Nahar Sekh @ Nahar Ali Sk. & Ors vs The State Of West Bengal & Ors
2021 Latest Caselaw 5297 Cal

S/L 9
01.10.2021
Court. No. 19
GB
                                 WPA 14117 of 2021

                           Nahar Sekh @ Nahar Ali Sk. & Ors.
                                          Vs.
                            The State of West Bengal & Ors.

                              (Through Video Conference)

                Md. Sazahuddin,
                Md. A. Zaman.
                                                      ... for the Petitioners.

                Mr. Lalit Mohan Mahata,
                Mr. Kapil Guha.
                                                           ... for the State.

                Mr. Asit Kumar Biswas,
                Mr. Amit Singh.
                                  ... for the Respondent Nos.7 to 13.

Affidavit-of-service filed in Court today be kept with

the record.

The writ petition has been filed by the requisitionists,

who brought a requisition on August 23, 2021 for removal of

the Pradhan of Patikabari Gram Panchayat, District-Nadia. It

is alleged that the prescribed authority sat tight over the

matter. Hence, the petitioners have come up before this

Court.

According to the learned Advocates for the

respondents, the meeting for removal of the Pradhan cannot

be held as the period prescribed under the statute has

expired.

The Court does not find any reason as to why the

prescribed authority did not call the meeting. In the

meantime Section 12(3) and Section 12(4) of the West Bengal

Panchayat Act, 1973 has not been complied with.

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 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.

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."

As the outer limit of thirty days provided under

Section 12(10) of the West Bengal Panchayat Act, 1973 has

also expired, the requisition dated August 23, 2021 as also

subsequent actions, if any, are set aside and cancelled.

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 the 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.

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 learned

advocate's communication.

(Shampa Sarkar, J.)