Kajal Sardar vs The State Of West Bengal & Ors
2021 Latest Caselaw 5722 Cal

22.11.2021
Sl. Nos.5&6
    srm
                                 W.P.A. No. 17370 of 2021
                                        Kajal Sardar
                                            Vs.
                              The State of West Bengal & Ors.

                                           With

                                 W.P.A. No. 17791 of 2021
                                  Mala Adhikary & Ors.
                                            Vs.
                              The State of West Bengal & Ors.



                         Mr. Sukanta Chakrabarty,
                         Mr. Anindya Halder
                                                        ...for the Petitioner
                                                        in WPA 17370/2021
                                                                         &
                                                          Respondent No.4

in WPA 17791/2021

Mr. Nilanjan Bhattacharjee, Mr. Arpan Guha, Mr. Kaustav Shome ...for the Petitioners in WPA 17791/2021 & Respondent Nos.10-19 in WPA 17370/2021.

Mr. Tapan Kumar Mukherjee, Mr. Pranab Halder, Mr. Somnath Naskar ...for the State in WPA 17370/2021.

These two writ petitions are taken up together at the

request of the learned Advocates for the respective parties as

the similar issues are involved in both the matters. The Court

is of the opinion that a composite order would be sub-serve

the interest of justice.

The W.P.A. No.17370 of 2021 has been filed by the

Pradhan of the Makardah-I Gram Panchayat, District-Howrah.

The Pradhan challenged the notice dated October 4, 2021

issued under Form 1E of sub-rule (2) of Rule 5B of the West

Bengal Panchayat (Constitution) Rules, 1975. By the said

notice, the date for holding the meeting for removal of the

Pradhan was fixed on November 3, 2021. It appears from the

records that the second notice dated October 4, 2021 was

brought pursuant to a liberty granted by this Court while

upholding the democratic rights of the requisitionists to bring

a requisition against the Pradhan in accordance with the

provision of Section 12(2) of the West Bengal Panchayat Act,

1973 (hereinafter referred to as the said Act).

It is submitted by Mr. Halder learned Advocate for the

state respondents that challenging the liberty granted by this

Court pursuant to which the impugned notice in W.P.A.

No.17370 of 2021 was issued, an appeal had been preferred by

the petitioner herein being MAT 1193 of 2021. Thus, Mr.

Halder submits that this writ petition cannot be entertained

unless the appeal is disposed of as the petitioner cannot

approbate and re-probate at the same time.

Mr. Chakraborty, learned Advocate appearing on behalf

of the petitioner in W.P.A. 17370 of 2021, submits that the

appeal has become infructuous and he does not want to

proceed with the appeal. He further submits that the appeal

was only restricted to a challenge to the liberty granted to the

requisitionists to bring a fresh requisition.

In my opinion, the writ petition being WPA 17370 of

2021 has also become infructuous as the prescribed authority

has postponed the meeting by a notice dated November 1,

2021 for an indefinite period. Thus the petitioner cannot have

any further grievance in respect of the requisition and the

notice for holding the meeting as both have died a natural

death.

It is the contention of Mr. Bhattacharya, learned

Advocate appearing for the petitioners in W.P.A. No.17791 of

2021/requisitionists, that despite specific directions of this

Court upon the prescribed authority to conclude the entire

proceeding within the time period prescribed by the statute,

the prescribed authority has flouted the order of the Court and

is hand in gloves with the Pradhan.

Mr. Chakraborty, learned Advocate appearing for the

Pradhan, however, submits that because the police authorities

could not render protection, the meeting was cancelled. Mr.

Chakraborty further submits that the prayers of the

requisitionists/ petitioners in W.P.A. 17791 of 2021, cannot be

allowed as the time period prescribed by the statute under

Section 12(10) has expired and no direction of the Court can

extend the period prescribed by the statute. He relies on a

decision of this Court in the matter of Jinnatun Khatun vs.

State of West Bengal reported in AIR 2016 Cal 221.

This Court is also of the view that the period prescribed

under Section 12(10) of the said Act has to be adhered to. A

special statute has prescribed different time limits for different

steps to be taken by the prescribed authority while dealing

with a requisition brought by the requisitionists for removal of

the Pradhan. Apart from Section 12(4) of the said Act, no other

section has provided a situation where a particular step may

not be taken for reasons beyond the control of the prescribed

authority or in case there is an order of the Court. If Sections

12(4) and 12(10) of the said Act are read together, the Court

does not find that the legislature had carved out a situation

when the 30 days mandate would not be applicable under

Section 12(10), in those exceptional situations which are

covered in Section 12(4) of the said Act.

Mr. Bhattacharjee submits that the prescribed authority

intentionally delayed the matter and ultimately cancelled the

meeting only to frustrate the efforts of the requisitionists. He

submits that by not adhering to the strict time period laid

down by the statute, the right of the requisitionists have been

denied once again. He submits that the writ court is not

powerless to extend the time for holding the meeting under

the peculiar circumstances of this case. He submits that the

democratic rights of the requisitionists cannot be curtailed

again and again. Thus the requisition dated October 4, 2021,

the notice dated October 4, 2021 and all subsequent notices

including notice dated November 1, 2021 are set aside and

quashed, granting liberty to the requisitionist to bring fresh

requisition in accordance with 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."

This Court is of the view that time period, being

mandated by the statute, has to be adhered to. The Court takes

judicial notice of the conduct of the prescribed authority in

violating the order of this Court and not acting as per law so

that the requisitionists could exercise their democratic rights in

accordance with law. Instead of venturing into an enquiry into

the conduct of the prescribed authority, the Court feels that the

action of the prescribed authority and the police authorities

should be enquired into by the District Magistrate so that in

future the subordinate officials of the District Magistrate are

cautioned to follow the law.

With regard to the liberty granted to the requisitionists,

this Court is of the view that although the statute prescribes a

right to the members to remove their Pradhan by a democratic

process as laid down in the statute, in this case, two attempts

have failed. One motion was brought sometime in August,

2021 but the prescribed authority sat tight over the requisition

and the requisition had died a natural death. This inaction was

challenged before this Court and this Court granted liberty to

the requisitionists to bring a fresh requisition as per law. By

granting such liberty, the Court is not extending the scope or

power of the requisitionists nor is the Court re-writing the law.

A right has been conferred by the statute casting an obligation

upon the prescribed authority to take steps for convening a

meeting for removal of the Pradhan if the motion is otherwise

in accordance with law. The prescribed authority has failed to

hold the meeting twice and the requisitions cannot be faulted.

Until and unless a requisition fails in the floor of the house for

lack of quorum or lack of adequate vote in favour of the

motion, there cannot be a bar in allowing the members to bring

a fresh requisition as per law. When the requisition brought by

the members were not at all acted upon, the court must step in

and grant them liberty so that the provision of law can be

implemented. The provision of law cannot be only to adorn

the statute book. The court has a duty to uphold the majesty of

law. It is only an opportunity given to bring a fresh requisition

when two attempts have failed due to the sheer inaction of a

statutory authority. The requisitionists may or may not

exercise such right on the basis of the liberty granted. In the

first instance, the requisition was not acted upon. In the second

instance, the requisition was acted upon but ultimately the

meeting was not held. Thus, in both the cases the motion had

lost its force and the requisitionists were denied their valuable

right.

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 inaction of an authority actually frustrates such right and

destroys the democratic set up of the institution. 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.

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 in which 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 the 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.

Liberty cannot be construed as an opinion on the right

of the Pradhan to continue in such capacity. It is a recognition

of the democratic rights given to the members of the Gram

Panchayat by the statute. Such liberty shall under no

circumstances be construed as an opinion of the Court or an

observation on the competence, capability and the right of the

Pradhan to continue in her office. Whether the Pradhan can

continue as the leader of the members will be decided on the

floor in the meeting that may be called on the basis of the

requisition.

As the prescribed authority has failed to discharge his

duties on two occasions, the Court requests the District

Magistrate, Howrah to monitor the situation.

These writ petitions are, 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.)