Jyotirmay Bhattacharya, J.
1. Short history of the dispute leading to these writ petitions: Three writ petitions are pending between the same set of parties involving common dispute. First of such writ petitions being W.P. No. 25204(W) of 2006 was filed by the Pradhan of Sahapur-I Gram Panchayat under Goalpokhar-II Panchayat Samity. In the said writ petition, the petitioner has challenged the legality of the notice dated 14th November, 2006 by which the requisitionist members convened a requisition meeting to be held on 23rd November, 2006 for transacting the business on the agenda of removal of Pradhan.
2. The bone of contention of the petitioner in the said writ petition was that since pursuant to the request made by those requisitionist members on 27th October, 2006, the Pradhan herself convened a requisition meeting to be held on 30th November, 2006, the notice by which a requisition meeting was convened by the said requisitionist members even before expiry of the statutory period within which the Pradhan was required to convene such meeting, is illegal being contrary to the provision contained in the second proviso to Section 16 of the West Bengal Panchayat Act, 1973.
3. The said writ petition was earlier disposed of by this Court on 22nd November, 2006 wherein it was held that since the Pradhan convened the requisition meeting within the time as prescribed under the second proviso to Section 16 of the said Act, the right to convene the said meeting by the requisitionists did not mature as the second proviso to Section 16 of the said Act provides that if the Pradhan fails to convene the requisition meeting within the time as prescribed in the said proviso, the right of the requisitionists to call the meeting matures. Under such circumstances, this Court held that the notice issued by the requisitionists for holding the said meeting on 23rd November, 2006 cannot be acted upon. The impugned notice dated 14th November, 2006 issued by the said requisitionist members was thus quashed, but a direction was given for holding a meeting on 30th November, 2006 as per the notice issued by the Pradhan on 8th November, 2006. It was further clarified therein that the agenda regarding removal of the Pradhan will be taken up for consideration in the said meeting though in the notice it was mentioned that no confidence motion upon the Pradhan will be discussed.
4. Though the Pradhan, the requisitionist members and the State-respondents accepted the said order, but the other two members of the said Gram Panchayat, viz., respondent Nos. 15 and 16 who had no role to play so far as the requisition of the said meeting is concerned, challenged the propriety of the aforesaid order passed by this Court on the ground that the said writ petition was disposed of without notice to them and as a result they were deprived of an opportunity of hearing before this Court at the time of hearing of the said writ petition.
5. The said appeal being MAT No. 4718 of 2006 was allowed by the Hon'ble Appeal Court on 18th December, 2006 on being satisfied that those respondents/appellants were not served prior to the disposal of this writ petition. The Hon'ble Appeal Court thus remanded the writ petition to this Court for de novo hearing of this writ petition in the presence of the parties.
6. In the meantime, the meeting was held on 30th November, 2006 and . resolution for removal of the Pradhan was adopted by seven out of ten members in the said meeting.
7. After remand, certain interim order was prayed for by the Pradhan of the said Gram Panchayat concerning the said resolution for removal of Pradhan. Such prayer of the Pradhan was disallowed by this Court as the legality and/or validity of the resolution which was adopted in the said meeting was not the subject-matter of consideration in the said writ petition. Thereafter, an appeal was preferred by the Pradhan of the said Gram Panchayat against such order. The said appeal was registered as MAT No. 145 of 2007.
8. The other two members, viz., the respondent Nos. 15 and 16 also preferred another appeal being MAT No. 146 of 2007 challenging the order passed by this Court on 5th January, 2007 by which this Court refused to pass an interim order which was prayed for by the Pradhan, as stated above. This Court is still at a loss to understand as to why the parties who have not even prayed for any interim order, filed an appeal by taking up the cause of the Pradhan.
9. Be that as it may, on overall assessment of the facts and circumstances of this case, this Court has no hesitation to hold that the Pradhan and the said two members of the said Gram Panchayat are hand-in-glove.
10. However, the Hon'ble Appeal Court disposed of the said appeals with the following order:
If the Pradhan has already taken charge, as submitted by the learned Counsel for the respondent Nos. 8 to 14 he shall not take any policy decision affecting the affairs of the Gram Panchayat till 318t January, 2007, when the matter will be taken up for hearing, as fixed by the learned Trial Judge. If on that date any supplementary affidavit is filed stating the fact mentioned in the said petition regarding non-appointment of observer and further challenging the selection of the Pradhan, it would be open for the learned Single Judge to decide both the issues in accordance with law. We, however, make it clear that selection of the Pradhan will abide by the decision; so to be arrived at by the learned Trial Judge. We also make it clear that no equity shall be created in the selection of the Pradhan.
11. Pursuant to the leave granted by the Hon'ble Appeal Court, as aforesaid, the said Pradhan submitted a supplementary affidavit in the said petition for challenging the legality of the resolution adopted by the members of the said Gram Panchayat on 30th November, 2006 for her removal on the ground that the meeting having been held in the absence of the observer is a nullity. As such, not only the resolution but also other actions taken pursuant to the said resolution including the election of the subsequent Pradhan were challenged in the said supplementary affidavit.
12. The said Pradhan also filed an independent writ petition being W.P. No. 1803(W) of 2007, for challenging the legality of the said resolution adopted by the members of the said Gram Panchayat on 30th November, 2006 as well as the legality of the election of the subsequent Pradhan on the similar grounds as mentioned by her in her supplementary aifidavit filed in connection with the earlier writ petition.
13. The other two members who were respondent Nos. 15 and 16 in the W.P. No. 25204 (W) of 2006 also filed another writ petition being W.P. No. 1804 (W) of 2007 for challenging the legality of the resolution adopted in the meeting held on 30th November, 2006 on the ground on non-service of notice of such meeting upon them. The legality of the election of the subsequent Pradhan was also challenged in the said writ petition incidentally.
14. Since the dispute in all these writ petition centres round the challenge with regard to the legality of the meeting held on 30th November, 2006, this Court thinks it fit to dispose of all these three writ petitions by a common orders, so that conflict of decisions can be avoided.
15. Let me first of all consider the writ petitions being W.P. No. 1804 (W) of 2007 separately, as the validity of the resolution adopted in the meeting held on 30th November, 2006 was challenged in the said writ petition on the ground of non-service of notice of such meeting upon the petitioners therein but such a challenge is absent in the other two writ petitions.
Re: W.P. No. 1804 (W) of 2007
16. The said two members alleged in their writ petition categorically that no notice of such meeting was ever served upon them. It is contended by them that since no notice of such meeting was served upon them, they by their respective letters dated nil requested the prescribed authority (EDO) separately to cancel the requisition meeting which was scheduled to be held on 30th November, 2006. The said letter was served upon the prescribed authority on 29th November, 2006.
17. Non-service of notice of such requisition meeting upon those two members have not controverted effectively either by the Pradhan or by the requisitionist members. No evidence has been produced either by the Pradhan or by the said requisitionist members to show that service of such notice was effected upon those two members.
18. Accordingly, this Court holds that service of such notice was not effected upon those two members, though such service is mandatory under the second proviso to Section 16 of the said Act as well as the rules framed in connection therewith.
19. Let me now consider as to whether the meeting can be declared as invalid for non-service of such mandatory notice.
20. Purpose of service of notice is to make a member aware as to holding of a meeting, so that the member can participate in the meeting effectively. From their own admission made by the said two members, it appears to this Court that the members were aware about the requisition meeting which was scheduled to be held on 30th November, 2006 at least a day before the date when the said meeting was scheduled to be held The said members never claimed that they did not know about the time schedule and/or the venue of the said meeting and/or the agenda which was to be transacted in the said meeting. On the contrary, they on their own separately approached the concerned prescribed authority to cancel the requisition meeting which was scheduled to be held on 30th November, 2006.
21. Since such prayer of those two members were not allowed by the prescribed authority, in my view, those two members should have made them themselves present in the said meeting either with a prayer for postponement of the said meeting or by participating therein to express their views. The said two members did not do so, as they felt that their presence will not be a decisive factor in the said meeting as they along with the Pradhan were only three in number while the requisitionists supporting the motion were seven in number.
22. Non-service of notice becomes fatal when a member is prevented from participating in the meeting due to lack of knowledge of the meeting, but when the member having knowledge of the meeting refuses to participate only on the ground of non-service of notice, this Court holds that the outcome of the meeting cannot be vitiated at the instance of such indifferent absentee members. This Court also cannot believe that those two members had no knowledge of the meeting earlier. It appears from the records of the Appeal Court that those two members applied for the certified copy of the order passed by this Court on 22.11.2006 on the very next day, on the very next day, i.e., on 23rd November, 2006 and obtained the certified copy of the said order on 29th November, 2006. In the said order, direction was given by this Court for holding the meeting on 30th November, 2006. The time schedule, the venue and the agenda to be transacted in the said meeting were all mentioned in the said order dated 22nd November, 2006. But still then, they did not participate in the said meeting. On the contrary, they wrote letters to the prescribed authority to cancel the said meeting 29th November, 2006.
23. These circumstances lead this Court to believe that these two members were in touch with the said Pradhan ail-throughout and the Pradhan made them active when the Pradhan herself failed to stall holding of such meeting.
24. Under such circumstances, this Court has no hesitation to hold that the resolution which was adopted on 30th November, 2006 cannot be vitiated for non-service of notice upon those two members who having full knowledge of the said requisition meeting, abstained themselves from participating therein.
25. The said writ petition, thus, stands rejected.
26. Let me now consider the other two writ petitions hereunder.
Re: W.P. No. 25204(W) of 2006
And
W.P. No. 1803(W) of 2007
A. Validity of notice issued by the requisitionists for convening the requisition meeting.
27. Mr. Ganguly, learned Advocate, appearing for the Pradhan, submitted before this Court that his client was not dissatisfied with the order which was passed by this Court initially on 22nd November, 2006, as her challenge with regard to the validity of the notice dated 14th November, 2006 issued by the requisitionists for convening the meeting to be held on 23rd November, 2006, was upheld by this Courc.
28. Mr. Banerjee, learned Senior Advocate, appearing for the requisitionist members also submitted that his clients also are not dissatisfied with the order passed by this Court on 22nd November, 2006, as the said order reflects the correct position in law.
29. Admittedly, the other two members did not join with the requisitionists. They never requested the Pradhan to requisition such a meeting. As such, they cannot have any grievance if the notice issued by the requisitionists is quashed by this Court. On the contrary, if I look at the problem from another angle, then also I find that the said two members had and/or have no reason to be aggrieved as the impugned notice relates to a proceeding for removal of the Pradhan and neither of the said members is the Pradhan of the said Gram Panchayat. Pradhan may be affected for her removal but the said two members cannot be affected for the removal of the Pradhan, unless they have any special interest in retaining the said Pradhan in chair.
30. Under such circumstances, this Court holds that impugned notice issued by the requisitionists for holding the said meeting on 23rd November, 2006, can not be retained on record as the right to call the said meeting by the said requisitionists did not mature, inasmuch as the said Pradhan convened the said meeting within the time limit as prescribed in the second proviso to Section 16 of the said Act.
31. The impugned notice dated 14th November, 2006 issued by the requisitionists stands quashed.
B. Validity of the requisition meeting held on 30th November, 2006.
32. The most vital issue which is now under consideration, relates to a challenge regarding the validity of the resolution which was adopted on 30th November, 2007.
33. The Pradhan as well as the other two members claimed that no observer was present in the meeting which was held on 30th, November, 2006. They further claimed that no report relating to the said meeting was prepared by the observer. They also claimed that even the proceeding the meeting and the other relevant papers were not even forwarded by the Secretary of the said Gram Panchayat who was required to forward those papers to the prescribed authority in terms of the letter written by the prescribed authority to the Secretary of the said Gram Panchayat on 30th November, 2006.
34. Both Mr. Ganguly appearing on behalf of the Pradhan and Mr. Das Adhikary appearing on behalf of the other two members, submitted with all emphasis that appointment of an observer for such meeting by the prescribed authority is mandatory. Both of them submitted that the resolution which was adopted in the absence of such observer is a nullity as no meeting can be held validly in the absence of such observer. In support of their contention they relied upon the following decisions of this Hon'ble Court:
(i) Raban Mahato and Ors. v. State and Ors. reported in : AIR1997Cal368 and
(ii) Noor Banu v. State of W.B. and Ors. reported in 1996 WBLR (Cal) 322 (DB)
35. Mr. Banerjee refuted the said submissions of the learned Counsel appearing for his adversaries by submitting that appointment of an observer by the prescribed authority under the provision of the second proviso to Section 16 of the said Act is not mandatory. By referring to the use of the expression 'may appoint', Mr. Banerjee submitted that appointment of an observer for such meeting by the prescribed authority is optional. Mr. Banerjee, however, submitted that in the event, however, an observer is appointed then, of course the consequential steps subsequent thereto as prescribed in the said proviso are mandatory.
36. Mr. Banerjee submitted that the principles laid down in the Division Bench decision in the case of Noor Banu v. State (supra), have no binding effect as the principles laid down therein are not in consonance with the provision of law. Mr. Banerjee further submitted that the effect of the use of the expression 'may appoint' in the said proviso was not considered in the said decisions. That apart, the findings regarding appointment of such observer by the Division Bench in the said decision is in the nature of Obiter Dictum as the said issue was never raised before the said Division Bench of this Court for its consideration.
37. Mr. Banerjee further contended that the principles laid down in the Single Bench decision of this Court as cited above, has no application in the instant case, as the facts and circumstances of both these cases are not identical. Mr. Banerjee pointed out that in the said decision observer who was appointed, was prevented from participating in the meeting, but here observer was present in the meeting.
38. By referring to the letter written by the prescribed authority on 30th November, 2006, Mr. Banerjee also contended that in the instant case, the Secretary was appointed as an observer by the prescribed authority which is, however, disputed by the respondents.
39. On perusal of the letter dated 30th November, 2006 written by the prescribed authority, this Court does not find that the Secretary was authorised to act as an observer in the said meeting. As such, this Court has no other than option but to find out the ratio of the said citations and/or the applicability thereof in the facts of the present case, as the fate of the disputed resolution depends upon the applicability of the principles laid down in these citations in the facts of the present case.
40. Let me now consider as to how far Mr. Banerjee was justified in contending that the decision of the Hon'ble Division Bench in the case of Noor Banu v. State of West Bengal (supra) is obiter.
41. An order passed by the learned Single Judge whereby and whereunder the prescribed authority was directed to hold the election oiPradhan, was under challenge in appeal before the said Division Bench. The contention of the petitioner therein to the effect that she was elected as Pradhan of the concerned Gram Panchayat, was not accepted by the learned Trial Judge. Hence the writ petition was dismissed. Before the Appeal Court, a question came up for consideration as to whether two of the removed members could have validly participated in the meeting which was held for removal of the erstwhile Pradhan. While considering the said question, the Appeal Court not only considered the effect of Section 11(1)(d) of the West Bengal Panchayat Act which deals the grounds of removal of an elected member and the procedure to be followed in connection therewith as well as the effect of such removal but also considered the provision of Sections 12 and 16 of the said Act which deal with the removal of the Pradhan and the procedure to be followed in connection therewith. Such consideration was necessary, as the election of new Pradhan can be taken place only when it will be established that the erstwhile Pradhan was removed legally and validily in a valid requisition meeting.
42. For ascertaining the legality and validity of removal of the erstwhile Pradhan, the Appeal Court had to consider the legality of removal of Pradhan and validity of the meeting as per Sections 12 and 16 of the said Act. Thus, when the Appeal Court, while considering the said issue, had analysed Sections 12 and 16 of the said Act and held that the prescribed authority was required to appoint an observer who was also required to submit a report and the prescribed authority, on receipt of the said report, is required to take a decision thereon, as it deems fit, this Court cannot hold that such decision amounts to an obiter. In my view, such a consideration was not foreign to the issue before the Appeal Court.
43. Furthermore, since these questions were directly at issue between the parties before the learned Single Judge in the case of Raban Mahato v. State and Ors. under almost similar set of facts, this Court cannot avoid its application to the instant case. It is, however, true that the effect of use of the expression 'may appoint' was not considered in either of the said decisions.
44. Let me now consider the said provision independently for ascertaining the true intent of the legislature for using the expression of 'may appoint' in Section 16 of the said Act.
45. Section 12 of the Act deals with removal of Pradhan and Upa-Pradhan. The said provision provides that subject to the other provisions of this section, a Pradhan or an Upa-Pradhan of a Gram Panchayat, at any time, be removed from office by a resolution carried by the majority of the existing members referred to in Clause (j) of Sub-section (2A) of Section 4 at a meeting specially convened for the purpose. The said provision also provides that notice of such meeting shall be given to the prescribed authority. The said provision does not provide for any function to be discharged by the prescribed authority in the said meeting. The said provision also does not provide that the outcome of the said meeting will be given effect to subject to confirmation by the prescribed authority.
46. Once the decision for removal is taken by the majority as per Section 12 of the said Act, the said decision becomes final. Then a question may arise as to why a provision was made in the said proviso for notifying the said meeting to the prescribed authority.
47. Can such an intimation be regarded as mere formality?
48. Let me consider this aspect now.
49. Section 12 of the said Act is silent about the step to be taken by the prescribed authority on receipt of such notice. Even no provision is made in Section 12 for communication of the resolution to the prescribed authority. As such, the prescribed authority cannot take any step in furtherance of such resolution, though certain duties and/or obligation are imposed upon the prescribed authority under the Act and the rules framed thereunder for running the administration of the Gram Panchayat through the Upa-Pradhan and/or by selection of Pradhan during the period of vacancy in the office of the Pradhan as a consequence of such removal and thereafter for filling up the said vacancy by making arrangement for election of Pradhan.
50. To fill up the said gap, an insertion viz., '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 proceedings of the meeting. The prescribed authrity shall, on receipt of the report, take action thereon as it may deem fit', was added by the West Bengal Panchayat (Amendment) Act, 1992 and thereby a provision was introduced for preparation of a report of such meeting by the observer and for intimation thereof to the prescribed authority who is required to take action as it deems fit, on receipt of such report. Thus, this Court finds that the prescribed authority cannot take any step in furtherance of the resolution unless report is prepared by the observer and is submitted by him to the prescribed authority. Again such report cannot be submitted unless an observer is appointed by him.
51. Thus on conjoint reading of the provision of Section 12 and Section 16 of the said Act, this Court holds that if the chain of events as stated above is considered, then there is no other alternative but to hold that appointment of observer by the prescribed authority for such meeting is mandatory. The use of the expression 'may appoint' used in the second proviso to Section 16 is not optional but is mandatory.
52. In this regard reference may be made to the decision of the Hon'ble Supreme Court in the case of Ramchhoddas v. Devaji reported in AIR 1977 SC 1516 wherein it was held that where a discretion is conferred upon a public authority coupled with an obligation, the word 'may' which denotes discretion should be constructed to mean a command. If the said principle is applied here, then this Court has no other alternative but to hold that use of expression 'may' in Section 16 of the said Act does not mean optional as the said discretion which is given to the prescribed authority is coupled with an obligation to take action on the report of the observer.
53. I fully agree with the view of justice Gupta as expressed in the Single Bench decision cited by Mr. Ganguly that appointment of observer is a sure guarantee for strict compliance of the statutory functions. It is however, true that the prescribed authority cannot take any action in consistent with the resolution provided such resolution is adopted in compliance with the provision of law.
54. Here, of course, Mr. Banerjee contended that the Secretary was appointed as an observer but his presence in the meeting cannot be established by the requisitionists. The minutes of the proceeding in which the said resolution was adopted also does not show that the Secretary was present in the said meeting. There is nothing on record to show that any report was prepared by the said observer. There is nothing on record to show that this minute of the said meeting, the relevant papers and the report were submitted by the Secretary to the prescribed authority. It appears from the record that the reports as well as the other relevant papers were submitted by one Ranjit Kumar Dutta, the Executive Assistant of the said Gram Panchayat to the prescribed authority.
55. Accordingly, I hold that if such a meeting is held without appointment of an observer, holding of such meeting and the steps taken pursuant thereto become non est in the eye of law.
56. Even if I accept the contention of Mr. Banerjee that it is not a case where no observer was appointed by the prescribed authority, still then I cannot hold that the follow-up action which the observer was required to take, was taken by the observer in the instant case.
57. I have already pointed out above that the presence of the observer was not recorded in the said minute. Nothing could be produced before this Court to show that the observer was present in the meeting. No material has been produced before this Court to show that the observer forwarded his report together with the relevant papers to the prescribed authority for his consideration and decision. Thus, this Court has no other alternative but to hold that the resolution adopted in such a meeting is a nullity.
58. Mr. Banerjee, however, submitted by relying upon a decision of the Hon'ble Supreme Court in the case of Hareram Pandey v. Ajit Chowdhury reported in : AIR1999SC3827 that when the majority being seven out of ten members supported the motion and resolved for removal of the Pradhan, no interference is necessary as the presence of Pradhan and the decisive factor so far as the said resolution is concerned.
59. Though this Court finds some substance in such submission of Mr. Banerjee, but still then this Court has no option but no quash the said resolution, as this Court holds that in the absence of the observer appointed by the prescribed authority or in the alternative even after such appointment, if meeting is held in the absence of the observer, the holding of such a meeting, its proceedings and any resolution that may be alleged to have been adopted therein, all should be deemed to be non est in the eye of law, invalid and incapable of being implemented and/or acted upon.
60. The impugned resolution and the follow up actions including election of the new Pradhan thus stand quashed.
61. The newly elected Pradhan is thus directed to hand over the charge of the office of Pradhan to the petitioner who will perform the duties of the Pradhan under the guidance and day-to-day supervision of the prescribed authority until the issue regarding the removal of the Pradhan is finally resolved.
62. Since in the peculiar facts and circumstances the resolution is quashed on account of procedural lapses, this Court holds that justice will be subserved if a meeting is held afresh for the said purpose with the participation of all the members of the said Gram Panchayat in the presence of the observer of the prescribed authority, as suggested by Mr. Ganguly and Mr. Das Adhikary.
63. Accordingly, this Court directs that the meeting be held on 7th April, 2007 at the office of the said Gram Panchayat at 1 p.m. for transacting the business on the agenda of removal of the petitioner from the post of Pradhan. The prescribed authority is directed to appoint an observer for the said meeting and the observer is also directed to be present in the said meeting and will prepare a report in writing and will submit the same to the prescribed authority within a week from the date of holding the said meeting. The prescribed authority is also directed to take action on receipt of the said report in accordance with law.
Since all the members of the said Gram Panchayat are now before this Court and they are represented by their respective lawyers this Court directs that service of notice of such meeting upon the members is dispensed with.
All the above three writ petitions are, thus, disposed of. Let the Appeal Court files be sent down to the concerned department immediately.
64. Urgent xerox certified of this judgment, if applied for, be given to the parties, as expeditiously as possible.
Later:
65. On the prayer of the learned Advocate of the parties, let a plain copy of the operative part of the judgment passed by this Court today be given to the learned Advocates-on-record of the parties on usual undertaking.