Calcutta High Court (Appellete Side)
Hari Singha & Ors vs The State Of West Bengal & Ors on 17 February, 2022
17.02.2022
Court. No. 19
Item no. 03
Cp
WPA 2059 of 2022
Hari Singha & Ors.
Vs.
The State of West Bengal & Ors.
Mr. S.P. Lahiri
Md. Habibur Rahaman
Ms. Saba Parween
... for the Petitioners.
Mr. Jahar Lal Dey
Mr. Benazir Ahmed
... for the State.
Mr. Niladri Sekhar Ghosh
Ms. Sompurna Chatterjee
.....for the respondent nos. 02 to 10.
The petitioners are the Sanchalaks of several
Upa-Samities under the Lahutara - II Gram
Panchayat, District - Uttar Dinajpur. The petitioners
are aggrieved by the notice issued under Form 1F by
the prescribed authority fixing February 10, 2022 for
their removal at different times as per the requisition
brought by the other members in terms of Rule 22(4) of
the West Bengal Panchayat (Constitution) Rules, 1975
(hereinafter referred to as the said Rules).
The court was of the prima facie, view that a
single notice under Form 1F for removal of four
members/sanchalaks of different Upa-Samitis could
not be issued by the prescribed authority. Accordingly
the meetings were stayed. As the requisitionists
brought four separate notices for removal of four
sanchalaks of four different Upa-Samitis, the court
was of the view that the prescribed authority should
have issued four separate notices. Now that the
statutory period for holding the meeting is over, this
court is of the opinion that the meeting cannot be held
on the basis of a single notice.
The right of the requisitionists however, cannot
be denied. Such right to remove the
members/sanchalaks of Upa-Samitis is a right
conferred by the statute and also a democratic right
under the mandate of the Constitution.
In view of the statutory non-compliances by the
prescribed authority and the expiry of the time to hold
the meeting, this court is of the opinion that the
requisitions brought against the petitioners for
removal of members/sanchalaks of different Upa-
Samitis on January 25, 2022 have lost their force. The
said requisitions have become infructuous.
The requisitions dated January 25, 2022 and all
other communications and orders and notices issued
by the prescribed authority are set aside and quashed.
However, in my opinion, the provision for
removing an elected representative such as the
Sanchalak 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 Sanchalaks have
lost support of the majority of the members, he/she
cannot remain in office for a single day.
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, granting liberty
to the requisitionists to bring a fresh requisitions in
accordance with the provisions of Rule 22(4)(a)(b) of
the said Rules, separately. If the same are brought, the
prescribed authority upon satisfying himself of all
compliances, shall proceed in terms of the Rules, i.e.,
Rules 22(4)(c) to (g), issue notices for each of the
requisitions, convene the meetings and reach the
meetings to their logical conclusions. The time period
prescribed by the statute should be mandatorily
adhered to. The bar under Rule 22(4)(g) of the said
Rule shall not be applicable in this case.
It is further made clear that the prescribed
authority shall be entitled to seek police protection.
The police authority shall render all support. It is also
made clear that if the sanchalaks are not available for
service of the requisitions, then the requisitionists
shall be entitled to serve the notices in the offices
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 sanchalaks in
addition to sending the same by registered post to the
residence of the said sanchalaks.
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.)
