Calcutta High Court (Appellete Side)

Krishna Kanta Mandal & Ors vs The State Of West Bengal & Ors on 30 November, 2021

30.11.2021
 Sl. No.10
    srm
                                W.P.A. No. 18578 of 2021

                             Krishna Kanta Mandal & Ors.
                                          Vs.
                            The State of West Bengal & Ors.


                       Mr. Dipankar Pal,
                       Mr. Amit Bikram Mahata
                                                        ...for the Petitioners.

                       Mr. Mahim Sasmal
                                                              ...for the Pradhan.
                       Mr. Raja Saha,
                       Mrs. Tanusre Chanda
                                                 ...for the State-Respondents.

Affidavit of service is taken on record.

The Pradhan is represented.

Six out of ten members of Raniganj-I Gram Panchayat

brought a requisition for removal of the Pradhan of the

concerned Gram Panchayat on the ground of lack of

confidence. The prescribed authority issued a notice dated

November 9, 2021, that is, within five working days and

convened a meeting for removal of the Pradhan. The meeting

was scheduled to be held on November 17, 2021 at 12.00 noon.

On November 16, 2021, the prescribed authority issued a

notice postponing the said meeting on the ground of non-

availability of police force and apprehended breach of law and

order in the absence of police.

Mr. Amit Bikram Mahata, learned Advocate appearing

on behalf of the petitioners, who are the requisitionists, prays

that the writ petition be disposed of with a direction upon the

prescribed authority to hold the meeting within December 7,

2021 as the mandatory period of 30 days under Section 12(10)

of the West Bengal Panchayat Act, 1973 (hereinafter referred to

as the said Act) has not expired as yet.

Mr. Saha, learned Advocate appearing on behalf of the

prescribed authority, submits that the prescribed authority

called the meeting initially within 15 working days but the

meeting was postponed due to reasons beyond control and

such action of the prescribed authority cannot be called in

question as the law permits the prescribed authority not to

hold a meeting within 15 working days in case the situation is

beyond his control. According to him, anticipating the law and

order problem if such meeting would be held and the serious

consequences thereof, the prescribed authority postponed the

meeting for reasons beyond his control.

Mr. Sasmal, learned Advocate appearing on behalf of

the Pradhan, submits that as the provisions of Section 12(2) of

the said Act had not been complied with by the requisitionists

and the prescribed authority did not satisfy himself about such

compliance, no order can be passed in this writ petition.

According to Mr. Sasmal, the service of the requisition upon

the office assistant does not prove that the requisition was

delivered at least in one mode upon the Pradhan. He submits

that the office assistant, who received the requisition, was not

attending office and the said requisition was not handed over

to the Pradhan.

This is a serious breach, if the submission of Mr. Sasmal

is accepted by this Court. Mr. Mahata has failed to produce

any document before this Court in order to show that the

requisition was delivered upon the Pradhan at least by one

mode, that is, either in the office or at the residence. Mr.

Mahata has also not been able to produce any document to

show that the mandate of the law of sending the requisition by

registered post to the residence of the Pradhan, had been

complied with. The office assistant is not before the Court to

support the claim of the requisitionists that the said requisition

was sent to the Pradhan. Thus, in the facts of the case herein,

the records do not reveal that the service upon the Pradhan

had been done in accordance with the provisions of law.

Under such circumstances, this Court is of the opinion

that these factual disputes cannot be resolved at this stage and

as such no order can be passed in favour of the requisitionists.

Moreover, the Pradhan has categorically submitted that

neither the requisition nor the notice of motion for removal of

the Pradhan issued by the prescribed authority has been

served upon the Pradhan.

Thus, the requisition notice dated November 8, 2021,

notice of motion dated November 9, 2021 and the notice of

postpone of the meeting dated November 16, 2021 issued by

the prescribed authority are set aside and cancelled for the

reason of procedural irregularity.

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."

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 the motion could not be carried through. The

meeting was postponed by the prescribed authority.

It is further made clear that the prescribed authority