Matiur Rahaman vs The State Of West Bengal & Ors
2021 Latest Caselaw 4848 Cal

S/L 4
15.09.2021
Court. No. 19
GB
                                W.P.A. 14475 of 2021

                                 Matiur Rahaman
                                        VS
                          The State of West Bengal & Ors.

                            (Through Video Conference)


                Mr. Shahan Shah,
                Md. Shamim Halder,
                Mr. Soumen Barman,
                Ms. Rakhi Hazra.
                                                     ... for the Petitioner.

                Mr. Sakya Sen,
                Mr. Hasibul Islam,
                Mr. S.K. Gupta.
                                       ... for the Respondent Nos.8 & 9.

Mr. Lalit Mohan Mahata, Mr. Supratim Dhar.

... for the State.

The petitioner is one of the requisitionists, who

brought a motion before the prescribed authority under

Section 101(2) of the West Bengal Panchayat Act, 1973

(hereinafter referred to as the "said Act").

The contention of the petitioner is that the prescribed

authority failed to issue a notice within five working days

from receipt of the requisition in terms of Section 101(3) of

the said Act.

It is the further contention of the petitioner that the

requisition notice was brought on August 18, 2021 for

removal of the Sabhapati of the Nowda Panchayat Samiti,

District Murshidabad. Reliance is placed on Section 101(3) of

the said Act. It appears that the prescribed authority has till

date not issued a notice for holding the meeting.

Mr. Mahata, learned advocate appearing on behalf of

the State submits that a notice on the basis of the requisition,

upon satisfaction of the provisions of Section 101(2) of the

said Act, should have been issued within five working days

from August 18, 2021. Moreover the period of holding the

meeting under Section 101(3), not later than 15 working days

from receiving the motion has also expired.

The aforesaid periods have already expired, but there

has been no communication from the prescribed authority,

as to whether the authority has any intention to hold the

meeting or whether the authority is not in a position to hold

the meeting, for situation beyond his control.

In my opinion, the provision for removing an elected

representative such as the Sabhapati 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 Sabhapati has lost support

of the majority of the members, he cannot remain in office

for a single day.

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."

The Court is of the opinion that the requisition having

lost its force should be set aside and the requisitionists

should be given a liberty to approach the prescribed

authority under Section 101(2) of the said Act by bringing a

fresh requisition in accordance with law. The prescribed

authority shall satisfy himself about the compliance of

Section 101(2) as required and act in terms of the provisions

of Sections 101(3) and 101(4) of the said Act. If the prescribed

authority is satisfied that the requisition is in order, then the

meeting shall be called in terms of the provisions of law by

adhering to the time limit prescribed by the statute. 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 in the office of the Pradhan in

addition to the modes of service provided under Section

101(2) of the said Act.

The Court has not passed any decision on the right of

the Sabhapati to continue in office, his fate to continue or not

to continue in office shall be decided in the meeting itself.

However, the Court is of the opinion that the job of the

prescribed authority in this case is ministerial in nature and

if the prescribed authority is satisfied that the provisions of

Section 101(2) have been complied with by the requisition

then the prescribed authority shall proceed to hold the

meeting in accordance with law and reach the proceedings to

its logical conclusion. The District Magistrate is directed to

ensure compliance of this order as the court finds the

inaction of the prescribed authority to be arbitrary, malafide

and in violation of law.

Mr. Mahata submits that the Officer-in-Charge of

Nowda police station has already submitted a report before

this court stating, inter alia, that police assistance shall be

given to the prescribed authority and the meeting shall be

held with full police protection, if necessary. It is also made

clear that the provisions of Sub-Section 11 of Section 101 will

not be applicable in this case. The police report is kept on

record.

Accordingly, the writ petition is disposed of.

However, there will be no order as to costs.

All the parties are directed to act on the basis of the

server copy of this order.

(Shampa Sarkar, J.)