Santara Khatun vs State Of West Bengal & Ors.

Affidavit of service is taken on record.

The writ petition has been filed by the Pradhan of Bangitola Gram Panchayat, District-Malda. The allegation is that during the pendency of an earlier requisition dated July 15, 2021 which was not acted upon, the prescribed authority once again convened a meeting for removal of the Pradhan to be held on September 6, 2021. The prescribed authority by a notice dated July 23, 2021 held that in view of the order of the Chief Secretary to the Government of West Bengal vide No.753/III-ISS/2M-22/220 dated 14-07-2021, and restriction in terms of the provisions of the Disaster Management Act, 2005 read with West Bengal Epidemic Disease, Covid-19 Regulations, 2020, all political gathering, grouping and congregations shall continue to be prohibited and no action was to be taken on the basis of the earlier requisition dated July 15, 2021. The date was to be notified later. Thereafter, the prescribed authority did not take any steps. The members brought another requisition.

According to Mr. Pal, learned Advocate appearing on behalf of the petitioner, without cancelling the said requisition, a subsequent requisition dated August 23, 2021 could not have been accepted by the prescribed authority. The prescribed authority first should have come to a decision that the earlier requisition had lost its force. Accordingly, Mr. Pal submits that the meeting fixed on September 6, 2021 ought to be set aside and cancelled as the requisition dated July 15, 2021 had not been declared to be invalid. According to Mr. Pal, the prescribed authority did not have any power under the law to adjourn the proceedings to be initiated on the basis of the earlier requisition. The prescribed authority also did not have the power to entertain a subsequent requisition on the expiry of 30 days. Mr. Pal submits that the law is silent as to whether a requisition which was not acted upon under the provisions of Sections 12(3), 12(4) onwards up to Section 12(10) of the West Bengal Panchayat Act, 1973 (hereinafter referred to as the said Act) had automatically lapsed and a subsequent requisition would be permissible in law.

The next contention of Mr. Pal is with regard to the service of the motion. Mr. Pal submits that the prescribed authority did not have sufficient time to satisfy himself.

Mr. Bari, learned Advocate appearing on behalf of the requisitionists, submits that the requisition had died a natural death as the prescribed authority failed to comply with the provisions of Sections 12(3), 12(4) and 12(10) of the said Act. He submits that unless the second requisition is barred under Section 12(11) of the said Act a subsequent requisition can be brought and the prescribed authority has acted within the four corners of the statute. It is further submitted that the requisition was served in the office of the Pradhan as also at the residence, which were also received.

Mr. Raja Saha, learned Advocate appearing on behalf of the State-respondents, submits that the prescribed authority satisfied himself about compliance of Section 12(2) of the said Act.

On the issue raised by Mr. Pal, this Court is not prima facie satisfied to pass an order of stay of the meeting. Let the meeting be held on September 6, 2021 for the reasons as stated below:

The law provides that within 5 working days from the receipt of the requisition and upon satisfaction of the prescribed authority, the notice of motion has to be issued. The meeting has to be held not later than 15 working days by giving clear 7 days notice from the date of issuance of the same till the date of the meeting, to all the members. The meeting cannot be held later than 15 working days from the date of receipt of the requisition, unless there is an order of Court or the situation is beyond the control of the prescribed authority.

In this case, the prescribed authority did not discharge any of his functions under Sections 12(3) and 12(4) of the said Act. In the meantime, the period of 30 days has also lapsed.

Section 12(10) of the said Act provides as follows:

"(10) On receipt of the minutes and the report under sub-section (9), the prescribed authority shall, within next five working days, take such action as he may deem fit and the entire process commencing from submission of motion to the prescribed authority up to the action finally taken by him shall be completed within thirty days."

Section 12(10) provides that the entire process shall be completed within 30 days. The court is prima facie of the view that if the entire process is not completed within a period of 30 days from the date of receipt of the motion, till the order of removal is passed on the basis of the resolution adopted in the meeting, the requisition fails and loses its force. The prescribed authority by his inaction allowed the earlier requisition to lapse. Each and every step to be taken by the prescribed authority is time bound by the statute.

Under such circumstances, this Court is prima facie of the view that the earlier requisition dated July 15, 2021 had lapsed and lost its force. The right to bring a fresh requisition for removal of the Pradhan as per law is a democratic right. The Court relies on a decision in the matter of Ujjwal Kumar Singha v. State of W.B. reported in 2017 SCC OnLine Cal 4636, and the relevant portions of the same are quoted below:

"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 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."

Unless the requisition fails on account of the same not being carried through at the meeting called for removal or due to lack of quorum, a second requisition will not be a bar, in my prima facie view.

The meeting as convened by the prescribed authority shall be held as per law.

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

The documents submitted by Mr. Bari are taken on record.

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

Liberty is given to the parties to mention the matter before the appropriate Bench after the abovementioned period.

All parties are directed to act on the basis of the server copy of this order.