Calcutta High Court (Appellete Side)
Md. Aliul Sk vs The State Of West Bengal & Ors on 31 August, 2021
S/L 6
31.08.2021
GB
WPA 13261 of 2021
Md. Aliul Sk.
Vs.
The State of West Bengal & Ors.
(Through Video Conference)
Mr. Anjan Bhattacharya,
... for the Petitioner.
Mr. Lalit Mohan Mahata,
Mr. Kapil Guha.
... for the State.
Despite service none appears on behalf of the
Pradhan.
Mr. Bhattacharya, learned advocate for the petitioner
hands over the affidavit-of-service along with the postal
article sent to the Pradhan which bears the endorsement
"refused". The Pradhan has refused service. Let the affidavit-
of-service and the postal article in a sealed cover be kept with
the record.
The matter is taken up as no orders are being passed
in the writ petition affecting the right of the Pradhan. In the
opinion of the Court, the requisition on the basis of which
Mr. Bhattacharya's client wants a meeting to be held by the
prescribed authority, cannot be allowed due to the expiry of
the time prescribed by the statute.
The petitioner is one of the requisitionists, who along
with other members brought a motion before the prescribed
authority on August 10, 2021 expressing their intention to
remove the Pradhan. The requisitionists had lost confidence
in the Pradhan, who is allegedly absent from office and was
charged with offences under the Indian Penal Code.
However, this is a notice for removal simpliciter for lack of
confidence. The same was not acted upon by the prescribed
authority. It appears that for some time Upa-Pradahn was in
charge. However, this court has not gone into the allegations
of criminal offence, enquiry and alleged activities of either
the Pradhan. There is also an order of the court granting
liberty to the requisitionists to proceed for removal of the
Upa-Pradhan in accordance with law.
Mr. Mahata, learned advocate appearing on behalf of
the State submits that the provisions of Sections 12(3) and
12(4) have not been complied with and the respective
statutory periods for discharge of certain functions by the
prescribed authority had expired.
It appears that the time limit for calling the meeting
and holding the meeting have expired. The meeting cannot
be held beyond 15 working days from receipt of motion
unless prevented by reasons beyond the control of the
prescribed authority. The requisition notice dated August 10,
2021 is set aside.
However, the requisitionists cannot suffer due to
either the inaction and/or erroneous action of the prescribed
authority.
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. 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. Admittedly the Pradhan has not yet been
removed.
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."
Under such circumstances, as the requisition has
already expired because of lapse of time and the notice dated
August 10, 2021 has not been acted upon, the bar under
Sections 12(3) and 12(4) of the said Act has come in the way.
Thus the requisition notice August 10, 2021 is set aside and
cancelled.
The writ petition is disposed of upon granting liberty
to the requisitionists/members 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) onwards
of the said Act and reach the requisition to its logical
conclusion. The bar under Section 12(11) of the said Act shall
not be applicable. The time frame prescribed by the statute
under Section 12(10) shall be adhered to by the prescribed
authority.
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 in
the office of the Pradhan in addition to the modes of service
provided under Section 12(2) of the said Act.
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.)
