Ashok Mandal vs The State Of West Bengal & Ors
2021 Latest Caselaw 4968 Cal

22.9.2021
 Sl. No.1
    sn
                                W.P.A. No. 15369 of 2021

                                   Ashok Mandal
                                         Vs.
                           The State of West Bengal & Ors.


                      Mr. Srijib Chakraborty,
                      Mr. Aditya Mondal
                                                        ...for the Petitioner.

                      Mr. Anirban Ray..G.P.
                      Mr. Raja Saha
                      Mr.Amit Kr. Ghoshn
                                                             ...for the State.



                   In view of the urgency involved in this matter and the

            constraint of time within which the meeting has to be held as

            per law, compliance of Rule 26 of the Writ Rules was prayed to

            be dispensed with. Yet, the court directed service upon all the

            respondents when the leave was taken to file the writ petition.

Affidavit of service is taken on record.

The Pradhan, Fulbaria Gram Panchayat has been served

with a copy of the writ petition through WhatsApp as also e-

mail. The writ petition was attached in the form of PDF along

with the WhatsApp message and mail. The Pradhan also

responded over WhatsApp and requested the learned

Advocate on record to forward the number of the writ

petition, which was also supplied by the learned advocate on

record for the petitioner.

The petitioner is one of the requisitionists who brought

the requisition along with others for removal of the Pradhan

before the prescribed authority on September 2, 2021.

This is the 3rd requisition which was brought by the

requisitionists requesting the prescribed authority to convene

a meeting for removal of the Pradhan on the ground of loss of

confidence.

The requisition was brought pursuant to the leave

granted by this Court in an earlier proceeding. On two

occasions, similar requisitions were brought namely, on July 8,

2021 and August 19, 2021. The prescribed authority failed to

take steps and both the requisitions died a natural death due

to lapse of time. The present requisition was brought on

September 2, 2021 pursuant to the leave granted by this Court

by order dated August 31, 2021 passed in WPA 13415 of 2021.

The prescribed authority satisfied himself with regard to the

compliance of Section 12(2) of the West Bengal Panchayat Act,

1973 (hereinafter referred to as the said Act) and convened the

meeting to be held on September 20, 2021. On September 17,

2021, the prescribed authority cancelled the meeting due to

non-availability of the police force on the basis of the

information received from the Inspector-in-Charge,

Englishbazar Police Station, Malda.

Although, the Pradhan is not represented before this

Court despite service, the matter is taken up on an urgent basis

in view of the fact that unless an order is passed, the third

requisition brought by the petitioner and other members

pursuant to the leave granted by this Court and in exercise of

their statutory and democratic rights will become an exercise

in futility. The Court shall not remain a silent spectator and

allow its order to be violated and overridden by arbitrary and

whimsical inactions of the state machinery including the

prescribed authority and the police.

On September 21, 2021, one of the requisitionists moved

a writ petition being WPA No.15076 of 20201 with similar

prayers, i.e., for a direction upon the prescribed authority to

hold the meeting on a date fixed by the court with full police

protection. Mr. Gangadhar Das, Learned Advocate, appeared

in the matter on behalf of the Pradhan and vehemently

opposed the writ petition on the ground that no direction can

be passed for holding a meeting as some of the requisitionists

had been disqualified by the prescribed authority in an

appropriate proceeding. This Court was on the verge of

passing an order with a direction upon the prescribed

authority to hold the meeting and allow only those

requisitionists, who had not been disqualified, to participate in

the meeting. There were no further allegations of

contravention of the provisions of law with regard to the

motion. On detection of a formal error in the identity of the

writ petitioner, this Court was of the view that the writ

petition could not be entertained. Learned Advocate for the

petitioner withdrew the writ petition. No decisions were given

on merits.

Today, one of the requisitionists who is neither

disqualified by the concerned authority nor is the writ

petitioner of the earlier writ petition, has moved the Court for

a direction upon the prescribed authority who is a statutory

authority to perform his duties in accordance with law in

compliance of the order passed by this Court on the earlier

occasion. The writ petition was sought to be moved as an

unlisted matter in the morning. Leave was granted to the

petitioner to file the same and serve the same and it was

directed that the matter would be taken up by publication of a

supplementary list at 2.00 p.m., so that all concerned were

aware that the matter will be heard by this Court today, in

view of the paucity of time within which the meeting has to be

convened and reached to its logical conclusion.

Mr. Raja Saha, the learned Advocate for the State-

respondents and for the principal answering respondent, is

before this Court and he is ready.

Mr. Das, learned Advocate, who appeared on behalf of

the Pradhan in WPA No.15076 of 2021 was requested by the

petitioner to appear in this matter and a copy of the writ

petition was sent to Mr. Das by WhatsApp and a link was

provided to Mr. Das but he was not in a position to appear in

the matter as he did not receive any authorisation from the

Pradhan to appear in this case. Mr. Das informed the court of

his inability.

Despite best efforts of the petitioner as also the Court to

ensure that all parties are served in the matter, the Pradhan is

absent. Although, the Pradhan has always been aware that the

members have lost confidence in her and have tried to move a

requisition for her removal since July, 2021 but the prescribed

authority by failing to take any action as per the statutory

provisions has repeatedly frustrated the efforts of the

requisitionists, which cannot be allowed to continue.

The Court of law must ensure that the provisions of law

are not violated and the State machinery and the statutory

functionaries abide by the same and show respect to the orders

of court.

In this backdrop, the matter is entertained by this Court,

in the absence of the Pradhan as no orders are passed affecting

the right of the Pradhan. The Pradhan shall be in office till she

enjoys the confidence of the members and the fate of the

meeting will decide whether she will continue in office.

Mr. Saha submits that the prescribed authority had

satisfied himself about the satisfaction of Section 12(2) of the

said Act. Notice was issued by the prescribed authority in

compliance of Sections 12(3) and 12(4) of the said Act,

thereafter the prescribed authority apprehending violence

requested deployment of police force so that the meeting could

be held on September 20, 2021 peacefully and without any

untoward incident. There is no procedural lapse so far.

The police authority expressed inability to give

sufficient police protection on September 20, 2021. The

prescribed authority on September 17, 2021 issued a notice that

the meeting to be held on September 20, 2021 stood cancelled

and a future date would be notified. No such future date has

been notified. Thus, the petitioner is before this Court for a

direction that a meeting be held in terms of the earlier

directions passed by this Court in similar situation with regard

to other Gram Panchayats, within the statutory period of 30

days from receipt of the motion which will expire on October

1, 2021.

This Court is of the view that the prescribed authority

may not hold a meeting within the mandatory period of 15

working days from the date of receipt of the requisition for

reasons beyond the control of the prescribed authority. In this

case, as violence was anticipated and the police authority

declined to assist the prescribed authority on September 20,

2021, the situation was beyond the control of the prescribed

authority. Section 12(4) of the said Act, would not be a bar in

this case. The law makes an exception in certain situations.

Non-availability of police force and the apprehension of

violence, for which the meeting was not held on September 20,

2021, in the prima facie view of the Court, were reasons beyond

the control of the prescribed authority. The other allegations of

the petitioner of bias, collusion, arbitrariness against the

prescribed authority, shall be decided upon exchange of

affidavits.

The right of the requisitionists to remove the Pradhan

has been recognised by the Courts of law since the very

inception of the concept of local self-government.

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.

Under such circumstances, as the 30 days period

prescribed under Section 12(10) of the said Act is not over and

having prima facie held that the prescribed authority was not

in a position to hold meeting within 15 working days, for

situations beyond his control, this Court fixes September 29,

2021 as the date for holding the meeting for removal of the

Pradhan. The meeting for removal of the Pradhan will be held

at 12.00 noon.

This order shall be treated as seven-clear-days' notice

upon all the members as also the Pradhan. A separate notice

shall also be issued by the prescribed authority on September

23, 2021 by 12.00 noon fixing the meeting, as indicated

hereinabove. The notice shall be sent to the office of the gram

panchayat and circulated through e-mail to all members and

also sent on WhatsApp.

The Superintendent of Police, Malda is requested to

deploy adequate police force at the time of the meeting on

September 29, 2021. The district authority shall be at liberty to

issue orders under Section 144(1) of the Code of Criminal

Procedure if required. Apart from the members of the Gram

Panchayat, police authorities, officials assisting the prescribed

authority and the observer, no other person, not involved in

the process shall not be allowed in the vicinity. The meeting

should be reached to its logical conclusion and in accordance

with law within October 1, 2021.

It is made clear that the disqualified members shall not

be allowed to participate in the meeting unless there is an

appropriate order of a superior forum staying the order of

disqualification passed in an appropriate proceeding and not

by an administrative order.

Let affidavit-in-opposition be filed within two weeks

after reopening of the Court after Puja vacation; reply thereto,

if any, be filed within two weeks thereafter.

Liberty is given to the parties to mention the matter

before the appropriate Bench after expiry of the

aforementioned period.

The actions taken in the meantime shall abide by the

result of this writ petition.

Parties are to act on the basis of the learned Advocates

communication. The petitioner's learned Advocate will send

this order by e-mail and Whatsapp to all the members

including the Pradhan

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

this order. The police authorities will file a compliance report

on the returnable date.

(Shampa Sarkar, J.)