Calcutta High Court (Appellete Side)

Pranab Das vs The State Of West Bengal & Ors on 4 October, 2021

S/L 5
04.10.2021
Court. No. 19
GB
                                 WPA 15968 of 2021

                                    Pranab Das
                                        Vs.
                          The State of West Bengal & Ors.

                               (Through Video Conference)

                Mr. Srijib Chakraborty,
                Mr. Sabyasachi Chatterjee,
                Mr. Aditya Mondal,
                Mr. Sagar Dey.
                                                     ... for the Petitioner.

                Mr. Raja Saha,
                Mr. Shamim Ul Bari.
                                                            ... for the State.



                      The petitioner is one of the requisitionists, who

                brought two requisitions for removal of the Pradhan and

                Upa-Pradhan of Mahananda Tola Gram Panchayat.

                      It is the contention of the petitioner that the

                prescribed authority refused to accept personal service of the

                said requisitions. Under compulsion, the requisitionists sent

                the requisitions by e-mail and by registered post which

                reached the authority but the exact date could not be

                ascertained.

                      According to the requisitionists, the said requisitions

                were received at least on September 28, 2021 if not earlier,

                but the prescribed authority sat tight over the matter and did

                not take any steps to issue a notice calling for the meeting

                within the prescribed time. Instead, the prescribed authority

                issued a notice intentionally beyond the five working days'
                                2




for satisfaction of the compliance of Section 12(2) of the West

Bengal Panchayat Act, 1973 (hereinafter referred to as the

'said Act'). This, according to the petitioner is an arbitrary

and mala fide action on the part of the prescribed authority

which has been going on in collusion with the Pradhan and

the Upa-Pradhan.

       Mr. Chakraborty, learned advocate for the petitioner

prays for a mandatory direction upon the prescribed

authority to issue a notice calling for a meeting for removal,

within the prescribed period of five working days.

       Mr. Saha, learned advocate appearing on behalf of the

State respondents raises a question of maintainability of the

writ petition, inter alia, stating that the writ petition should

not be entertained in its present form. He submits that the

prayers in the writ petition for a mandatory direction upon

the prescribed authority to call the meetings could not be

clubbed together in one writ petition. The requisitions for

removal of the Pradhan and Upa-Pradhan are separate and

distinct. He further submits that the Court should refrain

from passing any order directing issuance of notice for

holding the meeting before the prescribed authority satisfies

himself about the compliances of Section 12(2) of the said

Act. Mr. Saha also denies the allegations of the requisitionists

that the prescribed authority did not accept personal service

of the requisitions.

The point of maintainability is not required to be

decided by the Court as the Court is of the opinion that no

mandatory direction in favour of the requisitionists can be

passed at this stage. Although, the Court is of the view that

the prescribed authority failed to discharge his duty under

the law by not acting in terms of the statute within the

prescribed time period, but without objective satisfaction of

the prescribed authority about compliance of Section 12(2) of

the said Act which is the mandate of the statue under Section

12(3) of the said Act, the Court cannot direct the meeting to

be held as prayed for by the petitioner. The laches on the part

of the prescribed authority is apparent on the face of the

record and the Court reprimands the same. However,

without going into further probe, as to the reasons behind

such inaction, the Court deems it fit to set aside the

requisitions, which have now become infructuous due to

non-compliance of the provisions of Section 12(3) of the said

Act, by granting fresh liberty to the requisitionists to bring

requisitions on the self-same causes of action for removal of

the Pradhan and Upa-Pradhan, if the situation so exists.

As this is a festive season and the office of the

prescribed authority shall be closed for a considerable

period, the parties shall take such steps upon taking into

consideration the prescribed/notified holidays. With the

above observations the requisitions and the subsequent

notices issued by prescribed authority are set aside and

cancelled.

As the specific allegations of the petitioner is that the

prescribed authority did not accept any communication from

the requisitionists, the Court directs the office of the

prescribed authority to accept personal service of any

requisition/motion from the said requisitionists even if the

same are sent through special messenger.

The Court does not find any reason as to why the

prescribed authority did not take proper steps. Section 12(3)

of the West Bengal Panchayat Act, 1973 has not been

complied with and the meeting has not yet been called.

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."

Under such circumstances, the requisitionists are

granted liberty to bring a fresh requisitions in accordance

with law. If the said requisitions are brought, the prescribed

authority shall reach the requisitions to their 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(4) and 12 (10) of the said Act. The

bar under Section 12(11) shall not apply, as this is not a case

that the requisitions failed for want of quorum or could not

be carried through.

It is further made clear that the prescribed authority