Calcutta High Court (Appellete Side)

Kalpana Rakshit vs The State Of West Bengal & Ors on 23 August, 2021

Court No. 19 23.8.2021 WPA 12885 of 2021 G.S.Da [

s Kalpana Rakshit

-Vs-

The State of West Bengal & ors.

(Via Video Conference)

Mr. Partha Sarathi Deb Barman, Mr. Sougata Mitra, Ms. Salma Sultana Shah Ms. Ankita Dey.

Mr. R. Sinha ... for the Petitioner.

Mr. Lalit Mohan Mahato, Mr. Samirul Bari.

... for the State.

Mr. Supratim Dhar Mr. Dhananjay Nayak ... for the resondent nos. 7 to 12

The writ petition has been filed by the Pradhan

of Durku Gram Panchayat, challenging the notice of

the prescribed authority issued under Form-1E of Sub-

Rule (2) of Rule 5B of the West Bengal Panchayat

(Constitution) Rules, 1975. By the notice dated August

13, 2021, the prescribed authority called for a meeting

for removal of the Pradhan on August 24, 2021 at

12.30 p.m.

The first allegation of the petitioner is that the

prescribed authority had wrongly issued a notice under

Form-1E of Sub-Rule (2) of Rule 5B of the West Bengal

Panchayat (Constitution) Rules, 1975, as the

requisition brought by the requisitionists contained

allegations against the Pradhan and was not in effect a

notice under Section 12(2) of the West Bengal

Panchayat Act, 1973.

According to Mr. Deb Barman, such a requisition

for removal of the Pradhan should be carried out in

terms of the provisions of Section 213 of the West

Bengal Panchayat Act, 1973. It has been specifically

pleaded that the notice for removal in such a situation

should not be issued under Form-1E.

Mr. Dhar, learned advocate appearing on behalf

of the requisitionists submits that the requisition does

not disclose any serious allegations of misconduct or

acts of moral turpitude and as such there is no stigma

attached to the requisition.

Mr. Mahato, learned advocate appearing on

behalf of the State submits that the prescribed

authority has acted as per law under Section 12(3) and

12(4) of the said Act and has issued the notice. He

submits that the requisition does not contain any

stigma.

Having perused the requisition, I find that there

are direct allegations against the Pradhan to the effect

that the Pradhan had not done any work relating to

development of the locality and all developmental work

had been stalled and further that the Pradhan resisted

the members from developing the area. The foundation

of the requisition are the allegations stated

hereinabove. The Pradhan has a career and future

prospects and if he is removed from office on these

allegations without an opportunity to controvert the

same, that would be in violation of the principles of

natural justice.

Thus, the law is settled by this Court that there

cannot be any requisition under Section 12(2) of the

said Act containing allegations which may be stigmatic

to the persons sought to be removed. Reliance is placed

on the decision of Ujjal Mondal vs. State of West

Bengal reported in 2013 (1) CHN (CAL) and Sourendra

Nath Das vs. The State of West Bengal & Ors. passed

in WPA 11903 of 2021.

In my opinion, as the prescribed authority has

proceeded by treating the requisition to be one under

Section 12(2) of the said Act, the notice of meeting

dated August 13, 2021 issued pursuant to the said

requisition, cannot be sustained in law. The requisition

contains a stigma.

In the matter of Ujjal Mondal (supra) the Hon'ble

Division Bench of this Court held that the requisition

notice/no confidence motion was entertainable only

when there was no foundation for bringing the motion.

The relevant portion is quoted below:

"24. Having regard to section 101 of the said Act, we are of the view that a 'no confidence motion' is entertainable for removal of Prodhan where there should not be any ground or foundation of bringing 'no confidence motion' and if 'no confidence motion' is carried on that ground, it will invite civil consequence or evil consequence to the Office Bearers relating to his political career naturally and as such, natural justice principle will have play in the matter, thereby a breach of Article 14 of the Constitution of India."

This court in the matter Sourendra Nath Das v. The

State of West Bengal & ors. in WPA 11903 of 2021 held as

follows:

"Having considered the submissions made by the petitioner and the learned advocates for the prescribed authority, this court is of the opinion that a reading of the requisition notice (which is in bengali), as a whole, would indicate that in the opinion of the members, the pradhan has proved to be incompetent as he did not perform his duties and developmental works, causing deprivation to the people of the locality from the benefits all governmental projects, and thus the members had lost confidence in their leader and wanted his removal.

The effect of such a requisition is that the pradhan being incompetent to perform his duties had caused suffering to the people and would be consequently removed as the members lost confidence on account of such non-performance. The pradhan has a career. If the requisition is allowed to stand, it would be a reflection of his inability and incompetence in performing his duties as a leader of the gram panchayat. This is the foundation of the requisition. The 'no confidence' is based on the allegation of incompetence and inability of the pradhan and the suffering caused to the people in the locality due to such incompetence. This is not a simple requisition for removal of the pradhan. The removal if carried through in the meeting will carry a stigma that the pradhan was removed as he failed to perform his duties and developmental works.

In my opinion, the decision of Ujjal Mondal (supra) applies. Even if the allegations are not as serious as misappropriation or misconduct, incapacity or incompetence of a political leader to perform works in the locality which has cause disillusionment, unhappiness and suffering to the people in the locality are allegations which can be viewed with seriousness. The future prospects of the pradhan might be jeopardized. He will also not get a chance to explain his conduct. Thus, the requisition notice and subsequent notice are set aside for the reasons stated hereinabove."

Had it been a case that the prescribed authority

had treated it as a motion for removal of the Pradhan

in terms of Section 213 of the said Act, then the

prescribed authority ought to have heard the Pradhan

and proceeded in accordance with law. However, the

right of the requisitionists cannot be curtailed.

It is also clear that the Pradhan cannot stall the

meeting in any way because it is the right of the

requisitionists to remove the Pradhan for lack of

confidence, by bringing a simple requisition with their

intention under the provisions of Section 12(2) of the

said Act.

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.

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."

With the above observations, the writ petition is

disposed of by setting aside the requisition dated

August 10, 2021 as also the notice dated August 13,

2021 calling for a meeting for removal of the Pradhan.

No meeting will be held on August 24, 2021.

The requisitionists are granted liberty to bring a

fresh requisition under Section 12(2) of the said Act. If

such requisition is brought, the prescribed authority

shall act and proceed in terms of the provisions of

Sections 12(3) and 12(4) onward of the said Act. The

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

applicable. The time limit prescribed by the statute