Calcutta High Court (Appellete Side)
Jiban Mandal vs The State Of West Bengal & Ors on 2 February, 2022
S/L 13
02.02.2022
Court. No. 19
GB
W.P.A. 1351 of 2022
Jiban Mandal
VS
The State of West Bengal & Ors.
(Through Video Conference)
Mr. Gangadhar Das,
Mr. Tanmoy Chattopadhayay.
... for the Petitioner.
Mr. Lalit Mohan Mahata,
Mr. Rudranil De.
... for the State.
Affidavit-of-service filed in Court today be kept with
the record.
It appears that the respondent nos.10 to 13 have been
served. Despite service none appears on behalf of the said
respondents.
The petitioner is one of the requisitionists, who
brought a motion for removal of the members of various
Upa-Samitis of Sahapur Gram Panchayat on December 29,
2021. It is submitted that the said requisition was served
upon the prescribed authority on December 29, 2021.
Thereafter, the Block Development Officer did not take
further steps in terms of Sections 22(4)(c) and 22(4)(d) of
the West Bengal Panchayat (Constitution) Rules, 1975
(hereafter referred to as the 'said Rules') and the period
contemplated under 22(4)(c) and 22(4)(d) of the said Rules
has already expired. The petitioner prays that orders be
passed directing the authority to hold the meeting on the
basis of the requisitions.
Mr. Mahata, learned Senior Government Advocate
appearing on behalf of the State, submits that although the
prescribed authority has not assigned any reasons as to why
the meeting was not held, yet as the provisions of Sections
22(4)(c) and 22(4)(d) of the said Rules have not been
complied with in this case no such directions can be passed.
The inaction of the Block Development Officer in
discharging his duties under the statute is arbitrary and
unreasonable. In case there were reasons beyond control of
the prescribed authority to hold the meeting, a notice to that
effect ought to have been issued. This court does not find any
reason why the prescribed authority should not hold the
meeting for removal of the members/ Sanchalaks.
Here, the authority has not discharged his statutory
function. Such laches is being viewed with seriousness.
However, as the provisions of the law have not been
complied with and the time has expired, this Court is of the
opinion that the requisition dated December 29, 2021 has
lost its force. The same is set aside and cancelled.
However, the requisitionists cannot suffer due to the
inaction and/or erroneous action of the prescribed authority.
In my opinion, the provision for removing the
members/Sanchalaks 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 members/Sanchalaks have lost support
of the majority, they cannot remain in office for a single day.
Admittedly the members/Sanchalaks have 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."
The writ petition is disposed of upon granting liberty
to the requisitionists/members to bring fresh requisitions
under Section 22(4)(b) of the said Rules. If such requisitions
are brought, the Block Development Officer shall act and
proceed in terms of the provisions of Sections 22(4)(c) and
22(4)(d) onwards of the said Rules and reach the requisitions
to their logical conclusion. The bar under Section 22(4)(g) of
the said Rules shall not be applicable. The time frame
prescribed by the statute under Section 22(4)(d) shall be
adhered to by the prescribed authority.
It is further made clear that the authority shall be
entitled to seek police protection and if such request is made,
the police authority shall render all support without any
delay and laches. It is also made clear that if the members/
Sanchalaks try to evade service of the requisitions, then the
requisitionists shall be entitled to serve the same in their
office through the 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 panchayat in addition to the
modes of service provided under Section 22(4)(b) of the said
Rules.
Although the respondent nos.10 to 13 are not
appearing before this Court despite service, the matter is
disposed of in their absence as the reliefs prayed for by the
petitioner is not granted, in view of the expiry of the
statutory period.
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.)
