Calcutta High Court (Appellete Side)
Abu Sahid Gazi And Others vs State Of West Bengal And Others on 17 December, 2021
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
The Hon'ble Justice Arijit Banerjee
And
The Hon'ble Justice Kausik Chanda
M.A.T. 1292 of 2021
With
I.A. No. C.A.N. 1 of 2021
ABU SAHID GAZI AND OTHERS
-VERSUS-
STATE OF WEST BENGAL AND OTHERS
For the appellants : Mr. Kamalesh Bhattacharya, Sr. Adv.,
Mr. Mohinoor Rahaman, Adv.,
Mr. Shahan Sha, Adv.,
Ms. Maria Rahaman, Adv.
For the State : Mr. Raja Saha, Adv.,
Mr. Shamim-ul-Bari, Adv.
For the respondent no. 5 : Mr. Surajit Basu, Adv.,
Mr. Manoj Kurmi, Adv.,
Ms. Ranu Mondal, Adv.
Hearing concluded on : 08.12.2021
Judgment on : 17.12.2021
Kausik Chanda, J.:-
The writ petitioners/appellants on November 16, 2021, submitted a
requisition to the prescribed authority under the West Bengal Panchayat Act,
1973 for removal of the Pradhan of Bhebia Gram Panchayat. The prescribed
authority did not take any steps to convene a meeting on the basis of the said
requisition which prompted the writ petitioners to approach the learned Single
Judge seeking a direction upon the prescribed authority to complete the
proceeding for removal of the Pradhan in terms of Section 12 of the Act.
2. In course of hearing of the case it was brought to the notice of the
learned Single Judge by the Pradhan that, on an earlier occasion the writ
petitioners had brought a motion of no-confidence on September 20, 2021,
before the prescribed authority. Subsequently, some of the requisitionists
withdrew from the requisition on the ground that the dispute between the said
requisitionists and the Pradhan was resolved. In that view of the matter, the
prescribed authority held that since the motion was not brought by at least
1/3rd of the existing members, the motion of no-confidence was not sustainable
in the eye of law.
3. Learned Single Judge found that the facts with regard to the earlier
requisition of September 20, 2021, and revocation of the same by the
prescribed authority had been suppressed in the writ petition.
4. Learned Single Judge held that the conduct of the writ petitioners should
not entitle them to obtain any order in their favour since there had been a
material suppression of fact. Placing reliance upon two judgments reported at
(2007) 8 SCC 449 (Prestige Lights Ltd. v. State Bank of India) and (2008)
12 SCC 481 (K.D. Sharma v. Steel Authority of India Limited), learned
Single Judge dismissed the writ petition.
5. Mr. Kamalesh Bhattacharya, learned advocate appearing for the
appellants, submits that the prescribed authority should have convened a
meeting in terms of Section 12(3) of the West Bengal Panchayat Act, 1973,
since the subsequent requisition was made by the required number of
members of the relevant Panchayat.
6. According to Mr. Bhattacharya, withdrawal of the earlier requisition, by
the majority members of the said Panchayat, was not a material fact and,
therefore, the learned Single Judge should not have dismissed the writ petition.
In support of his submission, Mr. Bhattacharya has relied upon a judgment
reported at AIR 1979 S.C. 134 (Shri H.D. Vashishta v. M/s. Glaxo
Laboratories (I.) (P.) Ltd.).
7. Mr. Raja Saha, learned advocate appearing for the State, submits that
the learned Single Judge rightly dismissed the writ petition since there is a bar
of one year under Section 12 (11) of the West Bengal Panchayat Act, 1973 to
convene a fresh meeting, if the earlier requisition is not acted upon.
8. Mr. Saha submits that since the requisition made on September 20,
2021, was withdrawn by the majority of the requisitionists, the present
requisition dated November 16, 2021, was barred under Section 12(11) of West
Bengal Panchayat Act, 1973. Therefore, the writ petition has rightly been
dismissed for suppression of facts.
9. There cannot be any quarrel with the proposition that if a litigant
approaches the equitable jurisdiction of the writ court with unclean hands by
suppressing a material fact, no relief can be given to him; but at the same time,
the Court, before declining to grant any relief, should examine as to whether
such fact is material or not.
10. A fact can be said to be material if the same has some bearing on the
merit of the lis. In other words, the Court should be satisfied that if the
suppressed fact had been disclosed, the outcome of the lis would have been
otherwise.
11. In the present case, the requisition made on September 20, 2021, was
withdrawn and, therefore, the prescribed authority did not convene any
meeting in terms of Section 12 (3) of the West Bengal Panchayat Act, 1973.
12. In our view, the withdrawal of the requisition made on September 20,
2021, can have no bearing on the subsequent requisition made on November
16, 2021.
13. Sub-section (11) of Section 12 of the West Bengal Panchayat Act, 1973,
does not bar such a requisition. Sub-section (11) of Section 12 of the West
Bengal Panchayat Act, 1973, is quoted below:
"(11) If the motion is not carried by the majority of its
existing members or the meeting cannot be held for
want of quorum, no notice of any subsequent motion
for the removal of the same office bearer shall be taken
into cognizance within a period of one year from the
date appointed for such meeting."
14. A plain reading of the said Sub-section (11) of Section 12 of the Act
makes it clear that a subsequent meeting for a period of one year will be barred
only when (a) If the motion is not carried by the majority of its existing
members or (b) the meeting cannot be held for want of quorum.
15. We do not accept the argument as advanced by Mr. Saha that the words
"motion is not carried" would include a situation where the requisition made
under Section 12 (1) of the West Bengal Panchayat Act, 1973, has been
withdrawn without convening any meeting. In our view, the words "by the
majority of its existing members" as deployed in Sub-section (11) of the West
Bengal Panchayat Act indicate that to come within the mischief of Section 12
(11) of the Act, the motion of no-confidence must fail in the meeting.
16. Therefore, it cannot be said that simple withdrawal of the earlier
requisition made on September 20, 2021, would operate as a bar to convene a
fresh meeting within a period of one year in terms of Sub-section (11) of Section
12 of the West Bengal Panchayat Act, 1973.
17. The Supreme Court in the judgment reported at (2007) 6 SCC 120
(Arunima Baruah v. Union of India) succinctly spelt out as to what would
amount to suppression of material fact. The relevant part of the said judgment
is quoted below:
"12. It is trite law that so as to enable the court to
refuse to exercise its discretionary jurisdiction
suppression must be of material fact. What would be a
material fact, suppression whereof would disentitle the
appellant to obtain a discretionary relief, would
depend upon the facts and circumstances of each
case. Material fact would mean material for the
purpose of determination of the lis, the logical
corollary whereof would be that whether the same was
material for grant or denial of the relief. If the fact
suppressed is not material for determination of the lis
between the parties, the court may not refuse to
exercise its discretionary jurisdiction. It is also trite
that a person invoking the discretionary jurisdiction of
the court cannot be allowed to approach it with a pair
of dirty hands. But even if the said dirt is removed and
the hands become clean, whether the relief would still
be denied is the question."
18. Therefore, it is clear that even if the writ petitioners had disclosed the
factum of withdrawal of the requisition of September 20, 2021, it could not
have been held that the subsequent requisition made on November 16, 2021
was barred by law. The said facts, therefore, were not material for the
adjudication of the writ petition on merit.
19. The judgment reported at AIR 1979 S.C. 134 (Shri H.D. Vashishta v.
M/s. Glaxo Laboratories (I.) (P.) Ltd.), in our opinion, has no applicability in
the present case. In the said case, a suit was dismissed since the relevant facts
constituting the cause of action of the case were not pleaded. In that view of
the matter, the suit was dismissed by the High Court and the Supreme Court
upheld the order of the High Court. We fail to understand how the said
judgment helps the appellants.
20. Though it was desirable that writ petitioners, in the writ petition, would
make disclosure as to the withdrawal of the earlier requisition, in our view,
such non-disclosure did not debar the writ petitioners from seeking relief as
prayed for in the writ petition.
21. In that view of the matter, the order of the learned Single Judge is set
aside. The appeal is allowed. The prescribed authority shall take necessary
steps in terms of Section 12 (3) of the West Bengal Panchayat Act, 1973, on the
basis of the requisition made before him by the writ petitioners on November
16, 2021.
22. Accordingly, the appeal being M.A.T. 1292 of 2021 is allowed and the
connected application being I.A. No. C.A.N. 1 of 2021 is disposed of.
23. Urgent certified website copies of this judgment, if applied for, be
supplied to the parties subject to compliance with all the requisite formalities.
I agree.
(Arijit Banerjee, J.) (Kausik Chanda, J.)
