Calcutta High Court (Appellete Side)
Sourendra Nath Das vs The State Of West Bengal & Ors on 28 July, 2021
Author: Shampa Sarkar
Bench: Shampa Sarkar
28.07.2021
Court No. 19
Item no.02
CP
WPA 11903 of 2021
Sourendra Nath Das
Vs.
The State of West Bengal & ors.
(via video conference)
Mr. Billwadal Bhattacharyya
Mr. Debanik Banerjee
MR. Amrit Sinha
....for the petitioner.
Mr. Anirban Roy, Ld. G.P.
Mr. Raja Saha
Mr. Lalit Mahata
Ms. Sangeeta Roy
....for the State.
Despite service, the requisitionists did not
appear when the matter was taken up yesterday.
Thereafter, the petitioner was asked to serve the
requisitionists over telephone or WhatsApp or by
other electronic methods. Records have been
produced as downloaded from the phone of the
learned advocate-on-record showing that all the
requisitionists were sent notice that the matter would
appear today.
The learned advocate-on-record personally
submits before this court that he has sent notices
and the WhatsApp information downloaded digitally
from the phone is filed by him personally. The said
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notices are accepted. It appears that the
requisitionists do not have any interest to contest the
matter.
The writ petition has been filed challenging a
requisition notice dated July 14, 2021. The petitioner
is the pradhan. Pursuant to the requisition dated
July 14, 2021, the prescribed authority called for the
meeting for removal of the pradhan scheduled to be
held today, i.e., July 28, 2021 at 12 noon. The
requisition has been challenged on the ground that
the requisition notice discloses allegations against
the pradhan. It is in vernacular, bengali. The
allegation is that the pradhan had since long failed to
perform his duties with regard to development of the
areas in question and his inaction has caused
suffering and deprivation to the persons in the
locality. Due to such inaction and/or incompetence
of the pradhan, the signatories/members of the gram
panchayat had lost confidence in the pradhan.
It is submitted by the petitioner that in the
decision of Ujjal Mondal vs. State of West Bengal,
reported in 2013 (1) CHN (CAL) 458, the Division
Bench of this court held that requisition notice/no
confidence motion was entertainable only when there
was no foundation for bringing the motion.
Paragraph 24 of the said decision is quoted below:
"24. Having regard to section 101 of the
said Act, we are of the view that a 'no
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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."
Mr. Mahata, learned Additional Government
Pleader, submits that the notice is not stigmatic as
such. He distinguishes the decision of Ujjal Mondal
(supra) on the ground that in Ujjal Mondal (supra),
the allegations were more serious. According to him,
in this case the allegation is inaction and
incompetence which is not stigmatic, and as such,
the foundation of the 'no confidence motion' is not
allegations of misconduct or mis-appropriation. Mr.
Mahata refers to a decision of a Division Bench of
this court in the matter of Ujjwal Kumar Singha Vs.
State of West Bengal, reported in (2017) 2 CHN 258
(DB). In the said decision the court observed that 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. According to Mr. Mahata, one of the
challenges before the Division Bench was that the
requisition notice carried a stigma but the Division
Bench did not set aside the requisition.
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Having perused the judgment of the Division
Bench in Ujjwal Kumar Singha (supra), I do not find
that the Division Bench decided the point as to
whether the requisition which carries some allegation
against the pradhan could be entertained. It appears
that there was a challenge to the no confidence
motion on the ground that the same was carrying
allegations, but the Hon'ble Division Bench held that
the learned Single Judge had dealt with the issues
and had dismissed the writ petition with reasons.
However, there is no observations as to whether the
requisition, even if, it contains any allegation or
stigma could be entertained contrary to what was
decided in Ujjal Mondal (supra). The relevant
paragraphs of the said decision are quoted below:
"3. The writ petitioner is now the
appellant before us. It appears that the writ
petitioner had approached the writ Court
challenging a fresh notice of his removal as
the Pradhan of the concerned Gram
Panchayat which was issued by the
requisitionists on 19th November, 2016,
pursuant to the observations made by this
Court as contained in the judgment and order
dated 19th September, 2016, in a previous
appeal, being MAT 1543 of 2016 with CAN
8571 of 2016, which was preferred by the
appellant herein against an order dated 5th
August, 2016, passed by the writ Court in an
earlier writ petition filed by him. Apart from
the notice dated 19th October, 2016, the
subsequent step taken by the Prescribed
Authority was also made the subject-matter of
the writ petition wherefrom the impugned
order dated 18th November, 2016, emanates.
The appellant herein challenged the action of
the respondents exclusively on three grounds
which have been set out by the learned Single 5 Judge in page 2 of the impugned judgment and order dated 18th November, 2016. The same is reproduced hereinbelow:
'Mr. Bhattacharya has challenged the action of the respondents exclusively on three grounds. First, the notice is stigmatic in nature; secondly, the notice is bad in law as it does not express lack of confidence against the Pradhan; and thirdly, from the notice issued by the prescribed authority it is not clear for what purpose the meeting had been convened as he had failed to strike off the inapplicable words in the notice issued by him.'
4. The learned Single Judge dealt with the matter extensively and in details and came to a conclusion that the writ petition had absolutely no merit and the same was required to be dismissed in limine and the matter was accordingly dismissed.
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 vs. The State of West Bengal & Ors. reported in 2016 (5) CHN (Cal) 258, while following the observations made by the Supreme Court in Usha Bharti vs. State of U.P. & Ors. reported in 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 6 which was taken note of by the Supreme Court in Usha Bharti (supra)."
Another interim decision of a Division Bench has been placed by the respondents, in the matter of Prasanta Mitra Vs. The State of West Bengal passed in MAT 1086 of 2019. Having perused the interim order, this court is of the opinion that the consideration before the Hon'ble Division Bench was not with regard to any stigma or allegation in the requisition notice.
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 7 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.
This court agrees with the proposition of Mr. Mahata that it is the fundamental right of the requisitionists to remove their leader if they have lost 8 their confidence in him. The pradhan was elected as the leader of the gram panchayat in a democratic process. He shall continue to be a leader till he enjoys the confidence of the members. However, the members have lost confidence in him, the pradhan cannot stay for a day longer. This was also the observation of the Hon'ble Supreme Court in the matter of Usha Bharati vs. State of U.P., reported in (2014) 7 SCC 663.
For the reasons stated above, the requisition notice dated July 14, 2021 and the subsequent notice dated July 16, 2021 are set aside.
The requisitionists are granted liberty to bring a fresh requisition with immediate effect. If such requisition is brought, the prescribed authority shall act and proceed in terms of the provisions of Section 12(3) and 12(4) of the West Bengal Panchayat Act, 1973. The bar under Section 12(11) of the said Act shall not apply.
With the above observations, this writ petition is disposed of. There shall be no order as to costs.
Parties are to act on the server copy of this order.
(Shampa Sarkar, J.)