Calcutta High Court (Appellete Side)
Zamil Firdosh vs The State Of West Bengal & Ors on 3 December, 2014
Author: Debasish Kargupta
Bench: Debasish Kargupta
1
3.12.2014.
SD
W.P. No. 31248 (W) of 2014
Zamil Firdosh
Versus
The State of West Bengal & Ors.
Mr. Bikash Ranjan Bhattacharya
Mr. P.S. Deb Burman
Md. Sarwar Jahan
... For the Petitioner.
Mr. Moloy Bose
Mr. Gourav Das
....For the Respondent Nos. 6 to 17.
Mr. Biswajit De Ms. Shabana Hasin ...For the State.
Let supplementary affidavit to this writ application filed by the petitioner be kept on record.
This writ application is taken up with the consent of the parties present before this Court.
This writ application is directed against a motion dated November 18, 2014 (at page 26 of this writ application) initiated by 12 (twelve) elected members (requisitinists) of Harishchandrapur‐I Panchayat Samty, District - Malda for adopting a resolution in a meeting of the above Gram Panchayat for the purpose of expressing their no confidence on the 2 petitioner in respect of his functioning in the office of Sabhapati of the above Panchayat Samity.
It is submitted by Mr. Bikash Ranjan Bhattacharya, learned Senior Advocate appearing on behalf of the petitioner that the aforesaid motion dated November 18, 2014 contained allegations of dictatorship, undemocratic and illegal activities against the petitioner regarding his functions in respect of the office of Sabhapati of the above Gram Panchayat was concerned. According to Mr. Bhattacharya, the above motion contained stigma.
Relying upon the decision of Ujjal Mondal vs. State of West Bengal reported in 2013 (1) CHN (Cal) 458, it is submitted by Mr. Bhattacharya that the above motion cannot be sustained in law. It is further submitted by Mr. Bhattacharya that during the pendency of this writ application, a notice has been issued by the respondent no. 3 under Memo No. 212 (21)/Elec/SDO/CHL, dated November 24, 2014 (at page 7 of the supplementary affidavit to this writ application) of meeting on motion for expressing "lack of confidence" against the petitioner in a meeting scheduled to be held on December 4, 2014.
It is submitted by Mr. Moloy Kumar Basu, learned Senior Advocate appearing on behalf of the respondent nos. 6 to 17 3 (requisitioninsts) that the impugned motion does not contain any stigma. According to him, the term "dictatorship, undemocratic and illegal" were not stigma since it had no civil consequences upon the petitioner. It is further submitted that the above comments were not foundation of the motion.
Having heard the learned counsel appearing for the respective parties as also after considering the motion dated September 5, 2014, initiated by the respondent nos. 7 to 17 (requisitionists) contained the allegations of incompetency and failure to manage the affairs of the Panchayat under reference for the purpose of examining the propriety of the above motion, the relevant portions of the decision of Ujjal Mondal (supra) is quoted below:‐
28. The principle of law as discussed in those cases though within the field of service law is squarely applicable in the instant case to interpret section 101 of the said Act relating to bringing a requisition notice of removal on the ground of no confidence. If the removal is due to no confidence only, it is suffice to bring a motion and it will be called as no confidence motion simpliciter, but if the no confidence motion for removal is on allegation of any illegality or on allegation of any disqualification or on allegation of misuse of power, it is not a "no confidence motion for removal"
simpliciter, but it is coloured with a foundation without any adjudication, which would be bad in law."
After considering the facts and circumstances of the case in the light of the aforesaid judgment, I am of the opinion that the issue 4 involved in this case has been decided in the matter of Ujjal Mondal (supra) considering that the motion contained allegations of "dictatorship, undemocratic and illegal" against the petitioner and those amount to stigma having consequences to be suffered by the petitioner in the light of the observations made in the above judgment. Needless to point out that those comments were the foundations for initiating the motion.
In view of the observations and discussions made hereinabove, the impugned motion is quashed and set aside.
Let it be further recorded that the steps taken on the basis of the impugned motion including notice dated November 24, 2014 issued by the respondent no. 4 cannot be sustained in law and those are quashed and set aside.
Considering the prayer made on behalf of the requisitionists for granting leave to proceed afresh on the selfsame cause of action in accordance with law, this Court is of the opinion that under the provisions of West Bengal Panchayat Act, 1973 read with the provisions of West Bengal Panchayat (Constitution) Rules 1975, there is no bar and/or impediment and they are at liberty to proceed in accordance with law.
5This writ application is, thus, disposed of.
There will, however, be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
( Debasish Kar Gupta, J. )