Shila Chatterjee vs The State Of West Bengal & Ors
2022 Latest Caselaw 8673 Cal

            IN THE HIGH COURT AT CALCUTTA
                     Civil Appellate Jurisdiction
                            (Appellate Side)

                         M.A.T. 1939 Of 2022
                                  With
                        I.A. No. CAN 1 of 2022

                           Shila Chatterjee
                                  Vs.

                    The State of West Bengal & Ors.

Before: The Hon'ble Justice Arijit Banerjee
                      &
           The Hon'ble Justice Apurba Sinha Ray

For the Appellant          : Mr. Pratik Dhar, Sr. Adv.
                             Mr. Koustav Bagchi, Adv.
                             Mr. Debayan Ghosh, Adv.
                             Ms. Priti Kar, Adv.
                             Ms. Cardina Roy, Adv.

For the State              : Mr. Anirban Ray, Ld. GP.
                             Mr. Raja Saha, Adv.
                           : Mr. Debraj Sahu, Adv.
                             Mr. Arka Kr. Nag, Adv.

For the vice-Chairman      : Mr. Suman Sengupta, Adv.
                             Mr. Dip Jyoti Chakraborty, Adv.

For Respondent No.13       : Mr. Phiroze Edulji, Adv.

Heard on                   : 13.12.2022, 21.12.2022 & 22.12.2022

CAV On                     : 22.12.2022


Judgment On                : 23.12.2022





Arijit Banerjee, J. :-

1. The judgment and order dated November 23, 2022, whereby the

appellant's writ petition being W.P.A. 24995 of 2022 was disposed of, is

assailed in this appeal.

2. The appellant is a Councillor of Jhalda Municipality. The leader of the

Board of Councillors of Jhalda Municipality addressed a representation to

the Sub-Divisional Officer, Jhalda Sub-Division, District Purulia (being the

Competent Authority), dated November 14, 2022, seeking disqualification of

the appellant as a Councillor of the Municipality in terms of the provisions of

the West Bengal Municipal Act, 1993. The representation reads as follows:-

"Sir,

This is to inform you that one Smt. Shila Chatterjee was elected as

a Councillor from ward No. 3 of Jhalda Municipality. On the date

of declaration of result, i.e. on 02/03/2022, she had joined All

India Trinamool Congress and later voted in accordance with the

motion of the AITC party during the formation of the board of

Jhalda Municipality.

Thereafter on 27/10/2022 Smt. Shila Chatterjee has forwarded

her resignation from the membership of the All India Trinamool

Congress Party, expressed her intention to quit from all posts of

AITC party before the press channels and has also indulged in

anti-party affairs by joining hands with other political parties to

wreck the elected board of Jhalda Municipality.

Thereby it is apparent from the record that the act and action of

Smt. Shila Chatterjee is clearly violative of the appropriate

provision laid down in the West Bengal Municipal Act, for holding

and continuing the post of a Councillor, any more.

In such circumstances I write to you to draw up appropriate

proceedings forthwith against Smt. Shila Chatterjee, Councillor of

Ward No. 3 Jhalda Municipality for her disqualification as a

Councillor of the Municipality in terms of appropriate provisions as

laid down in the West Bengal Municipal Act, for disqualification of

Councillors.

This is for your information and necessary action."

3. Under cover of a letter dated November 14, 2022, the Competent

Authority forwarded a copy of the said representation to the appellant and

requested the appellant "to clarify your position on the matter at the

earliest." This letter was under challenge before the learned Single Judge.

4. It was argued before the learned Single Judge that the impugned letter

was issued by the Competent Authority without recording primary

satisfaction as to whether the writ petitioner is required to forward her

views.

5. It was further argued that she was elected as Councillor of the Jhalda

Municipality as an independent candidate and never pledged her allegiance

in favour of any political party. The learned Judge noted that though there is

a communication allegedly made by the writ petitioner on October 27, 2022,

addressed to the District President of the All India Trinamool Congress,

expressing her intention to resign from the post that she had been holding,

yet, it was contended on her behalf that she never submitted any declaration

that she joined the All India Trinamool Congress Party as required by the

Explanation to Section 21B of the West Bengal Municipal Act, 1993. The

writ petitioner expressed her apprehension before the learned Judge that

she would be disqualified by the Competent Authority only with a view to

ousting her from the Board of Councillors of the Municipality.

6. Learned Advocate representing the State respondents submitted that

the writ petition was pre-mature. No cause of action had arisen to file the

writ petition.

7. Upon hearing the respective parties, the learned Judge disposed of the

writ petition with the following observations:-

"Upon hearing the submissions made on behalf of all the

parties, it appears that the Sub-Divisional Officer has sought for

the views of the petitioner apropos the letter given by the leader of

the Board of Councillors, Jhalda Municipality. The petitioner is yet

to submit her views. No proceeding as of now has been initiated

against her.

Accordingly, the Court is not inclined to interfere in the matter

at this stage. It will be open for the petitioner to express her views

with regard to the letter dated 14th November, 2022 within 7th

December, 2022.

The Sub-Divisional Officer shall decide the issue after giving

reasonable opportunity of hearing to all the necessary parties. A

reasoned order shall be passed and communicated to the parties."

8. Being aggrieved the writ petitioner is before us by way of the present

appeal.

9. Appearing for the appellant, Mr. Pratik Dhar, learned Senior Advocate,

has submitted as follows:-

(i) The representation made to the Competent Authority, has not

been made by the leader of a political party and hence is invalid.

(ii) The Competent Authority could not have called for the view of

the appellant as regards the representation made to the Competent

Authority, without satisfying himself prima facie that grounds for

disqualification exist. He submitted that had the appellant joined

any political party, she would have had to give a declaration to the

Competent Authority as envisaged in the Explanation to Section

21B of the 1993 Act. There is no such declaration. Hence, the

Competent Authority ought not to have entertained the

representation at all.

(iii) The independent status of the appellant is not in dispute.

Nothing has been shown to substantiate that the appellant has

joined a political party.

(iv) Several orders have been passed by the Court in favour of the

appellant but the respondents have rendered the same ineffective

by their mala fide conduct. The appellant has been elected as

Chair Person of the Municipality at a meeting held on December 3,

2022. To render the same infructuous, the respondents are trying,

by hook or by crook, to oust the appellant from the Municipality by

disqualifying him as a Councillor.

(v) The Competent Authority has acted with undue haste. He

received the representation on November 14, 2022. Under the

statute, he had six weeks to conduct an enquiry and eight weeks to

pass an order on the representation. However, on the very day that

he received the representation, he issued the impugned letter to

the appellant calling for her views with regard to the

representation. This shows the biased attitude of the Competent

Authority.

10. Learned Government Pleader appearing for the State/Competent

Authority submitted that under the scheme of Section 21B of the 1993 Act,

the Competent Authority is the adjudicator in respect of a representation

made for disqualification of a Councillor. He is empowered to make

necessary enquiry and either reject or allow the representation. The

Competent Authority shall follow all statutory mandates in deciding the

representation that he has received. There is no reason for the appellant to

apprehend that the petition for disqualification shall necessarily be allowed

and she shall be disqualified. Learned Advocate submitted that there is no

reason to interfere with the order under appeal.

11. We have considered the rival contentions of the parties.

12. Before we proceed, it would be helpful to set out the relevant sub-

sections of Section 21B of the 1993 Act:-

"21B. Disqualification for being a Councillor on change of

political party by the Councillor.--(1) Notwithstanding anything

to the contrary contained in this Act or in any other law for the

time being in force, such competent authority for a Municipality as

may be appointed by the State Government by notification in this

behalf (hereinafter referred to in this section as the competent

authority), may, subject to the other provisions of this section,

declare, for reasons to be recorded in writing, a Councillor of such

Municipality to be disqualified for being a Councillor thereof, if --

(a) he is an elected Councillor set up by a recognised political

party and has --

(i) voluntarily given up his membership of such recognised

political party, or

(iA) joined another recognised political party, or

(ii) exercised the voting right contrary to the manner of voting

of the majority of the Councillors who are the members of

such recognised political party in such Municipality, or

(b) he is an elected Councillor not set up by a recognised

political party and he has joined a recognised political party

on the expiry of six months from the date of election:

Provided that the competent authority shall not declare any

Councillor to be disqualified under this section without giving to

such Councillor a reasonable opportunity to represent his case

and to be heard in person:

Provided further that an elected Councillor referred to in sub-

clause (iA), or sub-clause (ii), of clause (a) shall not, on the

competent authority being satisfied In this behalf, be declared to

be disqualified, if-

(a) the action of such Councillor was taken on obtaining

prior permission of, or was condoned by, such recognised

political party, or

(b) such Councillor claims that he and any other Councillors,

who are the members, of such recognised political party,

constitute in the Municipality a group representing a faction

consisting of not less than one-third of the total number of

Councillors set up by such recognised political party in the

Municipality and that all the Councillors constituting such

group have voluntarily given up their membership of such

recognised political party, or

(c) the former recognised political party of the Councillor

merges with another recognised political party, and he

claims that he and the other members of his former

recognised political party--

(i) have become members of such other recognised political

party or of a new recognised political party formed out of

merger, as the case may be, or

(ii) have not accepted the merger, and from the time of

such merger, he and such other Councillors constituting

not less than one third of the total number of Councillors

set up by the former recognised political party in the

Municipality, have opted to remain members of the former

recognised political party or have formed a new recognised

political party.

(2) On being declared to be disqualified under sub-section (1), a

Councillor shall, subject to the provisions of sub-section (12),

stand removed from the Board of Councillors from the date of such

declaration.

(3) As soon as may be within one month from the date of the first

meeting of the Board of Councillors or within one month from the

date on which this section comes into force, as the case may be,

the elected Councillors set up by the recognised political parties

shall, by adopting a resolution, select one Councillor from amongst

themselves to be the leader and such leader shall, within fifteen

days from the date of such selection, furnish to the competent

authority referred to in sub-section (1)--

  (i)    a copy of the resolution,

  (ii)    a signed statement containing the names, addresses and

constituencies of himself and other Councillors set up by such

recognised political party, and

(iii) a copy of a set of rules and regulations, if any, by

whatever name called, of such recognised political party:

Provided that an office-bearer may also hold the office of the

leader;

Provided further that the competent authority shall not refuse to

accept, or to rely on, the documents furnished by the leader merely

on the ground that the resolution selecting the leader was not

adopted within one month from the date of the first meeting of the

Board of Councillors or within one month from the date on which

this section comes into force, as the case may be, or that the

documents as aforesaid were not furnished to him within fifteen

days from the date of such selection.

(7) The leader referred to in sub-section (3), who is a member of a

recognised political party, may at any time file a petition endorsed

by the General Secretary, or if there is no General Secretary, the

Secretary, of the district unit [or the Head of the district functionary

in whatever designation he may be called] of such recognised

political party to the competent authority, stating that--

(a) one or more Councillors who are the members of such

recognised political party have--

(i) voluntarily given up his or their membership of such

recognised political party, or

(iA ) joined another recognised political party, or

(ii) have exercised the voting right contrary to the manner of

voting of the majority of the Councillors set up by such

recognised political party in the Municipality, or

(b) the Councillor referred to in sub-section (4) has voluntarily

given up his membership of the recognised political party that

set him up, or

(c) the Councillor referred to in sub-section (5) has joined a

recognised political party on the expiry of six months from the

date of election, and that such Councillor or Councillors should

be declared to be disqualified under sub-section (1) and should

be removed from the Board of Councillors.

(9) On receipt of the petition referred to in sub-section (7), the

competent authority shall, as soon as possible within six weeks

from the date of the receipt of such petition, proceed to make an

enquiry to satisfy himself, among others, as to--

(a) the common decision in regard to the manner of voting to

be exercised by the majority of the Councillors set up by the

recognised political party, and

(b) whether the Councillor or Councillors, against whom such

petition is filed, exercised the voting right in a meeting of the

Board of Councillors contrary to such manner of voting.

(10) For the purpose of enquiry under sub-section (9), the

competent authority, may summon such members of the

recognised political party or other persons, and may require such

signed statement from, and production of such documents and

records by the members or other persons as aforesaid, as he may

deem necessary.

(11) As soon as possible within eight weeks from the date of receipt

of the petition referred to in sub-section (7), the competent

authority shall, in consideration of the statements, documents and

records before it,

(a) reject the petition, or

(b) admit the petition wholly or in part and declare any member

or members of such recognised political party to be disqualified

under sub-section (1) for being Councillor or Councillors of the

Municipality.

(12) Any Councillor declared disqualified under sub-section (1) or

the leader of the recognised political party referred to in sub-

section (7), if aggrieved by the decision of the competent authority,

may, within thirty days from the date of the order, appeal to such

authority as the State Government may appoint in this behalf and

thereupon, the authority so appointed may stay the operation of

the order till the disposal of the appeal and may, after giving notice

of the appeal to the competent authority, and after giving the

appellant and the opposite parties an opportunity of being heard,

set aside or confirm the order or declare any Councillor or

Councillors to be disqualified under, and in accordance with the

provisions of, sub-section (1) [within a period of eight weeks from

the date of receipt of the appeal under this sub-section] and, upon

such declaration, the Councillor or Councillors shall stand

removed from the Board of Councillors."

13. As regards the first point of Mr. Dhar, learned Advocate for the

appellant, we do not find that sub-section 7 of Section 21B stipulates that

the leader of a political party has to make the application for disqualification

of a Councillor. Sub-section 7 says that the leader referred to in sub-section

3 can file a petition. Sub-section 3 contemplates that the Councillors shall

select from amongst themselves one Councillor to be the leader. In the

present case, there is no dispute that as on the date of making of the

representation, Suresh Kumar Agarwal was the leader of the Board of

Councillors, Jhalda Municipality. Hence, the appellant's first point has no

merit.

14. We are also unable to accept the second point of the appellant that the

Competent Authority could not have asked for the appellant's view in respect

of the petition for her disqualification. The scheme of Section 21B of the

1993 Act empowers the Competent Authority to conduct necessary enquiry

for coming to a conclusion as to whether or not the petition for

disqualification should be allowed. The Competent Authority is in the

position of an adjudicator and has to carry out a fact finding exercise. He is

also under an obligation to give an opportunity to the Councillor under

attack to deal with the petition and also a personal hearing. We see no

requirement under the scheme of Section 21B that the Competent Authority

must first satisfy himself prima facie that there are grounds for

disqualification of the concerned Councillor before he can call for the said

Councillor's view. Whether or not a declaration has been furnished by the

concerned Councillor to the effect that he has joined a recognised political

party is of course one of the factors that the Competent Authority will have

to consider in deciding the petition for disqualification. The Competent

Authority has also been authorised to consider and call for such material

from members of recognised political parties as he may deem necessary. In

short, Section 21B has clothed the Competent Authority with full power to

take a decision on the disqualification petition. We do not find merit in the

appellant's second contention also.

15. Regarding the appellants third contention, it is true that it is not in

dispute that she contested and got elected as a Councillor as an

independent candidate. However, whether or not she subsequently joined a

recognised political party, as has been alleged in the representation made to

the Competent Authority, is something to be ascertained by the Competent

Authority.

16. The fourth point urged by the appellant is that the respondents are

rendering ineffective, orders of Court which are in favour of the appellant. It

is not exactly clear how the respondents are doing that. However, if the

respondents are in any way violating orders of Court, then, and we do not

have to advise the appellant for this, her remedy would be elsewhere.

17. Finally, the appellant has complained of the Competent Authority

acting in hot haste. We cannot blame the Competent Authority for being

prompt. Section 21B sub-section 9 requires the Competent Authority to Act

promptly and to make an enquiry "as soon as possible within six weeks from

the date of the receipt of such petition." The Competent Authority can hardly

be faulted for his promptitude.

18. Mr. Dhar, learned Advocate relied on a decision of the Hon'ble

Supreme Court in the case of D. Sudhakar (2) & Ors. v. D.N. Jeevaraju &

Ors. Reported at (2012) 2 SCC 708. In our considered view and with great

respect to learned Counsel, the said decision is not germane to the issues

involved in this appeal. The said decision dilates on what would amount to

joining a political party.

19. We are of the considered opinion that the learned Single Judge was

justified in permitting the Competent Authority to take a decision on the

representation received by him after observing the principles of natural

justice. The Competent Authority has also been directed to dispose of the

petition by recording a reasoned order. We are of the view that the writ

petition was premature. There is nothing on record to indicate that the

disqualification petition will necessarily be allowed by the Competent

Authority. Even if the petition is allowed following the procedure laid down

in Section 21B of the 1993 Act, Section 12 of the Act provides for a statutory

appeal to the disqualified Councillor. Sub-section 12 also specifically

provides for the appellate authority to pass an interim order of stay in the

appeal. We are not inclined to stifle the proceedings before the Competent

Authority at the nascent stage.

20. We must also remember that we are hearing an intra Court appeal.

Unless we find perversity, arbitrariness, Wednesbury unreasonableness,

lack of jurisdiction or the like in the order under appeal, we should not

interfere. Just because we may have a different view from that of the learned

Single Judge, that will not be a good ground to interfere if the view taken by

the learned Single Judge is a plausible one. Of course, in the present case,

we are completely in agreement with the learned Single Judge's view.

21. The appeal fails and is dismissed along with the connected

application. However, the appellant will be at liberty to express her views in

response to the letters dated November 14, 2022 and November 17, 2022

issued by the Competent Authority, by January 5, 2023.

22. 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.

(Apurba Sinha Ray, J.)                                   (Arijit Banerjee, J.)