Suresh Kumar Agarwal vs The State Of West Bengal & Ors
2023 Latest Caselaw 1072 Cal

    9.
09-02-2023
AB/Debjyoti
(Ct. no.06)
                              MAT 114 of 2023
                                    +
                             IA NO CAN/1/2023


                             Suresh Kumar Agarwal
                                       Vs.
                          The State of West Bengal & Ors.

               Mr. Saptansu Basu, Sr. Adv.,
               Mr. Ankit Agarwal,
               Ms. Alotriya Mukherjee
                                     ... For the Appellant.

               Mr. Anirban Ray, Learned Government Pleader,
               Mr. Raja Saha,
               Mr. Arka Kumar Nag,
               Mr. Debraj Sahu
                                    ... For the State.

               Mr. Suman Sengupta,
               Mr. Dip Jyoti Chakraborty
                                    ... For Respondent No.10.

Mr. Phiroze Edulji, Mr. Rahul Kumar Singh ... For Respondent No.12.

Mr. Pratik Dhar, Sr. Adv., Mr. Kaustav Bagchi, Mr. Debayan Ghosh, Mrs. Cardina Roy, Ms. Priti Kar ... For Respondent No.20/ Writ Petitioner.

By consent of the parties, the appeal and the

stay application have been taken up for hearing

together.

This appeal is directed against an interim order

dated January 20, 2023, passed in WPA 1752 of 2023

(Shila Chatterjee Vs. The State of West Bengal & Ors.)

and WPA 1757 of 2023 (Purnima Kandu Vs. The State

of West Bengal & Ors.).

In an earlier round of litigation, one of the writ

petitioners herein, namely, Shila Chatterjee, had

approached the learned Single Judge, challenging a

notice issued by the Competent Authority, to show

cause as to why she should not be disqualified as a

Councilor of the Municipality. Such disqualification

proceeding was initiated on the basis of a complaint

dated November 14, 2022, filed by the present

appellant before the Competent Authority being the

concerned Sub-Divisional Officer. Having failed to

obtain an order from the learned Single Judge, she

went up in appeal before the Division Bench.

This Bench by a judgment and order dated

December 23, 2022, dismissed the appeal and the

connected application. However, this Bench granted

liberty to Shila 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. Those two letters were issued by the

Competent Authority calling upon Shila to file her

response to the petition of complaint received by the

Competent Authority.

The judgment and order dated 23.12.2022 was

carried in appeal by way of a special leave petition by

Shila. By its order dated January 9, 2023, the Hon'ble

Supreme Court disposed of the special leave petition

with the following observations:

"Heard learned senior counsel for the petitioner.

Having noted that the Division Bench has in fact provided an opportunity to the petitioner to put forth all contentions, we see no reason to interfere with the order.

However, since the learned senior counsel has pointedly refereed to paragraph 13 of the order to indicate that the High Court has wrongly take note that Shri Suresh Kumar Agarwal was the leader of the Board of Councillors which is not the fact situation, the said observation shall not prejudice the Competent Authority while taking note of the objections put forth by the petitioner in the factual scenario.

In addition, it is made clear that in view of the time frame granted by the High Court, the petitioner has filed preliminary objections. In that view, on the same being taken note, if a need for detailed objections from the petitioner is required, reasonable opportunity shall be granted by the Competent Authority."

It appears that Shila filed her preliminary

objection to the petition of complaint on January 5,

2023. The Sub Divisional Officer issued a notice dated

January 9, 2023, addressed to Shila intimating that

the Sub Divisional Officer had received another

representation dated December 8, 2022, from Suresh

Agarwal (present appellant) and that the hearing was

fixed on January 17, 2023. By a letter dated January

17, 2023, addressed to the Sub Divisional Officer,

Shila, inter alia, requested for a copy of the

representation dated December 8, 2022, submitted by

the present appellant.

It appears that hearing was held by the Sub

Divisional Officer on January 17, 2023. It is pertinent

to note that on January 16, 2023, Shila had been

elected as the Chairperson of the Municipality. On

January 18, 2023, Purnima Kandu, the petitioner in

WPA 1757 of 2023, was sworn in as the Vice-

Chairperson of the Municipality. On that very day, the

Sub Divisional officer passed an order disqualifying

Shila as Councillor of the Municipality. Consequently,

Shila also ceased to be the Chairperson of the

Municipality. Again, on the very same day, the State,

in exercise of power under Section 17(4) of the West

Bengal Municipal Act, 1993, appointed one Sudip

Karmakar as the Chairman of the Municipality.

Challenging the order of her disqualification as

also the State's order appointing Sudip as Chairman of

the Municipality, Shila approached the learned Single

Judge in the present round of litigation by filing WPA

1757 of 2023.

Purnima Kandu, the petitioner in WPA 1757 of

2023, also challenged the State's order appointing

Sudip as the Chairman of the Municipality.

By the interim order dated January 20, 2023,

impugned before us, the learned Judge, as an interim

measure, directed that the orders dated January 18,

2023, shall not be given effect to till February 17,

2023, or until further order whichever is earlier. The

learned Judge directed the parties to exchange

affidavits and directed that the matter be listed on

February 10, 2023 i.e. tomorrow.

The learned Judge further directed that "in the

interregnum, the Court appoints Purnima Kandu, the

respondent no.19 in WPA 1752 of 2023 and the

petitioner in WPA 1757 of 2023, as Chairman in

charge till further order of Court".

The learned Judge passed the said order on the

basis that there was violation of the principle of

natural justice inasmuch as although the Competent

Authority in the order disqualifying Shila, relied on the

representation dated December 8, 2022, submitted by

Suresh Agarwal, no copy of such representation was

made available to Shila.

Being aggrieved by the aforesaid order, Suresh

who is the respondent no.10 in Shila's writ petition,

has come up in appeal.

Appearing for the appellant, Mr. Basu, learned

Senior Advocate submitted that even assuming that

copy of the representation dated December 8, 2022,

was not supplied to Shila, in her writ petition there is

no pleading as to how Shila has suffered any prejudice

by reason of not being favoured with a copy of the said

representation. Mr. Basu submitted that the principle

of natural justice is not a straitjacket formula. The

person, complaining of breach of natural justice, must

demonstrate how he/she has suffered by reason of

such breach. In the present case, the representation

dated December 8, 2022, was a mere reiteration of the

statements in the representation dated November 14,

2022, along with certain developments, which took

place after November 14, 2022. Hence, not supplying

copy of the December representation to Shila, could

not have prejudiced her in any manner. Accordingly,

the learned Single Judge should not have stayed the

operation of the disqualification order.

Insofar as appointment of Purnima Kandu as

Chairperson in charge is concerned, Mr. Basu

submitted that the Government, in exercise of its

statutory power under Section 17(4) of 1993 Act, had

appointed Sudip Karmakar as Chairman till election of

the next Chairperson. There was no reason for the

learned Judge to displace Sudip by appointing

Purnima as the Chairperson in charge. No reason has

also been indicated in the order as to why Purnima

and not somebody else was appointed as the

Chairperson in charge.

Mr. Basu further argued that the learned Single

Judge has left the question of maintainability of the

writ petition open. Without first holding that the writ

petition is maintainable, the learned Judge ought not

to have passed an interim order. In this connection

Mr. Basu relied on an observation of a Coordinate

Bench of this Court in the case of Calcutta

Cosmopolitan Club Ltd. v. Bhanwarlal Bhandari &

Ors., reported in (2004) 1 CHN 498 to the effect that

before passing an order, the Court has to examine as

to whether or not it has jurisdiction and has to prima

facie satisfy itself that it has jurisdiction on the face of

the averments made in the plaint even if not raised.

In support of his submission that the principle

of natural justice is not an inflexible rule, Mr. Basu

relied on the following 3 judgments:-

(i) Sangram Singh v. (1) Election Tribunal,

Kotah (2) Bhurey Lal Baya, reported in AIR

1955 SC 425:- the Hon'ble Supreme Court

observed that our laws of procedure are grounded

on a principle of natural justice which requires

that men should not be condemned unheard, that

decisions should not be reached behind their

backs, that proceedings that affect their lives and

property should not continue in their absence and

that they should not be precluded from

participating in them. Of course, there must be

exceptions and where they are clearly defined they

must be given effect to.

(ii) Canara Bank v. V.K. Awasthy, reported in

(2005) 6 SCC 321:-reliance was placed on the

observation of the Hon'ble Supreme Court to the

effect that in some cases it has been observed that

where grant of opportunity in terms of principles of

natural justice do not improve the situation,

"useless formality theory" can be pressed into

service.

(iii) Fiayaz Ali v. Secretary (Law) & Ors.,

reported in (2011) 1 CHN 16 reliance was placed

on paragraph 14 of the judgment which reads as

follows:-

"14. It is settled law that rules of natural justice

are to be followed for doing substantial justice

and not for completing a mere ritual without

possibility of any change in the decision of the

case on merits [see escorts Farms Ltd. v.

Commissioner, Kumaon Division, 2002 (4) SCC

281]. It follows that an order need not be set

aside merely on the ground that the rule of audi

alteram partem has been breached if ultimately

rehearing of the matter, by the authority or body

competent to hear and decide, would be an

exercise in futility in all probability."

Mr. Basu prayed for setting aside of the

impugned order.

Mr. Roy, learned Government Pleader,

appearing for the State Government, has supported

Mr. Basu. He has reiterated that it is the prerogative

of the State to appoint a Chairperson in the event the

post falls vacant, who shall function till election of a

regular Chairperson. The State did so in the present

case. The learned Single Judge has usurped the power

of the State Government.

Mr. Dhar, learned Senior Advocate appearing for

the Shila (writ petitioner) has submitted that

admittedly Shila was not favoured with a copy of the

complaint petition dated December 8, 2022, which

Suresh had submitted to the Competent Authority.

The order of the Competent Authority disqualifying

Suresh specifically relies on such representation.

There could not have been a mere blatant case of

breach of natural justice. Hence, the learned Judge

was justified in staying operation of the

disqualification order.

Insofar as the appointment of Purnima as the

Chairperson in charge is concerned, Mr. Dhar

submitted that she is the Vice-Chairperson of the

Municipality. Purely by way of an interim

arrangement, the learned Judge has appointed her as

Chairperson in charge. This is of-course subject to

what the learned Judge may finally decide in the writ

petition which is pending.

We have given our anxious consideration to the

contentions of the respective parties. It seems to be an

admitted position that a copy of the present appellant's

representation dated December 8, 2022, was not made

available to Shila. The order of the Competent

Authority disqualifying Shila as a Counciller of the

Municipality specifically relies on such representation.

The representation had numerous annexures thereto

including a pendrive. Shila had no opportunity of

knowing what was there in the representation dated

December 8, 2022, or in the annexures thereto. Yet, it

was on the basis of inter alia such representation that

she was disqualified. There could hardly be a more

flagrant breach of the principles of natural justice. In

effect, Shila was condemned unheard. This is more so

in view of the fact that as submitted on behalf of the

appellant, the representation dated December 8, 2022,

not only reiterated what was there in the

representation dated November 14, 2022, but certain

other developments subsequent to November 14, 2022,

were included in the December representation. Shila

never got a chance to deal with such material.

In our considered view, the learned Judge

rightly came to the prima facie conclusion that there

has been breach of the principles of natural justice

and rightly stayed the operation of the disqualification

order as an interim measure.

However, insofar as the other portion of the

order is concerned, we are afraid that we are unable to

agree with the learned Judge that Purnima Kandu

should act as Chairperson in charge. Learned

Government Pleader has submitted that the

disqualification order took effect from January 18,

2023, itself. On that date, Shila purportedly

administered oath on Purnima for the purpose of

appointing her as Vice Chairperson. Since Shila stood

disqualified from that date, the appointment of

Purnima as Vice Chairperson in charge stood vitiated.

We are not required to enter into that controversy. In

our opinion, once the operation of the order

disqualifying Shila is stayed, the only logical corollary

would be that she stands reinstated as the

Chairperson of the Municipality. She was duly elected

on January 16, 2023, following a democratic process.

Her election has not been set aside by any competent

forum. Hence, we set aside the portion of the order

under appeal whereby Purnima Kandu was appointed

as Chairperson in charge of the Municipality. For the

reasons aforestated, Shila Chatterjee shall act as the

Chairperson until further orders of the learned Single

Judge in the pending writ petitions.

As regards the point that the learned Judge

should not have passed an interim order without first

deciding the question of maintainability of the writ

petition, we do not agree with Mr. Basu. It is well

established that availability of an alternative remedy is

not a complete bar to a writ petition being entertained

by the Court. It does not go to the question of the

Courts jurisdiction to pass an order. It is a self

imposed restriction designed by the High Courts

generally to require an aggrieved person to exhaust

other remedies available before invoking the high

prerogative writ jurisdiction under Article 226 of the

Constitution of India. Even if the learned Judge at the

final hearing comes to the conclusion that the writ

petition ought not to be entertained, that would not

make the interim order that has been passed by her

Ladyship, an order without jurisdiction.

In so far as the decisions on the principles of

natural justice are concerned, none of them in our

considered opinion, applies to the facts of this case.

The principles of law laid down in the decisions are

sound and well established. However, the case in hand

is one where a competent authority has condemned a

Councillor of a municipality relying on, inter alia, a

complaint petition dated December 8, 2022, without

supplying a copy of such petition to the concerned

Councilor. The Councilor, who was disqualified, had

no opportunity of refuting or dealing with the

allegations in the complaint petition. There can hardly

be a more classical example of violation of the

principles of natural justice. The "useless formality

theory" will not apply in the present case it cannot be

said with any degree of certainty that the decision of

the competent authority would have been the same

even if Shila was granted an opportunity of dealing

with the allegations in the representation dated

December 8, 2022, filed by Suresh before the

competent authority. It can also not be said that Shila

has not suffered any prejudice by reason of breach of

the principles of natural justice. It will be preposterous

to contend that being disqualified as a councilor does

not amount to prejudice.

We make it clear that all the observations made

in this order are prima facie and only for the purpose

of disposing of this appeal. We have noted that the writ

petitions have been directed to be listed before the

learned Single Judge on 10.02.2023, after exchange of

affidavits. We request the learned Judge to decide the

writ petitions without being influenced by any

observation in this order. All points are left open for

the parties to agitate before the learned Single Judge.

Since we have not called for affidavits, the

allegations in the stay application are deemed not to

be admitted by the respondents.

M.A.T. No.114 of 2023 is, accordingly, disposed

of along with IA CAN 1 of 2023.

Urgent photostat certified copy of this order, if applied for, be supplied expeditiously after compliance with all the necessary formalities.

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