Abdul Halim & Anr vs The State Of West Bengal & Ors
2021 Latest Caselaw 4734 Cal

10.09.2021
 Sl. No.1
    srm
                                W.P.A. No. 13730 of 2021

                                 Abdul Halim & Anr.
                                          Vs.
                            The State of West Bengal & Ors.


                       Mr. Sufi Kamal,
                       Mr. Gazi Faruque Hossain
                                                         ...for the Petitioners.
                       Mr. Lalit Mohan Mahata,
                       Mr. Supratim Dhar
                                                               ...for the State.
                       Mr. Sabyasachi Chatterjee,
                       Mr. Arup Sarkar,
                       Ms. Cardina Roy,
                       Mr. Aditya Mondal
                                          ...for the respondent Nos.7 to 15.

All parties are represented.

The petitioner No.1 is the Pradhan and petitioner No.2

is the Upa-Pradhan of Malatipur Gram Panchayat, District-

Malda.

The challenge in the writ petition is to the notice issued

by the prescribed authority on August 31, 2021 calling for the

meeting on September 13, 2021 for removal of the Pradhan of

the concerned Gram Panchayat.

It is the contention of the petitioners that the requisition

on the basis of which the meeting has been convened had been

set aside by this Court granting liberty to the requisitionists to

bring a fresh requisition by an order dated July 15, 2021.

The requisitionists state that they brought a requisition

only on August 28, 2021, which was received by the prescribed

authority on September 3, 2021. The prescribed authority set

aside the requisition received on September 3, 2021 because

the prescribed authority had called a meeting on August 31,

2021 on the basis of the requisition dated July 2, 2021.

The action of the prescribed authority is totally contrary

to the direction of this Court and also the provision of law. It

appears that the prescribed authority has intentionally tried to

frustrate each and every requisition brought by the

requisitionists and has also deliberately neglected to comply

with the direction of this Court. The Court by an order dated

July 15, 2021 in WPA No.11007 of 2021 directed that a fresh

requisition be brought by the requisitionists as the statutory

period under Sections 12(3) and 12(4) of the West Bengal

Panchayat Act, 1973 had expired.

The notice of motion dated August 31, 2021, the

requisition dated July 2, 2021 are set aside and cancelled in

view of the irregularities in the process. The meetings

scheduled will not be held.

The rights of the requisitionists to seek removal of the

Pradhan and Upa-Pradhan are democratic rights and neither

the prescribed authority nor the office-bearers can stand in the

way.

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."

These institutions 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. In my opinion, the provisions for removing an

elected representative such as the Pradhan or the Upa-Pradhan

are 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.

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 his office through his 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.

It is categorically directed that the prescribed authority

shall act and proceed in accordance with law and as per the

direction of this Court and report compliance to the District

Magistrate, Malda after entire process, if initiated by the

requisitionists on the basis of this order, is completed. The

conduct of the prescribed authority has been noted by this

Court and as a last chance to mend his ways no strictures are

issued.

The writ petition is, thus, disposed of.

There will be no order as to costs.

All parties are to act on the basis of the server copy of

this order.

(Shampa Sarkar, J.)