Calcutta High Court (Appellete Side)
Tarun Goswami vs The State Of West Bengal & Ors on 28 February, 2022
28.02.2022
Sl. No.6
srm
W.P.A. No.14556 of 2021
Tarun Goswami
Versus
The State of West Bengal & Ors.
With
W.P.A. No. 19644 of 2021
Jaheda Khanam & Ors.
Vs.
The State of West Bengal & Ors.
Mr. Kishore Dutta,
Mr. Gangadhar Das,
Mr. Tanmoy Chattopadhyay
...for the Petitioners.
Mr. Piyush Chaturbedi,
Mr. Tapas Singha Roy
...for the Respondent No.10/Pradhan.
Mr. Lalit Mohan Mahata,
Mr. Swapan Kumar Pal
...for the State-Respondents.
The above writ petitions involved similar causes of
action and were tagged together. The writ petition being WPA
No.14556 of 2021 has been de-tagged and dealt with
separately and disposed of.
WPA No. 19644 of 2021
This writ petition was filed by the requisitionists/some
of the members of the Kotwali gram panchayat.
The parties have filed their affidavits.
The petitioners, who are the requisitionists, preferred
this writ petition with a prayer for a direction upon the
prescribed authority to convene a meeting under the
provisions of Sections 12(3) and 12(4) of the West Bengal
Panchayat Act, 1973 on the basis of the requisition dated
November 26, 2021. The requisition was brought for removal
of the Pradhan of Kotwali Gram Panchayat, District-Malda,
who is continuing in office on the basis of an order passed by
this Court. As the prescribed authority did not take any steps
despite having received the requisition, the writ petition was
moved. This Court was of the prima facie opinion that as WPA
No.14556 of 2021 was pending for a final decision and the
report of the CID, West Bengal was awaited with regard to the
resignation of the Pradhan, no orders could be passed in this
writ petition, at that stage.
By an order dated January 5, 2022, this Court held that
the prayer in this writ petition for a direction upon the
prescribed authority to hold a subsequent meeting for
removal of the selfsame Pradhan on the ground of lack of
confidence could not be entertained as the bona fide of the
requisitionists had not been decided by the Court. There were
allegations of forgery against the requisitionists.
The allegation of forgery made against the
requisitionists/some of the members would become
infructuous if the orders prayed for, in this writ petition, were
granted.
Upon perusal of the report filed in WPA No.14556 of
2021, it appears that the Investigating Agency has negated the
allegation of forgery. Thus, nothing further now remains to be
decided with regard to the allegations of forgery in the earlier
proceedings arising out of the resignation letter tendered by
the Pradhan.
The Pradhan is continuing in his office on the basis of
an order of this Court. The law permits removal of the
Pradhan in accordance with law.
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 body. 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."
However, the requisition dated November 26, 2021
cannot be sustained in law. The same is cancelled and set
aside, as the requisition has lost its force due to lapse of time
prescribed under the statute and the provisions of Sections
12(3), 12(4) and 12(10), clearly operate as a bar.
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 Pradhan tries
to evade service of requisition then the requisitionists shall be
entitled to serve the same in his office through his 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.
The Court deprecates the practice of the Pradhan who is
trying to hold on to his office by making false and frivolous
allegations against the members and by abusing the process of
Court.
This writ petition is, thus, disposed of.
There will be no order as to costs.
Parties and the prescribed authority are directed to act
on the basis of the learned Advocates' communication or
server copy of this order.
(Shampa Sarkar, J.)
