Md. Nojibur Rahaman vs State Of West Bengal & Ors.

Another instance where the Pradhan of Daulatnagar Gram Panchayat, Harishchandrapur-II Block, District â€" Malda has attempted to frustrate the

order of this Court by filing this writ petition and by raising points which in the prima facie opinion of the Court are not adequate to persuade the court

to stay the meeting to be held on August 17, 2021.

The requisitionists, who are clearly majority in number had brought a motion before the prescribed authority for the first time on or around June 28,

2021, requesting the prescribed authority to convene a meeting for removal of the Pradhan on the ground of lack of confidence. The prescribed

authority failed to convene a meeting and did not supply any reasons to the requisitionists as to why the requisition could not be acted upon.

Accordingly, a writ petition was filed being WPA No.11295 of 2021 and this Court directed that in view of the expiry of the period of thirty days from

the date of receipt of requisition, the requisitionists would be at liberty to bring a fresh requisition in accordance with law. Accordingly, a requisition

was brought on July 22, 2021. The prescribed authority upon being satisfied with the compliance of Section 12(2) of the West Bengal Panchayat Act,

1973, issued a notice dated July 28, 2021 fixing August 6, 2021 as the date for holding the meeting. On August 3, 2021 the writ petition being WPA

12333 of 2021 was filed on the ground that the prescribed authority had not satisfied the provisions of Section 12(3) of the said Act. No interim order

was passed and the Court directed that the meeting on August 6, 2021 should be held as per schedule. Directions were issued upon the prescribed

authority to file affidavits showing compliance of Sections 12(2) and 12(4) of the said Act. The order was carried in appeal, but as yet the petitioner

has not been able to produce any interim order staying the order dated August 5, 2021, by which this Court directed that the meeting should be held.

Admittedly, the matter had not been heard by the Hon’ble Division Bench. On August 5, 2021 the prescribed authority on the communication of

the Inspector-in-Charge, Harishchandrapur Police Station dated July 28, 2021 adjourned the meeting until further orders, as police authorities

expressed their inability to deploy sufficient police force in view of the serious law and order problem that was expected and certain incidents which

had happened in the area with regard to the issue of no confidence against the Pradhan of the Daulatpur Gram Panchayat. It appears that the meeting

was adjourned because some information was received from the intelligence that the meeting would cause gathering of huge persons and there could

be serious law and order problem apart from the issues relating to violation of Covid norm.

The matter was mentioned before this Court for inclusion in the list by the requisitionist on August 9, 2021. The learned advocate on record for the

petitioner was also present during mentioning and this Court was apprised that an appeal had been filed. This court requested the concerned advocate

for the State respondents, who is also an Additional Government Pleader to enquire into the actual facts. Later on the same day, this Court was

informed that the situation improved and a notice for holding the meeting has been already issued.

This writ petition has been filed challenging the subsequent notice dated August 9, 2021, by which the prescribed authority fixed August 17, 2021 at 12

noon as the date for holding the meeting for removal of the Pradhan.

The first point raised by the petitioner is that the provisions of Section 12(4) of the said Act have not been followed, inasmuch as, the meeting has

been called beyond fifteen working days from the date of receipt of the motion. Secondly, Mr. Majumdar, learned Senior Advocate submits that if the

meeting was adjourned on August 5, 2021, in that case, a fresh notice under Form-1E of Sub-Rule (2) of Rule 5B of the West Bengal Panchayat

(Constitution) Rules, 1975 should not have been issued, instead the prescribed authority ought to have just fixed another day by a simple notice. He

submits that once there is a fresh notice under Form â€" 1E, it means that the said notice has been issued pursuant to a fresh requisition. In this case,

the requisition dated July 22, 2021 could not have been revived by the issuance of a subsequent notice under Form-1E of Sub-Rule (2) of Rule 5B of

the West Bengal Panchayat (Constitution) Rules, 1975. Mr. Majumdar further submits that if the period of thirty days as envisaged under Section

12(10) of the said Act is considered mandatory in nature, in that case the provision of giving seven clear working days’ is mandatory and the

meeting on August 17, 2021 is not in accordance with law. The provisions of Section 12(4) of the said Act in holding the meeting for removal of the

Pradhan within fifteen working days from the receipt of motion has also not been complied with. Thus, according to Mr. Majumdar, the meeting to be

held on August 17, 2021 cannot be permitted in view of the bars under Sections 12(4) and 12(10) of the said Act.

Mr. Mitra, learned advocate appearing on behalf of the State respondents and the prescribed authority submits that the notice was rightly issued. The

requisition was brought pursuant to the order of this Court. The prescribed authority issued a notice initially to hold the meeting on August 6, 2021.

Thereafter, the meeting was adjourned in view of the report of the Inspector-in-Charge, Harishchandrapur Police Station as violence was rampant in

the area at the point of time. According to Mr. Mitra, the meeting was adjourned and a fresh meeting was called. The period of thirty days from the

receipt of the requisition has not expired and the Pradhan was always aware of the no confidence motion against him. The second notice did not

require a clear seven days’ intimation before the meeting was held. The time period fixed by law has already been maintained by the prescribed

authority.

Mr. Haldar, learned advocate appearing on behalf of the requisitionists submits that two attempts have been made by the Pradhan to stall the

requisition although, the Pradhan has lost the confidence of his members long time ago. He further submits that in a democratic process, the right of

the leader to continue in his office is at the pleasure of the members. If the Pradhan loses confidence of the members, he cannot stay in his office for

a single day.

Having heard the rival contentions of the respective parties, prima facie, this Court is not satisfied with the contentions of the petitioners in view of the

chequered history of the matter.

The first attempt of the requisitionists to remove the Pradhan was frustrated due to expiry of the time. A leave was granted by the Court taking note

of the democratic right as also the statutory right of the members to bring such a requisition in accordance with law. Such institutions run on the

principle of democracy. The requisitionists, on the liberty granted by the Court brought a fresh requisition on July 22, 2021. The meeting to be held on

August 6, 2021 was challenged by the Pradhan on the ground that the provisions of Section 12(3) had not been complied with and the Pradhan was

not served with a copy of the requisition. Prima facie, this Court was not satisfied with the contentions of the petitioner/Pradhan and refused to stay

the meeting with the following observations:

“It appears that the Pradhan was always aware of the fact that the members of the Gram Panchayat wanted to bring a fresh requisition against

him for his removal. When WPA 11295 of 2021 was disposed on July 19, 2021, the Pradhan was represented and an order was passed by this Court

granting liberty to the requisitionists to bring a fresh requisition. Pursuant to the said order, the present requisition was brought, which culminated in the

meeting to be held on August 6, 2021 for removal of the Pradhan. Thus, the Pradhan was always aware about the lack of confidence of the members.

Records reveal that the requisition notice has been annexed to the writ petition at page 20. Thus the allegation of non-service of notice is prima facie

not accepted.

There is no scope for passing any interim order, inasmuch as, the requisition has been called on the liberty granted by this Court. The prescribed

authority found the same to be in order. Some unknown persons hijacked the requisitionists, who were recovered by the police later on and an

investigation is going on with regard to the incident which happened. The hooligans tried to disrupt the proceedings at the stage of verification. The

previous direction of this Court is also attempted to be flouted.

In my opinion, the provision for removing an elected representative such as 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.

Let affidavit-in-opposition be filed within a period of four weeks; reply thereto, if any, be filed within two weeks thereafter.â€​

Thereafter, the prescribed authority issued a notice on August 5, 2021 adjourning the meeting on the intelligence report and inability of the police

authority to render assistance and support in view of the serious law and order issue that was prevailing in the locality and the police authorities

apprehended violence.

In my prima facie view, here was a situation when the prescribed authority was prevented by sufficient cause from holding the meeting within fifteen

working days. Such sufficient cause is available from the notice of adjournment and also the elaborate report of the Inspector-in-Charge,

Harishchandrapur Police Station which are on record. Whether such apprehension of the police authorities were correct is to be decided on affidavits.

Secondly, with regard to the point of not having seven clear working days’ notice on and from July 22, 2021, this court is of the prima facie opinion

that seven clear days notice is sufficient and not seven ‘working’ days as the statute does not prescribe seven working days notice contrary to

the requirement of calling the meeting with five working days. The expression working has to be omitted by the legislature. The Pradhan has always

been a party to several proceedings before this court. He was aware of the meeting. He was aware of the no confidence. Seven clear days’

notice had been given when the requisition was accepted and a meeting was called on August 6, 2021 on the basis of notice dated July 28, 2021.

However, as the meeting could not be held beyond the control of the prescribed authority, a fresh notice was issued on August 9, 2021 and the

meeting has been fixed on August 17, 2021 and seven clear days notice has been given once again. Whether the said notice has to be issued under

Form â€"1E or whether it could be a simple notice without adhering any particular format, is a matter to be decided upon exchange of affidavits and

would need hearing. In my prima facie view, the notice issued under form 1E is the correct procedure as the period of 30 days has not expired.

Whether it be a fresh notice or a notice issued re-convening a fresh meeting, the format as per rules has to be followed. However, the Pradhan has

been aware of the meeting. Prima facie, I do not find any infraction of law. The meeting dated August 17, 2021 shall continue. None of the members

have raised any grievance.

The Pradhan, in my prima facie opinion, is unwilling to face the consequences of the meeting and has been attempting to circumvent the orders of this

court by filing writ petitions one after the other.

Reliance is placed on the decision of Usha Bharti versus State of U.P & Ors. reported in AIR 2014 SC 1686. It was held that 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.

In the matter of Bibi Najba versus State of West Bengal & Ors. reported in (2008) 2 CHN 363. It was held that:

“20. Purpose of service of notice is to make a member aware as to holding of a meeting, so that the member can participate in the meeting

effectively. It appears to this Court that the members were aware about the requisition meeting which was scheduled to be held on 30th November,

2006 at least a day before the date when the said meeting was scheduled to be held the said members never claimed that they did not know about the

time schedule and/or the venue of the said meeting and/or agenda which was to be transacted in the said meeting. On the contrary, they on their own

separately approached the concerned prescribed authority to cancel the requisition meeting which was scheduled to be held on 30th November,

2006.â€​

Reliance is also placed on the decision of Ujjwal Kumar Singha versus State of West Bengal & Ors. reported in (2017) 2 CHN 258 it was held that:

“5. 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 Madamus Appeal. It appears that the appellant/writ petitioners 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 the 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 utilization by the Mediation and Conciliation Committee of the High

Court.â€​

Let affidavit-in-opposition be filed within a period of four weeks; reply thereto, if any, be filed within two weeks thereafter.

Liberty to mention.

Parties are to act on the learned Advocate’s communication.