Calcutta High Court (Appellete Side)
Prasenjit Rishi & Ors vs The State Of West Bengal & Ors on 23 August, 2021
10
Court
No. 19 23.8.2021 WPA 12968 of 2021
G.S.Da [
s
Prasenjit Rishi & Ors
-Vs-
The State of West Bengal & ors.
(Via Video Conference)
Mr. Shamim-ul-Bari
Miss Molly Saha
... for the petitioners
Md. Sarwar Jahan
Md. Ashraful Haq
Mr. Binay Shaw
... for the Respondent Nos. 7 & 8
Mr. Raja Saha
Ms. Rupsa Chakraborty
... for the State of West Bengal
The writ petitioners are the requisitionists who had
brought a requisition on July 8, 2021, requesting the
prescribed authority to convene a meeting for removal of the
Pradhan of RathbariGram Panchayat, District-Malda. The
Prescribed Authority issued a notice on July 15, 2021, inter
alia, stating that the date of the meeting will be notified later
in view of the covid restriction. Aggrieved by the petitioners
seek directions upon the prescribed authority.
Mr. Saha, learned Government Advocate appearing for
the State-respondents, submits that the requisition of July 8,
2021 has lost its force and the same cannot be revived by the
order of the Court as the statutory period prescribed under
Section 12(10) of the West Bengal Panchayat Act, 1973 has
expired. Mr. Saha further submits that the prescribed
authority is bound to act in terms of the provisions of the
statute and there is no reason why the prescribed authority
did not take any steps in accordance with law.
Having heard the rival contentions of the parties, as
the period prescribed under Section 12(10) of the statute, has
expired, the requisition dated July 8, 2021 has become
infructuous and is liable to be set aside.
The requisition notice and all subsequent notices are
set aside and cancelled.
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. In my opinion, the provision for removing an
elected representative such as the 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. The prescribed authority failed to take steps
in accordance with law and allowed the time to expire. At the
time the requisition was brought, government offices had
resumed functioning. Statutory meetings for normal
functioning of the offices and for carrying out the provision of
the Act had not been prohibited.
Reliance is placed on the decision of Ujjwal
Kumar Singha versus State of West Bengal & Ors.
reported in (2017) 2 CHN 258 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
Madamus Appeal. It appears that the
appellant/writ petitioners 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 the 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 utilization by
the Mediation and Conciliation Committee of the
High Court."
This writ petition is disposed of with liberty to
the requisitionists to bring a fresh requisition in terms
of Section 12(2) of the said Act. If such requisition is
brought, the prescribed authority shall satisfy himself
about compliance of Section 12(2) of the said Act and
then act and proceed in terms of Sections 12(3) and
12(4) onwards to reach the requisitions to its logical
conclusion within the period mentioned in the statute.
The bar under Section 12(11) shall not be applicable.
This Court is not making any observation on the
right of the Pradhan to continue in his office as the
said issue will be decided in the meeting itself. If
necessary, the prescribed authority may seek police
protection, which shall be rendered without any delay
or laches on the part of the police authorities. In
addition to the modes of service required by the
statute, the requisitionist shall be at liberty to paste
the requisition at a conspicuous place in the office of
the Pradhan and also at a residence of the Pradhan.
This writ petition is, thus, disposed of.
There will be no order as to costs.
All parties are to act on the learned advocates'
communication.
(Shampa Sarkar, J.)
