Jhuma Rani Sarkar vs The State Of West Bengal & Ors
2021 Latest Caselaw 5540 Cal

S/L 9
7.10.2021

sn WPA 16849 of 2021

Jhuma Rani Sarkar Vs.

The State of West Bengal & Ors.

(Through Video Conference)

Mr. Kallol Basu Mr. Alokesh Dalai ... for the Petitioner.

Mr. Raha Saha Mr.Shamim Ul Bari ... for the State.

                Md. Salahuddin
                Md. A. Zaman                ..for the repsts.7-14

This writ petition has been filed challenging a

notice issued by the prescribed authority dated

September 30, 2021 fixing October 8, 2021 as the date

for holding the meeting for removal of the Pradhan of

Majherram No.1 Gram Panchayat, District Nadia.

It is the contention of the petitioner that the

prescribed authority failed to comply under Section

12(3) of the West Bengal Panchayat Act, 1973.

Reliance has been placed on the decision of Gopal

Kumar & Anr. Vs. The State of West Bengal & Ors. (WP

24555 (W) of 2014) reported in 2015 (1) CHN Cal.

The contention of the petitioner is that the

provisions of Section 12(2) have not been complied

with. The prescribed authority did not record

subjective satisfaction with regard to such compliance.

Documents have been handed over to the Court, which

show that the requisitions in both modes were received

by the Pradhan after the meeting was convened by the

prescribed authority.

Prima facie, it appears from the documents

handed over by the learned advocate for the

requisitionists, that pursuant to the leave granted by

this Court the requisition was brought. The Court had

also granted leave to the requisitionists to paste the

requisition at a conspicuous place at the office of the

Gram Panchayat in case, the Pradhan and/or her staff

refused to accept the requisition.

Md. Salauddin has handed over a picture which

depicts that the requisition was pasted outside the

office of the Gram Panchayat. Thus, he submits that

the Pradhan was aware of the requisition. Although,

the law provides that the requisition should be

delivered to the Pradhan through one mode, the

requisitionists were granted liberty by this Court to

paste the requisition or also hang the same in case of

refusal of the Pradhan or absence from office, to avoid

such service.

On and from September 27, 2021, the Pradhan

was aware that liberty had been granted by this Court

to the requisitionist to hang the newly brought motion

at a conspicuous place. Thus, at this belated stage

when all arrangements have been made for the

meeting and all the members are to participate in the

same, there cannot be any mandatory order of stay of

the meeting scheduled to be held on October 8, 2021.

Such an order would amount to allowing the prayers

in the writ petition as a whole, at the interim stage.

In my opinion, the provision for removing an

elected representative such as the Pradhan is of

fundamental importance, to ensure the democratic

functioning of the institution as well as to ensure the

transparency and accountability in the functions

performed by the elected representatives. 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 is the essence

of democratic republicanism. If the Pradhan has lost

support of the majority of the members, she cannot

remain in office for a single day. Admittedly the

Pradhan has not yet been removed. Thus the meeting

must go on.

The matter is required to be heard on affidavits.

Let affidavit in opposition be filed within three

weeks after reopening of the Court after puja vacation;

reply thereto, if any, be filed within two weeks

thereafter.

Liberty is granted to the parties to mention the

matter before the appropriate Bench after completion

of affidavits.

All actions taken pursuant to the said meeting

including re-election of the new Pradhan, in case the

pradhan is removed by the majority vote, shall abide

by the result of the writ petition.

The meeting should be held in accordance with

law.

In the affidavit in opposition the requisitionists

shall specifically state how and when attempts were

made for service of the requisition, and who refused to

accept service thereby compelling the requisitionists to

hang the same. The prescribed authority shall also file

an affidavit recording how the satisfaction was made.

Prima facie view of the Court is that the decision

of Gopal Kumar(Supra) is not required to be gone into

at this stage, as subjective satisfaction is neither the

mandate of law nor the ratio of the said judgment.

This writ petition is disposed of.

There will be, however, no order as to costs. All the parties are directed to act on the learned advocate's communication.

(Shampa Sarkar, J.)