Jiban Mandal & Ors vs The State Of West Bengal & Ors
2022 Latest Caselaw 570 Cal

 15.02.2022
Court No. 19
Item no.05
   CP
                                     WPA 1028 of 2022

                                  Jiban Mandal & ors.
                                           Vs.
                              The State of West Bengal & ors.


               Mr. Gangadhar Das
               Mr. Tanmoy Chattopadhyay

                                              ......for the petitioners.

               Mr. Lalit Mohan Mahata
               Mr. Prasanta Bihari Mahata

                                               ......for the State.

               Ms. Nadira Abedin

                                              ....for respondent no. 10.

The petitioners are the majority members of the

Sahapur Gram Panchayat, under Old Malda

Development Block, Dist. - Malda. The petitioners

brought a motion for removal of the Upa-Pradhan,

the respondent no. 10 herein. It is alleged that the

prescribed authority despite receiving the motion for

removal of the Upa-Pradhan on December 29, 2021,

sat tight over the matter since then. Hence, the

petitioner has come up before this Court.

Ms. Abedin, learned Advocate appearing on

behalf of the respondent no. 10, submits that the

said requisition cannot be acted upon in view of the

fact that more than 30 days have expired since the

receipt of the said motion by the prescribed

authority. The meeting cannot be held beyond the

statutory period.

Mr. Mahata, learned senior government

advocate, submits that the said requisition cannot be

acted upon as the same has died a natural death in

view of the inaction on the part of the prescribed

authority.

The Court does not find any reason as to why

the prescribed authority did not call the meeting. In

the meantime Section 12(3) and Section 12(4) of the

West Bengal Panchayat Act, 1973 has not been

complied with.

It is the democratic right of the requisitionists,

to seek the removal of their leader who has lost their

confidence, in accordance with law. They are entitled

to enforce such right and any delay by the

authorities will actually frustrate such right and

destroy the democratic set up of the institution.

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 explains why this provision of no-confidence

motion has been provided under the law.

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."

As the outer limit of thirty days provided under

Section 12(10) of the West Bengal Panchayat Act,

1973 has also expired, the requisition dated

December 29, 2021 as also subsequent actions, if

any, are set aside and cancelled.

Under such circumstances, the requisitionists

are granted liberty to bring a fresh requisition in

accordance with law. If the said requisition is

brought, the prescribed authority shall reach the

requisition to its logical conclusion upon complying

with the provisions of Sections 12(3) and 12(4)

onwards of the West Bengal Panchayat Act, 1973, by

strictly adhering to the time limit fixed by the statute

under Section 12(10) of the said Act. The bar under

Section 12(11) shall not apply as this is not a case

that the requisition failed for want of quorum or

could not be carried through.

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 if the Upa-Pradhan

tries to evade service of requisition then the

requisitionists shall be entitled to serve the same in

the office through the secretary or assistant and if,

such service is not accepted, then the requisitionists

will be entitled to paste the same at the office of the

Upa-Pradhan in addition to sending the same by

registered post to the residence of the Upa-Pradhan.

This writ petition is, thus, disposed of.

There will be no order as to costs.

All parties are to act on the basis of the server

copy of this order.

(Shampa Sarkar, J.)