Calcutta High Court (Appellete Side)
Mira Sarkar Mondal vs The State Of West Bengal & Ors on 25 January, 2022
25.1.2022
Ct,. No.19
Sl.8
W.P.A. No. 1065 of 2022
Mira Sarkar Mondal
Vs.
The State of West Bengal & Ors.
Mr. Atarup Banerjee
Mr. Mrintyunjoy Chatterjee
....for the petitioner
Mr. Susanta Pal
Mr. Prabir Kr. Ray
..for the State
Mr. Udyay Narayan Betal
Md. G.M. Imrohi
..for the respdts.7-17
Mr. Usof Ali Dewan
Mr. Arup Sarkar
Mr. Asif Dewan
..for the respdts.18-29
The petitioner is the Upa-Pradhan of Dewansarai
Gram Panchayat, District Murshidabad. The petitioner
is aggrieved by the notice issued under Form IE Sub rule
2 of Rule 5B of the West Bengal Panchayat
(Constitution)Rules, 1975, dated January 18, 2022
which is Annexure P/4 to the writ petition.
According to the petitioner, the prescribed
authority fixed the date for removal of the Upa Pradhan,
initially within the statutory period that is, on January
11, 2022, on the basis of the requisition dated December
24, 2021. However, the prescribed authority postponed
such meeting as the police authorities were not in a
position to render support on the ground that the police
force had been requisitioned for the Gangasagar Mela.
According to the petitioner, whatever the reason was for
2
cancellation of the meeting that was fixed on January
11, 2022, the prescribed authority could not have issued
the subsequent notice dated January 18, 2022 fixing the
date of meeting on January 27, 2022, for removal of the
Upa Pradhan of Dewansarai Gram Panchayat, District
Murshidabad, beyond the statutory period of 30 days.
Mr. Basu, learned advocate State respondents
submits that the prescribed authority was compelled to
cancel the meeting.
Mr.Dewan, learned advocate appearing for the
requisitionists and Mr. Betal, learned advocate for the
respondent nos. 7-17 also submits that the meeting had
been fixed beyond the statutory period of 30 days and
such meeting, if held, would be in violation of Section
12(10) of the West Bengal Panchayat Act, 1973.
Having considered the rival contentions of the
parties, this Court is of the opinion that the notice dated
January 18, 2022 cannot be acted upon as the statutory
period of 30 days to complete the process of removal of
the Upa Pradhan has expired. Section 12(10) would
stand as a bar. The notice dated January 18, 2022 as
also the requisition dated December 24, 2021 are set
aside and cancelled.
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. In my opinion, the
provision for removing an elected representative such as
the Pradhan or the Upa-Pradhan 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.
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."
This writ petition is disposed of with liberty to the
requisitionists to bring a fresh requisition in terms of
Section 12(2) of the said Act. If such requisition is
brought, the prescribed authority shall satisfy himself
about compliance of Section 12(2) of the said Act and
then act and proceed in terms of Sections 12(3) and
12(4) onwards to reach the requisitions to its logical
conclusion within the period mentioned in the statute.
In addition to the modes of service of the requisition
upon the Upa-Pradhan as prescribed under the statute,
a copy shall be pasted at the office of the Upa-Pradhan
and also in the residence of the Upa-Pradhan, if either
the Upa-Pradhan or her staff do not accept service of
the requisition. The bar under Section 12(11) shall not
be applicable. The prescribed authority cannot neglect
to discharge his duties under the statute. This
deliberate neglect and disregard to law is viewed with
seriousness.
This Court is not making any observation on the
right of the Upa-Pradhan to continue in her office as the
said issue will be decided in the meeting itself. If
necessary, the prescribed authority may seek police
protection, which shall be rendered without any delay or
laches on the part of the police authorities.
This writ petition is, thus, disposed of. Parties are
directed to act on the communication of the learned
Advocates.
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.)
