Calcutta High Court (Appellete Side)
Arsi Bibi vs The State Of West Bengal & Ors on 31 August, 2021
S/L 14
31.08.2021
Court. No. 19
CP
WPA 13415 of 2021
Arsi Bibi
Vs.
The State of West Bengal & Ors.
(Through Video Conference)
Mr. Srijib Chakraborty,
Mr. Aditya Mondal
... for the Petitioner.
Mr. Gangadhar Das
Mr. Tanmoy Chattopadhyay
.....for the respondent no. 6.
Mr. Lalit Mohan Mahata,
Mrs. Jhuma Chakrabarty
... for the State.
Affidavit of service filed in Court today be kept with
the record.
The writ petitioner is one of the requisitionists who
had brought a requisition on August 19, 2021, requesting the
prescribed authority to convene a meeting for removal of the
Pradhan of Fulbaria Gram Panchayat, District-Malda on the
ground of lack of confidence.
This is the second time that the prescribed authority
has failed to take steps in accordance with law despite there
being a specific direction of this court that if the petitioners
bring a fresh requisition in terms of Section 12(2) of the West
Bengal Panchayat Act, 1973 (hereafter referred to as the 'said
Act'), the prescribed authority shall adhere to the time limit
fixed by the statute and proceed in accordance with law to
reach the requisition to its logical conclusion.
Mr. Das, learned advocate appearing on behalf of the
pradhan, submits that the writ petition is premature as the
period of 30 days has not expired. The requisitionists do not
have the right to move this court at this stage.
Mr. Mahata, learned Senior Government Advocate
appearing for the State-respondents, submits that the
requisition of August 19, 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(3) of the West Bengal
Panchayat Act, 1973 has expired. Mr. Mahata further submits
that the prescribed authority was bound to act in terms of the
provisions of the statute and there is no explanation as to
why the prescribed authority did not take any steps in
accordance with law.
Having heard the rival contentions of the parties, as
the time period prescribed under Section 12(3) of the statute,
has expired, the requisition dated August 19, 2021 has
become infructuous and liable to be set aside.
The requisition notice and all subsequent actions are
set aside and quashed.
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.
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.)
