Mukti Halder vs The State Of West Bengal & Ors
2021 Latest Caselaw 4380 Cal

S/L 7
24.08.2021
Court. No. 19
srm
                              W.P.A. 13099 of 2021

                                    Mukti Halder
                                         VS
                           The State of West Bengal & Ors.

                            (Through Video Conference)


                Mr. Sarwar Jahan,
                Mr. Asraf Mandal
                                                    ... for the Petitioner.

                Mr. Tarunjyoti Tewari
                                           ... for Respondents Nos. 6 to 25.

Mr. Raja Saha, Mr. Shamim-ul-Bari ... for the State.

The writ petition has been filed by the Pradhan of

Tehatta Gram Panchayat, District-Nadia. The contention of

the petitioner is that a requisition was brought on August 9,

2021 by some of the respondents expressing their intention

to remove the Pradhan. The requisitionists had lost

confidence in the Pradhan. Allegation has been made in the

motion that the Pradhan did not help and co-operate with

the member for effecting developmental work and failed to

serve the persons in the locality. Further allegation had been

levelled that the Pradhan did not cooperate with the

members.

According to Mr. Jahan, learned advocate appearing

on behalf of the petitioner, the said requisition contains a

stigma.

Reliance has been placed on a decision of this Court in

the matter 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.

According to Mr. Tewari, learned advocate appearing

on behalf of the requisitionists, the intention to remove

would suffice the requirement of law and the allegations

against the Pradhan of not doing any developmental work

and not cooperating with the members, could easily be

ignored. Thus, it is submitted on behalf of the requisitionists

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

Panchayat Act, 1973 allows such kind of a requisition when

the only requirement was an intention to remove the

Pradhan on account of loss of confidence. He submits that

the other portions of the requisition are redundant and

neither the prescribed authority nor the Court can take

cognizance of such statement. Those statements do not have

any impact on the requisition.

Mr. Saha, learned advocate for the state respondents

submits that the notice was not stigmatic as such. He

distinguished the decision of Ujjal Mondal (supra) on the

ground that in Ujjal Mondal (supra), the allegations were

more serious. According to him, in this case the allegation was

inaction and non-cooperation which are not stigmatic, and as

such, the foundation of the 'no confidence motion' is not

misconduct or mis-appropriation. Mr. Saha refers to a

decision of a Division Bench of this court in the matter of

Ujjwal Kumar Singha Vs. State of West Bengal, reported in

(2017) 2 CHN 258 (DB). In the said decision, the court

observed that 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. According to Mr. Saha, one of the challenges before the

Division Bench was that the requisition notice carried a

stigma, but the Division Bench did not set aside the

requisition.

I have heard the learned Advocate for the respective

parties.

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."

Having perused the judgment of the Division Bench in

Ujjwal Kumar Singha (supra), I do not find that the Division

Bench decided the point as to whether the requisition which

carries some allegation against the Pradhan could be

entertained.

This court in the matter Sourendra Nath Das v. The

State of West Bengal & ors. (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."

Having considered the rival submissions of the

learned advocates for the respective parties, this Court is of

the opinion that the issue before the Hon'ble Division Bench

in Ujjal Mondal (supra) with regard to the removal of the

Pradhan was similar to the one raised by the petitioner in the

writ petition, that is, that the foundation of the 'no

confidence' and the intention to remove the Pradhan cannot

contain a stigma.

Inability of the Pradhan to do any developmental

work, non-cooperation with the members and disservice to

the local people are stigmatic. The Pradhan can be removed

by the requisitionists if they have lost confidence in him by

bringing a requisition with the intention to remove. As soon

as there is an allegation of incapacity, incapability, arrogance

or non-cooperation, the same becomes stigmatic. The

Pradhan is a politically appointed representative of the

people and is bound to serve the people. Allegations of such

nature may have a negative effect on her future prospects

and her credibility as a member of the Panchayat may be

affected.

Thus, having considered the requisition notice as a

whole, I am of the view that it indicates that the lack of

confidence on the Pradhan was due to the incompetence of

the Pradhan, to perform developmental work in the locality

and non-cooperation in serving the public. Such allegations

can also enrage and turn the people in the locality against the

Pradhan.

Thus, in my view, with due respect to the submissions

made by the learned advocates of the requisitionists, the

requisition cannot be sustained in law, only on the ground

that there are allegations against the Pradhan, which form

the foundation of the no-confidence.

Under such circumstances, the requisition dated

August 9, 2021 as also the notice of motion dated August 13,

2021 and all subsequent actions are set aside and quashed.

This matter is entertained solely for the reasons indicated

hereinabove. The meeting for removal cannot be held on the

basis of the said requisition.

However, the Court is conscious of the rights of the

requisitionists.

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. 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.

I do not find that the petitioner has any statutory or

legal right to stall any meeting except in accordance with

law. Such meetings have not been barred by the

Government. The Government offices have resumed

functioning.

The requisitionists are granted liberty to bring a fresh

requisition as per Section 12(2) of the West Bengal Panchayat

Act, 1973. If such requisition is brought, the prescribed

authority shall act and proceed in terms of the provisions of

Sections 12(3) and 12(4) onwards of the said Act and reach

the requisition to its logical conclusion within the time limit

prescribed by the statute. The bar under Section 12(11) of the

said Act shall not be applicable.

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.

Parties are directed to act on the communication of

the learned advocates.

(Shampa Sarkar, J.)