Guardians Front & Anr vs State Of West Bengal And Ors
2022 Latest Caselaw 7927 Cal

44-45 30.11.2022                WPA 24128 OF 2022
  Sc Ct. no.22                        -------

                                 Guardians Front & Anr.
                                            Vs
                             State of West Bengal And Ors.

                                          with

                                WPA 18866 OF 2022
                                      -------

Guardians Front & Anr.

Vs State of West Bengal And Ors.

-------------

In Re : WPA 24128 OF 2022

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Mr. Sambuddha Dutta Mr. Shamit Dutta.

.... For the Petitioners in these writ petitions Mr. Pinaki Dhole Ms. Ananya Neogi.

.... For the State/ Respondent nos. 1 to 6 in WPA 24128 of 2022 Mr. Raja Saha Ms. Piyali Sengupta.

.....For the State in WPA 18866 of 2022 Ms. Koyeli Bhattacharya Ms. Saswati Chatterjee.

....For the WBBSE in WPA 24128 of 2022 & WPA 18866 of 2022 Mr. Kallol Basu Mr. Jamiruddin Khan.

.... For the Respondent No.7 in WPA 18866 of 2022 Mr. Saptarshi Banerjee Mr. Aniruddha Singh.

.....For the Respondent No. 9 in

WPA 24128 of 2022

Ms. Sayanti Sengupta .....For the Respondent

WPA 24128 of 2022

These two writ petitions relate to basically a

challenge thrown towards the Managing Committee

Election held, its procedural impropriety and the

constitution of the present elected Managing

Committee. The school is the one, named, Patha

Bhavan School (for short the school).

In WPA 24128 of 2022 (for short the first writ

petition) the first writ petitioner is one Guardians Front

and the second writ petitioner is the convenor of the first

writ petitioner and she contested the relevant election

held on September 11, 2022.

The collective grievance of the petitioners in this

first writ petition is that various provisions of the

statutory rules, viz. The Rules for Management of

Recognised Non-Government Institutions (Aided and

Unaided) Rules, 1969 (for short the 1969 Rules) were

violated in conducting the election.

In aid of the main reliefs mentioned in the writ

petition, Mr. Sambuddha Dutta, learned counsel for the

petitioners prayed for an interim order, in effect,

suspension of the elected managing committee. He

submitted that the grievance was represented in writing

dated July 25, 2022, part of Annexure-P9 to this writ

petition before the respondent no. 10 and an identical

representation containing their grievance dated July 29,

2022 amongst other were made, inter alia, before the

respondent nos.2, 3 and 4.

Mr. Dutta submitted that despite such

representations being made neither the Board nor the

Teacher-in-Charge of the relevant school paid any heed

thereto and did not take any decision thereupon.

Mr. Dutta further submitted that if a single

violation of statutory provision is demonstrated before a

Court as in the instant case, according to Mr. Dutta

violation of Rule 9(2) of the 1969 Rules, the entire

action and the resultant effect therein are bad in law and

liable to be set aside. Hence, according to him, a prima

facie case has been made out warranting an interim order

as recorded above. In support, he relied upon the

following judgments of the Hon'ble Supreme Court:

I. (2014) 2 SCC 401 (J. Jayalalithaa & Ors. vs. State of Karnataka & Ors., II. (2005) 2 SCC 271 (Nathi Devi vs. Radha Devi Gupta, III. (2011) 3 SCC 436 (State of Orissa & Anr. vs. Mamata Mohanty) & IV. (1997) 9 SCC 527 (Raj Kumar & Ors. vs. Shakti Raj & Ors.

Mr. Saptarshi Banerjee, learned counsel appearing

for the ninth respondent, the school represented through

its secretary submitted that, there are several

suppressions of material facts in the writ petition. The

most pertinent suppression, according to Mr. Banerjee, is

the report of the Election Officer dated September 11,

2022 which was submitted by the concerned Election

Officer on the date of election itself in terms of Rule 20 of

the Procedure for Holding Election, West Bengal

Board of Secondary Education published by way of a

notification dated December 23, 1980 (for short the

election procedure), Annexure-P5 to the first writ

petition. Mr. Banerjee submitted that if that report is

brought on record the complexion of the writ petition

might have changed against the writ petitioners.

Mr. Banerjee further argued the point of

maintainability of this writ petition as also a challenge to

the locus of the second writ petitioner who had

participated in the election and now turned around after

being a losing candidate, cannot maintain the petition.

Mr. Banerjee further submitted that during the

pandemic the election could not be held for more than

two years. The tenure of the then existing managing

committee was enlarged from time to time. The last of

such extension was granted on August 18, 2022. These

are also material facts which were suppressed in the writ

petition.

Ms. Sayanti Sengupta, learned counsel appearing

for the respondent no.10, the Teacher-in-Charge of the

relevant school adopted the submissions made by Mr.

Sarpartshi Banerjee, learned counsel and relying upon

Clause 20 of the said Election Procedure she submitted

that the Election Officer submitted one after another

reports on different dates from time to time clearly in

violation of the said provision. The document appearing

at page 141 to the writ petition which was also a report

filed by the Election Officer, was submitted by the Board

to the petitioner but not to the Teacher-in-Charge of the

school. Ms. Sengupta submitted that it is a connived and

chance taken writ petition.

Mr. Pinaki Dhole, learned State counsel appearing

for the respondent nos. 1 to 6 referring to pages 128 and

132 to the writ petition submitted that even subsequent

thereto the second petitioner participated in the election.

Thus, the contention of the petitioners that the Board had

not taken any steps on its representation is totally

misconceived and afterthought. In addition, he submitted

that even if the petitioners had any grievance such could

be redressed in terms of Clause 34 of the Election

Procedure. The petitioner did not choose to do so.

Ms. Koyeli Bhattacharya, learned counsel

appearing for the respondent nos. 2, 3 and 4 vehemently

opposed the submission made by Ms. Sengupta, learned

advocate that the Board had connived with the

petitioners.

Considering the rival contentions of the parties and

considering the materials on record it appears that the

second petitioner had participated in the election and

could not succeed. The grievance of the petitioners that

the Board did not consider its representation was prior in

point of time and subsequent thereto the second

petitioner participated in the election. While passing an

interim order, which is an equitable relief, this

constitutional Court must take that into account. It is

equally true that all the reports filed by the Election

Officer were not brought on record through this writ

petition.

It is trite that, a Court in exercise of its jurisdiction

under judicial review should proceed very slow while

adjudicating an election process. After all an elected body

has been declared by virtue of an election. To dismantle

such an elected body, this Court is of the firm view that,

it needs to examine several aspects with a limited scope

of fact finding authority of a writ Court. This Court is

also not unmindful about the provisions laid down under

Clause 34 of the Election Procedure, where the Board is

empowered to decide such an issue raised by the

petitioner through this writ petition.

The judgment relied upon by Mr. Dutta and the

ratio laid down thereunder are all well settled and those

ratio can only be applied at the time of final hearing of the

writ petition upon affidavits. To weigh the prima facie

case against an Election Procedure which has already

been held and result has been declared and also keeping

in mind that in such election the second petitioner had

participated, the consideration of the Court would be

whether to dismantle the elected body at an interim

stage, would amount to final relief in the writ petition.

Any interim order, if passed as prayed for would amount

to granting of final relief in this writ petition, which is not

permissible in law.

For the foregoing discussions and reasons, this

Court is of the firm view that, there is no prima facie case

made out on which an interim relief can be granted. The

balance of convenience also does not warrant any interim

order as prayed for.

Considering the nature of the grievance and the

issues involved in this writ petition, this Court is also of

the view that the writ petition can be adjudicated upon

after calling for affidavits.

Affidavits-in-opposition shall be filed by the

respondents on or before January 7, 2023. Reply, if any,

thereto shall be filed by January 27, 2023.

The point of maintainability is kept open.

ACO The writ petition shall appear for further

consideration under the heading "Hearing" in the

Combined Monthly List of February, 2023.

Re : WPA 18866 OF 2022

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This writ petition (for short the second writ petition)

is interconnected with the issue involved in the first writ

petition, i.e., WPA 24128 of 2022.

In view of the discussions already made in the said

first writ petition, WPA 24128 of 2022, this Court is of

the view that, there is no scope for passing any interim

order in this second writ petition. An identical direction

for filing affidavits is given.

Affidavits-in-opposition shall be filed by the

respondents on or before January 7, 2023. Reply, if any,

thereto shall be filed by January 27, 2023.

ACO This writ petition shall appear for further

consideration under the heading "Hearing" in the

Combined Monthly List of February, 2023 along with

the first writ petition, i.e., WPA 24128 of 2022.

ACO A photocopy of this order is directed to be kept in

the file of each of these two writ petitions.

(Aniruddha Roy, J.)