhapati of a Panchayat Samiti may at any time, be removed from office by a resolution of the Panchayat Samity carried by the majority of the existing members of fee Panchayat Samiti at a meeting specially convened for the purpose. Notice of such meeting shall be given to the prescribed authority:

Provided that at any such meeting while any resolution for the removal of the Sabhapati from his office is under consideration, the Sabhapati or while any resolution for the removal of the Sahakari Sabhapati from his office is under consideration, the Sahakari Sabhapati shall not though he is present, preside, and the provisions of Sub -Section (2) of Sec. 105 shall apply in relation to every such meeting as they apply in relation to a meeting from which the Sabhapati or as the case may be, the Sahakari Sabhapati is absent.

105. (1) Every Panchayat Samiti shall hold a meeting (in his office at least once in every three months on such date and at such hour as the Panchayat Samiti may fix at the immediately proceeding meeting):

Provided that the first meeting of a newly -constituted Panchayat Samiti shall be held (on such date and at such hour and at such place within the local limited of the Block concerned) as the prescribed authority may fix:

Provided further that the Sabhapati when required in writing by one -fifth of the members of the Panchayat Samiti to call a meeting, (shall do so fixing the date and hour of meeting within fifteen days after giving intimation to the prescribed authority and seven days' notice to the members of the Panchayat Samiti), failing which (the members aforesaid may call a meeting within thirty -five days) after giving intimation to the prescribed authority and seven clear days' notice to the Sabhapati and the other members of the Panchayat Samiti. Such meeting shall be held (in the office of the Panchayat Samiti, on such date and at such hour) as the members calling the meeting may decide. (The prescribed authority may appoint an observer for such meeting who shall submit to the prescribed authority a report in writing duly signed by him within a week of the meeting on the proceeding of the meeting. The prescribed authority shall, on receipt of the report, take such action thereon as it may deem fit :)

Provided also that if the Panchayat Samiti does not (fix at any meeting the date and hour of the next meeting or if any meeting of the Panchayat at Samiti is not held on the date and hour fixed at the immediately proceeding meeting, the Sabhapati shall call a meeting of the Panchayat Samiti on such date and at such hour as he thinks fit

(2) The Sabhapati or in his absence the Sahakari Sabhapati shall preside at the meeting of the Panchayat Samiti and in the absence of both, the members present shall elect one of them to be the President of the meeting.

(3) One -fourth of the total number of members shall form a quorum for a meeting of a Panchayat Samiti :

Provided that no quorum shall be necessary for an adjourned meeting.

(4) All questions coming before a Panchayat Samiti shall be decided by a majority of votes :

Provided that in case of equality of votes the person presiding shall have a second or casting vote;

Provided further that in case of requisitioned meeting for the removal of a Sabhapati or a Sahakari Sabhapati under Sec. 101, the person presiding shall have no second or casting vote.

106. A list of the business to be transacted at every meeting of a Panchayat Samiti except at an adjourned meeting, shall be sent to each member of the Panchayat Samiti in the manner prescribed, at least seven days before the time fixed for such meeting and no business shall be brought before or transacted at any meeting, other than the business of which notice has been so given except with the approval of the majority of the members present at such meet in:

Provided that if the Sabhapati thinks that a situation has arisen for which an emergent meeting of the Panchayat Samiti should be called, he may call such meeting after giving three days' notice to the members :

Provided further that no more than one matter shall be included in the 'list of business' to be transacted at such meeting.

(3.)The State in exercise of its power conferred upon it under Sec. 224 of the West Bengal Panchayat Act, Rules 3 and 19 of the said Rules which are material for the purpose of this application read thus; -
3. Notice how to be served : (1) The notice for a meeting, other than an adjourned meeting or a requisitioned meeting, shall be signed and sent by the Secretary to all the members of the Panchayat. Samiti. The notice for an ordinary meeting or a meeting for the consideration of the budget or a meeting for the consideration of the audit report may be sent by post under Certificate of Posting and that for an emergent meeting shall be sent by special messenger. The notice for a requisitioned meeting shall be sent by registered post with acknowledgement due by the Sabhapati or the requisitioning members, as the case may be.

(2) The notice for all meetings except an emergent or a requisitioned meeting shall be in Form 1; while such notice for an emergent meeting or a requisitioned meeting shall be in Form 1A or in form 1B, as the case may be.

19. Notice for meeting : At least seven clear days' notice of all meetings except an emergent or a requisitioned meeting shaft foe given to all members in Form 1. At least three clear days notice for emergent meeting shall be given to all members of the Sthayee Samiti in Form 1A. Seven clear days' notice for a requisitioned meeting shall be given in Form 1B :

Provided that not more than one item shall be discussed in an emergent meeting or in a requisitioned meeting.

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