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2020 DIGILAW 37 (CAL)

Ramapada Gangopadhyay @ Ganguly v. State Of West Bengal

2020-01-09

SABYASACHI BHATTACHARYYA

body2020
JUDGMENT 1. The Court : At the outset, the respondents take a preliminary objection as to the present writ petition not being maintainable in the Original Side but ought to have been filed in the Appellate Side of this Court, in view of the parties residing, as well as the cause of action having arisen, in Burdwan. 2. In answer, learned Counsel for the petitioners cites a judgment reported at AIR 1980 Supreme Court 303 (Sharif-ud-Din v. Abdul Gani Lone) wherein it is held, inter alia, that a difference between a mandatory rule and a directory rule is that while the former must be strictly observed, in the case of the latter, substantial compliance may sufficiently achieve the object regarding which the rule is enacted. 3. In conjunction with the above judgment, learned Counsel for the petitioners also cites a judgment reported at 1991 (2) CLJ 290 (Sakti Steel Traders v. Ashok Chakroborty & Ors.) wherein it was held, inter alia, so far as the provision of Article 226 of the Constitution is concerned, the Appellate or Original Side Rules of a particular High Court are unknown. The administrative rules of practice adopted for division of work amongst the Judges are directory and do not confer any right on the litigants. Procedural law was held not to be mandatory and that the Writ Rules framed by the Full Court of this Court are directory and not mandatory. 4. Learned Counsel for the petitioner further cites a judgment reported at 79 CWN 312 (United Province Electric Supply Con and Ors. v. Industrial Tribunal (III) Allahabad and Ors.) wherein a Division Bench of this Court held that in the absence of any rules being framed at that juncture under Article 226(1A) of the Constitution , in a case in which the cause of action, either wholly or in part, arises within the territorial jurisdiction of the High Court at Calcutta, a writ petition may be filed either in the Original Side or in the Appellate Side according to the choice and convenience of the petitioner. 5. In another judgment, rendered by a Coordinate Bench of this Court on March 2, 2015 in W.P. No. 74 of 2009, it was held that jurisdiction under Article 226 of the Constitution is exercisable by this Court under its constitutional power. 5. In another judgment, rendered by a Coordinate Bench of this Court on March 2, 2015 in W.P. No. 74 of 2009, it was held that jurisdiction under Article 226 of the Constitution is exercisable by this Court under its constitutional power. If a writ application under Article 226, even though otherwise maintainable constitutionally speaking, comes to be wrongly filed or entertained on the Appellate Side because of some so-called infraction of some Rule on the subject, in our opinion, it cannot entail the dismissal on that ground alone. It was held that the filing of the writ application either on the Original Side or Appellate Side has nothing to do with its maintainability. It was held that the question of maintainability of a writ application is totally unrelated to any subsidiary Rules framed on the Administrative Side of this Court for entertaining writ applications, either on the Original Side or the Appellate Side. 6. As far as the judgment reported at 79 CWN 312 is concerned, the same is ex facie not applicable to the present case, since, in the said case, the Rules were not yet framed and the cause of action for the writ petition considered therein arose partly within the jurisdiction of the Original Side of this Court. In the present case, however, the cause of action entirely arose within the jurisdiction of the Appellate Side of this Court. 7. As far as the judgment rendered in AIR 1980 Supreme Court 303 is concerned, the said general proposition regarding the directory nature vis--vis the mandatory nature of Rules does not directly apply to the present case. As regards the judgment of the Coordinate Bench in Sakti Steel Traders (supra) , it was held therein that the classification of the Appellate Side or Original Side jurisdiction was artificial and was a matter of convenience. Any application, it was held, moved in one side, was not a matter of right of the litigant to challenge on the ground of such filing alone, since such logic was held to be against public policy. 8. As far as the other judgment of a Learned Single Judge, rendered in W.P. No. 74 of 2009, is concerned, it was a general observation that the filing of a writ application on either side of this Court has nothing to do with its maintainability. 9. 8. As far as the other judgment of a Learned Single Judge, rendered in W.P. No. 74 of 2009, is concerned, it was a general observation that the filing of a writ application on either side of this Court has nothing to do with its maintainability. 9. The question here is not about the maintainability of the writ petition but about judicial decorum. Although the Rules framed by the Full Court in its administrative side are not binding as judicial precedence and is directory on the court acting in its judicial capacity, for the sake of uniformity and certainty, which are the cardinal yardsticks of law, judicial decorum dictates this Court to abide by the classification decided upon by the Full Court, even in its administrative side, particularly since the present matter is at its inception and no order has been passed as yet, thereby prejudicing either side by dint of the classification. 10. The other question, as regards maintainability, need not even be touched while deciding the point, since a mere direction of conversion of the matter to one filed in the Appellate Side would suffice. Accordingly, without going into the question of maintainability of the writ petition at all, the concerned department is directed to convert W.P. No. 596 of 2019 to one filed in the appellate jurisdiction. The corresponding section of the Appellate Side of this Court is directed to act accordingly and to allot a new number in the Appellate Side to the present writ application. Such entire process has to be completed within three weeks from date. Liberty is given to the parties to mention the matter for enlistment after the said conversion is over and a new number is allotted by the Appellate Side to the present writ application.