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2013 DIGILAW 270 (CAL)

Manik Chandra Paul v. STATE OF WEST BENGAL

2013-05-14

JAYANTA KUMAR BISWAS

body2013
Judgment : The Court:-The petitioner in this WP under art.226 of the Constitution of India dated December 21, 2012 is questioning an order dated October 11, 2012 (W P p.36) passed by one Sandip Chattapadhyay and the Executive Officer of South Dum Dum Municipality rejecting the petitioner’s application for renewal of a certificate of enlistment. The petitioner submitted the application under s.118 of the West Bengal Municipal Act, 1993. It was to be decided by the Executive Officer of the Municipality under s.119 of the Act. Mr.Bihani appearing for the Municipality was directed to ascertain how the advocate and the Executive Officer passed the order jointly. He has obtained written instructions dated May 13, 2013 from the Chairperson of the Municipality. The relevant parts of the written instructions are quoted below:- “In response to the query made by you about the appointment of a lawyer as an arbitrator I am to state that this Municipality has not appointed any lawyer to act as an Arbitrator at any time. Sri Sandip Chattopadhyay is one of the empanelled lawyers of thisMunicipality. His role is restricted to advising us on legal matters includingduring hearings, drafting orders and letters on a day to day basis. In the instant case too, Sri Chattopadhyay prepared a draft order and submitted the same for approval. The draft was seen by the Executive Officer of this Municipality on 11/10/2012 who put his initials below that of Sri Chattopadhyay signifying that the draft could be approved by me and that no amendments to the same had been considered necessary by him. Thereafter, the file should have been placed before me for my approval of the draft order following which a fair-copy could be prepared, signed by me and served on all concerned. It is pertinent to point out that as the draft was not intended for circulation neither was the seal of the Executive Officer, nor, was the common seal of this Municipality affixed on the document on 11/10/2012. It would be clear from the above that neither has this Municipality appointed Sri Sandip Chattopadhyay as an Arbitrator nor has he acted as one.” Mr.Bihani has found nothing to justify the impugned order. The Chairperson of the Municipality has clearly stated in her written instructions to Mr.Bihani that the order was actually prepared by the advocate who participated in the adjudication process. The Chairperson of the Municipality has clearly stated in her written instructions to Mr.Bihani that the order was actually prepared by the advocate who participated in the adjudication process. No professional authority or right of the advocate authorised him to participate in the adjudication process and prepare the draft order. The question whether the things the advocate did amounted to a professional misconduct is not an issue in this W P. But it is evident that the Executive Officer surrendering his statutory power to the advocate proved his incompetence and unfitness to hold the office. This issue needs immediate attention of the Municipality and the State Government. How they will address it is to be decided by them. For these reasons, I set aside the impugned order, allow the W P to this extent and order as follows. All concerned shall ensure that the petitioner’s s.118 application is decided by an Executive Officer other than the person who is a party to the impugned order within eight weeks from the date this order is served. No costs.