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2016 DIGILAW 709 (CAL)

Putul Gayen v. Pijush Bairagi

2016-09-06

BISWANATH SOMADDER, SIDDHARTHA CHATTOPADHYAY

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JUDGMENT : Biswanath Somadder, J. By consent of the parties, both the appeals are treated as on day's list and taken up for consideration along with the respective connected applications for stay and disposed of as follows :- 2. The subject-matter of challenge in these appeals is the judgment and order dated 9th August, 2016, passed by the learned Single Judge in W. P. 12394 (W) of 2016. By the said judgment and order, the learned Single Judge set aside the order of removal of the respondent no. 1/writ petitioner dated 5th July, 2016, passed by the Prescribed Authority upon coming to a finding that the action of the Prescribed Authority was "bad and not in accordance with requirements of law". 3. Thereafter, the learned Single Judge proceeded to issue a mandatory direction upon the Prescribed Authority to pass consequential orders pursuant to setting aside of the order of removal. Some other directions were also issued by the learned Single Judge, which read as follows :- "I, however, would not like to allow the matter to set at rest at this stage. The report in the form of an affidavit particularly the annexures raises various possibilities. I consider the matter should be looked into by a superior authority. In such view of it, I direct the District Magistrate, South 24 Parganas, to enquire into the matter and to file a report in a sealed cover through a learned Advocate for the State on September 19, 2016. The writ petition is allowed. But such report will be filed by the concerned District Magistrate on that date in Court. The learned Registrar General, High Court, Calcutta is directed to send a copy of this order along with a copy of the writ petition as well as the report in from of an affidavit affirmed by the prescribed authority to the concerned District Magistrate for the action to be taken on the report as directed by me. Over and above, the communication is also to be made by the learned Advocate for the State to the District Magistrate, South 24 Parganas." 4. The main contention of the appellants is that the writ petitioner (being the respondent no. 1 herein), consequent upon being removed by the Prescribed Authority on 5th July, 2016, attended a meeting on a subsequent date, i.e., 15th July, 2016, for election of a new Sabhapati. The main contention of the appellants is that the writ petitioner (being the respondent no. 1 herein), consequent upon being removed by the Prescribed Authority on 5th July, 2016, attended a meeting on a subsequent date, i.e., 15th July, 2016, for election of a new Sabhapati. He not only attended the meeting but also contested and lost the election. According to the appellants, the prayers in the writ petition will clearly indicate that the writ petitioner had primarily challenged the notice dated 27th June, 2016, issued by the Prescribed Authority convening a meeting which was to be held on 5th July, 2016 and the consequential effect of the said notice, which resulted in a resolution adopted on 5th July, 2016, whereby the respondent no. 1/ writ petitioner stood removed as the Sabhapati of the concerned Panchayat Samiti. It is contended that the learned Single Judge – while proceeding to set aside the order of removal of the respondent no.1/writ petitioner dated 5th July, 2016, passed by the Prescribed Authority – had referred to the oral evidence adduced by two postal peons in presence of the Executive Magistrate and the Block Development Officer with regard to non-service of the notice dated 27th June, 2016, upon the respondent no. 1/writ petitioner and came to a conclusion that the Prescribed Authority's reliance upon the oral evidence adduced by the two postal peons made it obvious that he had not satisfied himself. According to the appellants, a photocopy of the relevant tracking record issued by the postal authorities, annexed to the stay application, will clearly reveal that so far as the respondent no. 1/writ petitioner is concerned, the notice dated 27th June, 2016, was actually received by him on 2nd July, 206. The other aspect of the matter – which the appellants have strenuously contended – is that the respondent no. 1/writ petitioner, even while challenging the notice dated 27th June, 2016 and the subsequent resolution adopted in the meeting held on 5th July, 2016, had proceeded to participate in the election process on 15th July, 2016, for election of a Sabhapati and lost on contest. It was submitted that a Panchayat Samiti, is an institution which runs on democratic principles and a person can continue to be its head so long as he/she enjoyed the confidence of the persons who comprise such a body. It was submitted that a Panchayat Samiti, is an institution which runs on democratic principles and a person can continue to be its head so long as he/she enjoyed the confidence of the persons who comprise such a body. In this context, the appellants have referred to and relied upon a judgment of the Supreme Court rendered in the case of Usha Bharti v. State of U.P. & others, reported in AIR 2014 SC 1686 . The appellants have also referred to and relied upon another judgment of the Supreme Court rendered in the case of State of Punjab and Ors. v. Dhanjit Singh Sandhu, reported in AIR 2014 SC 3004 in order to contend that in the facts and circumstances of the instant case, the respondent no. 1/petitioner, by his own action – having participated in the elections held on 15th July, 2016 and lost – was estopped to raise the point of having been removed as Sabhapati earlier based on the notice dated 27th June, 2016. 5. On the behalf of the State it is submitted though the fact was that the respondent no. 1/writ petitioner received the notice dated 27th June, 2016, within 2nd July, 2016 – which was well within time – such fact ought to have been brought to the notice of the learned Single Judge before it passed the initial interim order on 14th July, 2016. Had it been so done, the question of non-receipt of notice by the respondent no. 1/writ petitioner would not have been required to be considered at all, that too, based on oral evidence adduced by two postal peons. 6. On behalf of the respondent no. 1/writ petitioner, it is submitted that the learned Single Judge had come to a clear finding that the respondent no. 1/writ petitioner had been removed as a Sabhapati not in accordance with law. In this context, the respondent no. 1/writ petitioner refers to the deposition of the two postal peons which was rendered before the concerned Executive Magistrate and Block Development Officer pursuant to the initial interim order dated 14th July, 2016, passed by the learned Single Judge. The respondent no. In this context, the respondent no. 1/writ petitioner refers to the deposition of the two postal peons which was rendered before the concerned Executive Magistrate and Block Development Officer pursuant to the initial interim order dated 14th July, 2016, passed by the learned Single Judge. The respondent no. 1/writ petitioner, however, had no answer to the specific query of this Court as to why he participated in the election process on 15th July, 2016, notwithstanding the fact that he had challenged the notice dated 27th June, 2016 and the subsequent resolution adopted on 5th July, 2016, before the learned Single Judge, which was still pending final adjudication on the date of election. 7. Undoubtedly, in the facts and circumstances of the instant case, what significantly emerges is how and the manner in which the respondent no.1/writ petitioner, as a Sabhapati of a democratically elected body, being a Panchayat Samiti, conducted himself. Even, while his writ petition was pending final adjudication, the respondent no. 1/writ petitioner proceeded to participate in an election process on 15th July, 2016, contesting as a Sabhapati and lost on contest. The Supreme Court in Usha Bharti (supra) has clearly held to the effect that an institution (such as a Panchayat Samiti) must run on democratic principles and all persons heading such public bodies can continue to hold office provided they enjoyed the confidence of the persons who comprise of such bodies. This is the essence of the democratic republicanism. Even before the final judgment and order was pronounced by the learned Single Judge (i.e. on 9th August, 2016) the respondent no. 1/writ petitioner's case was fait accompli. He never waited till his writ petition was finally adjudicated. He proceeded to participate in the election process contesting as a Sabhapati and lost the election on contest. This is one clear instance where a person has approbated and reprobated at the same time and as such, by conduct, estopped from asserting a right – if at all there be any – which he may have otherwise had. In this context, one may take notice of the observations made by the Supreme Court in the State of Punjab & Ors. (supra), paragraph 25. In this context, one may take notice of the observations made by the Supreme Court in the State of Punjab & Ors. (supra), paragraph 25. The other significant aspect of the matter which has drawn the attention of this Court is the fact that while delivering the impugned judgment and order, the learned Single Judge proceeded to issue certain directions upon the Prescribed Authority which were not even prayed for by the respondent no. 1/writ petitioner. For instance, the learned Single Judge while setting aside the order of removal of the writ petitioner dated 5th July, 2016, passed by the Prescribed Authority proceeded further to issue a mandatory direction upon the Prescribed Authority to pass consequential order pursuant to setting aside the order of removal. In a recent decision rendered by this Court on 30th August, 2016, in MAT 1484 of 2016 with CAN 8966 of 2016 (Ganges Rubber Industries Private Limited & Ors. v. Kolkata Municipal Corporation & Ors.), it has been held, inter alia, to the effect that a suo motu mandatory direction could not be issued by a learned Single Judge beyond the reliefs prayed for by a person. The consequential order upon the Prescribed Authority as well as the directions upon the District Magistrate, South 24 Parganas, thus, were wholly unwarranted in the facts of the instant case. 8. In such facts and circumstances, as stated above, this Court is of the view that the judgment and order dated 9th August, 2016, cannot be sustained in law and is liable to be set aside and is accordingly set aside. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties. Appeal allowed.