Calcutta High Court (Appellete Side)
Swapan Banerjee & Ors vs The State Of West Bengal & Ors on 1 September, 2021
S/L 13
01.09.2021
Court. No. 19
sn
WPA 12652 of 2021
Swapan Banerjee & Ors.
Vs.
The State of West Bengal & Ors.
(Through Video Conference)
Mr. Samiran Mandal,
Mr. Abhinaba Dan,
Mr. Nitish Samanta.
... for the Petitioners.
Mr. Rudranil De.
... for the Respondents.
Mr. Anirban Ray, Lr. G.P.
Mr. Raja Saha,
Mrs. Tanusri Pal Chowdhuri.
... for the State.
The requisitionists who are the members of Somra II
Gram Panchayat had brought a second requisition before the
prescribed authority under Section 12(2) of the West Bengal
Panchayat Act, 1973. The said requisition was brought on
July 8, 2021. It is alleged that despite having received such
requisition, the prescribed authority failed to convene a
meeting under political pressure. It is alleged that the
meeting was not called by citing the Covid-19 restrictions
imposed by the State of West Bengal under the Disaster
Management Act read with West Bengal Epidemic Disease,
Covid-19 Regulations, 2020. Allegations of mala fide,
collusion with the Pradhan have also been made.
Mr. Saha, learned advocate for the State respondents
submits that as Covid restrictions have been relaxed the
meeting should have been called by the prescribed authority
in accordance with law. If the prescribed authority was
satisfied about compliance of Section 12(2) of the said Act
the meeting should have been convened, but as the period of
30 days has expired, the said requisition has lost its force.
Mr. De, learned advocate appearing on behalf of the
Pradhan submits that requisition notice is stigmatic. In any
event, the requisition has already lost its force and liable to
be set aside by this Court. The allegations against the
Pradhan does not survive.
The Covid restrictions had been relaxed over a period
of time by the Government of West Bengal. Inability to call a
meeting due to the rise of the Covid 19 situation is not a valid
reason. It appears that the prescribed authority has
repeatedly tried to frustrate the attempts of the
requisitionists to discharge their democratic rights. This is
the second occasion when the requisition has been brought.
The statute provides a specific method and procedure for
calling such a meeting under Section 12(2) of the said Act.
None of the procedure prescribed under Sections 12(3), 12(4)
onwards has been observed by the prescribed authority. The
prescribed authority has sat tight over the matter and
allowed the requisition to lose its force.
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, he cannot remain in office for a
single day. Admittedly the Pradhan has not yet been
removed.
In the decision of Ujjwal Kumar Singha v. State of
W.B. reported in 2017 SCC OnLine Cal 4636, it was held that:
"5. 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).
6. 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, as the requisition has
already expired because of lapse of time and the requisition
has not been acted upon, the bar under Sections 12(3), 12(4)
and 12(10) of the said Act has come in the way. Thus the
requisition notice dated July 8, 2021 is set aside and
cancelled.
The writ petition is disposed of upon granting liberty
to the requisitionists/members to bring a fresh requisition
under Section 12(2) of the said Act. If such requisition is
brought, the prescribed authority shall act and proceed in
terms of the provisions of Sections 12(3) and 12(4) onwards
of the said Act and reach the requisition to its logical
conclusion. The bar under Section 12(11) of the said Act shall
not be applicable. The time frame prescribed by the statute
under Section 12(10) shall be adhered to by the prescribed
authority.
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 avoid service of the requisition, then the
requisitionists shall be entitled to serve the same in his office
through his secretary or assistant and if, such service is not
accepted, then the requisitionists will be entitled to paste the
same in the office of the Pradhan in addition to the modes of
service provided under Section 12(2) of the said Act.
This Court desires that the District Magistrate of
Hooghly ensures compliance of the order in accordance with
law.
Accordingly, the writ petition is disposed of.
However, there will be no order as to costs.
All parties are directed to act on the basis of the
learned advocate's communication.
(Shampa Sarkar, J.)
