Namita Roy (Gharami) vs The State Of West Bengal & Ors
2021 Latest Caselaw 4440 Cal

S/L 02
31.8.2021
Court No.19
CP
                              WPA 13274 of 2021

                              Namita Roy (Gharami)
                                        Vs.
                          The State of West Bengal & Ors.


              Ms. Jagriti Mishra
              Mr. Arindam Paul
                                              ... for the Petitioner.


              Mr. Lalit Mohan Mahata
              Mr. Supratim Dhar

                                       ... for the State.


                    Affidavit of service is taken on record.

                    On August 27, 2021, this matter was moved

              upon sending the writ petition upon the via speed post

              to the respondents 9 to 14. The court was not satisfied

with the service and directed the petitioner to serve via

WhatsApp. Today affidavit of service has been filed

indicating that the articles sent by Speed post has

been received by the respondents who are the

requisitionists and service through WhatsApp has also

been received by the requisitionists amongst six. Thus

the requisitionists are aware of the pendency of writ

petition.

The meeting has been fixed today at 12 noon. It

is 11.45 am now. The requisitionists have together

brought the requisition and some of them are aware of

the writ petition and that the matter will be taken up

today before 12 noon. There is no reason why the court

should not proceed with the matter. Hence the matter

is taken up.

The petitioner is the pradhan of Chowberia -II

Gram Panchayat. The contention of the petitioner is

that a requisition was brought on August 14, 2021 by

the respondents 9 to 14 under Section 12(2) of the

West Bengal Panchayat Act, 1973 (hereinafter referred

to as 'the said Act'), expressing their intention to

remove the Pradhan as the requisitionists had lost

confidence in the Pradhan. Upon being satisfied of the

compliances of Section 12(2) of the said Act, the

prescribed authority issued a notice under Form 1-E,

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

(Constitution) Rules, 1975, fixing August 31, 2021 at

12 noon as the date for holding the meeting for

removal of the pradhan. Allegations of non-cooperation

leading to total stoppage in all developmental activities

by the panchayat in the locality, has been made in the

said requisition. According to Mr. Mishra, learned

advocate for 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) 458 and

Sourendra Nath Das vs. The State of West Bengal &

ors. passed in WPA 11903 of 2021.

Mr. Mishra, learned advocate appearing on

behalf of the pradhan, submits that the requisition

contains a stigma and prays for setting aside of the

notice of the meeting.

The requisition which is in bengali read as a

whole indicates that the basis or the foundation of the

no confidence is the non-cooperation of the pradhan

while undertaking developmental work for

improvement of the locality, leading to total stoppage

of the working.

Mr. Mahata, learned advocate for the state

respondents submits that the notice is not stigmatic

as such. He distinguishes 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 is non-

cooperation which is not stigmatic. Mr. Mahata 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. Mahata, 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 decision of Ujjal Mondal vs. State of West

Bengal, reported in 2013 (1) CHN (CAL) 458, the

Division Bench of this court held that requisition

notice/no confidence motion was entertainable only

when there was no foundation for bringing the motion.

Paragraph 24 of the said decision 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. It appears that

there was a challenge to the no confidence motion

on the ground that the same was carrying allegations,

but the Hon'ble Division Bench held that the

learned Single Judge had dealt with the issues

and had dismissed the writ petition with reasons.

However, there is no observations as to whether the

requisition, even if, it contained any allegation or

stigma could be entertained contrary to what was

decided in Ujjal Mondal (supra).

This court in the matter of 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 submissions of the

learned advocates for the respective parties, this

Court is of the opinion that the issue before the

Hon'ble Division Bench with regard to the removal

of the pradhan is similar to the one raised by the

petitioner in the writ petition. The foundation of the

no confidence is allegations against the pradhan.

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 lack of proper

leadership, non-cooperation and incompetence, the

same becomes stigmatic as the pradhan is a politically

elected representative of the people and any allegation

of such nature may have a negative effect on his

future prospects and his credibility as a member

of the Panchayat may be affected.

Here the foundation of the 'no confidence' and

the intention to remove the Pradhan is the Pradhan's

non-cooperation to do developmental work and

stoppage of such work in the locality.

Thus, having considered the requisition notice

as a whole, it indicates that the ground for removal of

the Pradhan is not only lack of confidence but non-

cooperation of the Pradhan to perform developmental

works in the locality. Such allegations may also enrage

and turn the people in the locality against the

Pradhan.

Thus, in my view, the requisition cannot be

sustained in law only on the ground that there are

some allegations against the Pradhan which operate as

a stigma.

Under such circumstances, the requisition as

also the subsequent notices of the meeting, actions and

orders/resolutions are set aside and quashed.

The requisitionists are granted liberty to bring a

fresh requisition with immediate effect in accordance

with the provisions of 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

Section 12(3) and 12(4) of the West Bengal Panchayat

Act, 1973 in order to reach the requisition to its logical

conclusion. The time period prescribed by the statute

shall be strictly adhered to. The bar under Section

12(11) of the said Act shall not apply.

This court has not expressed any opinion on the

competence of the pradhan to continue in office as the

issue shall be decided at the meeting when called for.

The prescribed authority shall be entitled to call

for police help if the situation so demands and the

police authorities shall ensure and take prompt action

so that all police support is given to the parties involved

in the meeting. Delay or laches on the part of the police

authority shall be viewed strictly.

With the above observations, this writ petition is

disposed of. There shall be no order as to costs.

Parties are to act on the server copy of this order.

(Shampa Sarkar, J.)