Calcutta High Court (Appellete Side)

Subrata Singha vs The State Of West Bengal & Ors on 23 November, 2021

S/L 8
23.11.2021
Court. No. 19
GB
                              WPA 12811 of 2021

                                Subrata Singha
                                      Vs.
                        The State of West Bengal & Ors.

                          (Through Video Conference)


                Mr. Uday Narayan Betal,
                Mr. Somnath Adhikary.
                                                    ... for the Petitioner.

                Mr. Raja Saha,
                Mrs. Rupsha Chakraborty.
                                                      ... for the State.

                Mr. Sarwar Jahan.
                                    ... for the Respondent Nos.5 to 13.

This writ petition was made returnable on

September 16, 2021 upon exchange of affidavits, as

the Court was conscious that the re-election of the

Pradhan would have to be held within 30 days from

the date of the motion being carried through, that is,

August 23, 2021, in case the petitioner is removed.

The matter was adjourned at the instance of the

petitioner.

Occasion arose for issuing directions for filing of

affidavits only because there were disputed questions

of facts, which were required to be answered by the

respondents on oath. The court permitted the meeting

for removal of the Pradhan to be held, as the court was

not convinced prima facie with the contentions of the

petitioner with regard to non-compliance of Section

12(2) of the West Bengal Panchayat Act, 1973. Today,

the State respondents have filed their written version

in the form of an affidavit and a copy of the affidavit

used by the requisitionists is taken on record, as the

original has been misplaced. The said photocopy is

treated to be the original with the consent of the

parties.

The allegation is of non-service of the motion

upon the petitioner prior to issuance of the notice by

the prescribed authority convening the meeting for

removal of the petitioner (the erstwhile Pradhan). Non-

compliance of Section 12(2) and 12(3) of the said Act is

the sum and substance of challenge in the writ

petition.

From the averments in the affidavit-in-

opposition filed by the prescribed authority, it appears

that the prescribed authority satisfied himself that the

requisition was sent both to the office of the erstwhile

Pradhan and to the residence of the said Pradhan by

registered speed post at 1.16 p.m. on August 11,

2021. This fact is also admitted by the petitioner and

it is a part of the pleadings and documents in the writ

petition. The postal receipts annexed to the writ

petition show that two envelopes containing the

motion were sent separately to the residence and the

office of the Pradhan by registered post at 1.16 p.m. on

August 11, 2021. The prescribed authority has

categorically stated on oath that the satisfaction was

recorded on the basis of the submissions made and

documents shown by the requisitionists to the

prescribed authority at 3.30 p.m. on August 11, 2021.

All the requisitionists appeared before the prescribed

authority on August 11, 2021 at 2.30 p.m. The

prescribed authority has also stated that the

requisition was sent to the office of the Pradhan and

also to his residence by registered speed post on

August 11, 2021 at 1:16 p.m. and as such, compliance

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

1973 with regard to sending the motion to the office

bearer had been satisfied. He further stated that non-

acceptance of the notice at the office of the Pradhan on

August 9, 2021 was intimated to the prescribed

authority by a letter dated August 10, 2021, which is a

part of the records.

Mr. Betal, learned advocate appearing on behalf

of the petitioner submits that the postal receipts which

are annexed to the affidavit filed by the prescribed

authority are Whatsapp messages which show that the

same was sent to one of the requisitionists at 10.26.

According to him, the said receipt which has been

relied upon by the prescribed authority does not

disclose the date and the time when the receipts were

received by the prescribed authority or at least

perused by the prescribed authority before the notice

on August 11, 2021 was issued by the said authority.

According to him, the time mentioned at the top of the

Whatsapp message is contrary to what the prescribed

authority has submitted before this Court on oath.

Mr. Saha, learned advocate appearing on behalf

of the State submits that the only point to be

considered in this case is whether the prescribed

authority had satisfied himself with regard to the

compliances of Section 12(2) of the West Bengal

Panchayat Act, 1973 regarding delivering the motion

at the office and sending the same to the residence of

the office bearer sought to be removed. The admitted

position, according to Mr. Saha, is this case is that the

prescribed authority at the time of satisfying himself

was made aware by the requisitionists that the postal

articles containing the motion were served at the office

as also the residence of the erstwhile Pradhan and the

same were posted at 1.16 p.m on August 11, 2021. He

submits that the prescribed authority was not

required to obtain the receipts and verify the

documents as long as the checklist provided under

Section 12(2) of the West Bengal Panchayat Act, 1973

had been complied with. He further submits that the

receipts which have been annexed to the affidavit and

the time mentioned therein, do not indicate that the

same were received by the prescribed authority at the

particular time mentioned in the message. The

Whatsapp number mentioned on the said receipt does

not belong to the prescribed authority.

Mr. Jahan, learned advocate appearing on

behalf of the requisitionists submits that one Sujoy

Ghosh, one of the requisitionists along with Yousuf

Mohammad Sk. went to the office of the Pradhan at

2.00 p.m. on August 9, 2021 to hand over the

requisition notice to the Pradhan but as the Pradhan

was not present in office, the Secretary as well as the

Executive Assistant of the Gram Panchayat were

requested to receive the copy of the requisition. The

said persons refused to accept the same and asked the

requisitionists to come again on the next day. On

August 10, 2021, these requisitionists went to the

office of the Pradhan, but the Pradhan was not present

in the office and the Secretary and the Executive

Assistant refused to accept the requisition. Again on

August 11, 2021 the said Yousuf Mohammad Sk. and

Sujoy Ghosh went to the office of the Pradhan at 11.00

a.m. to deliver the requisition but on none of the

occasions was the petitioner present in the office and

the other staff refused to accept the motion. Finding

no other alternative, the requisition was sent by

registered speed post to the office of the Gram

Panchayat. They posted the motion at 1.16 p.m. on

August 11, 2021. These facts have been narrated

elaborately in paragraph-3 to paragraph-7 of the

affidavit-in-opposition filed by the requisitionists.

There is just an omnibus denial in the affidavit-in-

reply.

The prescribed authority also relies on a letter

issued by the requisitionists to the prescribed

authority dated August 10, 2021, from which it

appears that the requisitionists informed the

prescribed authority that on August 9, 2021 the

prescribed authority went to serve a copy upon the

Pradhan, but the same was not accepted and they had

decided to send the same by registered speed post.

In reply to the contentions of the prescribed

authority and also to the contention of the

requisitionists, the petitioner submits that the

requisitionists did not try to serve the copy of the

requisition in the office and the prescribed authority

acted without any proof of compliance of Section 12(2)

of the West Bengal Panchayat Act, 1973 as regards

service of the motion upon the office bearer.

Heard the parties. Records reveal that the

petitioner had enquired from the Secretary and the

Executive Assistant of the office of the gram panchayat

by two separate letters dated August 13, 2021 as to

whether any letters meant for the Pradhan had been

served in the office of the gram panchayat between

August 8, 2021 to August 11, 2021. Such letter has

been annexed by the petitioner himself, being

Annexure P-2. The letter is in Bengali and if the same

is translated, it would mean that the petitioner, by the

said letter wanted information as to whether any letter

meant for the Pradhan had been received either by the

Secretary or by the Executive Assistant of the said

Gram Panchayat between August 8, 2021 to August

11, 2021 and further that, in case any such letter was

received during that period, the same should be

delivered to the residence of the Pradhan. From these

two letters, the Court had drawn a presumption that

the Pradhan was not in his office at least between

August 8, 2021 to August 13, 2021. Had the Pradhan

been in office at the time when the requisition was

taken out, the occasion would not arise for the

Pradhan to enquire from the Secretary and the office

assistant on August 13, 2021 as to whether any letter

had been received, on his behalf and he would not

have directed them to reach the same to his residence.

The Pradhan could have himself gone to the office and

made queries and collected all that mails and letters

which had delivered at the office. The fact that the

Pradhan wanted all those mails and letters to be

delivered at his residence even on August 13, 2021,

logically would mean that the Pradhan was not

present in office to take delivery of any postal mails or

letters which may have been sought to be delivered

upon him personally by anyone. Thus, the contention

of the requisitionists on oath giving details of what

transpired between August 9, 2021 and August 11,

2021 is logical, reasonable and is accepted by the

Court. Contrary documents showing any official

activity by the Pradhan during such period in the

office is not before the Court.

The court sitting in judicial review over an action

of a statutory authority, cannot go into a minute by

minute investigation as to what transpired in the office

of the Gram Panchayat or in the office of the

prescribed authority. All that the Court is required to

see is whether the provisions of Section 12(2) of the

West Bengal Panchayat Act, 1973 was followed and

whether the prescribed authority satisfied himself

about the compliance of Section 12(2) of the West

Bengal Panchayat Act, 1973. Section 12(2) of the West

Bengal Panchayat Act, 1973 provides that one copy of

the motion shall be delivered to the concerned office

bearer by hand or by registered post at the Gram

Panchayat and another copy shall be sent by

registered post at his residential address.

In the peculiar facts of this case the, Pradhan

who was apparently not in office since August 8, 2021

up to August 13, 2021 and may be thereafter could

not have been served personally with the copy of the

requisition. The other staff refused service. Thus, the

motion was sent to the office of the Pradhan by

registered speed post on August 11, 2021 after three

attempts had failed and also to his residence by

registered speed post. The delivery of the requisition

upon the Pradhan is also not disputed. The same was

delivered both at his office and residence on August

13, 2021 at around 6.00 p.m. This is an admitted

position, which finds mention in paragraph-8 of the

writ petition.

As the time prescribed by the statute is limited

and the prescribed authority is required to act upon

such notice of motion within 5 working days from

receipt thereof and thereafter hold the meeting not

later than 15 working days upon giving 7 clear days'

notice, the prescribed authority was required to act

with promptitude. Continuous absence from office in

order to frustrate the meeting by causing delay which

would result in the expiry of the statutory period, is

evident from the facts of this case.

This is a peculiar situation when the

requisitionists could not find the Pradhan in his office

between August 9, 2021 to August 11, 2021. The

prescribed authority received the motion on August 9,

2021 having only 5 working days in hand to issue the

notice, took steps to convene the meeting on the third

day. Thus, when the requisitionists failed on three

occasions to serve the motion personally upon the

Pradhan at his office or through any member or official

in the said office, they sent it by registered speed post

and the prescribed authority upon being satisfied of

the steps that were taken by the requisitionists, issued

the notice of the meeting. The purpose of delivery of

the motion/requisition upon the Pradhan is to ensure

that the office bearer is aware of the requisition and of

the fact that the members having lost confidence in

him had requested that a meeting be convened for

removal of the Pradhan on such ground.

In this case the petitioner was aware of the no

confidence, which was brought against him definitely

on and from August 13, 2021 at 6.00 p.m. as per his

own version. I hold that the situation had become

impossible for the requisitionists to deliver the motion

in the office of the Pradhan. The performance of the

formalities prescribed by a statute has been rendered

impossible by the continuous absence of the Pradhan.

The requisitionists had no control over the action of

the petitioner and his staff and as such non-delivery of

the motion at the office will be taken as a valid excuse

in the peculiar facts of this case. Man-made situation

intended to defer the process prescribed under Section

12 of the said Act should be sternly dealt with.

Under the peculiar facts and circumstances, the

non-compliance which is alleged is inconsequential as

the same is not fatal to the result of the meeting and

the explanation given by the prescribed authority is

satisfactory. There has been substantial compliances

of the provisions of law. Had the Pradhan not received

the copy of the requisition before the meeting, the

situation would have been otherwise and the Court

would be constrained to cancel the entire process. The

meeting was fixed on August 23, 2021 and on August

13, 2021, that is, 10 days' prior to the meeting, the

petitioner was aware of the requisition if not earlier.

The petitioner also had the occasion to challenge the

meeting as also the notice as sufficient time had been

allowed by the prescribed authority before the meeting

was held. Thus, no legal right of the petitioner has

been affected in any way as the removal on the ground

of lack of confidence is a natural consequence of the

provisions of Section 12(2) of the West Bengal

Panchayat Act, 1973 onwards. The Pradhan who has

been chosen by the members to be their leader lost

confidence of his members. He could not have changed

the fate of either the meeting or the consequences

thereof, even if, the motion was received on August 9,

2021. He also challenged the said notice and the

requisition before this Court by moving the writ

petition which was taken up on August 17, 2021 prior

to the date of the meeting. The writ petition having

been filed on August 16, 2021.

There is no manner of doubt whatsoever that the

petitioner has been removed as the Pradhan of the

concerned Gram Panchayat by a majority vote. The

requisition notice issued by the members of the

concerned Gram Panchayat was challenged by the

Pradhan before this Court. Even though it is evident

that the Prescribed Authority has acted in conformity

with the provision of section 12 of the West Bengal

Panchayat Act, the conduct of the petitioner leaves no

manner of doubt whatsoever that instead of adhering

to and abiding by the established democratic

principles governing institutions such as a Gram

Panchayat, petitioner has chosen to try and wriggle

out from a situation where, admittedly, he lacks

support of the majority of the elected members of the

Gram Panchayat, by nit-picking before this Court on

such hypertechnicalities which are not at all germane

for consideration or adjudication in the facts of the

present case, in order to cling on to power, somehow.

The law additionally ensures elimination of

frivolous motion by introducing the requirement of

signatures of at least three existing members of a

Gram Panchayat to make a motion valid. Such

hypertechnical plea, as sought to be raised by the

learned advocate for the petitioner, cannot render a

transparent democratic process of bringing about a

motion of no confidence for removal of a Pradhan or

Upa Pradhan of a gram panchayat bad in law, unless

it squarely falls foul of the object of the provisions of

law, as discussed hereinabove.

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. The petitioner was

elected by the members as their leader and they

wished to remove him as they lost confidence in him.

Even after being removed by majority votes he cannot

insist on continuing as the Pradhan without any

support of the members. This would result in complete

anarchy and a stalemate condition would prevail in the

panchayat office.

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."

Thus, I do not find any reason to interfere with

either the result of the meeting or the notice of the

meeting. The meeting shall be given effect to. It is

submitted that the meeting has been held and the

Pradhan has been removed by majority vote. The

charge was handed over to the Upa-Pradhan as per

direction of the Court and re-election had not been

held. With the disposal of the writ petition, the

prescribed authority shall proceed with the re-election

in terms of Rules 6 of the West Bengal Panchayat

(Constitution) Rules, 1975 and the District Panchayat

Election Officer is directed to extend the time for