Mana Hansda vs State Of West Bengal & Ors.

The writ petition has been filed by the Upa-Pradhan of Bandhgora Gram Panchayat, Jhargram. The contention of the petitioner is that the requisition brought in the month of September 2021 by the respondent Nos. 7 to 15 to remove the Upa-Pradhan, was stigmatic. The requisitionists have lost confidence in the Upa-Pradhan. Allegations have been levelled against the Upa-Pradhan. It has been stated in the requisition that the Upa-Pradhan had indulged in corruption, nepotism, malpractice and illegal activites. That she did not cooperate with the members which hampered all developmental activities in the locality.

According to Mr. Pattanayak, learned advocate appearing on behalf of the petitioner, the said requisition contains a stigma.

Reliance has been placed on a decision of this Court in the matter of Ujjal Mondal vs. State of West Bengal reported in 2013 (1) CHN (CAL) and Sourendra Nath Das vs. The State of West Bengal & Ors. passed in WPA 11903 of 2021.

According to Mr. Mandal, learned advocate appearing on behalf of the requisitionists, the intention to remove would suffice the requirement of law and the allegations against the Upa-Pradhan could easily be ignored. Thus, it is submitted on behalf of the requisitionists that the provisions of Section 12(2) of the West Bengal Panchayat Act, 1973 allows such requisitions when the only requirement was an intention to remove the Upa-Pradhan on account of loss of confidence. He submits that the other portions of the requisition are redundant and neither the prescribed authority nor the Court can take cognizance of such statement. The said statements do not have any impact on the requisition. Such a prayer cannot be granted at this stage.

Mr. Mahata, learned advocate for the State respondents submits that the notice was not stigmatic as such. He distinguished the decision of Ujjal Mondal (supra) on the ground that in Ujjal Mondal (supra), the allegations were more serious.

I have heard the learned Advocate for the respective parties.

In the matter of Ujjal Mondal (supra) the Hon'ble Division Bench of this Court held that the requisition notice/no confidence motion was entertainable only when there was no foundation for bringing the motion. The relevant portion 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."

This court in the matter 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 non-performance. 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."

Having considered the rival submissions of the learned advocates for the respective parties, this Court is of the opinion that the issue before the Hon'ble Division Bench in Ujjal Mondal (supra) with regard to the removal of the Upa- radhan was similar to the one raised by the petitioner in the writ petition. The foundation of the no confidence and the intention to remove the Upa-Pradhan are allegations of corruption, nepotism and malpractice. The Upa-Pradhan can be removed by the requisitionists if they have lost confidence in her by bringing a requisition with the intention to remove.

As soon as there are allegations of illegal and immoral activities of the Upa-pradhan, the same becomes stigmatic. The Upa-Pradhan is a politically appointed representative of the people and allegations of such nature may have a negative effect on her future prospects and her credibility as a member of the Panchayat, may be affected.

Thus, having considered the requisition notice as a whole, I am of the view that it indicates that the lack of confidence on the Upa-Pradhan were due to corruption, nepotism and malpractice of the Upa-Pradhan. Such allegations can also enrage and turn the people in the locality against the Upa-Pradhan.

Thus, in my view, with due respect to the submissions made by the learned advocates for the respondents, the requisition cannot be sustained in law only on the ground that there are allegations against the Upa-Pradhan, which form the foundation of the no-confidence.

Under such circumstances, the requisition as also the notice dated October 27, 2021 and all subsequent actions including the resolution in the meeting are set aside and quashed.

However, the court is conscious of the rights of the requisitionists.

In my opinion, the provision for removing an elected representative such as the Upa-Pradhan is of fundamental importance to ensure the democratic functioning of the institution as well as to ensure 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. If the Upa-Pradhan has lost support of the majority of the members, she cannot remain in office for a single day.

The requisitionists are granted liberty to bring a fresh requisition as per Section 12(2) of the West Bengal Panchayat Act, 1973. If such requisition is brought, the prescribed authority shall act and proceed in terms of the provisions of Sections 12(3) and 12(4) onwards of the said Act and reach the requisition to its logical conclusion within the time limit prescribed by the statute. The bar under Section 12(11) of the said Act shall not be applicable.

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 Upa-Pradhan tries to evade service of requisition then the requisitionists shall be entitled to serve the same in her office through her 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 Upa-Pradhan in addition to serving the same by the modes prescribed by the statute.

Accordingly, the writ petition is disposed of.

However, there will be no order as to costs.

Parties are directed to act on the communication of the learned advocates.