Susama vs State Of West Bengal & Ors

This writ petition has been filed by the Pradhan of Islampur Gram Panchayat challenging the requisition dated August 12, 2021 as also the notice under Form 1E of sub-rule (2) of rule 5B of the West Bengal Panchayat (Constitution) Rules, 1975, dated August 18, 2021. The meeting for removal of the Pradhan has been fixed on August 27, 2021 at 12-00 noon.

The allegation of the petitioner is that the requisition is not legally acceptable and contrary to the provisions of Section 12(2) of the West Bengal Panchayat Act, 1973 (hereinafter referred to as the said Act).

It is the contention of Mr. Deb Barman that in the requisition, the subject has wrongly been mentioned as a requisition for removal of the Pradhan under Section 12 read with Section 16 of the said Act of 1973. According to him, the requisition cannot be accepted and acted upon on as the requisition was not brought under Section 12(2) of the said Act but was brought under such provisions of law which have been amended.

Mr. Bhattacharya, learned advocate appearing for the respondent nos. 12 to 15 also raises the point of validity of the said notice. According to both Mr. Deb Burman and Mr. Bhattacharya, the requisition dated August 12, 2021 is not a valid one and the notice under From 1E and the requisition are liable to be set aside.

Mr. Mahata, learned advocate for the prescribed authority submits that under the amended provisions of law, the notice has to be brought under the provisions of Section 12(2) of the said Act and the subject is incorrect.

The requisitionists were given liberty by this Court on an earlier occasion to bring a fresh requisition. The earlier  requisition was set aside for non-compliance of the provisions of Section 12(2) of the said Act, as the Pradhan was not served.

I have considered the submissions of the respective parties. The requisitionists in the body of the requisition, have stated that the said requisition is in conformity with Section  12(2) of the said Act. That they have lost confidence in the Pradhan and want to remove the Pradhan.

Prima facie, in my opinion, the notice does not seem to be defective or illegal or invalid just because the subject mentions Section 12 read with Section 16 of the West Bengal Panchayat Act, 1973.

It is settled law that nomenclature of an application is not material and the substance has to be seen. Substance of the requisitionists has to be read in the context by applying the provisions of the statute. The requisition clearly states that the same has been issued in conformity with Section 12(2) of the said Act, for removal of the Pradhan on account of loss of confidence. There is no confusion or ambiguity in the contents of the requisition. In the case of Namburi Basava Subrahmanyam vs. Alapati Hymavathi & Ors. reported in (1996) 9 SCC 388. Their Lordships held that the nomenclature of the document is not conclusive. It was observed as follows:

"The nomenclature of the document is not conclusive. The recitals in the document as a whole and the intention of the executants and acknowledgment thereof by the parties are conclusive. The Court has to find whether the document confers any interest in the property in praesenti so as to take effect intra vivos and whether an irrevocable interest thereby, is created in favour of the recipient under the document, or whether the executants intended to transfer the interest in the property only on the demise of the settler. Those could be gathered from the recitals in the document as a whole."

In the decision of Puzhakkal Kuttappu vs C. Bhargavi And Others reported in 1977 AIR 105, It was observed as follows:-

"(b) In construing a document it is always necessary to find the intention of the party executing it. The intention has to be gathered from the recitals and the terms in the entire document and from the surrounding circumstances and how the parties or even their representatives-in-interest treated the deed in question. The nomenclature given to a document by the scribe or even by the parties is not always conclusive. The word 'otti', used in the document, is not, therefore, of much consequence."

The requisitionists have for all practical purposes intended the requisition to be one under Section 12(2) of the said Act, 1973. The requisition read as a whole in my, prima facie, view gives such an impression. Accordingly, the prescribed authority also treated the requisition to be one under the said provisions of law and issued a notice dated August 18, 2021 under sub-rule 2 of rule 5(B) of the said Act, 1973.

I do not find any reason to interfere with either the requisition or the notice issued by the prescribed authority, who has exercised his jurisdiction under the law upon being satisfied about the compliance of Section 12(2) of the said Act. With regard to further clarification as to whether the prescribed authority satisfied himself of the compliances under Section 12(2) of the said Act, 1973, the prescribed authority shall file an affidavit.

It is settled law that when the Pradhan has lost support of the majority of the members, he cannot remain in office for a single day.

In the decision of Ujjwal Kumar Singha v. State of W.B. reported in 2017 SCC OnLine Cal 4636, 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 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."

It has been judicially decided that when the members of the Panchayat want to remove their leaders whom they have elected by a democratic process, they can do so and hypertechnicality shall not stand in the way.

Reference is made to the decision of Usha Bharti Vs. State of Uttar Pradesh & Ors. reported in (2014)7SCC 663. The relevant portion of the above decision is quoted below:-

"53. In our opinion, the provision for removing an elected representative such as Panchayat as Panchayat Adhksha 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. "

Let affidavit in opposition be filed within three weeks from date; reply thereto, if any, be filed within two weeks thereafter.

Liberty is given to the parties to mention the matter after exchanging affidavits.

The meeting shall be held as scheduled. All actions in the meeting shall abide by the result of the writ petition.

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