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2018 DIGILAW 334 (CAL)

Prabir Agasty v. State of West Bengal

2018-05-01

DEBANGSU BASAK

body2018
JUDGMENT : DEBANGSU BASAK, J. 1. The principal grievances of the petitioner are in respect of an Order dated October 25, 2017 passed in W.P. No. 22541 (W) of 2017 (Sri Pranab Agasty & Anr. v. The State of West Bengal & Ors.) and the actions taken on the basis thereof resulting in the reconstitution of the governing body of the respondent no. 12. 2. Learned Senior Advocate appearing for the petitioner has submitted that, the petitioners of W.P. No. 22541 (W) of 2017 (for the sake of convenience referred to as “Pranab”) had misled the Hon’ble Court in passing the order. The society, in respect of which grievances were levelled, in the writ petition of Pranab, was not made a party. He refers to an earlier writ petition filed by one of the petitioners of Pranab being W.P. No. 11479 (W) of 2016 (Pranab Agasty v. The State of West Bengal & Ors.) and submits that, the society is a party therein. Directions were issued by an Order dated July 11, 2016 passed in W.P. No. 11479 (W) of 2016. Pursuant to such directions, the Secretary of the Department of Industry, Commercial Enterprises had passed diverse orders, one of which is April 21, 2017. He draws the attention of the Court to the fact that, the Secretary had identified various problems and had suggested various measures. Suppressing the developments and not making the society a party respondent in the writ petition of Pranab, the Order dated October 25, 2017 was obtained. Such order was passed in breach of the principles of natural justice so far as the present petitioners are concerned. It is not the fault of the Court that, the present petitioners were not heard. The society was not made a party in the writ petition of Pranab. Therefore, the present petitioners had been denied an opportunity to be represented at the hearing of the writ petition of Pranab. He has submitted that, the writ petitioners of Pranab were aware of the disputes and the fact that, the present writ petitioners are necessary and proper parties in respect of a petition relating to the affairs of the society. They had deliberately not made the present petitioners parties in such proceedings. He has submitted that, the writ petitioners of Pranab were aware of the disputes and the fact that, the present writ petitioners are necessary and proper parties in respect of a petition relating to the affairs of the society. They had deliberately not made the present petitioners parties in such proceedings. Referring to the Order dated October 25, 2017 passed in the writ petition of Pranab, learned Senior Advocate for the petitioners has submitted that, such order was passed on the basis of submissions made on behalf of the petitioners and the State. He has submitted that, it was the obligation of both the learned Advocates for the petitioners as well as the State to bring to the notice of the Court that, the society was not a party to the proceedings. The State had no authority in law to fix the date for holding an election of the society. The date of election of the society is to be fixed in an Annual General Meeting of the society. The State had acted beyond its powers in suggesting the date and, thereafter, allowing the election to be held. He has submitted that, the Order dated October 25, 2017 being obtained by fraud and such order not having any foundational basis, all steps taken pursuant to such order including the supersession of the committee should be set aside. The position as on October 25, 2017 prior to the passing of such order should be restored. 3. Learned Senior Advocate for the petitioners has referred to the provisions of the West Bengal Societies Registration Act, 1961 particularly Sections 22 and 23 thereof in support of his contention that, neither the petitioners of the Pranab nor the State had the authority to fix the date of the election and conduct the election of the society with regard thereto. According to the learned Senior Advocate for the petitioners, there has been a grave miscarriage of justice with regard to the Order dated October 25, 2017 passed in the writ petition of Pranab. He has relied upon All India Reporter 1987 Supreme Court page 943 (State of Uttar Pradesh v. Shri Brahm Datt Sharma & Anr.), All India Reporter 1963 Supreme Court page 1909 (Shivdeo Singh & Ors. He has relied upon All India Reporter 1987 Supreme Court page 943 (State of Uttar Pradesh v. Shri Brahm Datt Sharma & Anr.), All India Reporter 1963 Supreme Court page 1909 (Shivdeo Singh & Ors. v. State of Punjab & Ors.) and 2009 Volume 4 Calcutta Law Times page 301 (HC) (Smt. Diblu Naskar v. State of West Bengal & Ors.) in support of his contentions. He has also relied upon 1988 Volume 2 Supreme Court Cases page 602 (A.R. Antulay v. R.S. Nayak & Anr.) in support of the contention that, when the Court finds that it has committed any mistake, it should correct the error. 4. Learned Senior Advocate appearing for the respondent nos. 12 to 17 has submitted that, his clients are not raising any technical issue with regard to the maintainability of the writ petition. He has submitted that, the tenure of the earlier committee had expired. Therefore, there is an imperative need of an election of the society to be held, in accordance with law, assuming that the election held subsequent to the Order dated October 25, 2017 stands vitiated on any ground. He has submitted that, his clients are agreeable to the Order dated October 25, 2017 passed in the writ petition of Pranab being recalled. Such writ petition may be placed on Board for final decision. He has suggested that, the voters’ list of the society be prepared. A programme for holding the election be finalized and the election be held in accordance therewith. He has drawn the attention of the Court to the fact that, the society runs an engineering college. It is imperative that, such engineering college continues to run. Therefore, as an interim measure, the Court should put into place some mechanism by which the functioning of the society is not stalled. He has drawn the attention of the Court to the various prayers made by the petitioners including prayer (c) thereof and submitted that, the writ petitioners are seeking a fresh election to be held. The writ petitioners of Pranab also want an election to be held, in accordance with law. Therefore, in the event the Court is pleased to recall the Order dated October 25, 2017, then the writ petition of Pranab be placed in the list for final hearing with interim measures for running the society being put in place. 5. The writ petitioners of Pranab also want an election to be held, in accordance with law. Therefore, in the event the Court is pleased to recall the Order dated October 25, 2017, then the writ petition of Pranab be placed in the list for final hearing with interim measures for running the society being put in place. 5. Learned Advocate appearing for the respondent nos. 18, 19 and 20 has raised the issue as to the maintainability of the writ petition challenging an earlier order passed by a coordinate bench in a writ petition. Referring to Smt. Diblu Naskar (supra) he has submitted that, the same is distinguishable on facts. The other decisions cited on behalf of the petitioners are also distinguishable on facts. He has submitted that, a dangerous precedent would be put in place, in the event, a Writ Court assumes jurisdiction to review an earlier order passed by a coordinate bench under Article 226 of the Constitution of India. He has referred to the Writ Rules of the High Court and submitted that, there is a Rule for review. The petitioners, therefore, are not remediless. The petitioners have not applied for review. Therefore, the writ petition should not be entertained. 6. I have considered the rival contentions of the parties and the materials made available on record. 7. An issue of maintainability of a writ petition seeking recalling, quashing of an order passed by a Writ Court in an earlier writ petition is raised. In the present case, the prayers of the writ petition do not speak of either quashing or recalling of the Order dated October 25, 2017 passed in the writ petition of Pranab. However, in course of argument of the writ petition reliefs are sought for by the writ petitioners which essentially revolve around the Order dated October 25, 2017 passed in the writ petition of Pranab. The reliefs sought for in the present writ petition can be granted, if the Order dated October 25, 2017 passed in the writ petition of Pranab is reviewed or quashed. The issue as to whether a second writ petition can quash or review an order passed in an earlier writ petition had received the consideration of the Hon’ble Supreme Court in Shivdeo Singh & Ors. (supra). The issue as to whether a second writ petition can quash or review an order passed in an earlier writ petition had received the consideration of the Hon’ble Supreme Court in Shivdeo Singh & Ors. (supra). In the facts of that, case a second writ petition was filed seeking impleadment of the second writ petition in the first writ petition and rehearing of the whole matter. In such factual context, it has held in paragraph 8 is as follows:- “8. ………………………It is sufficient to say that there is nothing in Art. 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. …………………….” 8. In Smt. Diblu Naskar (supra) the primary question that fell for consideration was, whether a review petition in line with the principles of Order 47 Rule 1 of the Code of Civil Procedure, is the proper remedy, or a second writ petition for review of the earlier order passed in writ jurisdiction, would be maintainable. It has held that :- “69. In a case where an order is passed by a Court in judicial proceedings in violation of natural justice either because entire facts have not been stated before the Court or the Court has been misled or that the Court has committed an error, it should be the duty of the Court to correct itself in exercise of its inherent power and technicalities ought not to be allowed to transcend justice. 70. I have not found in Shivdeo Singh (supra) a law laid down by the Apex Court that the former and the latter petitions are required to be heard by the self-same Judge who decides the former one. In Pohla Singh (supra), a learned Judge who had not passed order on the former petition passed order on the latter petition. 70. I have not found in Shivdeo Singh (supra) a law laid down by the Apex Court that the former and the latter petitions are required to be heard by the self-same Judge who decides the former one. In Pohla Singh (supra), a learned Judge who had not passed order on the former petition passed order on the latter petition. Since it is settled law that power of review inheres in every Court of plenary jurisdiction and that a Court of writ exercises power of review not under Order 47, CPC but in exercise of its inherent jurisdiction and in the interest of justice [see Pintu Acharyya vs. State of West Bengal & Ors., reported in 1997 (2) CLJ 428], I do not consider that by deciding the issues raised in the present petition I would transgress my authority. In terms of the determination fixed by the Hon'ble the Chief Justice, I do have the authority to hear and decide the present petition and even to interfere for preventing miscarriage of justice and to correct an error committed by the writ Court resulting from non-disclosure of full facts. 71. Rule 5 of Order 47, CPC requiring a review petition to be heard by that Judge who passed the order under review, if available, is a procedural provision. Procedural law, it is well-known, is the handmaid of justice. It has to bend before justice. When a Writ Court has plenary powers to review an order passed in writ jurisdiction affecting substantive rights of parties, the procedure laid down in Rule 5 would not stand in the way. That in the case of Shivdeo Singh (supra) Hon'ble Khosla, J. of the High Court had the occasion to deal with both the former and the latter petitions is, thus, absolutely immaterial. 72. That in the case of Shivdeo Singh (supra) Hon'ble Khosla, J. of the High Court had the occasion to deal with both the former and the latter petitions is, thus, absolutely immaterial. 72. The decision in Vidya Devi (supra) though holds that as far as can be made applicable, provisions of CPC would apply in principle to proceedings for review in connection with writ proceedings in view of Rule 53 of the Writ Rules framed by the Court, I am inclined to hold on the basis of the decisions in Shivdeo Singh (supra) and Pintu Acharyya (supra) that a Writ Court, in a given case, would be justified in reviewing an order passed by a coordinate Bench having regard to its plenary powers for ends of justice and to prevent abuse of the process of law as well as the Court.” 9. A Writ Court would be justified in reviewing an order passed by a coordinate bench having regard to its plenary powers, for end of justice and to prevent abuse of process of law as well as of the Court. On the strength of the authorities of Shivdeo Singh & Ors. (supra) and Smt. Diblu Naskar (supra), it can be held that, a writ petition which may result in reviewing an order passed by a coordinate bench in another writ petition, is maintainable. The present writ petition is, therefore, held to be maintainable. 10. Shri Brahm Datt Sharma & Anr. (supra) has held that, when a writ petition is disposed of, nothing remains pending for a miscellaneous application to be filed in such writ petition to revive such proceeding in respect of subsequent events. A.R. Antulay (supra) has held that :- “102.…………………Once judicial satisfaction is reached that the direction was not open to be made and it is accepted as a mistake of the court, it is not only appropriate but also the duty of the Court to rectify the mistake by exercising inherent powers. Judicial opinion heavily leans in favour of this view that a mistake of the Court can be corrected by the Court itself without any fetters. This is on the principle as indicated in (Alexander) Rodger case. I am of the view that in the present situation, the Court's inherent powers can be exercised to remedy the mistake. Judicial opinion heavily leans in favour of this view that a mistake of the Court can be corrected by the Court itself without any fetters. This is on the principle as indicated in (Alexander) Rodger case. I am of the view that in the present situation, the Court's inherent powers can be exercised to remedy the mistake. Mahajan, J. speaking for a Four Judge Bench in Keshardeo Chamria v. Radha Kissen Chamria at page 153 stated: The Judge had jurisdiction to correct his own error without entering into a discussion of the grounds taken by the decree-holder or the objections raised by the judgment-debtors.” …………………………………………………………………………… . “104. To err is human, is the off-quoted saying. Courts including the apex one are no exception. To own up the mistake when judicial satisfaction is reached does not militate against its status or authority. Perhaps it would enhance both.” 11. In the facts of the present case, Pranab had obtained the Order dated October 25, 2017 without impleading the society as a party respondent in such writ petition. Pranab had obtained an order in relation to holding of election of the society on the plea that, a proceeding was pending, before the Secretary, by virtue of an order passed in an earlier writ petition. The present writ petitioners were parties in such earlier writ petition. Pranab knew of such proceedings. Pranab was a party in the earlier writ petition also. Pranab did not make either the present petitioners or the society a party in its writ petition, and had obtained the Order dated October 25, 2017 behind the back of the petitioners. Rights of the society, and of the petitioners in relation to such society, were affected by the Order dated October 25, 2017. Pranab had obtained an undue advantage in relation to the affairs of a society through such mechanism. The procedure adopted by Pranab, in its writ petition, the Order dated October 25, 2017 has resulted in serious miscarriage of justice. So far as the petitioners and the society are concerned, they are necessary and proper parties to the writ petition of Pranab. They not being made parties, the Order dated October 25, 2017 stands vitiated by the breach of the principles of natural justice. Non-impleadment of the society and the writ petitioners in such writ petition led to miscarriage of justice. They not being made parties, the Order dated October 25, 2017 stands vitiated by the breach of the principles of natural justice. Non-impleadment of the society and the writ petitioners in such writ petition led to miscarriage of justice. The society and the petitioners are entitled to be heard before their rights stand affected. Learned Senior Advocate for the petitioners has criticized the conduct of the writ petitioners of Pranab as also that of the State in such writ petition. Such criticism has substance. A writ petitioner is required to come with clean hands. Pranab did not come with clean hands. He had misled the Court into believing a factual scenario which was not obtaining. He had caused the Court to pass an order on the basis of a factual scenario painted in his writ petition which was different to that obtaining in reality, to his knowledge. Pranab knew very well about the actual position and did not bring the same to the notice of the Court. This conduct of Pranab cannot be appreciated. 12. In such circumstances, the Order dated October 25, 2017 passed in W.P. No. 22541 (W) of 2017 is recalled. Every party who has obtained any benefit out of such order will disgorge the same. A party is not entitled to retain benefits out of an order obtained by such party without the due process of law. In the facts of the present case, due process was not followed in the writ petition of Pranab. Court is informed that, pursuant to the Order dated October 25, 2017, an election of the society has been held and that, a new committee has taken charge. The Court is also informed that, the earlier committee had spent its tenure and that, on October 25, 2017 when the order was passed, an election to the society was due. Learned Senior Advocate appearing for the respondent nos. 12 to 17 has submitted that, a mechanism should be put in place for the running of the society. 13. The suggestion on behalf of the respondent nos. 12 to 17 is otherwise reasonable and acceptable. However, in the facts of the present case, the entirety of the suggestion given on behalf of the respondent nos. 12 to 17 cannot be accepted. Pranab does not deserve to enjoy the usufructs of something which he had obtained illegally. Pranab should, therefore, disgorge such benefits. 14. 12 to 17 is otherwise reasonable and acceptable. However, in the facts of the present case, the entirety of the suggestion given on behalf of the respondent nos. 12 to 17 cannot be accepted. Pranab does not deserve to enjoy the usufructs of something which he had obtained illegally. Pranab should, therefore, disgorge such benefits. 14. The committee formed by the election of the society subsequent to the Order dated October 25, 2017 will make over charge to the committee of the society subsisting immediately prior to the Order dated October 25, 2017. Such charge should be made over within 7 days from date. The committee coming into the control of the affairs of the society pursuant to this order is also required to be put on terms. Such terms are required in the interest of justice and for the welfare of the society. The Court is informed that, the society is running a college. The society is, therefore, required to make expenditure in the running of the college. Therefore, the subsisting interim orders are modified. The committee that will take charge pursuant to this order will not sell, alienate or deal with the immovable properties of the society, without the leave of the Court. Such committee is at liberty to meet the day to day expenses of the society and the college runs by it in its usual course of business. The committee will maintain day to day accounts of the disbursements made. List W.P. No. 22541 (W) of 2017 before the appropriate bench. The present writ petition should also appear on such date. Other points raised by the parties are kept open to be decided at the final hearing of the two writ petitions. It is made clear that, this order of restoration of status as on October 25, 2017, will not be construed to be a pronouncement on the validity, legality or sufficiency of the restored committee or the lack of it, in any manner whatsoever. 15. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.