Calcutta High Court (Appellete Side)
Smt. Laxmi Oraon vs The State Of West Bengal & Ors on 31 August, 2021
31.08.2021
Sl. No.13
srm
W.P.A. No. 13412 of 2021
Smt. Laxmi Oraon
Vs.
The State of West Bengal & Ors.
Mr. Pratik Dhar,
Mr. Srijib Chakraborty,
Mr. Shamim-ul-Bari,
Mr. Aditya Mondal
...for the Petitioner.
Mr. Sabyasachi Chatterjee,
Mr. Sandipan Das,
Mr. Akashdeep Mukherjee,
Ms. Debolina Sarkar,
Mr. Ankur Sharma,
Mrs. Sreejita Biswas
...for the Respondent Nos.5 to 12.
Mr. Raja Saha,
Ms. Tanusri Chanda
...for the State-Respondents.
Affidavit of service is taken on record.
The petitioner is the Upa-Pradhan of Kshempur Gram
Panchayat, District-Malda. The requisitionists brought a
motion on August 2, 2021 for removal of the Upa-Pradhan.
The petitioner alleges that the meeting scheduled to be held on
September 2, 2021 is beyond the period of 30 days and is in
violation of Section 12(10) of the West Bengal Panchayat Act,
1973. As such, the said notice under Form 1E of sub-rule (2) of
the Rule 5B of the West Bengal Panchayat (Constitution) Rules,
1975 as also the requisition should be set aside and cancelled.
Mr. Chatterjee, learned Advocate appearing on behalf of
the requisitionists, submits that the prescribed authority had
called for a meeting on August 18, 2021 but notified that the
same could not be convened as the police authorities were not
in a position to provide assistance to the prescribed authority
at the meeting. It is further submitted that the right of the
requisitionists to remove the Upa-Pradhan by a democratic
process which has been recognised by Courts, cannot be
curtailed by such inaction or illegal action of the prescribed
authority. It is further submitted that the Upa-Pradhan has no
right to continue in his office when the members, who have
elected the Upa-Pradhan, have lost their confidence. It is
submitted that the Upa-Pradhan cannot stay in office for a
single day. According to Mr. Chatterjee as the meeting could
not be held earlier for reasons beyond the control of the
prescribed authority, the period of 30 days under Section
12(10) will not be applicable. The outer limit has expired and
the requisition has lost its force.
This court is of the opinion that the outer limit to
complete the entire process is 30 days from receipt of the
requisition.
Heard the parties. It is the democratic right of the
requisitionists, to seek the removal of their leader on whom
they have lost their confidence but, in accordance with law.
They are entitled to enforce such right and any delay by the
authorities will actually frustrate such right and destroy the
democratic set up of such institution. 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
explains why this provision of no-confidence motion has been
provided under the law.
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."
However, as the period prescribed under Section 12(10)
of the said Act, has expired, this Court sets aside and cancels
the requisition and the notice issued by the prescribed
authority under Form 1E of sub-rule (2) of Rule 5B of the said
Rules by granting liberty to the requisitionists to bring a fresh
requisition in accordance with law. If the said requisition is
brought, the prescribed authority shall reach the requisition to
its logical conclusion upon complying with the provisions of
Sections 12(3) and 12(4) onwards of the West Bengal Panchayat
Act, 1973, by strictly adhering to the time limit fixed by the
statute under Section 12(10). The bar under Section 12(11) shall
not apply as this is not a case that the requisition failed for
want of quorum or could not be carried through.
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 Upa-Pradhan
tries to avoid service of the 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 Upa-Pradhan in addition to sending the same by
registered post to the office and residence of the Upa-Pradhan.
The administration will be free to take all steps as per
law to maintain peace and tranquillity in the area during such
meeting if held.
This writ petition is, thus, disposed of.
There will be no order as to costs.
All parties are to act on the basis of the server copy of
this order.
(Shampa Sarkar, J.)
