Md. Majibur Rahaman & Ors vs The State Of West Bengal & Ors
2021 Latest Caselaw 4320 Cal

 19.08.2021
Court No. 19
Item no.13
   CP
                                        WPA 12946 of 2021

                                   Md. Majibur Rahaman & ors.
                                               vs.
                                   The State of West Bengal & ors.

                                       (via video conference)

               Mr. Shuvro Prakash Lahiri
               Md. Habibur Rahman
               Mr. M. Ahmed Salik

                                           ....for the petitioners.
               Mr. Santanu Mitra
               Mr. Subhabrata Das

                                         .....for the State.

               Mr. Anjan Bhattacharya
               Ms. Anita Shaw

                                   .....for the respondent no. 8.

The petitioners are the requisitionists who

brought a requisition as majority members on

August 3, 2021 before the prescribed authority. The

said requisition was for removal of the pradhan of

Sahapur - II Gram Panchayat. It is the contention of

the petitioners that the requisition was brought for

the second time by the majority members of the gram

panchayat indicating their desire to remove the

pradhan for loss of confidence.

Mr. Lahiri, learned advocate appearing on

behalf of the petitioners, submits that this is the

second attempt of the requisitionists to exercise their

democratic right to remove the pradhan from his

office, which has been frustrated by the inaction on

the part of the prescribed authority. It is submitted

that the prescribed authority in collusion with the

pradhan has throttled the democratic rights of the

petitioners by once again cancelling the meeting on

the ground of spread of the pandemic. A notice dated

August 11, 2021 has been issued by the prescribed

authority citing that in view of the restrictions under

the provisions of the Disaster Management Act, 2005

read with the Pandemic Regulations of 2020, the

meeting could not be held.

The reasons given by the prescribed authority

is not acceptable to the court in view of the order of

the Government of West Bengal dated July 29, 2021

where the Covid restrictions have been substantially

relaxed. From the said order it is apparent that

meetings of such nature in Government offices and

other Government functions and gatherings were

allowed with 50% sitting capacity. Thus there was no

impediment on the prescribed authority to act in

accordance with the provisions of the statute under

Sections 12(2), 12(3) and 12(4) of the West Bengal

Panchayat Act, 1973 (hereafter referred to as the

'said Act').

However, Mr. Bhattacharya, learned advocate

for the pradhan, submits that pursuant to the liberty

granted by this court to the petitioner on July 14,

2021 in WPA 11230 of 2021, an appeal has been

preferred. No order has yet been passed. He submits

that the requisition was received by the prescribed

authority on August 3, 2021 but has not been acted

upon and the period prescribed under Section 12(3)

of the said Act has expired.

Mr. Mitra, learned advocate appearing on

behalf of the prescribed authority, also submits that

the requisition has now lost its force in view of the

expiry of the statutory period for issuance of the

notice by the prescribed authority under Section

12(3) of the said Act.

The court cannot help but notice the repeated

inaction on the part of the prescribed authority

despite directions of this court to follow the

provisions of the statute. Also there is no preventive

order restricting the requisitionists to bring a

requisition in accordance with law. Unless the

requisition is barred under Section 12(11) of the said

Act or cannot be acted upon due to non-compliances

of the provisions of Section 12, the democratic rights

of the requisitionists to bring a requisition or motion

for no confidence cannot be curtailed. This has been

legally recognized for a very long time.

In the decision of Ujjwal Kumar Singha v. State

of W.B. reported in 2017 SCC OnLine Cal 4636, it

was held that:

"5. The entire impugned judgment and order is supported with cogent reasons and there is no palpable infirmity noticed therein which would warrant any interference in an Intra-Court Mandamus Appeal. It appears that the appellant/writ petitioner resorted to taking shelter under the high prerogative jurisdiction of the High Court under Article 226 of the Constitution of India only for the purpose of thwarting the well-established democratic principles which govern the running of public institutions such as a Gram Panchayat, being at the lowest tier of self-governance at the village level in the three-tier Panchayati Raj System. In this context, one may take notice of the observations made by this Court in Farida Bibi v. The State of West Bengal reported in 2016 (5) CHN (Cal) 258, while following the observations made by the Supreme Court in Usha Bharti v. State of U.P. reported in (2014) 7 SCC 663 : AIR 2014 SC 1686, wherein it was observed to the effect that it is the fundamental right of democracy that those who have been elected can also be removed by expressing, 'No Confidence Motion' for the elected person. In an institution which runs on democratic principles, a person can continue to be its head so long he/she enjoys the confidence of the persons who comprised such a body. This is the essence of democratic republicanism which was taken note of by the Supreme Court in Usha Bharti (supra).

6. The appeal has no merit and is liable to be dismissed along with the application for stay with exemplary costs assessed at 500 G.Ms. which shall be deposited with the State Legal Services Authority for being earmarked for utilisation by the Mediation and Conciliation Committee of the High Court."

In my opinion, the provision for removing an

elected representative such as Pradhan is of

fundamental importance to ensure the democratic

functioning of the institution as well as to ensure the

transparency and accountability in the functions

performed by the elected representatives. These

institutions must run on democratic principles. In

democracy, all persons heading public bodies can

continue provided they enjoy the confidence of the

persons who comprise such bodies. This is the

essence of democratic republicanism. If the Pradhan

has lost support of the majority of the members, he

cannot remain in office for a single day.

However, due to the expiry of the period under

Section 12(3) of the said Act, the requisition and all

subsequent actions of the prescribed authority are

set aside and cancelled.

The writ petition is disposed of granting liberty

to the requisitionists to bring a fresh requisition in

accordance with law in terms of Section 12(2) of the

said Act. If such requisition is brought, the

prescribed authority shall act and proceed under

Sections 12(3) and 12(4) onwards, in order to reach

the requisition to its logical conclusion. The bar

under Section 12(11) of the said Act shall not be

applicable. The time limit prescribed by the statute

must be strictly adhered to.

The prescribed authority shall be at liberty to

seek police assistance. If such request is made, the

police authorities shall render all support to the

requisitionists as also the prescribed authority

without any delay and laches.

It is also made clear that if the pradhan tries to

evade the service of requisition, then the

requisitionists shall be entitled to serve the same in

the office of the Pradhan through his secretary or

assistant and if such service is not accepted they

would be entitled to paste or hang the same at a

conspicuous place in the office of the Pradhan in

addition to sending the same by registered post to

the office as well as the residential address of the

Pradhan.

The prescribed authority shall comply with this

order and take steps in accordance with law, failing

which the court shall be constrained to call for

explanations at the appropriate stage. It is also made

clear that the requisition has to be received in the

office of the prescribed authority and in his absence

by his secretary or any other official working under

him.

This writ petition is thus disposed of. There

will be however no order as to costs.

Parties are directed to act on the basis of the

server copy of this order.

Parties are also directed to act on the

communication of the learned advocate.

(Shampa Sarkar, J.)