Calcutta High Court (Appellete Side)
Jhuma Rani Sarkar vs The State Of West Bengal & Ors on 7 October, 2021
Author: Shampa Sarkar
Bench: Shampa Sarkar
S/L 9 7.10.2021Court. No. 19
sn WPA 16849 of 2021 Jhuma Rani Sarkar Vs. The State of West Bengal & Ors.
(Through Video Conference) Mr. Kallol Basu Mr. Alokesh Dalai ... for the Petitioner. Mr. Raha Saha Mr.Shamim Ul Bari ... for the State.
Md. Salahuddin
Md. A. Zaman ..for the repsts.7-14
This writ petition has been filed challenging a notice issued by the prescribed authority dated September 30, 2021 fixing October 8, 2021 as the date for holding the meeting for removal of the Pradhan of Majherram No.1 Gram Panchayat, District Nadia.
It is the contention of the petitioner that the prescribed authority failed to comply under Section 12(3) of the West Bengal Panchayat Act, 1973. Reliance has been placed on the decision of Gopal Kumar & Anr. Vs. The State of West Bengal & Ors. (WP 24555 (W) of 2014) reported in 2015 (1) CHN Cal.
The contention of the petitioner is that the provisions of Section 12(2) have not been complied with. The prescribed authority did not record subjective satisfaction with regard to such compliance. 2 Documents have been handed over to the Court, which show that the requisitions in both modes were received by the Pradhan after the meeting was convened by the prescribed authority.
Prima facie, it appears from the documents handed over by the learned advocate for the requisitionists, that pursuant to the leave granted by this Court the requisition was brought. The Court had also granted leave to the requisitionists to paste the requisition at a conspicuous place at the office of the Gram Panchayat in case, the Pradhan and/or her staff refused to accept the requisition.
Md. Salauddin has handed over a picture which depicts that the requisition was pasted outside the office of the Gram Panchayat. Thus, he submits that the Pradhan was aware of the requisition. Although, the law provides that the requisition should be delivered to the Pradhan through one mode, the requisitionists were granted liberty by this Court to paste the requisition or also hang the same in case of refusal of the Pradhan or absence from office, to avoid such service.
On and from September 27, 2021, the Pradhan was aware that liberty had been granted by this Court to the requisitionist to hang the newly brought motion at a conspicuous place. Thus, at this belated stage 3 when all arrangements have been made for the meeting and all the members are to participate in the same, there cannot be any mandatory order of stay of the meeting scheduled to be held on October 8, 2021. Such an order would amount to allowing the prayers in the writ petition as a whole, at the interim stage.
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 the 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. Admittedly the Pradhan has not yet been removed. Thus the meeting must go on.
The matter is required to be heard on affidavits. Let affidavit in opposition be filed within three weeks after reopening of the Court after puja vacation; reply thereto, if any, be filed within two weeks thereafter.
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Liberty is granted to the parties to mention the matter before the appropriate Bench after completion of affidavits.
All actions taken pursuant to the said meeting including re-election of the new Pradhan, in case the pradhan is removed by the majority vote, shall abide by the result of the writ petition.
The meeting should be held in accordance with law.
In the affidavit in opposition the requisitionists shall specifically state how and when attempts were made for service of the requisition, and who refused to accept service thereby compelling the requisitionists to hang the same. The prescribed authority shall also file an affidavit recording how the satisfaction was made.
Prima facie view of the Court is that the decision of Gopal Kumar(Supra) is not required to be gone into at this stage, as subjective satisfaction is neither the mandate of law nor the ratio of the said judgment.
This writ petition is disposed of.
There will be, however, no order as to costs. All the parties are directed to act on the learned advocate's communication.
(Shampa Sarkar, J.)