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2021 DIGILAW 346 (CAL)

Abutaher Hossain v. State of West Bengal

2021-08-12

SHAMPA SARKAR

body2021
JUDGMENT : 1. Affidavit of service is taken on record. 2. Despite service, none appears on behalf of the State respondents. 3. The petitioners are the members of the Haribhanga Gram Panchayat, who had brought a requisition under Section 12(2) of the West Bengal Panchayat Act, 1973 (hereinafter referred to as ‘the said Act’), requesting the prescribed authority to convene a meeting for removal of the pradhan of the said gram panchayat. The requisition was brought on July 28, 2021. According to Mr. Bhattacharyya, learned senior advocate, the prescribed authority called a meeting at his chamber for recording satisfaction with regard to the compliances under Section 12(2) of the said Act. Upon being so satisfied, the prescribed authority issued a notice under Form 1E, Sub-Rule (2) of Rule 5B of the West Bengal Panchayat (Constitution) Rules, 1975, fixing August 13, 2021 as the date for holding the meeting for removal of the pradhan. On August 6, 2021, the prescribed authority issued a notice indicating that the meeting could not be held due to the pandemic situation. Mr. Bhattacharyya, is aggrieved by the postponement of the meeting. He further alleges that even if the meeting was postponed for a few days, the prescribed authority did not indicate the subsequent date for holding the meeting and the entire intention on the part of the prescribed authority was to frustrate the notice by lapse of time. 4. The prescribed authority strangely being a responsible and senior Government official ought to have applied his mind to the subsequent order of the Government of West Bengal dated July 29, 2021 with regard to setting out guidelines for programmes to be held keeping the safety measures in tact. From the said order it is apparent that meetings of such nature in Government offices and other Government functions and gatherings were allowed with 50% sitting capacity. In this case, the meeting sought to be held was in the official course of business of functioning of a gram panchayat. Such meetings are permissible as per the norms of the Government, and, as such, the decision of the prescribed authority is not supported by proper reasons and has not been based on appreciation of the actual facts. Thus, the contention of Mr. Bhattacharyya in this regard is accepted. 5. Mr. Chakraborty, learned advocate appearing on behalf of the pradhan, submits that the requisition contains a stigma. 6. Thus, the contention of Mr. Bhattacharyya in this regard is accepted. 5. Mr. Chakraborty, learned advocate appearing on behalf of the pradhan, submits that the requisition contains a stigma. 6. The requisition which is in bengali read as a whole would indicate that the basis or the foundation of the no confidence was the apathy and inability of the pradhan to undertake developmental work for improvement of the locality. 7. 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.” 8. 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 duties had caused suffering to the people and would be consequently removed as the members lost confidence on account of such nonperformance. 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. 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.” 9. Here the foundation of the ‘no confidence’ and the intention to remove the Pradhan is the Pradhan’s inability to do developmental work and abandonement of such work in the locality. The Pradhan can be removed by the requisitionists if they have lost confidence in him by bringing a requisition with the intention to remove. As soon as there are allegations of incapacity, incapability or non-cooperation, the same becomes stigmatic. The Pradhan is a politically appointed representative of the people and allegation of such a nature may have a negative effect on his future prospects or on his credibility as a member of the Panchayat as well. 10. Thus, having considered the requisition notice as a whole, it indicates that the ground for removal of the Pradhan is not only lack of confidence but incompetence of the Pradhan to perform developmental work in the locality. Such allegations may also enrage and turn the people in the locality against the Pradhan. 11. Thus, in my view, the requisition cannot be sustained in law only on the ground that there are some allegations against the Pradhan which operate as a stigma. 12. Such allegations may also enrage and turn the people in the locality against the Pradhan. 11. Thus, in my view, the requisition cannot be sustained in law only on the ground that there are some allegations against the Pradhan which operate as a stigma. 12. Under such circumstances, the requisition as also the subsequent actions and notifications are set aside and quashed. 13. 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. 14. It is made clear that in view of the subsequent order of the Government, the pandemic situation shall not act as a bar to hold a meeting. However, the parties present at the meeting shall be liable to maintain the safety measures and the covid protocols required. The bar under Section 12(11) of the said Act shall not apply. 15. 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. 16. The prescribed authority shall be entitled to call for police help if required and the Superintendent of Police, Cooch Behar shall ensure and take prompt action so that all police support is given to the parties involved in the meeting. No delay or laches on the part of the police authority shall be viewed strictly. 17. With the above observations, this writ petition is disposed of. There shall be no order as to costs. 18. Parties are to act on the server copy of this order.