Calcutta High Court (Appellete Side)
Md. Sahidur Rahaman Shaikh & Ors vs The State Of West Bengal & Ors on 27 September, 2021
S/L 8
27.09.2021
Court. No. 19
GB
WPA 14815 of 2021
Md. Sahidur Rahaman Shaikh & Ors.
Vs.
The State of West Bengal & Ors.
(Through Video Conference)
Mr. Partha Sarathi Bhattacharyya,
Mr. Atarup Banerjee,
Mr. Sudarshan Ghosh.
... for the Petitioners.
Mr. Anirban Ray, Ld. G.P.,
Mr. Raja Saha,
Mr. Shamim Ul Bari.
... for the State.
Mr. Ratul Biswas.
... for the Respondent No.2.
Mr. Biswas, learned advocate appears on behalf of the
Pradhan of Sahajadapur Gram Panchayat. It is the specific
contention of the Pradhan that the requisition was not
received by the Pradhan. It is next contended that on
previous occasions as well, requisitions were not received, as
a result of which, the prescribed authority had decided not to
hold the meeting as he was not satisfied about the
compliance of Section 12(2) of the West Bengal Panchayat
Act, 1973 (hereinafter referred to as the 'said Act').
The petitioners are the requisitionists. The petitioners
submit that this is the third requisition brought seeking
removal of the Pradhan on the ground of no confidence.
According to Mr. Bhattacharyya, learned senior
advocate appearing on behalf of the requisitionists, the
prescribed authority has failed and neglected to perform his
duties under the statute. He prays for a direction upon the
prescribed authority to act on the basis of the requisition
dated September 8, 2021.
Mr. Ray, learned Government Pleader submits that
the requisitionists have time and again failed to comply with
the provisions of Section 12(2) of the said Act. The first
requisition was not acted upon, as the Pradhan had not been
served with the requisition. The second requisition was set
aside by this Court as the same was stigmatic. It is the third
requisition, which is apparently in form.
Mr. Biswas, on the other hand, submits that the
requisition, which is before this Court dated September 8,
2021, has not been served upon the Pradhan and section
12(2) of the said Act has not been complied with.
Having heard the rival contentions of the parties, as
the time prescribed by the statute for compliance of Sections
12(3) and 12(4) has expired, even if, the 15 working days
expires on September 29, 2021, the court cannot grant the
reliefs sought for. The requisition has become infructuous
due to such non-compliances.
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
become infructuous the notice dated September 8, 2021
cannot be acted upon. The bar under Sections 12(3) and
12(4) of the said Act has come in the way and the Court
cannot direct an authority to hold the meeting without
compliances of the statutory provisions of Sections 12(3) and
12(4) of the said Act. As such, the requisition is set aside and
quashed.
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 as it is the specific
case of the Pradhan that the notice of requisition was not
served upon the Pradhan, the requisitionists shall be liable to
serve the same in the office of the Pradhan 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.
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 learned
advocate's communication.
(Shampa Sarkar, J.)
