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2016 DIGILAW 970 (CAL)

Shiladitya Halder v. State of West Bengal

2016-12-06

BISWANATH SOMADDER, SANKAR ACHARYYA

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JUDGMENT : Biswanath Somadder, J. 1. Let the affidavit-of-service filed in Court today be taken on record. By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the application for stay. The instant appeal arises out of a judgment and order passed by the learned Single Judge on 29th September, 2016, in W.P. 21751 (W) of 2016. By the said judgment and order, the learned Single Judge proceeded to dismiss the writ petitioner's application wherein the writ petitioner sought to challenge a requisition notice issued by the requisitionists on 14th September, 2016, as well as the consequent notice issued on the same date by the Divisional Commissioner, Presidency Division, being the Prescribed Authority, for holding of a meeting of Murshidabad Zilla Parishad for removal of its Sabhadhipati. 2. The writ petitioner was the Sabhadhipati of Murshidabad Zilla Parishad. By the requisition notice dated 14th September, 2016, the requisitionists, being the private respondents in the writ petition, sought for his removal. The said notice, which was addressed to the Prescribed Authority, being the Divisional Commissioner, Presidency Division, was received on the same day. Consequently, the Prescribed Authority issued a notice on the same date (i.e. 14th September, 2016) for convening a meeting for the members of the Zilla Parishad on 23rd September, 2016, for a motion for removal of the writ petitioner as Sabhadhipati of the Murshidabad Zilla Parishad. The learned Single Judge, for reasons stated in the judgment and order under appeal, refused to entertain the writ petition and proceeded to dismiss it. 3. The writ petitioner, in appeal, has primarily contended that the Prescribed Authority has acted subservient to the interest of the private respondents, being members of the Zilla Parishad who had issued the notice seeking his removal as its Sabhadhipati. According to the learned Advocate for the appellant, if the notice was issued by the requisitionists on 14th September, 2016 at Berhampore, Murshidabad, there cannot be plausible or justifiable explanation as to how the said notice could have been delivered on the same date to the Divisional Commissioner, Presidency Division, being the Prescribed Authority, having his office at Kolkata, who thereafter proceeded to issue a notice on that very day itself (i.e. 14th September, 2016) convening a meeting of the members of the Zilla Parishad on 23rd September, 2016, for a motion for removal of the Sabhadhipati. According to the learned Advocate for the appellant, the factual matrix will clearly reveal that an element of doubt has invariably crept in the mind of the writ petitioner/appellant as to how the Divisional Commissioner, Presidency Division, being the Prescribed Authority, not only received the copy of the notice issued by the requisitionists on 14th September, 2016, at Berhampur, Murshidabad, but proceeded to act on that basis upon satisfying himself that it conformed to the statutory requirements and issued a notice on that very day itself for convening meeting on 23rd September, 2016, for a motion for removal of the Sabhadhipati. 4. After considering the submissions made by the learned Advocates for the parties and upon perusing the records, this Court finds that the doubt in the mind of the appellant has been sought to be removed by the Divisional Commissioner, Presidency Division, being the Prescribed Authority, by the statements appearing in the report in the form of an affidavit filed before the learned Single Judge. The relevant paragraphs of the said report are quoted hereinbelow:- "3. That on September 14, 2016 at about 4 p.m. Shri Mosharaf Hossain Mondal submitted the said motion in writing to the undersigned along with a receipt copy of the motion served upon the concerned office-bearer at the Zilla Parishad Office and a photostat copy of the receipt of the registered post with Acknowledgement Due, which had been sent to residential address of the writing along with the materials/evidences regarding despatch/delivery of the notice of motion, I carefully perused the same. Upon perusal of the said motion dated September 14, 2016, I found that 38 (thirty eight) individuals have put their signatures mentioning their party affiliation in the motion. I thought it expedient to verify the identity of the individuals so as to arrive at a conclusion that those individuals who had subscribed their signatures are indeed members of the Murshidabad Zilla Parishad. Hence, I referred to the Gazette Notification bearing No. 1629/1/DP/2G-1/2013 dated August 2, 2013 which contains the names of the members of the Murshidabad Zilla Parishad. Upon such examination, I found that the 38 (thirty eight) individuals who had subscribed their signatures to the said motion are members of the Murshidabad Zilla Parishad. I also perused the photostat copy of the receipt of the notice dated September 14, 2016 served upon the concerned office-bearer at his office in the Zilla Parishad. Upon such examination, I found that the 38 (thirty eight) individuals who had subscribed their signatures to the said motion are members of the Murshidabad Zilla Parishad. I also perused the photostat copy of the receipt of the notice dated September 14, 2016 served upon the concerned office-bearer at his office in the Zilla Parishad. I found that the said receipt is in order. Next, I turned my attention to the postal receipt. I found that the postal despatch was made at 3 p.m. on that day. A photocopy of the motion dated September 14, 2016 together with the receipt copies and the Gazette Notification bearing No. 1629/I/DP/2G-1/2013 dated August 2, 2013 are collectively annexed as R-1. 4. That Section 146(3) of the Act enjoins this deponent with the responsibility to ascertain as to whether the conditions set out in Section 146(2) of the Act stood complied with. Upon perusal of the material, I was satisfied that- (a) The motion contained signatures of one-third of the members of the Murshidabad Zilla Parishad. (b) The said motion was served upon the concerned office-bearer at the Zilla Parishad Office. (c) The said motion was sent by registered post at the residential address of the concerned office-bearer. 5. Hence, upon careful examination of the materials on record as mentioned above, I issued notice upon all concerned convening the meeting of the Murshidabad Zilla Parishad to be held on September 23, 2016 under Section 146(3) of the Act." 5. Learned Advocate for the appellant, however, submits that his client has not been given any opportunity to controvert the factual correctness of the report of the Divisional Commissioner, Presidency Division, being the Prescribed Authority, as quoted hereinbefore. 6. Whenever a Court exercises its extraordinary high prerogative jurisdiction under Article 226 of the Constitution, it includes, within its fold, jurisdiction to issue a writ in the nature of certiorari in other words, records maintained by any public authority can be called for by the writ Court so that upon scrutinizing the same, it can come to a conclusive finding whether the said authority concerned acted in accordance with law or not. If a stand is taken by a person disputing the factual correctness of statements made by a public authority, which are all derived from record, such a stand, in effect, raises a factual dispute which the writ Court, ordinarily, ought not either consider or adjudicate. If a stand is taken by a person disputing the factual correctness of statements made by a public authority, which are all derived from record, such a stand, in effect, raises a factual dispute which the writ Court, ordinarily, ought not either consider or adjudicate. Such a factual dispute, if raised, takes the matter away from the domain of the writ Court and brings it within the adjudicatory process of a Civil Court. In the instant case, it is noticed that the statements made by the Divisional Commissioner, Presidency Division - as contained in the report in the form of affidavit filed before the learned Single Judge - are essentially culled out from record, correctness whereof cannot be scrutinized, ordinarily, by the writ Court. As such, in the facts of the instance case, the decision rendered by the learned Single Judge based upon the report in the form of affidavit filed by the Divisional Commissioner, Presidency Division, being the Prescribed Authority, cannot be interfered with in an Intra-Court Mandamus Appeal preferred by the appellant. 7. It is, however, necessary to observe at this stage that a public authority - who is obliged to perform his duties under a statute - is required to perform such duties in such a fair and transparent manner so that no person can raise either an eyebrow or point an accusatory finger at the said authority who is merely performing his statutory obligations. This is to be borne in mind by all those public authorities who are obliged to perform such statutory duties, particularly which directly affect the interest of those public institutions which run on democratic principles, such as institutions under the three tier Panchayati Raj system. Care should be taken by a public authority during the decision making process in order to ensure that there is no element of doubt created in the minds of those persons who are likely to be affected by the decision of the said public authority who merely performs his duties and obligations under a statute. 8. With the above observations, the appeal and the application for stay are disposed of accordingly. Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates for the parties. Sankar Acharyya, J. I agree. Appeal Dismissed.