Calcutta High Court (Appellete Side)
Shukram Sing & Ors vs The State Of West Bengal & Ors on 31 January, 2022
Author: Shampa Sarkar
Bench: Shampa Sarkar
31.01.2022
Court No.19
Item No. 3
cp
WPA 21254 of 2021
Shukram Sing & ors.
Vs.
The State of West Bengal & Ors.
Mr. Saibal Acharyya
Mr. Pradip Paul
... for the Petitioners.
Mr. Sujay Bandyopadhyay
Ms. Doyel Dey
.....for the respondent no. 5.
Mr. Supratim Dhar Mr. D. Nayak ... for the State.
The petitioners are the requisitionists who had brought a motion on October 26, 2021, requesting the prescribed authority to convene a meeting for removal of the pradhan of the Baghasty Gram Panchayat. The prescribed authority called a meeting to record satisfaction about the compliances of the provisions of Section 12(2) of the West Bengal Panchayat Act, 1973 (hereinafter referred to as 'the said Act'). It is submitted by the petitioners that despite having received the said motion and even after satisfying himself about the compliances under the law, the prescribed authority did not proceed further. The petitioners are aggrieved because their democratic 2 right to remove the pradhan has been denied by the inaction of the prescribed authority.
Mr. Bandyopadhyay, learned advocate appearing on behalf of the pradhan, submits that the motion which was brought by the petitioners was rightly not acted upon by the prescribed authority as the requisition was stigmatic. He further submits that the time limit prescribed by the statute expired long ago and the prayer of the petitioners for a direction upon the prescribed authority to act on the basis of the said requisition, cannot be allowed.
Mr. Dhar, learned advocate appearing on behalf of the State respondents, submits that the prayer of the petitioners cannot be allowed in view of the stigmatic resolution as also due to the expiry of the statutory period prescribed by law, within which the meeting ought to have been convened.
Having considered the rival contentions of the parties, this court is of the opinion that the contentions of the respondents with regard to the requisition being stigmatic, are correct. The basis of the removal of the pradhan as it appears from the said requisition, which is in vernacular, are allegations of corruption, nepotism, non-cooperation with the members and the pradhan's autocratic way of functioning.
3
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 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."
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 4 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."
Here, the foundation of the 'no confidence' and the intention to remove the pradhan are the allegations of corruption, nepotism, non-cooperation with the members and the pradhan's autocratic way of functioning.
The pradhan can be removed by the requisitionists if they have lost confidence in her, by bringing a requisition with the intention to remove. As soon as there are allegations of corruption, nepotism, non-cooperation and autocratic way of functioning, the 5 same become stigmatic. The pradhan is a politically appointed representative of the people and allegation of such nature may have a negative effect on her future prospects or on her credibility as a member of the panchayat as well.
Thus, the requisition notice as a whole indicates that the ground for removal of the pradhan is not only lack of confidence, but due to corruption, nepotism, non-cooperation with the members and the pradhan's autocratic way of functioning. Such allegations may also enrage and turn the people in the locality against the pradhan.
Thus, in my view, the requisition cannot be sustained in law on the ground that there are some allegations against the pradhan which operate as a stigma. Besides, the statutory time prescribed by law has expired long ago, from the time the requisition has been received by the prescribed authority. The prescribed authority has not called the meeting within the statutory period. The period of 30 days as per Section 12(10) of the said Act, has also expired.
Under such circumstances, the requisition dated October 26, 2021 and all subsequent actions, if any, are set aside and quashed.
However, the court is conscious of the rights of the requisitionists.
6
In my opinion, the provision for removing an elected representative such as the pradhan is of fundamental importance to ensure the democratic functioning of the institution as well as to ensure transparency and accountability in the functions performed by the elected representatives. 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. If the pradhan has lost support of the majority of the members, she cannot remain in office for a single day.
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 7 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."
The requisitionists are granted liberty to bring a fresh requisition with immediate effect in accordance with the provisions of Section 12(2) of the said Act. 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 in order to reach the requisition to its logical conclusion. The time period prescribed by the statute shall be strictly adhered to. The bar under Section 12(11) of the said Act shall not apply.
This court has not expressed any opinion on the competence of the pradhan to continue in office as the issue shall be decided at the meeting when called for.
The prescribed authority shall be entitled to call for police help if the situation so demands and the police authorities shall ensure and take prompt action 8 so that all police support is given. Delay or laches on the part of the police authority shall be viewed strictly. 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 her office through her 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 the modes prescribed by law.
With the above observations, this writ petition is disposed of. There shall be no order as to costs.
All the parties are directed to act on the learned advocate's communication.
(Shampa Sarkar, J.)