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2018 DIGILAW 388 (CAL)

Md. Akmal Hossain v. State of West Bengal

2018-05-17

TAPABRATA CHAKRABORTY

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JUDGMENT : Tapabrata Chakraborty, J. 1. Affidavit-of-service filed by the petitioner be kept on record. In spite of service no one appears today on behalf of the respondent No. 5 2. The present writ petition has been preferred challenging, inter alia, a notice dated 25th August, 2017 issued by the respondent No. 4 and an order dated 23rd March, 2018 issued by the Secretary to the Judicial Department, Government of West Bengal. 3. Mr. Mitra, learned senior counsel appearing for the petitioner submits that the petitioner was appointed to act as Muslim Marriage Registrar (Sunni Sect) (in short, MMR) with effect from 30th January, 2013. By a notice dated 25th August, 2017 the respondent No. 4 invited applications from intending Muslim candidates for the post of MMR (Shia Sect) for Bhagwangola Police Station. At Bhagwangola Police Station there is no Shia Muslim and there is no requirement for appointment of any MMR (Shia Sect) and as such, the subsequent order dated 23rd March, 2018 issued by the Secretary to the Government of West Bengal, Judicial Department according approval to the proposal for appointment of the private respondent is also not sustainable in law. 4. Placing reliance upon clause 3A of the notification dated 14th August, 1929 he submits that such application can be invited only on the occurrence of a vacancy in the post of Mohammedan Registrar or on the creation of new office in any district other than district of Calcutta. Indisputably, no such vacancy has occurred nor any post has been created and as such question of appointment of any further MMR under Bhagwangola Police Station does not occasion and the memo dated 25th August, 2017 is derogatory to the said notification. 5. He further submits that a new post of MMR can only be created by the Government of West Bengal after obtaining sanction from the Governor of the State and the said respondent No. 4 had no competence to issue the memo 25th August, 2017 inviting applications in the absence of any approved post. 6. He further submits that in the writ petition it has not been suppressed that the petitioner approached this Court earlier challenging the vires of the proviso to Section 3 of the Bengal Mohammedan Marriages and Divorces Registration Act, 1876 and the Court has directed exchange of affidavits in the same and the same is still pending. 7. Md. 6. He further submits that in the writ petition it has not been suppressed that the petitioner approached this Court earlier challenging the vires of the proviso to Section 3 of the Bengal Mohammedan Marriages and Divorces Registration Act, 1876 and the Court has directed exchange of affidavits in the same and the same is still pending. 7. Md. Galib, learned advocate appearing for the State respondents submits that the writ petition itself is not maintainable since identical issue has been raised in the earlier writ petition in which an interim order was also prayed for pertaining to the memo dated 25th August, 2017 but such prayer was refused and aggrieved thereby, the petitioner approached the Hon'ble Appeal Court and the appeal is still pending and no interim order has been passed in the same. 8. Section 3 of the Bengal Muhammadan Marriages and Divorces Registration Act, 1876 reads as follows : "It shall be lawful for the [State] Government to grant a license to any person, being a Muhammadan, authorizing him to register Muhammadan marriages and divorces which have been effected within certain specified limits, on application being made to him for such registration; and in like manner it shall be lawful for the said [State] Government to revoke or suspend such license : Provided that no more than two persons shall be licensed to exercise the said function within the same limits; and provided further that, when two persons are so licensed to act within the same limits, the one shall be a member of the Sunni, and the other of the Shia, sect." 9. Admittedly, the vires of the said proviso was challenged in the earlier writ petition along with the memo dated 25th August, 2017, as would be explicit from the petitioner's own representation dated 9th April, 2018 submitted to the authorities. The memo dated 23rd March, 2018 issued by the Secretary to the Judicial Department, Government of West Bengal according approval to the appointment of the private respondent No. 5 originates from the memo dated 25th August, 2017 by which the process of appointment of MMR (Shia sect) was initiated. Thus, in my opinion, the issue raised in the present writ petition is directly and substantially an issue in the earlier writ petition which is still pending. The said issue cannot be reopened by filing a fresh writ petition. Thus, in my opinion, the issue raised in the present writ petition is directly and substantially an issue in the earlier writ petition which is still pending. The said issue cannot be reopened by filing a fresh writ petition. By splitting up the claims the petitioner cannot approach the Court repeatedly. 10. For the reasons discussed above, I am of the opinion that the present writ petition is not maintainable. 11. Accordingly, the same is dismissed. 12. There shall, however, be no order as to costs. 13. Urgent photostat certified copy of this order be supplied to the parties on compliance of all formalities.