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2022 DIGILAW 283 (CAL)

Mamoni Ghosh v. State of West Bengal

2022-02-21

SHAMPA SARKAR

body2022
JUDGMENT : 1. The writ petition has been filed challenging the notice dated February 11, 2022, issued by the prescribed authority under Sub-Rule (2) of Rule 5B of the West Bengal Panchayat (Constitution) Rules, 1975 (hereinafter referred to as ‘the said rules’). The petitioner is the pradhan of Tenkaripur-Balumati Gram Panchayat. The petitioner has alleged that the prescribed authority has acted in violation of the provisions of Sections 12(3), 12(4) and 12(10) of the West Bengal Panchayat Act, 1973 (hereinafter referred to as ‘the said Act’), and issued the notice convening the meeting for removal of the pradhan beyond the statutory period of 30 days. Allegations are that the prescribed authority has acted in flagrant violation of the statute. It is prayed that the notice dated February 11, 2022 and the meeting dated February 23, 2022 be cancelled. 2. Mr. Betal, learned advocate appearing on behalf of the requisitionists, submits that the situation was beyond the control of the prescribed authority and thus the authority could not convene the meeting in terms of Sections 12(3), 12(4) and 12(10) of the said Act. He submits that the provisions of Section 12(4) and Section 12(10), enabled the prescribed authority to hold a meeting beyond 30 days. In this case, the meeting has been fixed on the 38th day from the date of receipt of the requisition. It is submitted by him that in the matter of Rasida Bibi vs. The State of West Bengal in MAT 652 of 2021, the Hon’ble Division Bench held that surge in the Covid-19 infections could be taken as reasons beyond the control of the prescribed authority in failing to hold the meeting within 15 working days from the receipt of the requisition. It was further held that such a meeting could be held even beyond the expiry of the statutory period of thirty days on a combined reading of Sections 12(4) and 12(10) of the said Act. According to the Hon’ble Division Bench, Section 12(10) would be controlled by the provisions of Section 12(4). In the event the situation was beyond the control of the prescribed authority and the meeting had to be postponed or cancelled, the meeting could also be held beyond 30 days. The only distinguishing factor in this case is that there was no notice under Section 12(3) and as such, the decision of Rsida Bibi (supra) would not apply. 3. In the event the situation was beyond the control of the prescribed authority and the meeting had to be postponed or cancelled, the meeting could also be held beyond 30 days. The only distinguishing factor in this case is that there was no notice under Section 12(3) and as such, the decision of Rsida Bibi (supra) would not apply. 3. Section 12(4) of the said Act provides that a meeting shall be held within 15 working days and shall not be adjourned or cancelled except for reasons beyond control. In this case, no meeting was called, no date was fixed and, as such, the action of the prescribed authority in this regard cannot not be condoned by application of Section 12(4). The prescribed authority had not even exercised his power under Section 12(3). In this case, the law makes a fine distinction. When the law prescribes a particular procedure must be followed, the statute book has to be followed in its letter and spirit. The court cannot extend the time beyond 5 working days under Section 12(3) of the said Act for issuance of the notice convening the meeting. The law provides that the meeting can be adjourned or postponed for reasons beyond control as per Section 12(4). The first ingredient of this section is that a meeting should be convened within 5 working days and the date of the meeting must be fixed not later than 15 working days from receipt of the motion. Thereafter, the meeting so fixed may be adjourned or cancelled for reasons beyond the control of the authority. In this case, the requisition was received and immediately deferred. The petitioners objected to the same. 4. In the decision of Taylor v. Taylor, (1875) 1 Ch.D, 426, 431, it has been held that when the law prescribes that a certain act must be performed in a certain way; such act has to be performed in the specified manner and not in any other manner. The principle was followed by the Indian Courts in the decision of Nazir Ahmad v. The King Emperor, AIR 1936 PC 253 ; and State of Uttar Pradesh v. Singhara Singh, (1964) 4 SCR 485 . 5. The prescribed authority did not follow the law. The principle was followed by the Indian Courts in the decision of Nazir Ahmad v. The King Emperor, AIR 1936 PC 253 ; and State of Uttar Pradesh v. Singhara Singh, (1964) 4 SCR 485 . 5. The prescribed authority did not follow the law. Under such circumstances, the requisition dated January 14, 2022 and the notice dated February 11, 2022 and all steps taken pursuant to the said requisition are set aside and cancelled. The meeting shall not be held on February 23, 2022. 6. However, It is the democratic right of the requisitionists, to seek the removal of their leader who has lost their confidence, in accordance with law. They are entitled to enforce such right and any delay by the authorities will actually frustrate such right and destroy the democratic set up of the institution. 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 explains why this provision of no- confidence motion has been provided under the law. 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 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.” 7. The requisitionists are granted liberty to bring a fresh requisition in accordance with law. If the said requisition is brought, the prescribed authority shall reach the requisition to its logical conclusion upon complying with the provisions of Sections 12(3) and 12(4) onwards of the West Bengal Panchayat Act, 1973, by strictly adhering to the time limit fixed by the statute under Section 12(10) of the said Act. The bar under Section 12(11) shall not apply as this is not a case that the requisition failed for want of quorum or could not be carried through. 8 It is further made clear that the prescribed authority shall be entitled to seek police protection and if such request is made, the police authority shall render all support to the requisitionists as also to the prescribed authority without any delay and laches. It is also made clear that if the pradhan tries to avoid service of the requisition, then the requisitionists shall be entitled to serve the same in the office through the 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 registered post to the residence of the pradhan. 9. Requisitionists are apprehensive that the pradhan and the police authorities may set the criminal law in motion on the basis of an FIR lodged earlier. They submit that the complaint was lodged on frivolous grounds and only to ensure that the requisitionists may not participate in any meeting for removal of the pradhan. 10. Although, the court cannot totally discard such contention, this court is not in a position to pass any protective order in respect of any criminal proceeding pending against any person. They submit that the complaint was lodged on frivolous grounds and only to ensure that the requisitionists may not participate in any meeting for removal of the pradhan. 10. Although, the court cannot totally discard such contention, this court is not in a position to pass any protective order in respect of any criminal proceeding pending against any person. In such event, the requisitionists shall be entitled to act and proceed in accordance with law and pray for appropriate orders before the appropriate forum. 11. This writ petition is, thus, disposed of. 12. There will be no order as to costs. 13. All parties are to act on the basis of the server copy of this order and on the basis of learned Advocate’s communication.