Sourendra Nath Das vs The State Of West Bengal & Ors
2021 Latest Caselaw 3983 Cal

 28.07.2021
Court No. 19
Item no.02
   CP
                                     WPA 11903 of 2021

                                  Sourendra Nath Das
                                          Vs.
                             The State of West Bengal & ors.

                                 (via video conference)


               Mr. Billwadal Bhattacharyya
               Mr. Debanik Banerjee
               MR. Amrit Sinha

                                             ....for the petitioner.


               Mr. Anirban Roy, Ld. G.P.
               Mr. Raja Saha
               Mr. Lalit Mahata
               Ms. Sangeeta Roy

                                           ....for the State.



                       Despite service, the requisitionists did not

               appear when the matter was taken up yesterday.

               Thereafter, the petitioner was asked to serve the

               requisitionists over telephone or WhatsApp or by

               other    electronic     methods.   Records     have   been

               produced as downloaded from the phone of the

               learned advocate-on-record showing that all the

               requisitionists were sent notice that the matter would

               appear today.

                       The   learned    advocate-on-record     personally

               submits before this court that he has sent notices

               and the WhatsApp information downloaded digitally

               from the phone is filed by him personally. The said
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notices     are   accepted.       It   appears   that   the

requisitionists do not have any interest to contest the

matter.

      The writ petition has been filed challenging a

requisition notice dated July 14, 2021. The petitioner

is the pradhan. Pursuant to the requisition dated

July 14, 2021, the prescribed authority called for the

meeting for removal of the pradhan scheduled to be

held today, i.e., July 28, 2021 at 12 noon. The

requisition has been challenged on the ground that

the requisition notice discloses allegations against

the pradhan. It is in vernacular, bengali. The

allegation is that the pradhan had since long failed to

perform his duties with regard to development of the

areas in question and his inaction has caused

suffering and deprivation to the persons in the

locality. Due to such inaction and/or incompetence

of the pradhan, the signatories/members of the gram

panchayat had lost confidence in the pradhan.

      It is submitted by the petitioner that 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
                             3




        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."

      Mr. Mahata, learned Additional Government

Pleader, 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   inaction   and

incompetence which is not stigmatic, and as such,

the foundation of the 'no confidence motion' is not

allegations of misconduct or mis-appropriation. 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.
                            4




      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 contains any allegation or

stigma could be entertained contrary to what was

decided   in   Ujjal   Mondal   (supra).   The   relevant

paragraphs of the said decision are quoted below:

              "3. The writ petitioner is now the
       appellant before us. It appears that the writ
       petitioner had approached the writ Court
       challenging a fresh notice of his removal as
       the Pradhan of the concerned Gram
       Panchayat which was issued by the
       requisitionists on 19th November, 2016,
       pursuant to the observations made by this
       Court as contained in the judgment and order
       dated 19th September, 2016, in a previous
       appeal, being MAT 1543 of 2016 with CAN
       8571 of 2016, which was preferred by the
       appellant herein against an order dated 5th
       August, 2016, passed by the writ Court in an
       earlier writ petition filed by him. Apart from
       the notice dated 19th October, 2016, the
       subsequent step taken by the Prescribed
       Authority was also made the subject-matter of
       the writ petition wherefrom the impugned
       order dated 18th November, 2016, emanates.
       The appellant herein challenged the action of
       the respondents exclusively on three grounds

which have been set out by the learned Single

Judge in page 2 of the impugned judgment and order dated 18th November, 2016. The same is reproduced hereinbelow:

'Mr. Bhattacharya has challenged the action of the respondents exclusively on three grounds. First, the notice is stigmatic in nature; secondly, the notice is bad in law as it does not express lack of confidence against the Pradhan; and thirdly, from the notice issued by the prescribed authority it is not clear for what purpose the meeting had been convened as he had failed to strike off the inapplicable words in the notice issued by him.'

4. The learned Single Judge dealt with the matter extensively and in details and came to a conclusion that the writ petition had absolutely no merit and the same was required to be dismissed in limine and the matter was accordingly dismissed.

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 vs. The State of West Bengal & Ors. reported in 2016 (5) CHN (Cal) 258, while following the observations made by the Supreme Court in Usha Bharti vs. State of U.P. & Ors. reported in 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)."

Another interim decision of a Division Bench

has been placed by the respondents, in the matter of

Prasanta Mitra Vs. The State of West Bengal passed

in MAT 1086 of 2019. Having perused the interim

order, this court is of the opinion that the

consideration before the Hon'ble Division Bench was

not with regard to any stigma or allegation in the

requisition notice.

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.

This court agrees with the proposition of

Mr. Mahata that it is the fundamental right of the

requisitionists to remove their leader if they have lost

their confidence in him. The pradhan was elected as

the leader of the gram panchayat in a democratic

process. He shall continue to be a leader till he

enjoys the confidence of the members. However, the

members have lost confidence in him, the pradhan

cannot stay for a day longer. This was also the

observation of the Hon'ble Supreme Court in the

matter of Usha Bharati vs. State of U.P., reported in

(2014) 7 SCC 663.

For the reasons stated above, the requisition

notice dated July 14, 2021 and the subsequent

notice dated July 16, 2021 are set aside.

The requisitionists are granted liberty to bring

a fresh requisition with immediate effect. 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. The bar under Section 12(11) of the said Act

shall not apply.

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.)