Madrasah (H.S.) & Anr vs The State Of West Bengal & Ors
2022 Latest Caselaw 6726 Cal

Court No. 22            IN THE HIGH COURT AT CALCUTTA
20.9.2022                Constitutional Writ Jurisdiction
(Item No. 12)
                                Appellate Side

(AB)                         W.P.A. 21157 of 2022

                The Managing Committee, Contai Rahamania High
                            Madrasah (H.S.) & Anr.
                                      VS
                        The State of West Bengal & Ors.

                        Mr. Surojit Nath Mitra
                        Mr. Soumen Kumar Dutta
                        Mr. Abu Sohel
                                        ..... for the petitioners
                        Mr. Nadeem Sulaiman
                                    ...... for the Madrasah Board
                        Mr. Subhas Jana
                                      .... For respondent No. 6

Mr. P. S. Dev Barman Mr. Imtiaz Ahamed Mr. Anindya Sundar Das Ms. Avipsa Sarkar Ms. Debangana Dey Nayak

Sk. Md. Galib ...for the State

Affidavit of service filed in Court today, is

taken on record.

This writ petition assails the impugned order

dated September 8, 2022, Annexure P-7 to the writ

petition passed by the respondent No. 3 whereby and

where under the alleged Managing Committee of the

Madrasah concerned, namely, Contai Rahamania

High Madrasah (H.S.), District Purba Midinipur,

was superseded and the respondent No. 8 was

appointed as an Administrator of the said Madrasah.

Pursuant to an order dated August 17, 2022

was passed by a co-ordinate Bench, Annexure P-4 to

the writ petition, the impugned order dated September

8, 2022 was passed. The relevant part of the said

order dated August 17, 2022 is reproduced below:

"The petitioner's grievance is that there is serious illegality alleged by the petitioner whose son is a student of Madrasah. She also made a representation along with others to the West Bengal Board of Madrasah Education on 01.04.2022 (Annexure P-4) I direct the Secretary of the West Bengal Board of Madrasah Education to hold the hearing immediately by two weeks from the date of communication of this order where the petitioner and any two persons who made their representation and the Madrasah Managing Committee will remain present. After hearing, the reasoned order is to be passed and the Secretary of the West Bengal Board of Madrasah Education shall have all powers to take a decision for the better administrator of the Madrasah if he thinks so.

With the above observation and direction, this writ application is disposed of."

Mr. Surojit Nath Mitra, learned senior counsel

appearing for the writ petitioners, the alleged

Managing Committee of the Madrasah submitted that,

there was a previous round of writ litigation. The said

previous writ petition was registered as WP 7287 (W)

of 2016. The said previous writ petition was also

analogously heard with other writ petitions and orders

were passed from time to time. One such order was

passed in the said previous writ petition on May 3,

2016, Annexure P-5 to the writ petition, wherein the

co-ordinate Bench had observed that in the event, the

Madrasah in question had valid recognition and

functions in terms of the impugned rules, there shall

be no interference in regard to such functioning.

Another order of a co-ordinate Bench dated August

31, 2017 (at page 100 of the writ petition) was passed,

inter alia, in the said previous writ petition, when the

co-ordinate Bench had observed that there should be

no interference with the functioning of the Madrasah

in question. The Board should not take any coercive

measure against the Madrasah in question during the

pendency of the writ application. However, certain

terms and conditions were also fixed by the co-

ordinate Bench while passing the said interim order.

The said two interim orders are still subsisting and

the previous writ petition is also pending along with

other identical writ petitions.

Referring to the order dated August 17, 2022

Mr. Mitra submitted that, the parties who should be

heard by the respondent No. 3 was also mentioned

therein. He submitted that, in derogation thereof

several other parties were also present and were heard

by the respondent No. 3. Referring to Annexure P-6

to the writ petition Mr. Mitra submitted that, this was

the written submissions filed before the respondent

No. 3 on behalf of the petitioners on September 8,

2022. He submitted that, the said written

submissions contained all the points sought to be

urged and taken on behalf of the writ petitioners.

Mr. Mitra then submitted that, from a close

reading of the said impugned order dated September

8, 2022 it would be evident that none of those

submissions of the writ petitioners mentioned in the

said written notes of argument were considered

neither any reason was ascribed as to why the

respondent No. 3 did not accept the contentions of the

writ petitioners. He submitted that, the said

impugned order is wholly illegal, wrongful and should

be set aside.

Mr. Nadeem Sulaiman, learned counsel

appearing for the respondent Nos. 2 and 3 referring to

Rule 8 and 13 of the Management of Recognized

Non-Government Madrasahs (aided and unaided)

Rules, 2002 (for short, Management Rules)

submitted that, whenever the Board finds any

irregularity or miss-management in running the

affairs of a Madrasah, it is the prerogative of the

Madrasah Board in exercising its statutory power to

take over the Management of the Board and/or to

supersede the Management of the Board by

appointing the administrator. It is an absolute power

vested with the Madrasah Board pursuant to the

statute. In the facts of this case also there were

serious allegations of miss-management of diverse

characters against the writ petitioners who were in the

Managing Committee of the relevant Madrasah Board.

He submitted that, the tenure of the petitioners being

the alleged Managing Committee of the relevant

Madrasah had also expired long back in May, 2016

and any further continuance on their part, as such,

would amount to an illegal and wrongful continuance

in violation of law. He submitted in such

circumstance, to protect and prevent the interest of

the students of the Madrasah, which is to be counted

as of a paramount interest, to give effect to the

statute, the Madrasah Board can supersede the said

expired Managing Committee and take charge thereof

by appointing administrator.

From a reading of the said impugned order, it

would be evident that, it is really nothing but handing

over the charge of the Madrasah from the expired

Managing Committee to the administrator in terms of

the statute. Therefore, the impugned order needs no

interference by this Court.

Mr. Sulaiman, learned advocate appears for

the Madrasah Board in support of his aforesaid

contentions placed reliance on the following

judgments in the matters of:

(i) S.L.P. (Civil) No. 5368 of 2020 (TheManaging Committee, Bheramari A.M. High Madrasah & Anr. Vs. The State of West Bengal & Ors.)

(ii) W.P.A. 1693 of 2022 (Abdul Hakim Vs. State of West Bengal & Ors.) and

(iii) W.P.A. 2830 of 2018 (Golam Rabbani & Ors. Vs. The State of West Bengal & Ors.) He also submitted that, the expired Managing

Committee had not taken any step to conduct the

necessary election for the Managing Committee.

Sk. Md. Galib, learned counsel appearing for

the State respondent Nos. 1, 4 and 5, at the outset,

adopted the entire submission made on behalf of the

respondent No. 2. In addition, he submitted that, the

two orders passed in the previous writ petitions were

not required to be taken into consideration by the

respondent No. 3 while passing the impugned order,

because no coercive step had been taken by

appointment of administrator on the relevant

Madrasah.

He further submitted that, despite the said

previous writ petition being pending and the interim

order being subsisting, the respondent No. 3 by

passing the impugned order had followed the

statutory mandate and therefore the same cannot be

interfered with.

Mr. Partha Sarathi Dev Barman, learned

counsel appearing for Hasina Bibi, in whose writ

petition the said order dated August 17, 2022,

Annexure P-4 to the writ petition was passed

submitted that, his client had not been impleaded in

this writ petition deliberately. If any order is passed

in this writ petition, the same shall prejudice the right

of his client.

However, considering such submission Hasina

Bibi is directed to be impleaded as added party

respondent in this writ petition.

Learned advocate on record, namely Abu Sohel

appearing for the writ petitioner is directed to

incorporate the name of Hasina Bibi as an added

party respondent in this writ petition in the cause title

of the writ petition by putting his signature and the

same shall be counter signed by the Assistant Court

Officer present in this Court in course of the day.

In course of the hearing it is also submitted by

the parties that, from the order dated August 17,

2022 the present writ petitioners had preferred appeal

being MAT 1355 of 2022 and the same is still

pending. No order was passed yet in the said appeal.

Considering the rival contentions urged on

behalf of the appearing parties and considering the

materials on record it appeard to this Court that, the

impugned order dated September 8, 2022 was passed

in terms of the direction made by the co-ordinate

Bench dated August 17, 2022. Since the operation of

the said order had not been stayed by the Hon'ble

Division Bench neither the same had been set aside,

the same remains in its full force.

This Court in exercise of its high prerogative

writ jurisdiction in judicial review would have a

limited jurisdiction to assess the said impugned order

dated September 8, 2022 passed by the respondent

No. 3. This Court only look into the decision making

process of the said impugned order dated September

8, 2022 and not beyond that. On a close scrutiny of

the said impugned order dated September 8, 2022 it

appeared that, various parties were represented before

the respondent No. 3 beyond the parties who were

directed to be represented in the hearing under the

said order dated August 17, 2022.

From a scrutiny of the said impugned order it

further appeared that, several factual aspects though

had been gone into but the questions raised on behalf

of the writ petitioners as would be evident from the

written submission dated September 8, 2022,

Annexure P-6 to the writ petition filed before the

hearing authority were not considered, far to speak of

furnishing any reason to deal with the same.

It is elementary that, a hearing authority while

conducting a hearing on an issue, it must address all

the points raised by the parties before it with reasons

and then to come to a reasonable conclusion. The

hearing authority namely, the respondent No. 3 while

passing the impugned order dated September 8, 2022

had not considered the points raised by the writ

petitioners through its written notes. The hearing

authority, in as much as, had also not considered the

previous two interim orders passed by the co-ordinate

Bench dated May 3, 2016 and August 31, 2017 being

Annexure P-5 to the writ petition. In absence of such

consideration with reasons the impugned order dated

September 8, 2022 suffers from serious infirmity both

on facts and law. The said impugned order, in law,

cannot stand.

In view of the forgoing discussions and reasons

the impugned order dated September 8, 2022,

Annexure P-7 to the writ petition, stands set aside

and quashed. However, the respondent No. 3 is

directed to revisit the issue after affording an

opportunity of hearing to the parties and on the basis

of the records existing before him, strictly in terms of

the order dated August 17, 2022 passed in WPA

10375 of 2022 and then to pass a reasoned order.

This exercise, as directed above, shall be

carried out and completed by the respondent No. 3 by

affording an opportunity of hearing to the parties on

September 29, 2022 at 3.00 P.M. at the office of

the respondent No. 3, as agreed by and between

the parties appearing before this Court today. The

respondent No. 3 then shall pass a reasoned order

and communicate the same to the parties who will be

represented before the Court within a further period of

two weeks thereafter.

All points are kept open for the parties to urge

before the respondent no. 3.

The respondent No. 3 shall not be influenced

by any observation made in this order.

In the mean time, the petitioners shall not deal

with the properties of the Madrasah in any manner

whatsoever and shall only incur the day to day

expenses in regular course of business and shall keep

a complete account for the same to be signed by the

Secretary namely, Sk. Md. Abdul Rahaman and the

same shall be counter signed by the Teacher-in-

charge of the Madrasah namely, Firoz Khan.

Meanwhile the petitioners and/or the alleged

Managing Committee of the Madrasah shall not take

any policy decision.

It is needless to mention that, this interim

arrangement is made keeping in mind the interest of

the students of the Madrasah and shall continue till

the reasoned order will be communicated to the

petitioners by the respondent No. 3.

This order is passed without prejudice to the

rights and contentions of the parties in the pending

appeal being MAT 1355 of 2022.

Since affidavits are not called for, the

allegations made in the writ petition are deemed not

to have been admitted by the respondents.

On the above terms, this writ petition being

WPA 21157 of 2022 stands disposed of.

There shall, however, be no order as to costs.

Urgent certified photo copy of this order, if

applied for, be supplied to the parties expeditiously on

compliance of usual legal formalities.

(Aniruddha Roy, J.)