Shrikanta Mandal & Ors vs The State Of West Bengal & Ors
2021 Latest Caselaw 4342 Cal

S/L 15
23.08.2021
Court. No. 19
GB
                               WPA 13050 of 2021

                             Shrikanta Mandal & Ors.
                                        Vs.
                          The State of West Bengal & Ors.

                            (Through Video Conference)


                Mr. Gangadhar Das,
                Mr. Swarvanu Saha.
                                                    ... for the Petitioners.


                      Affidavits of service is taken on record. Despite service

                none appears on behalf of the respondents.

The writ petitioners are the requisitionists, who

brought a motion for the first time on May 5, 2021 under

Section 12(2) of the West Bengal Panchayat Act, 1973

(hereinafter referred to as the said Act), for removal of the

Pradhan of Kahala Gram Panchayat.

The prescribed authority upon satisfying himself

about the compliance of the provisions of Section 12(2) of the

said Act, issued a notice dated July 14, 2021 under Form 1E,

Sub-Rule (2) or Rule 5 of the West Bengal Panchayat

(Constitution) Rules, 1975. The date of the meeting was fixed

on July 27, 2021. One day before the date of the meeting, the

prescribed authority postponed the meeting, but thereafter

did not notify a subsequent date. The ground for

postponement was non-availability of police force.

Thereafter, some of the members once again brought a

requisition on August 3, 2021. The prescribed authority

called the requisitionists for verification on August 13, 2021

but did not take any steps thereafter.

Mr. Das, learned advocate appearing on behalf of the

requisitionists submits that the prescribed authority should

be directed to hold the meeting. In this case, the first

requisition was cancelled for non-availability of police force.

Thereafter, the prescribed authority did not inform the

requisitionists about the date when the meeting would be

held. On August 3, 2021 the prescribed authority received the

second requisition. Despite having received the said notice

on August 3, 2021, the prescribed authority issued a notice

for recording satisfaction about the compliances of Section

12(2) of the said Act on August 9, 2021 asking the

requisitionists to meet the prescribed authority for a hearing

on August 13, 2021 at 11.00 a.m. During such time the five

working days period to issue the notice expired.

Mr. Das further submits that the intention of the

prescribed authority was to allow the period of five working

days from the date of receipt of the motion to expiry without

issuance of the notice, so that the second requisition also gets

frustrated. The next contention of Mr. Das is that the law

does not prescribe that an elaborate hearing has to be held by

the prescribed authority before taking any decision. As per

the decision of the Hon'ble Division Bench in the matter of

Gopal Kumar versus State of West Bengal, reported

in 2015 (1) CHN Cal 445, has to perform a ministerial act

to ensure that the check list as provided under Section 12(2)

of the said Act had been complied with or not. The relevant

portion of the said judgment is quoted below:

"(22) In our view satisfying himself as regards the sufficiency of the motion really means that the Prescribed Authority has to ascertain with reference to sub-Section 2 whether the requirements mentioned therein are satisfied by the motion. No subjective exercise is involved therein. No executive or administrative order is to be issued by the Prescribed Authority by convening the meeting. It is more of a ministerial task.

(27) In view of the discussion above we are of the opinion that it was not the intention of the legislation to impose any obligation on the Prescribed Authority to record satisfaction regarding legal acceptability of a motion submitted under section 12(2) of the said Act before issuance of a notice of meeting under section 12(3) of the said Act. We are of the view that it is not necessary for the Prescribed Authority to record any such satisfaction and we agree with the view of the Ld. Judge in the case of Firoza Begam (Supra) that issuance of notice of meeting itself indicates such satisfaction. We answer the question of law referred to us accordingly."

It is urged that at the hearing held on August 13, 2021,

the petitioners satisfied the prescribed authority about the

compliance of Section 12(2) of the said Act, yet the

prescribed authority did not issue any notice of the meeting

and failed to hold the meeting within fifteen working days as

prescribed by the law.

In this case, I find that the prescribed authority has

acted contrary to the statute and failed to exercise the

jurisdiction under the provisions of Sections 12(3) and 12(4)

of the said Act. The action of the prescribed authority

appears to be an attempt to frustrate the rights of the

requisitionists under the law. Although the statutory period

prescribed under Section 12(10) of the said Act has not

expired, yet there are procedural irregularities and non-

compliances of Section 12(3) and 12(4) of the said Act. Thus

the requisition dated August 3, 2021 is set aside and

cancelled. The notice dated August 9, 2020 and all actions

are set aside and cancelled.

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.

The writ petition is disposed of, granting liberty to the

requisitionists to bring a fresh requisition in accordance with

the provisions of Section 12(2) of the West Bengal Panchayat

Act, 1973. If the same is brought, the prescribed authority

shall proceed in terms of Section 12(3), 12(4) and so on and

reach the meeting to its logical conclusion. The time period

prescribed by the statute should be mandatorily adhered to.

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

applicable in this case.

It is further made clear that the prescribed authority

shall be entitled to seek police protection and if such request

is made, the police authority shall render all support to the

requisitionists as also to the prescribed authority without any

delay and laches. It is also made clear that if the Pradhan

tries to evade service of requisition then the requisitionists

shall be entitled to serve the same in his office through his

secretary or assistant and if, such service is not accepted,

then the requisitionists will be entitled to paste the same at

the office of the Pradhan in addition to sending the same by

registered post to the residence of the Pradhan.

Accordingly, the writ petition is disposed of.

However, there will be no order as to costs.

All the parties are directed to act on the learned

advocate's communication.

(Shampa Sarkar, J.)