Mantu Sarkar & Ors vs The State Of West Bengal & Ors
2021 Latest Caselaw 4760 Cal

13.09.2021 Sl. No.6 srm

W.P.A. No. 14399 of 2021 Mantu Sarkar & Ors.

Vs.

The State of West Bengal & Ors.

Mr. Gangadhar Das, Mr. Swarvanu Saha ...for the Petitioners.

Mr. Raja Saha, Mr. Pinaki Bhattacharyya ...for the State.

Despite service, none appears on behalf of the

Pradhan of Mahishbathani Gram Panchayat, District-

Malda. Affidavit of service is taken on record.

The petitioners are the requisitionists who brought

a requisition on August 23, 2021 expressing their desire

to remove the Pradhan of the said Gram Panchayat on

the ground of lack of confidence. The meeting on the

basis of the requisition dated August 25, 2021 was fixed

on September 8, 2021. The Pradhan and some of the

members challenged the earlier notice fixing the meeting

for removal of the Pradhan on September 8, 2021 on the

ground that the meeting could not be held due to the

pendency of a complaint under Section 11(1)(c) of the

West Bengal Panchayat Act, 1973 before the Sub-

Divisional Officer, Malda Sadar, against one of the

requisitionists.

This Court upon consideration of the writ petition

being WPA No.13737 of 2021 was of the opinion that the

pendency of the complaint before the Sub-Divisional

Officer against one of the requisitionists would not stand

in the way in holding the meeting scheduled to be held

on September 8, 2021. This Court directed that the

meeting should be held on the date fixed.

The petitioners have now come before this Court

being aggrieved by the postponement of the meeting by

an order dated September 7, 2021 and fixed the meeting

on September 15, 2021 at 11.30 a.m. The apprehension

of the requisitionists are that when the Court had

decided not to interfere with the meeting and had

directed that the meeting should be held on the date

fixed, the postponement of the meeting by the prescribed

authority was an attempt to frustrate the requisition.

The petitioners apprehend that the prescribed authority

would further postpone the meeting and ultimately

render the requisition infructuous.

Mr. Saha, learned Advocate appearing on behalf of

the prescribed authority, submits that due to some

government programmes and unavailability of the police

force, the prescribed authority could not hold the

meeting. Mr. Saha further submits that the decision of

this Court was that the meeting should be held on the

scheduled date as no interference was called for, but it

was not mandatory that the prescribed authority should

hold the meeting on the date fixed and could not

postpone the meeting for reasons beyond control. He

assures the court that the meeting will be held.

Having considered the rival contentions of the

parties, this Court is of the opinion that the rights of the

requisitionists to bring a motion for removal of their

elected leader on the ground of lack of confidence is a

democratic right.

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. In my opinion, the

provision for removing an elected representative such as

the Pradhan or the Upa-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.

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."

Thus, this Court is of the opinion that the meeting

should be held as per the notice dated September 7,

2021 and no interference is called for. The

postponement, according to the Court, was for reasons

situation beyond the control. The prescribed authority

was in a position to assess the ground reality and

was of the opinion that without adequate police

protection the meeting could not be held. The Court

cannot interfere with such factual findings of the

prescribed authority. The law permits the prescribed

authority to hold the meeting beyond the mandatory

period of 15 working days from the date of receipt of the

requisition, for the reasons beyond the control. The

apprehension of breach of peace and violence and the

inability to hold the meeting without adequate police

protection are reasons beyond the control of the said

authority and this Court does not find any reason to

interfere with the notice of postponement and

subsequent notice fixing the meeting on September 15,

2021. The meeting shall be held in accordance with law

with adequate police protection and reached to its logical

conclusion within the statutory period of 30 days. No

further postponement will be permitted. The

Superintendent of Police, Malda shall ensure

deployment of police force at the meeting.

The adequate police protection

The adequate police protection be given to all the

participants in the meeting including the officials and

the prescribed authority.

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 server copy

of this order.

(Shampa Sarkar, J.)