Rahuja Bibi & Ors vs The State Of West Bengal & Ors
2022 Latest Caselaw 79 Cal

                   IN THE HIGH COURT AT CALCUTTA
                  CONSTITUTIONAL WRIT JURISDICTION
                           APPELLATE SIDE



Before: Honb'ble Justice Shampa Sarkar


                             WPA 15058 of 2021
                             Rahuja Bibi & ors.
                                     Vs.
                       The State of West Bengal & ors.

For the petitioners        : Mr. Sarwar Jahan,
                             Mr. Debashis Ghorai,
                             Mr. Binay Shaw.

For the State              : Mr. L.M. Mahata,
                             Mr. P.B. Mahata.

For the respondent No.11 : Mr. Pratik Dhar,

Mr. Ritwik Pattanayak.

Hearing concluded on: 07.12.2021 Judgment on: 14.01.2022

Shampa Sarkar, J.:-

1. The writ petitioners are some of the elected members of Dharmada

Gram Panchayat. The respondent no. 11 was elected as the Pradhan of the

said gram panchayat. The respondent no. 12 to 17 are the other elected

members of the said gram panchayat. The writ petition has been filed

challenging the inaction of the prescribed authority in acting in terms of the

provisions of the Section 12(3) and 12(4) of the West Bengal Panchayat Act,

1973 (hereinafter referred to as the said Act).

2. The facts are as narrated herein. Initially, the petitioners claiming to

be majority members brought a motion on August 10, 2021 for removal of

the Pradhan. Falling prey to political pressure, the petitioners wrote a letter

to the prescribed authority dated August 13, 2021, expressing their desire

not to proceed with the requisition. The prescribed authority by an order

dated August 16, 2021 cancelled the motion dated August 10, 2021,

granting the requisitionists leave to bring a fresh motion of no confidence.

On the basis of the leave granted by the prescribed authority, twelve out of

nineteen members brought a fresh requisition on September 10, 2021 with a

request to the prescribed authority to convene a meeting in terms of

Sections 12(4) of the said Act, for removal of the Pradhan. The requisition

was served upon the prescribed authority. It has been alleged that despite

receiving the requisition dated September 10, 2021, the prescribed authority

failed to take steps in terms of Sections 12(3) and 12(4) of the said Act. It

has been further alleged that neither did the prescribed authority satisfy

himself about the compliances of Section 12(2) of the said Act, nor did he

issue a notice calling for a meeting, within five working days from the receipt

of the requisition as provided under the statute. Aggrieved, the petitioners

moved this writ petition before this Court for a direction upon the prescribed

authority to convene a meeting in accordance with the provisions of the

statute and the rules framed there under, so that the entire process would

be completed within the period prescribed under Section 12(10) of the said

Act.

3. The writ petition had come up for hearing for the first time on

September 27, 2021. This court was of the opinion that the requisition dated

September 10, 2021 could not be allowed to be proceeded with, as the same

was stigmatic. The state respondents as also the learned senior advocate for

the Pradhan raised objections with regard to the requisition alleging that the

foundation of the requisition was allegations of corruption, unethical

conduct and misbehaviour with the staffs and other members of the gram

panchayat. This court was of the view that the requisition which was

stigmatic could not be proceeded with and the same should be set aside and

cancelled.

4. Mr. Dhar, learned senior advocate appearing on behalf of the Pradhan

submitted that even if the requisition was set aside on the ground of the

same being stigmatic, no leave could be granted to the requisitionists to

bring a fresh requisition in the facts of this case.

5. In view of the decisions of the court in the matter of Ujjal Mondal vs.

State of West Bengal reported in 2013 (1) CHN (CAL) and Sourendra

Nath Das vs. The State of West Bengal & Ors. passed in WPA 11903 of

2021 the requisition is liable to be set aside.

6. In the matter of Ujjal Mondal (supra) the Hon'ble Division Bench of this

Court held that the requisition notice/no confidence motion was

entertainable only when there was no foundation for bringing the motion.

The relevant portion is quoted below:

"24. Having regard to section 101 of the said Act, we are of the view that a 'no confidence motion' is entertainable for removal of Prodhan where there should not be any ground or foundation of bringing 'no confidence motion' and if 'no confidence motion' is carried on that ground, it will invite civil consequence or evil consequence to the Office Bearers relating to his political career naturally and as such, natural justice principle will have play in the matter, thereby a breach of Article 14 of the Constitution of India."

7. This court in the matter of Sourendra Nath Das v. The State of West

Bengal & ors. (WPA 11903 of 2021) held as follows:

"Having considered the submissions made by the petitioner and the learned advocates for the prescribed authority, this court is of the opinion that a reading of the requisition notice (which is in bengali), as a whole, would indicate that in the opinion of the members, the pradhan has proved to be incompetent as he did not perform his duties and developmental works, causing deprivation to the people of the locality from the benefits all governmental projects, and thus the members had lost confidence in their leader and wanted his removal. The effect of such a requisition is that the pradhan being incompetent to perform his duties had caused suffering to the people and would be consequently removed as the members lost confidence on account of such non-performance. The pradhan has a career. If the requisition is allowed to stand, it would be a reflection of his inability and incompetence in performing his duties as a leader of the gram panchayat. This is the foundation of the requisition. The 'no confidence' is based on the allegation of incompetence and inability of the pradhan and the suffering caused to the people in the locality due to such incompetence. This is not a simple requisition for removal of the pradhan. The removal if carried through in the meeting will carry a stigma that the pradhan was removed as he failed to perform his duties and developmental works.

In my opinion, the decision of Ujjal Mondal (supra) applies. Even if the allegations are not as serious as misappropriation or misconduct, incapacity or incompetence of a political leader to perform works in the locality which has cause disillusionment, unhappiness and suffering to the people in the locality are allegations which can be viewed with seriousness. The future prospects of the pradhan might be jeopardized. He will also not get a chance to explain his conduct. Thus, the requisition notice and subsequent notice are set aside for the reasons stated hereinabove."

8. The matter was heard at length after granting an opportunity to the

parties to file their affidavits. Mr. Jahan fairly submitted that as per the

decisions of this Court on the point of stigma, the motion should be set

aside but liberty should be granted to the requisitionists to bring a fresh

motion in accordance with law.

9. As the requisition is set aside, on the ground of the same being

stigmatic, the prayers in the writ petition directing the prescribed authority

to proceed in accordance with law on the basis of the said requisition cannot

be allowed.

10. Now comes the question of granting leave to bring a fresh motion. Mr

Jahan learned advocate appearing on behalf of the requisitionists submitted

that Section 12(11) of the said Act would not operate as a bar in this case as

the requisitionists had withdrawn the earlier requisition dated August 10,

2021 even before the prescribed authority had decided to convene the

meeting. The prescribed authority had not even called upon the

requisitionists to satisfy him with regard to the compliances under section

12(2) of the said Act. The motion was withdrawn by the requisitionists before

the prescribed authority acted on the same. Accordingly, the motion was

cancelled by the prescribed authority. At best, the cancellation could be

taken as a decision of the prescribed authority recording noncompliance of

the provisions of the Section 12(2) of the said Act as the members who

signed the motion were undecided. The prescribed authority granted leave to

the requisitionists to bring a fresh motion once again. A motion for removal

of the Pradhan was thereafter brought on September 10, 2021 which is the

subject matter of the present writ petition.

11. Mr Jahan submitted that the leave granted by the prescribed

authority to bring a fresh motion for removal of Pradhan was in accordance

with law and such decision was not challenged by the respondent no. 11 at

any stage. Subsequently, the respondent no. 11 has come up with the plea

that the requisition was barred under Section 12(11) of the said Act and

should not be proceeded with. According to Mr. Jahan, the statute has

clearly mentioned that only when the requisition was not carried by the

majority of its existing members at the scheduled meeting, subsequent

motion for the removal of the Pradhan could not be taken cognizance of for a

period of one year from the date appointed for such meeting. According to

Mr. Jahan, the interpretation of Section 12(11) of the said Act would be that

if the majority of the members could not carry the motion in the meeting

convened for the removal of the Pradhan, only then the bar under Section

12(11) would operate. He further submitted that one third of the existing

members referred to in the subsection (1) of Section 12 subject to a

minimum of three, could bring a motion for removal of the Pradhan. Thus,

the law did not prescribe that the majority of the members should bring the

motion. On the contrary, the law prescribed that majority of the members

should carry the motion. The only logical interpretation of this provision

would be that the motion was to be carried and or passed by the majority at

the meeting and not as interpreted by Mr. Dhar.

12. Mr. Jahan relied on a decision of this court in the matter of Md. Ali

Reza & Ors. Vs. The State of West Bengal &Ors reported in (2012) 3

Cal LJ 36.

13. Mr. Mahata, learned senior government advocate submitted that the

Webster's dictionary meaning of the word 'carried' in reference to a meeting

would mean, 'to pass by majority'. According to Mr. Mahata the requisition

was a proposal to remove the Pradhan, brought by the existing members as

referred to in subsection (1) of Section 12. One third of the existing

members, subject to a minimum of three could bring the motion, but the

law prescribed that in order to remove the Pradhan, the requisition should

be passed by a majority at a meeting held as per the West Bengal Panchayat

(Constitution Rules), 1975. Referring to Section 12(11) of the said Act, Mr.

Mahata submitted that the prohibition was that a second motion for the

removal of the same office bearer could not be taken cognizance of within a

period of one year from the date appointed for such meeting. According to

Mr. Mahata had it been a case where the requisition would have to be

carried by the majority from the date of the motion, until the meeting was

held, in that case, Section 12(11) would have been differently worded.

According to Mr. Mahata, Section 12(11) bars a fresh requisition for removal

of the same office bearer for a period of one year from the appointed date of

the meeting, which meant that the meeting had to be fail either for lack of

quorum or because the majority of the members of the gram panchayat did

not vote in favour of the motion.

14. Mr. Pratik Dhar learned advocate appearing on behalf of the Pradhan

submitted that the majority of the members brought the motion for removal

of the Pradhan on August 10, 2021. The majority of the members withdrew

the said motion by writing a letter to the prescribed authority. According to

Mr. Dhar, the motion was not carried from the stage of the requisition to the

stage of the final decision of removal. The expression 'carried' would mean

the entire action of bringing the motion, serving the same upon the

prescribed authority, convening the meeting and finally putting the said

motion to vote at the meeting convened by the prescribed authority. If at any

time in this entire process, the motion was withdrawn, Mr. Dhar, submitted

that the same would mean that the motion was not carried by majority.

According to Mr. Dhar Section 12(11) contemplated of two situations one

being the motion not being carried and the other being lack of quorum in

the meeting. Referring to the decision in Mohammed Ali Reza (supra), Mr.

Dhar placed reliance on the following paragraph:

"7. A plain reading of the above provision of law postulates either of the two conditions which puts an embargo and/or fetter on a notice of any subsequent motion for removal of the same office bearer for the period of one year from the date appointed for such meeting. One such condition is, if the motion for removal of a Pradhan is not carried by the majority of the existing members of the Gram Panchayat. The other condition is, if a meeting cannot be held for want of quorum. Since, in the facts and circumstances of the instant case, we are not concerned with the first condition, it would be worthwhile to understand the implication of the second condition, which carries the phrase, 'the meeting cannot be held for want of quorum'. Two words, meeting' and 'quorum' are relevant in the context of the above quoted phrase. The word, 'quorum', denotes the number of members of any body of persons whose presence at a meeting is requisite in order that business may be validly transacted. The other word, 'meeting', must mean to usually consist of more than one person or at least, one person, in certain exceptional circumstances, (see Shackleton on the Law and Practice of Meetings, 11th Edition)."

15. Relying on this paragraph, it was submitted that when the meeting

failed for lack of quorum such failure was relatable to the meeting itself.

However, when the requisition was not carried by the majority and

withdrawn before the meeting, the motion also failed and the said failure

was not relatable to the meeting, and the embargo will operate from the date

of withdrawal of the requisition. He urged that when the majority of the

members withdrew the first motion by writing a letter to the prescribed

authority, the second motion could not be acted upon and as such the bar

under Section 12(11) of the said Act would be squarely applicable. No

motion for removal of the respondent no. 11 could be taken cognizance of

within one year from the withdrawal and the court would not be empowered

to grant leave to the requisitionists to bring a fresh motion in accordance

with law.

16. The question which now falls for determination is whether leave can

be granted to the requisitionists by this Court to bring a fresh motion of no

confidence in terms of the provisions of Section 12(2) of the said Act. The

requisitionists had brought a motion on August 10, 2021 which was

withdrawn by them even before the prescribed authority had satisfied

himself with regard to the compliance of the Section 12(2) of the said Act. By

a letter dated August 16, 2021, the prescribed authority cancelled the

requisition granting liberty to the requisitionists to bring a fresh motion.

Such order of cancellation could at best be treated as a decision indicating

that the provision of Section 12(2) had not been complied with, that is, the

requisitionists were not unanimous in their decision and on second

thoughts did not want to continue with their intention to remove as recorded

in said proposal/requisition. The leave granted by the prescribed authority

was not challenged by the Pradhan. On the basis of the leave granted by the

prescribed authority, a fresh requisition was brought by the requisitionists

on September 10, 2021. This court need not answer the question as to

whether the prescribed authority could have granted leave to bring the fresh

motion, as none of the parties have urged the said issue.

17. The provision of Section 12(11) is quoted below:

"If the motion is not carried by the majority of its existing members or the meeting cannot be held for want of quorum, no notice of any subsequent motion for the removal of the same office bearer shall be taken into cognizance within a period of one year from the date appointed for such meeting."

18. Section 12(1) of the said Act makes it clear that the Pradhan may, at

any time be removed from his office by the majority of the existing members

of the gram panchayat, expressing their lack of confidence against the

Pradhan or recording their decision to remove the Pradhan at a meeting

specially convened for the purpose. Section 12(2) provides that for the

purpose of removal of Pradhan, one third of the existing members referred to

in the subsection (1) of Section 12 subject to minimum of three, shall sign a

motion in writing expressing their lack of confidence against the Pradhan or

recording their intention to remove the Pradhan. Section 12(3) provides that

the prescribed authority on receipt of the motion shall satisfy himself

whether the requirements under sub-section (2) of Section 12 had been met

and on his satisfaction, shall specially convene a meeting by issuing a notice

within five working days from the receipt of the motion. The meeting shall be

held in the office of the gram panchayat. The date and hour of the meeting

shall be fixed in the said notice and at least seven clear days time would

have to be given to each of the existing members for consideration of the

motion and for taking a decision on it. In this case, the law prescribes that a

minimum of three members can bring a motion indicating their lack of

confidence in the Pradhan. Section 12(1) provides that the removal has to be

made by majority. A harmonious construction of section 12(1) and 12(2) of

the said Act would show that the Pradhan can be removed by a majority of

the members of the gram panchayat at a meeting specially convened for the

purpose and such meeting shall be held pursuant to a requisition brought

by one third of the members of the gram panchayat which shall be not less

than three members, indicating their intention to remove the Pradhan or

their lack of confidence. The following conditions must be complied with and

the prescribed authority must be satisfied of the same: [Gopal Kumar & Anr

vs The State Of West Bengal & Ors reported in (2015) 1 CHN 445 (DB)]

(i) One-third of the existing members of the Gram Panchayat subject

to a minimum of three members shall sign a motion in writing.

(ii) The motion in writing will record their lack of confidence against

the Pradhan or the Upa-Pradhan or their intention to remove the

Pradhan or the Upa-Pradhan

(iii) The party affiliation or independent status of each of such

members shall be indicated in the motion.

(iv) The motion must be delivered in person through any of the

members or sent by registered post to the Prescribed Authority.

(v) One copy of the motion shall be delivered to the concerned office

bearer either by hand or by registered post at the Gram Panchayat

office.

(vi) Another copy of the motion shall be sent by registered post at the

residential address of the concerned office bearer.

19. The prescribed authority upon being satisfied that the above

requirements have been complied with, shall issue a notice convening a

meeting within five working days from receipt of the motion, but upon giving

seven clear days to each of the members to think and decide on the motion.

20. The arguments of Mr. Dhar cannot be accepted in this case, as the

expression carrying the motion by majority could only be related to the

meeting. Carrying the motion could not be interpreted to mean that majority

of the members should support the motion from the time the same was

brought, till the time the same was put to vote at the meeting. The removal

should be by majority vote at the meeting, but the motion could be brought

by one third of the members which shall not be less than three members.

Thus when the law prescribes that at least 1/3rd (not less than three

members) could bring the requisition and meeting could be held on the

basis thereof, the question of the majority of the existing members

supporting or passing the motion would occur only at the meeting convened

by the prescribed authority.

21. The requisition can only be carried by the majority members at the

meeting itself and Section 12(11) clarifies that position. It has been clearly

stated that the bar would operate for a period of one year from the specified

date of the meeting. The computation of one year would be from the date of

the meeting. In this case, the prescribed authority did not even satisfy

himself about the compliances of section 12(2) when the first requisition was

brought on August 10, 2021. Here, the date of the meeting had not been

appointed and as such the bar would not operate in this case.

22. Reference is made to the decision of Md. Ali Reza (Supra). The relevant

portion is quoted below:

"9. In the absence of any meeting held on 22nd March, 2011, there was no embargo and/or fetter on the part of the Prescribed Authority, being the Block Development Officer, Murarai-II Development Block, Birbhum, to have called for a meeting for removal of Pradhan of Rudranagar Gram Panchayat to be held in terms of the requisition notices issued by the petitioners."

The argument of Mr. Dhar that the motion is a piece of paper and a tangible

object which has to be physically carried up to the stage of the meeting

cannot be accepted for the precise reason that the statute itself provides

that one third of the members (not less than three) can bring a motion

expressing their lack of confidence or desire to remove the Pradhan. Here

the motion is a proposal or expression of the desire of the members to

remove the Pradhan. The same is served upon the prescribed authority and

upon the office bearer sought to be removed. Thereafter, the entire duty of

ensuring that the said motion is ultimately put to vote at a meeting subject

to compliances of the requirement of Section 12(2) of the said Act, is upon

the prescribed authority. The liability of the requisitionists who brought the

motion under the law ends with the compliance of Section 12(2) and

thereafter it is the prescribed authority who takes over the motion and puts

the same to vote in accordance with the provisions of Section 12(3) & 12(4)

of the said Act. It is not the duty of requisitionists to carry the motion up to

the stage of the meeting as an object as suggested by Mr. Dhar.

23. The argument of Mr. Dhar that not carrying the motion would be

synonymous to withdrawing the motion before the prescribed authority acts

upon it, cannot be accepted and Section 12(11) of the said Act will not

operate as a bar in this case. When the majority of the members need not

bring the requisition in order for it to be valid, the law cannot be interpreted

as if it casts a liability on the majority of the members to see that there is no

withdrawal of motion before the motion is put to vote. If the interpretation of

Mr. Dhar is taken to be the correct one, then the legislature would not have

prescribed that the motion could be brought by one third of the elected

members (subject to minimum of three) but the removal would have to be by

the majority. The argument of Mr. Dhar that the motion would have to be

brought by majority and supported by majority even before the same is put

to vote is contrary to the provisions of Section 12(1), Section 12(2) and

Section 12(11) of the said Act.

24. Moreover Section 12(11) of the said Act prescribes the time limit of one

year from the appointed day of the meeting within which a second

requisition cannot be taken cognizance of. In this case, no date was fixed for

the meeting. The bar will not apply and as such leave can be granted to the

requisitionists to bring a fresh motion, in accordance with law.

25. The requisitionists are granted liberty to bring a fresh requisition as

per Section 12(2) of the West Bengal Panchayat Act, 1973. If such

requisition is brought, the prescribed authority shall act and proceed in

terms of the provisions of Sections 12(3) and 12(4) onwards of the said Act

and reach the requisition to its logical conclusion within the time limit

prescribed by the statute. The bar under Section 12(11) of the said Act shall

not be applicable.

26. 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 prescribed authority without any delay and

laches. It is also made clear that if the Pradhan tries to evade service of the

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

or effected, then the requisitionists will be entitled to paste the same at the

office of the Pradhan in addition to serving the same by the modes

prescribed by the statute.

27. Accordingly, the writ petition is disposed of.

28. However, there will be no order as to costs.

Parties are directed to act on the communication of the learned advocates.

(Shampa Sarkar, J.)