KABIR HOSSAIN Vs. STATE

JUDGEMENT

(1.) -Heard the submission of the learned Senior Advocate for the Petitioner, Dr. Debi Pal appearing with Mr. Susanta Kr. Mukherjee, Mr. Asoke Banerjee and Mr. Falzul Islam and the learned Senior Advocate Mr. Subodh Ch. Ukil, Government Pleader appearing with Mrs. Bharati Mutsuddi and Mrs. Dipanwita Chaudhuri and the learned Advocate for respondent Nos.7 to 18. Mr. Sundarananda Pal appearing with Mr. Bikash Kr. Mukherjee. Considered the materials on record.

(2.) IN this writ petition, one Kabir Hossain, erstwhile Sabbapati of Rampurhut--II Panchayet Samity, District-Birbhum, has challenged the requisition notice as in annexure 'B', page 46 to the writ petition, whereby a meeting was summoned for removal of the said Sabhapati from the post of Sabhapati. That is the impugned notice which has been challenged in this writ petition. Appearing for the petitioner, Dr. Pal, with all the force in his command, contended that the notice is bad, inasmuch as, the same has not been served upon the Sabhapati and in view of section 105 sub-section (1), second proviso of The West Bengal Panchayet Act, unless a notice is served upon the Sabhapati, no meeting can be held by the requisitionist. Only in the event when the notice is served upon the Sabhapati and the Sabhapati fails to summon the meeting then only the requisitionist can convene the meeting. IN support of his submission, Dr. Pal further contended that a notice perhaps was sent and some one in the office received it but that is not to be treated as service upon the Sabhapati. According to Mr. Sundarnanda Pal, a notice was sent under registered post with acknowledgement due and that was served upon the Sabhapati through his agent. The xerox copy of the said acknowledgement due card is in annexure 'K' to the affidavit-in-opposition filed on behalf of respondent Nos.7 to 18, affirmed on 29th January, 1997. Mr. Susanta Mukherjee, on the other hand contended that there is no clerk in the office of the Sabhapati and as such, no clerk is entitled to receive the same on behalf of the Sabhapati. But there are clerks or dealing assistants in the office of the Block Development Officer and the office of the Sabhapati and the Block Development Officer are located in the same building. Mr. Ukil supported the submission of Mr. Pal. Repeatedly it was contended by Dr. Pal and his learned Junior Mr. islam that the post of the clerk to the Sabhapati is lying vacant. There may be divergent submissions and that may contradict each other but the record will specify the correct position. From annexure 'K' to the affidavit-in-opposition it appears that a notice was served upon the Sabhapati and the same was received by the receiving clerk of Rampurhat-II, Panchayat Samity. So, the submission that there is no clerk attached to the Sabhapati is not correct, because the record shows that there is a clerk in the office to Sabhapati. It has been specified in the West Bengal Panchayet Act, 1973 that unless such notice is there no meeting can be convened and an agent of the principal can receive the notice. IN the instant case, the agent of the Sabhapati is the clerk who received the notice. When there should be personal service that must contain in the Act and that may be found in the Criminal Procedure Code wherein it has been stated that summons must be served personally upon the person summoned. But there is no specification in the West Bengal Panchayet Act. 9. IN such circumstances, as the fact shows that the notice was received by the Sabhapah and It was received on his behalf by the receiving clerk, it is to be considered and treated that the Sabhapati has received the same and the Sabhapati has failed to convene the meeting. So, there is no difficulty in coming to a decision that the Sabhapati has failed to act in terms of the second proviso to sub-section (1) of section 105 of the West Bengal Panchayet Act. 4. There is another point regarding the self-same Panchayet. Three members submitted their resignation earlier and it was alleged that they were forced to submit their resignation. This court passed an interim order and the matter went up in appeal and the appeal court not only vacated the stay order but also dismissed the writ petition in F.M.A.T. No. 4267/ 96, holding, inter alia, that the provisions of Article 243(O)(b) of the Constitution of INdia the Writ Court had no jurisdiction to go into the question or validity of, the election of the Panchayet. This Article is perimaterla with the provisions of Article 329(b) of the Constitution of INdia in respect of which law has been clearly laid down by the Supreme Court in the case of Punnaswami v. Returning Officer reported in 1952 SCR, 218 and series of decisions starting therefrom. 5. That being the position as it is a process partaining to election and in such view of the matter, the writ application cannot be entertained and I, accordingly, dismiss the same. Let plain copies of this order counter signed by the Assistant Registrar (court) be given to the learned Advocates appearing for the parties. Application dismissed