Calcutta High Court (Appellete Side)
Naser Alam Haque vs The State Of West Bengal & Ors on 31 August, 2021
31.08.2021
Sl. No.9
srm
W.P.A. No. 13351 of 2021
Naser Alam Haque
Vs.
The State of West Bengal & Ors.
Mr. Sabyasachi Chatterjee,
Mr. Sandipan Das,
Mr. Akashdeep Mukherjee,
Ms. Debolina Sarkar,
Mr. Ankur Sharma,
Mrs. Sreejita Biswas
...for the Petitioner.
Mr. Sufi Kamal
...for the Respondent No.9/Pradhan.
Mr. Lalit Mohan Mahata,
Mr. Manas Kumar Sadhu
...for the State.
Affidavit of service is taken on record.
The Pradhan/respondent No.9 is represented.
The writ petition has been filed by one of the
requisitionists, who brought a requisition on August 4, 2021
for removal of the Pradhan of Bhakri Gram Panchayat,
District-Malda. By a notice dated August 6, 2021, the
prescribed authority issued a notice stating that the meeting
could not be held for situation beyond the control of the
prescribed authority.
Mr. Sufi Kamal, learned Advocate for the respondent
No.7, and Mr. Mahata, learned Advocate for the State-
respondents, submit that a notice dated August 27, 2021 has
been issued under Form 1E by the prescribed authority
indicating that on the basis of the requisition a meeting has
been called on September 8, 2021 at 11.30 a.m. According to
both the learned Advocates, the said meeting cannot be held as
the period prescribed in the statute has expired.
The Court does not find any reason as to why the
meeting could not be held and why it was beyond the control
of the prescribed authority to hold the meeting in accordance
with law. It is a rather whimsical and arbitrary decision of the
prescribed authority.
It is the democratic right of the requisitionists, to seek
the removal of their leader who has lost their confidence, 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 the body. 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:
"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).
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, the subsequent notice dated August 27, 2021
and the decision to hold the meeting on September 8, 2021 as
also the requisition are bad in law and cannot be sustained.
Under such circumstances, the requisitionists are
granted liberty 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) of the said Act. 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 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.
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.)
