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2013 DIGILAW 158 (CAL)

Bharat Das v. STATE OF WEST BENGAL

2013-03-18

MURARI PRASAD SHRIVASTAVA, PRANAB KUMAR CHATTOPADHYAY

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JUDGMENT Re: C.A. N. 2444 of 2013 1. This application has been filed in connection with the appeal preferred from the judgment and order dated 20th February, 2013 passed by a learned Judge of this Court whereby and whereunder the said learned Judge finally dismissed the writ petition on the ground of maintainability. Going through the records we find that the Principal Secretary, Panchayats and Rural Development Department, Government of West Bengal by the order dated 26th March, 2012 empowered, the District Magistrate, North 24-Parganas and the Executive Officer, North 24-Parganas to execute and implement certain directions. The said order of the Principal Secretary, Panchayats and Rural Development Department, Government of West Bengal is set out hereunder: Government of West Bengal Panchayats & Rural Development Department 63, N.S. Road, Jessop Building, Kolkata - 700 001 No. 1959/PN/O/I/3B-2/2012 Dated: 26/03/2012 ORDER In view of the persistent default in effective functioning of the North 24-Parganas Zilla Parishad and in exercise of power conferred in terms of Section 212 of the West Bengal Panchayat Act, 1973, the Governor is pleased hereby to empower the District Magistrate, North 24-Parganas and Executive Officer, North 24-Parganas Zilla Parishad to execute and implement on behalf of the Zilla Parishad all the schemes out of the Central and State Government funds, to release the respective shares of funds earmarked for Panchayat Samitis, Gram Panchayats and Municipalities, as the case may be,-as well as to make payment of salary, wages and all other office expenses in the public interest by utilizing the service of officials of the North 24-Parganas Zilla Parishad until further order. By order of the Governor Sd/- Principal Secretary to the Government of West Bengal No. 1959/1(5) PN/O/l/3B-2/2012 Dated: 26/03/2012 2. The appellant-petitioner herein being the Sabhadhipati of the North 24-Parganas Zilla Parishad filed a writ petition challenging the validity and/or legality of the aforesaid order issued by the Principal Secretary, Panchayats and Rural Development Department, Government of West Bengal on several grounds. 3. The learned Advocate General on behalf of the respondent authorities raised a preliminary objection with regard to the maintainability of the writ petition. 4. The learned Single Judge ultimately, upheld the contention of the learned Advocate General and dismissed the writ petition on the ground of maintainability. 5. 3. The learned Advocate General on behalf of the respondent authorities raised a preliminary objection with regard to the maintainability of the writ petition. 4. The learned Single Judge ultimately, upheld the contention of the learned Advocate General and dismissed the writ petition on the ground of maintainability. 5. Assailing the aforesaid judgment and order passed by the learned Single Judge, instant appeal has been preferred by the appellant-petitioner herein namely, the Sabhadhipati, North 24-Parganas Zilla Parishad. 6. Mr. Bikash Ranjan Bhattacharyya, learned Senior Counsel representing the appellant -- petitioner submits that the powers, functions and duties assigned to the Sabhadhipati under Section 165 of the West Bengal Panchayat Act, 1973 have been infringed by the aforesaid order dated 26th March, 2012 issued by the Principal Secretary, Panchayats and Rural Development Department, Government of West Bengal. Mr. Bhattacharyya further submits that the Sabhadhipati has the general responsibility for the financial and executive administration of the Zilla Parishad as have been specifically mentioned in Clause (b) of sub-section (1) of Section 165 of the West Bengal Panchayat Act, 1973. 7. Referring to Clause (d) of sub-section (1) of Section 165 of the said Act of 1973, Mr. Bhattacharyya also submits that the Sabhadhipati is entitled to exercise such powers and perform such functions and discharge such duties as may be exercised, performed or discharged by the Zilla Parishad under the West Bengal Panchayat Act, 1973. Mr. Bhattacharyya submits that by the impugned order dated 26th March, 2012, Government has authorized the District Magistrate, North 24- Parganas and Executive Officer, North 24-Parganas Zilla Parishad to execute and implement on behalf of the Zilla Parishad all the schemes out of the Central and State Government funds, to release the respective share of funds earmarked for Panchayat Samitis, Gram Panchayats and Municipalities and also to make payment of salary, wages and all other office expenses of the North 24-Parganas Zilla Parishad until further orders which according to Mr. Bhattacharyya, said appellant-Sabhadhipati had been performing before the issuance of the said order. 8. The learned Advocate General appearing on behalf of the respondent-District Magistrate, North 24-Parganas and Executive Officer, North 24-Parganas Zilla Parishad submits that the powers of the Zilla Parishad have been specifically mentioned in Section 153 of the West Bengal Panchayat Act, 1973. Bhattacharyya, said appellant-Sabhadhipati had been performing before the issuance of the said order. 8. The learned Advocate General appearing on behalf of the respondent-District Magistrate, North 24-Parganas and Executive Officer, North 24-Parganas Zilla Parishad submits that the powers of the Zilla Parishad have been specifically mentioned in Section 153 of the West Bengal Panchayat Act, 1973. The learned Advocate General further submits that the Zilla Parishad shall function as a unit of self-government and the Sabhadhipati has no independent right in this regard. The learned Advocate General also submits that the impugned order dated 26th March, 2012 issued by the Principal Secretary, Panchayats and Rural Development Department, Government of West Bengal does not affect the individual right of the Sabhadhipati in any way. According to the learned Advocate General, neither any fundamental right nor any statutory right of the appellant-Sabhadhipati, North 24-Parganas Zilla Parishad has been infringed by the aforesaid impugned order dated 26th March, 2012. 9. The learned Advocate General relies on the following decisions of the Supreme Court in support of his arguments: 1) AIR 2013 SC 58 [Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and Ors.] 2) AIR 1962 SC 1183 [Kalyan Singh v. State of Uttar Pradesh and Others] 3) (2002)4 SCC 638 [Director of Settlement, A.P. and Others v. M.R. Apparao and Another] 10. Mr. Ashok Kumar Banerjee, learned Government Pleader appears on behalf of the other State-respondents. The arguments advanced by the learned Advocate General have been virtually adopted by the learned Government Pleader. 11. The learned Government Pleader submits that the rights of the appellant-petitioner herein have not been infringed by the impugned order issued by the Principal Secretary, Panchayats and Rural Development Department, Government of West Bengal. The learned Government Pleader further submits that the appellant-petitioner herein could not produce any document before this Court in order to establish that the said appellant-petitioner has been authorised by the Zilla Parishad to challenge the aforesaid order issued by the Principal Secretary to the Government of West Bengal. 12. It is true that the powers of the Zilla Parishad have been specifically mentioned in Section 153 of the West Bengal Panchayat Act, 1973 but the powers, functions and duties of Sabhadhipati and Sahakari Sabhadhipati have also been mentioned in the said Act of 1973 separately in Section 165. The relevant extracts from Section 165 are set out hereunder: 165. It is true that the powers of the Zilla Parishad have been specifically mentioned in Section 153 of the West Bengal Panchayat Act, 1973 but the powers, functions and duties of Sabhadhipati and Sahakari Sabhadhipati have also been mentioned in the said Act of 1973 separately in Section 165. The relevant extracts from Section 165 are set out hereunder: 165. Powers, functions and duties of Sabhadhipati and Sahakari Sabhadhipati.-- (1) The Sabhadhipati shall-- (a) ... (b) have general responsibility for the financial and executive administration of the Zilla. Parishad; (c) exercise administrative supervision and control over all officers and other employees of the Zilla Parishad and the officers and employees whose services may be placed at the disposal of the Zilla Parishad by the State Government; (d) for the transaction of business connected with this Act or for the purpose of making any order authorised thereby, exercise such powers, perform such functions and discharge such duties as may be exercised, performed or discharged by the Zilla Parishad under this Act or the rules made thereunder: Provided that the Sabhadhipati shall not exercise such powers, perform such functions or discharge such duties as may be required by the rules made under this Act to be exercised, performed or discharged by the Zilla Parishad at a meeting. 13. In terms of Clause (b) of sub-section (1) of Section 165 of the West Bengal Panchayat Act, 1973, Sabhadhipati shall have general responsibility for the financial and executive administration of the Zilla Parishad. In terms of Clause (c) of sub-section (1) of Section 165 of the said Act of 1973, said Sabhadhipati shall exercise administrative supervision and control over all officers and other employees of the Zilla Parishad and the officers and employees whose services may be placed at the disposal of the Zilla Parishad by the State Government. 14. In the present case, the services of the District Magistrate have been placed at the disposal of the Zilla Parishad when the said District Magistrate will act as the Executive Officer of the Zilla Parishad. 15. In terms, of Clause (d) of sub-section (1) of Section 165 of the West Bengal Panchayat Act, 1973, Sabhadhipati has been authorised to exercise such powers and perform such functions and discharge such duties as may be exercised, performed or discharged by the Zilla Parishad under this Act. 16. 15. In terms, of Clause (d) of sub-section (1) of Section 165 of the West Bengal Panchayat Act, 1973, Sabhadhipati has been authorised to exercise such powers and perform such functions and discharge such duties as may be exercised, performed or discharged by the Zilla Parishad under this Act. 16. Therefore, clause (d) of sub-section (1) of Section 165 has specifically authorised Sabhadhipati to exercise certain powers, perform certain functions and discharge certain duties as may be exercised, performed or discharged by the Zilla Parishad under the Act. 17. In view of the specific provisions of Section 165 of the West Bengal Panchayat Act, 1973, we fail to understand how it can be said that the appellant-Sabhadhipati has no locus standi to file the writ petition. 18. In the case of Ayaaubkhan Noorkhan Pathan (supra), Hon'ble Supreme Court has specifically observed: 7. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the Authority/Court, that he falls within the category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a Court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the Authorities.... 19. In the present case, it cannot be said that the appellant-Sabhadhipati is a stranger in view of the specific provision of Section 165 of the West Bengal Panchayat Act, 1973. 20. In the aforesaid decision, Hon'ble Supreme Court has also observed: 8. A 'legal right', means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a "person by the rule of law... 21. The decision of the Supreme Court in the case of A. Subhash Babu v. State of A.P. reported in AIR 2011 SC 3031 has also been quoted in Paragraph 10 of the aforesaid judgment of Ayaaubkhan Noorkhan Pathan (supra). The said Paragraph 10 is set out hereunder: 10. In A. Subhash Babu v. State of A.P., AIR 2011 SC 3031 : (2011 AIR SCW 4702), this Court held: The expression 'aggrieved person' denotes an elastic and an elusive concept. The said Paragraph 10 is set out hereunder: 10. In A. Subhash Babu v. State of A.P., AIR 2011 SC 3031 : (2011 AIR SCW 4702), this Court held: The expression 'aggrieved person' denotes an elastic and an elusive concept. It cannot, be confined within the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of complainant's interest and the nature and the extent of the prejudice or injury suffered by the complainant. 22. In the present case, Sabhadhipati has the legal right to exercise power, functions and duties which have been enumerated specifically in sub-section (1), clauses (b), (c) and (d) of Section 165 of the West Bengal Panchayat Act, 1973. 23. It has been specifically alleged on behalf of the appellant-petitioner that the District Magistrate by the impugned order has been authorised to usurp certain jurisdiction of the Zilla Parishad which the said appellant-petitioner had been discharging in terms of the provisions of Section 165 of the West Bengal Panchayat Act, 1973 before issuance of the said order. 24. Therefore, the appellant-petitioner herein has claimed legal right which has arisen out of the provision of Section 165 of the West Bengal Panchayat Act, 1973. 25. The principle of law as laid down in the case of Kalyan Singh (supra) is well settled and nobody can dispute the same. In the aforesaid decision, Hon'ble Supreme Court has specifically observed that a petition under Article 32 of the Constitution of India cannot be maintained unless a fundamental right of the applicant is infringed. 26. In the present case, undisputedly, we are dealing with an application filed under Article 226 of the Constitution of India wherein wider powers have been vested with the High Courts. 27. The decision of the Supreme Court cited by the learned Advocate General in the case of Director of Settlements, A.P. and Others (supra) virtually supports the arguments advanced on behalf of the appellant-petitioner herein. In the aforesaid decision, Hon'ble Supreme Court observed: 17... 27. The decision of the Supreme Court cited by the learned Advocate General in the case of Director of Settlements, A.P. and Others (supra) virtually supports the arguments advanced on behalf of the appellant-petitioner herein. In the aforesaid decision, Hon'ble Supreme Court observed: 17... One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the Court must come to the conclusion that the aggrieved person has a legal right, which" entitles him to any of the rights and that such right has been infringed.... 28. For the aforementioned reasons, we do not understand how the aforesaid decisions cited by the learned Advocate General can be of any help to the respondents herein. As a matter of fact, the aforesaid decisions are virtually supporting the contentions raised on behalf of the appellant-petitioner herein. 29. Furthermore, the impugned order was issued in exercise of the power conferred under Section 212 of the West Bengal Panchayat Act, 1973. Section 212 is set out hereunder: 212. Directions by State Government.--In the discharge of their functions the Gram Panchayat, Panchayat Samiti or Zilla Parishad shall be guided by such instructions or directions as may be given to them by the State Government from time to time in conformity with the provisions of this Act. 30. In order to guide the Zilla Parishad by issuing instructions or directions under Section 212 of the West Bengal Panchayat Act, 1973, whether a State Government can issue order interfering with the powers, functions and duties of the Sabhadhipati of the Zilla Parishad as specifically mentioned in Section 165 of the said Act of 1973 is an important issue raised in the writ petition. 31. There is no dispute that the District Magistrate is the Executive Officer of a Zilla Parishad and in terms of sub-section 1(c) of Section 165, his services as Executive Officer is placed at the disposal of the Zilla Parishad and in terms of the said sub-section 1 (c) of Section 165, Sabhadhipati is authorised to exercise administrative supervision and control over the Executive Officer of the Zilla Parishad. 32. The appellant-petitioner herein being the Sabhadhipati is entitled to raise the issue whether the impugned order dated 26th March, 2012 has curtailed the power of the appellant-petitioner to exercise administrative supervision and control over the District Magistrate who is also the Executive Officer of the Zilla Parishad. 32. The appellant-petitioner herein being the Sabhadhipati is entitled to raise the issue whether the impugned order dated 26th March, 2012 has curtailed the power of the appellant-petitioner to exercise administrative supervision and control over the District Magistrate who is also the Executive Officer of the Zilla Parishad. The appellant-petitioner herein while challenging the impugned order dated 26th March, 2012 by filing a writ petition before this Court has specifically submitted that his powers, functions and duties as Sabhadhipati, North 24-Parganas Zilla Parishad have been curtailed and/or infringed. 33. In the aforesaid circumstances, it is the duty of the Court to examine whether the impugned order dated 26th March, 2012 has interfered with the powers, functions and duties of the appellant-petitioner herein as Sabhadhipati, North 24-Parganas Zilla Parishad specially in the light of the provisions of the West Bengal Panchayat Act, 1973. 34. In the present case, therefore, it cannot be said that the appellant-petitioner herein is a stranger or the said appellant-petitioner has no legal right or statutory right to challenge the order issued by the Principal Secretary, Panchayats and Rural Development Department, Government of West Bengal on 26th March, 2012 by filing a writ petition. 35. For the reasons discussed hereinabove, we are of the opinion that the appellant- petitioner herein is entitled to file a writ petition challenging the validity and/or legality of the impugned order dated 26th March, 2012 specially in view of the specific provisions of Section 165 of the West Bengal Panchayat Act, 1973 and the writ petition filed by the appellant-petitioner herein is very much maintainable and the same should not have been dismissed on the ground of maintainability by the learned Single Judge without deciding the issues on merits. 36. We, therefore, set aside the impugned judgment and order under appeal passed by the learned Single Judge and allow both the application as well as the appeal upon treating the said appeal as on day's list. 37. Since a considerable time has already passed, we request the learned Single Judge to decide the writ petition on merits without being influenced by any observation made herein as those observations are strongly meant for deciding the issue relating to the maintainability of the writ petition filed by the appellant-petitioner herein. In the facts of the present case, there will be no order as to costs. Appeal allowed.