Ashok Mandal vs The State Of West Bengal & Ors on 22 September, 2021

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Calcutta High Court (Appellete Side)

Ashok Mandal vs The State Of West Bengal & Ors on 22 September, 2021

The Pradhan, Fulbaria Gram Panchayat has been served with a copy of the writ petition through WhatsApp as also e- mail. The writ petition was attached in the form of PDF along with the WhatsApp message and mail. The Pradhan also responded over WhatsApp and requested the learned Advocate on record to forward the number of the writ petition, which was also supplied by the learned advocate on record for the petitioner.

The petitioner is one of the requisitionists who brought the requisition along with others for removal of the Pradhan before the prescribed authority on September 2, 2021.

This is the 3rd requisition which was brought by the requisitionists requesting the prescribed authority to convene a meeting for removal of the Pradhan on the ground of loss of confidence.

The requisition was brought pursuant to the leave granted by this Court in an earlier proceeding. On two occasions, similar requisitions were brought namely, on July 8, 2021 and August 19, 2021. The prescribed authority failed to take steps and both the requisitions died a natural death due to lapse of time. The present requisition was brought on September 2, 2021 pursuant to the leave granted by this Court by order dated August 31, 2021 passed in WPA 13415 of 2021. The prescribed authority satisfied himself with regard to the compliance of Section 12(2) of the West Bengal Panchayat Act, 1973 (hereinafter referred to as the said Act) and convened the meeting to be held on September 20, 2021. On September 17, 2021, the prescribed authority cancelled the meeting due to non-availability of the police force on the basis of the information received from the Inspector-in-Charge, Englishbazar Police Station, Malda.

Although, the Pradhan is not represented before this Court despite service, the matter is taken up on an urgent basis in view of the fact that unless an order is passed, the third requisition brought by the petitioner and other members pursuant to the leave granted by this Court and in exercise of their statutory and democratic rights will become an exercise in futility. The Court shall not remain a silent spectator and allow its order to be violated and overridden by arbitrary and whimsical inactions of the state machinery including the prescribed authority and the police.

On September 21, 2021, one of the requisitionists moved a writ petition being WPA No.15076 of 20201 with similar prayers, i.e., for a direction upon the prescribed authority to hold the meeting on a date fixed by the court with full police protection. Mr. Gangadhar Das, Learned Advocate, appeared in the matter on behalf of the Pradhan and vehemently opposed the writ petition on the ground that no direction can be passed for holding a meeting as some of the requisitionists had been disqualified by the prescribed authority in an appropriate proceeding. This Court was on the verge of passing an order with a direction upon the prescribed authority to hold the meeting and allow only those requisitionists, who had not been disqualified, to participate in the meeting. There were no further allegations of 4 contravention of the provisions of law with regard to the motion. On detection of a formal error in the identity of the writ petitioner, this Court was of the view that the writ petition could not be entertained. Learned Advocate for the petitioner withdrew the writ petition. No decisions were given on merits.

Today, one of the requisitionists who is neither disqualified by the concerned authority nor is the writ petitioner of the earlier writ petition, has moved the Court for a direction upon the prescribed authority who is a statutory authority to perform his duties in accordance with law in compliance of the order passed by this Court on the earlier occasion. The writ petition was sought to be moved as an unlisted matter in the morning. Leave was granted to the petitioner to file the same and serve the same and it was directed that the matter would be taken up by publication of a supplementary list at 2.00 p.m., so that all concerned were aware that the matter will be heard by this Court today, in view of the paucity of time within which the meeting has to be convened and reached to its logical conclusion.

Mr. Raja Saha, the learned Advocate for the State- respondents and for the principal answering respondent, is before this Court and he is ready.

Mr. Das, learned Advocate, who appeared on behalf of the Pradhan in WPA No.15076 of 2021 was requested by the petitioner to appear in this matter and a copy of the writ petition was sent to Mr. Das by WhatsApp and a link was provided to Mr. Das but he was not in a position to appear in the matter as he did not receive any authorisation from the Pradhan to appear in this case. Mr. Das informed the court of his inability.

Despite best efforts of the petitioner as also the Court to ensure that all parties are served in the matter, the Pradhan is absent. Although, the Pradhan has always been aware that the members have lost confidence in her and have tried to move a requisition for her removal since July, 2021 but the prescribed authority by failing to take any action as per the statutory provisions has repeatedly frustrated the efforts of the requisitionists, which cannot be allowed to continue.

The Court of law must ensure that the provisions of law are not violated and the State machinery and the statutory functionaries abide by the same and show respect to the orders of court.

In this backdrop, the matter is entertained by this Court, in the absence of the Pradhan as no orders are passed affecting the right of the Pradhan. The Pradhan shall be in office till she 6 enjoys the confidence of the members and the fate of the meeting will decide whether she will continue in office.

Mr. Saha submits that the prescribed authority had satisfied himself about the satisfaction of Section 12(2) of the said Act. Notice was issued by the prescribed authority in compliance of Sections 12(3) and 12(4) of the said Act, thereafter the prescribed authority apprehending violence requested deployment of police force so that the meeting could be held on September 20, 2021 peacefully and without any untoward incident. There is no procedural lapse so far.

The police authority expressed inability to give sufficient police protection on September 20, 2021. The prescribed authority on September 17, 2021 issued a notice that the meeting to be held on September 20, 2021 stood cancelled and a future date would be notified. No such future date has been notified. Thus, the petitioner is before this Court for a direction that a meeting be held in terms of the earlier directions passed by this Court in similar situation with regard to other Gram Panchayats, within the statutory period of 30 days from receipt of the motion which will expire on October 1, 2021.

This Court is of the view that the prescribed authority may not hold a meeting within the mandatory period of 15 working days from the date of receipt of the requisition for 7 reasons beyond the control of the prescribed authority. In this case, as violence was anticipated and the police authority declined to assist the prescribed authority on September 20, 2021, the situation was beyond the control of the prescribed authority. Section 12(4) of the said Act, would not be a bar in this case. The law makes an exception in certain situations. Non-availability of police force and the apprehension of violence, for which the meeting was not held on September 20, 2021, in the prima facie view of the Court, were reasons beyond the control of the prescribed authority. The other allegations of the petitioner of bias, collusion, arbitrariness against the prescribed authority, shall be decided upon exchange of affidavits.

The right of the requisitionists to remove the Pradhan has been recognised by the Courts of law since the very inception of the concept of local self-government.

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 8 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 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."

These institutions 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. In my opinion, the provisions for removing an elected representative such as the Pradhan or the Upa-Pradhan are 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.

Under such circumstances, as the 30 days period prescribed under Section 12(10) of the said Act is not over and 9 having prima facie held that the prescribed authority was not in a position to hold meeting within 15 working days, for situations beyond his control, this Court fixes September 29, 2021 as the date for holding the meeting for removal of the Pradhan. The meeting for removal of the Pradhan will be held at 12.00 noon.

This order shall be treated as seven-clear-days' notice upon all the members as also the Pradhan. A separate notice shall also be issued by the prescribed authority on September 23, 2021 by 12.00 noon fixing the meeting, as indicated hereinabove. The notice shall be sent to the office of the gram panchayat and circulated through e-mail to all members and also sent on WhatsApp.

The Superintendent of Police, Malda is requested to deploy adequate police force at the time of the meeting on September 29, 2021. The district authority shall be at liberty to issue orders under Section 144(1) of the Code of Criminal Procedure if required. Apart from the members of the Gram Panchayat, police authorities, officials assisting the prescribed authority and the observer, no other person, not involved in the process shall not be allowed in the vicinity. The meeting should be reached to its logical conclusion and in accordance with law within October 1, 2021.

It is made clear that the disqualified members shall not be allowed to participate in the meeting unless there is an appropriate order of a superior forum staying the order of disqualification passed in an appropriate proceeding and not by an administrative order.

Let affidavit-in-opposition be filed within two weeks after reopening of the Court after Puja vacation; reply thereto, if any, be filed within two weeks thereafter.

Liberty is given to the parties to mention the matter before the appropriate Bench after expiry of the aforementioned period.

The actions taken in the meantime shall abide by the result of this writ petition.

Parties are to act on the basis of the learned Advocates communication. The petitioner's learned Advocate will send this order by e-mail and Whatsapp to all the members including the Pradhan All parties are to act on the basis of the server copy of this order. The police authorities will file a compliance report on the returnable date.

(Shampa Sarkar, J.)

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Calcutta High Court (Appellete Side)