Calcutta High Court (Appellete Side)

Hosnewara Molla vs State Of West Bengal & Ors on 14 February, 2022

14.2.2022 Ct. No.19 Sl.no.11 sn

W.P.A. No. 2156 of 2022

Hosnewara Molla Vs.

State of West Bengal & Ors.

Mr. Sanjib Bandopadhyay Mr. Ashok Kr. Singh Mr. Pritam Das Ms. Suchitra Chakraborty ....for the petitioner Mr. L.M. Mahata Mr. P.B. Mahata ..for the State Mr. Pankaj Halder Mr. S. Panja Mr. Tapas Manna ..for the respdts. 8-15

The meeting for removal of Pradhan of Sahajadpur

Gram Panchayat, under Jaynagar-II Development Block has

been scheduled to be held on February 16, 2022 at 12 noon.

The petitioner is the Pradhan of the said Gram Panchayat.

The petitioner has challenged the requisition as also

the notice issued under Form 1E sub-rule(2) of Rule 5 of the

West Bengal Panchayat (Constitutional) Rules, 1975 (hereinafter

referred to as the said Rules).

The contention of the petitioner is that the prescribed

authority was not satisfied about the compliance of Section 12(2) of

the West Bengal Panchayat Act, 1973 (hereinafter referred to as the

said Act.), but issued the notice fixing the date for holding the

meeting for removal of the Pradhan on February 16, 2022. The

petitioner contends that Section 12(2) of the said Act has not been

complied with by the requisitionists. The petitioner further

contends that the prescribed authority did not take into

consideration the provisions of Section 12(3) of the said Act.

According to the petitioner, the prescribed authority ought to have

satisfied himself about the service of the requisition upon the

petitioner.

Mr. Mahata, learned senior government advocate appearing

for the prescribed authority submits that the requisition was

received by the prescribed authority at around 2-15 p.m on

February 2, 2022 after the order was passed by this Court granting

liberty to the requisitionists to bring a fresh requisition in

accordance with law. Such order was passed by this Court in

WPA 1307 of 2022.

Mr. Mahata, next submits that by a letter of the same date

the prescribed authority requested the requisitionists to attend the

meeting scheduled to be held on February 3, 2022 for verification

of the compliances under Section 12(2) of the said Act. According

to Mr. Mahata, the prescribed authority upon being satisfied that

the law had been complied with, issued a notice under Form 1E on

February 3, 2022. According to Mr. Mahata, the law does not

prescribe any minimum time within which such notice should be

issued. On the contrary, the law prescribes that the notice under

Form 1E has to be issued within five working days from receipt

thereof. Thus, five working days is the outer limit. He submits that

the contention of the petitioner that issuance of the notice under

Form 1E on February 3, 2022 suffers from a procedural defect of

not satisfying himself of the legal compliances, could not be

accepted.

Mr. Halder, learned advocate for the requisitionists have

handed over a bunch of original papers which contain copies of

the requisition which were served in the office of the Pradhan and

received on February 2, 2022 at 2-15 p.m. by the Secretary. The

postal article which was sent to the address of the Pradhan was

attempted to be served on three occasions by the postal peon. The

endorsement on the postal envelope shows that on February 3,

2022, the door was locked on February 4, 2022 and February 5,

2022 the article was kept on hold and on February 7, 2022, the

postal article was refused. The said postal article had been

returned to the sender. The original copies of the receipts of

requisition signed by the Secretary of the Gram Panchayat office

shows that the said official had accepted two copies of the

requistion, one for himself and one for the Pradhan. Those have

been filed before this Court.

The order dated February 2, 2022 was dictated in open

Court and the requisitionists were given liberty to bring a fresh

motion in accordance with law. Parties were also directed to act on

the learned advocate's communication.

The requisitionists in their haste to remove the Pradhan

brought the requisition in the afternoon of the day the order was

passed by this Court and the prescribed authority acted on such

requisition.

The Court has often experienced that the office bearers are

mostly unavailable in their office or at their residence. Thus, this

Court always makes a provision in the order, for service of the

requisition in the office of the Gram Panchayat upon the Secretary

or the office assistant of the office and in case such service was not

accepted liberty is granted to affix the motion at an appropriate

place in the office. This system of service has been recognized in

the administration rules.

Records submitted before the Court show that the

requisition was served in the Office of the Gram Panchayat, which

was accepted by the Secretary also on behalf of the Pradhan. The

postal article sent to the residence of the Pradhan was refused. The

address of the petitioner in this writ petition and in the postal

envelope, which was sent to the residence of the Pradhan

containing the motion/requisition, are the same. Thus, this Court

does not find any reason to hold that the requisition was not in

accordance with law and the prescribed authority had not applied

his mind before issuing the notice convening the meeting to be

held on February 16, 2022.

In order to ascertain compliance of the provisions of Section

12(2) of the said Act, the prescribed authority asked the

requisitionists to attend a meeting on February 3, 2022 and

thereafter the notice was issued. Now, the Pradhan is trying to

stall the meeting. It is not in doubt that the copy of the motion was

received by the Pradhan because the learned advocate for the

Pradhan has submitted a copy of the receipt of the motion dated

February 2, 2022 received on the same day at 12.54 p.m. According

to the Pradhan, the same was received by some other person and

handed over to the Pradhan only on February 5, 2022. This fact has

not been disclosed. Neither has the identity of the person been

mentioned.

The allegation against the prescribed authority does not

survive in view of the facts mentioned hereinabove and the

prescribed authority was only required to satisfy himself whether

both modes of service under Section 12(2) of the said Act had been

complied with, that is, a copy of the requisition was delivered to

the officer bearers in the office and sent to the residence by

registered post. In this case, the requisition was served upon the

Secretary of the Gram Panchayat and the receipt was obtained. The

learned Advocate for the petitioner also submits a receipt copy of

the motion. This Court had permitted service upon the Secretary in

case the Pradhan was not available for service in the office. Such

order was accepted by the Pradhan. Postal receipt showing that

the requisition was sent to the residence of the Pradhan and served

in the office was also before the prescribed authority. Whether the

office bearer physically received the copy or not was not further

required to be investigated into. Moreover, a copy of the

requisition has been produced before the court by the petitioner's

Advocate. The Pradhan was always aware that the requisitionists

had lost confidence in her, in view of the several rounds of

litigation in which the Pradhan was a party.

The further allegation that the notice under Form 1E was not

received by the petitioner is not accepted in view of the fact that

this writ petition was affirmed on February 7, 2022 and the notice

under Form 1E has been annexed hereto. The reason for service of

motion upon the office bearer is only to make the office bearer

aware that the members have sought to remove her. The office

bearer has had enough time to deliberate on such notice and

mobilise her supporters. Removal of an office bearer is a

democratic act conferred upon the members by the statute and the

members have a right to remove the Pradhan on whom they have

lost confidence.

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 are of fundamental

importance to ensure the democratic functioning of the

institution as well as to ensure transparency and accountability

in the functions performed by the elected representatives.

In the matter of Usha Bharti v. State of U.P., (2014) 7

SCC 663 the Hon'ble Apex Court held as follows:-

"44. We reiterate the view earlier expressed by this Court in Bhanumati [(2010) 12 SCC 1] , wherein this Court observed as follows: (SCC p. 19, paras 57-58) "57. It has already been pointed out that the object and the reasons of Part IX are to lend status and dignity to Panchayati Raj institutions and to impart certainty, continuity and strength to them. The learned counsel for the appellant unfortunately, in his argument, missed the distinction between an individual and an institution. If a no-confidence motion is passed against the Chairperson of a panchayat, he/she ceases to be a Chairperson, but continues to be a member of the panchayat and the panchayat continues with a newly-elected Chairperson. Therefore, there is no institutional setback or impediment to the continuity or stability of the Panchayati Raj institutions.

58. 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. This explains why this provision of no-confidence motion was there in the Act of 1961 even prior to the Seventy-third Constitution Amendment and has been continued even thereafter. Similar provisions are there in different States in India."

45. The whole edifice of the challenge to the constitutionality of Section 28 is built on the status of the petitioner as a member belonging to the reserved category. It has nothing to do with the continuance, stability, dignity and the status of the Panchayat Institutions. In our opinion, the personal desire, of the petitioner to cling on to the office of Adhyaksha is camouflaged as a constitutional issue. The provision of no-confidence motion, in our opinion, is not only consistent with Part IX of the Constitution, but is also foundational for ensuring transparency and accountability of the elected representatives, including Panchayat Adhyakshas. The provision sends out a clear message that an elected Panchayat Adhyaksha can continue to function as such only so

long as he/she enjoys the confidence of the constituents."

In the matter of Sujata Bhachhar v. State of W.B. (2017) 2

CHN 103(DB) this Court held as follows:-

"There is no manner of doubt whatsoever that the appellant/writ petitioner has been removed as the Pradhan of the concerned Gram Panchayat by a majority vote. The requisition notice issued by the members of the concerned Gram Panchayat was sought to be challenged by her before the writ Court. Even though it is evident that the Prescribed Authority has acted in conformity with the provision of section 12 of the West Bengal Panchayat Act, the conduct of the appellant/writ petitioner leaves no manner of doubt whatsoever that instead of adhering to and abiding by the established democratic principles governing institutions such as a Gram Panchayat, she has chosen to try and wriggle out from a situation where, admittedly, she lacks support majority of the elected members of the Gram Panchayat, by nit-picking before a writ Court on such hypertechnicalities which are not at all germane for consideration or adjudication in the facts of the present case, in order to cling on to power, somehow. In this context, one may take notice of the observation made by this Court in a judgment rendered on 8th September, 2016, in FMA 1209 of 2015 with CAN 1814 of 2015 (Panchu Mandal v. State of West Bengal)."

The Court is satisfied that the authority has not proceeded

in violation of the statute. Judicial review of the decision making

process or of the procedure followed by the authority is permitted

by law. Here, the prescribed authority acted in accordance with

law. Disputed questions of facts as raised by the petitioner to the

effect that the requisition was received by some other person who

handed over the same to the Pradhan on February 5, 2020 and that

the postal peon was colluding with the requisitionists were

matters of trial on evidence. The mere fact that the prescribed

authority acted in hot haste as alleged cannot render his action

illegal.

Under such circumstances, this Court does not find any