Mamoni Ghosh vs The State Of West Bengal & Ors
2022 Latest Caselaw 707 Cal

 21.02.2022
Court No. 19
Item no.23
   CP
                                WPA 2625 of 2022

                                  Mamoni Ghosh
                                        Vs.
                           The State of West Bengal & ors.


               Mr. Partha Sarathi Bhattacharya, Sr. Advocate
               Mr. Usof Ali Dewan
               Mr. Asif Dewan

                                     ......for the petitioners.


               Mr. Uday N. Betal
               Mr. A. Rakib
                                   ....for respondent nos. 6 to 16.

Mr. Lalitmohan Mahata, Sr. Govt. Advocate Mr. P. B. Mahata

....for the State.

The writ petition has been filed challenging the

notice dated February 11, 2022, issued by the

prescribed authority under Sub-Rule (2) of Rule 5B of

the West Bengal Panchayat (Constitution) Rules,

1975 (hereinafter referred to as 'the said rules'). The

petitioner is the pradhan of Tenkaripur-Balumati

Gram Panchayat. The petitioner has alleged that the

prescribed authority has acted in violation of the

provisions of Sections 12(3), 12(4) and 12(10) of the

West Bengal Panchayat Act, 1973 (hereinafter

referred to as 'the said Act'), and issued the notice

convening the meeting for removal of the pradhan

beyond the statutory period of 30 days. Allegations

are that the prescribed authority has acted in

flagrant violation of the statute. It is prayed that the

notice dated February 11, 2022 and the meeting

dated February 23, 2022 be cancelled.

Mr. Betal, learned advocate appearing on behalf

of the requisitionists, submits that the situation was

beyond the control of the prescribed authority and

thus the authority could not convene the meeting in

terms of Sections 12(3), 12(4) and 12(10) of the said

Act. He submits that the provisions of Section 12(4)

and Section 12(10), enabled the prescribed authority

to hold a meeting beyond 30 days. In this case, the

meeting has been fixed on the 38th day from the date

of receipt of the requisition. It is submitted by him

that in the matter of Rasida Bibi vs. The State of

West Bengal in MAT 652 of 2021, the Hon'ble

Division Bench held that surge in the Covid-19

infections could be taken as reasons beyond the

control of the prescribed authority in failing to hold

the meeting within 15 working days from the receipt

of the requisition. It was further held that such a

meeting could be held even beyond the expiry of the

statutory period of thirty days on a combined reading

of Sections 12(4) and 12(10) of the said Act.

According to the Hon'ble Division Bench, Section

12(10) would be controlled by the provisions of

Section 12(4). In the event the situation was beyond

the control of the prescribed authority and the

meeting had to be postponed or cancelled, the

meeting could also be held beyond 30 days. The only

distinguishing factor in this case is that there was no

notice under Section 12(3) and as such, the decision

of Rsida Bibi (supra) would not apply.

Section 12(4) of the said Act provides that a

meeting shall be held within 15 working days and

shall not be adjourned or cancelled except for

reasons beyond control. In this case, no meeting was

called, no date was fixed and, as such, the action of

the prescribed authority in this regard cannot not be

condoned by application of Section 12(4). The

prescribed authority had not even exercised his

power under Section 12(3). In this case, the law

makes a fine distinction. When the law prescribes a

particular procedure must be followed, the statute

book has to be followed in its letter and spirit. The

court cannot extend the time beyond 5 working days

under Section 12(3) of the said Act for issuance of

the notice convening the meeting. The law provides

that the meeting can be adjourned or postponed for

reasons beyond control as per Section 12(4). The first

ingredient of this section is that a meeting should be

convened within 5 working days and the date of the

meeting must be fixed not later than 15 working days

from receipt of the motion. Thereafter, the meeting so

fixed may be adjourned or cancelled for reasons

beyond the control of the authority. In this case, the

requisition was received and immediately deferred.

The petitioners objected to the same.

In the decision of Taylor v. Taylor, (1875) 1

Ch.D, 426, 431, it has been held that when the law

prescribes that a certain act must be performed in a

certain way; such act has to be performed in the

specified manner and not in any other manner. The

principle was followed by the Indian Courts in the

decision of Nazir Ahmad v. The King Emperor, AIR

1936 PC 253; and State of Uttar Pradesh v.

Singhara Singh, (1964) 4 SCR 485.

The prescribed authority did not follow the law.

Under such circumstances, the requisition dated

January 14, 2022 and the notice dated February 11,

2022 and all steps taken pursuant to the said

requisition are set aside and cancelled. The meeting

shall not be held on February 23, 2022.

However, 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."

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 pradhan tries

to avoid service of the 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

pradhan in addition to sending the same by

registered post to the residence of the pradhan.

Requisitionists are apprehensive that the

pradhan and the police authorities may set the

criminal law in motion on the basis of an FIR lodged

earlier. They submit that the complaint was lodged

on frivolous grounds and only to ensure that the

requisitionists may not participate in any meeting for

removal of the pradhan.

Although, the court cannot totally discard such

contention, this court is not in a position to pass any

protective order in respect of any criminal proceeding

pending against any person. In such event, the

requisitionists shall be entitled to act and proceed in

accordance with law and pray for appropriate orders

before the appropriate forum.

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 and on the basis of learned

Advocate's communication.

(Shampa Sarkar, J.)