Calcutta High Court (Appellete Side)
Bushra Afreen vs The State Of West Bengal & Ors on 19 January, 2023
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :-
The Hon'ble Justice Moushumi Bhattacharya.
W.P.A 16967 of 2021
Bushra Afreen
vs.
The State of West Bengal & Ors.
For the petitioner : Mr. Soumen Kr. Dutta, Adv.
Mr. Subhadeep Chatterjee, Adv.
Mr. Sabyasachi Bhattacharjee, Adv.
For the State : Ms. Chaitali Bhattacharya, Adv.
Mr. Subhendu Roy Choudhury, Adv.
For the respondent no. 4 : Mr. Rachit Lakhmani, Adv.
Ms. Afreen Begum, Adv.
Last Heard on : 22.12.2022
Delivered on : 19.01.2023.
2
Moushumi Bhattacharya, J.
1. The petitioner seeks cancellation of a licence of appointment of the
private respondent no. 4 on 26.2.2021 by which the said private respondent
was conferred the power to register Muhammadan marriages and divorces
within the Jamuria Block comprising the territorial limits of the Asansol
Municipal Corporation including Churulia and Madanpur Gram Panchayat
within the Jamuria Police Station area, Paschim Bardhaman. The licence was
to remain in force until the private respondent attains the age of 68 years or
until the revocation and suspension of the licence, whichever is earlier.
2. According to learned counsel appearing for the petitioner, the petitioner
was appointed as the Muslim Marriage Registrar (MMR) of Jamuria Police
Station area on 11.3.2020 on the basis of a recommendation given by the
District Registrar, Paschim Bardhaman. Counsel submits that the petitioner is
aggrieved by the appointment of the private respondent as the MMR for the
Asansol Municipal Corporation area from Ward No. 1 - Ward No. 11 as that
would curtail the petitioner's area of operation as the existing MMR. The other
point of challenge to the impugned appointment of the private respondent is
that of the private respondent allegedly being over-aged as on the date of the
appointment. Counsel relies on a communication dated 7.2.2018 issued by the
District Registrar, Burdwan in this regard. It is further submitted that the
appointment of the private respondent is in violation of Rule 3(b), 4A (5) and (6)
and 4B of the Bengal Muhammadan Marriages and Divorces Registration
Rules, 1929. Counsel complains that the relaxation made in the case of the
private respondent was passed one year after the issue of licence in favour of
the private respondent.
3. The contention of the State respondents, through learned counsel, is that
the State has the power to relax the upper age limit of an MMR under the
Rules notified in 1929 and further that the relaxation was made by reason of
the fact of private respondent possessing vast knowledge of the Muhammadan
religion. Counsel submits that the petitioner is not prejudiced by the impugned
appointment and that temporary appointments may be altered by the State at
any point of time having regard to the requirements of the area and public
purpose in general.
4. Learned counsel appearing for the private respondent, whose
appointment is under challenge, relies on the Bengal Muhammadan Marriages
and Divorces Registration Act, 1876 and the Rules framed thereunder to urge
that the Government has discretion in granting a licence to a party to act as an
MMR within the jurisdiction of one or more Police Stations. Counsel submits
that the petitioner is not entitled to any opportunity of hearing prior to the
appointment of any other person including the private respondent. Counsel
stresses on the fact of the private respondent is a learned man and has been a
cleric in the concerned area for several years.
5. The only issue which arises for consideration before this Court is
whether the impugned appointment of the private respondent no. 4 was made
in violation of the governing Act and the rules namely The Bengal
Muhammedan Marriages and Divorces Registration Act, 1876 and The Bengal
Muhammedan Marriages and Divorces Registration Rules, 1929 which was
notified in accordance with the powers conferred by section 24 of the 1876 Act.
6. Section 3 of the 1876 Act empowers the State Government to grant a
licence to any person, being a Muhammadan, authorising him to register
Muhammadan marriages and divorces on an application made by the person
for such registration. The proviso to section 3 states that no more than two
persons shall be licensed to exercise the said function within the same limits.
Rule 3 of the Rules, notified on 14.8.1929, sets out the procedure for the
selection of candidates for Muhammadan Registrarship in Districts other than
Calcutta; Rule 4, as amended on 6.1.2017, sets out the qualifications of
candidates and Rule 4 (4) provides that such candidates shall not be less than
25 years and not more than 40 years on the date of inviting applications under
Rule 3(a). Rule 4(5) provides that the State Government may by order
regularise any temporary appointment made after 15.10.2009 or any
compassionate appointment made after 3.8.2012 of any candidate if such
candidate fulfills the requisite qualifications and is not less than 25 years and
not more than 40 years at the time of submission of application.
7. More important, Rule 4B gives the State Government the power to relax
the rules, particularly Rule 4, provided that a special reason exists for doing so.
The special reason must however be recorded in writing by an order. Rule 4B
specifically provides that the State Government may record the special reason
and by an order relax the minimum age or upper age limit of a candidate for
being appointed as temporary Muhammadan Registrar. The proviso mandates
that the candidate shall not be below 21 years at the time of submission of the
application under Rule 4.
8. It is clear that the State Government has the power to relax the upper
age limit of a candidate provided the other criteria under Rule 4 are met. There
is no dispute that the private respondent has the requisite qualification under
Rule 4(1) namely having sufficient acquaintance with the Arabic language and
Muhammadan Law of Marriage and Divorce and is of a good moral character.
Hence, the appointment of the private respondent by way of the order dated
21.12.2021 cannot be said to be in violation of the Act or the Rules framed
thereunder. The impugned order, which is disclosed with the Report of the
State, also contains the reasons for such appointment being that the private
respondent possesses vast knowledge of Muhammadan religion and that his
appointment as an MMR is therefore beneficial to public interest.
9. The emphasis placed by the petitioner on the earlier rejection of the
private respondent on 7.2.2018 on the ground of being over-aged loses
relevance in light of the power conferred on the State to relax the upper age
limit under Rule 4B of the 1929 Rules. Second, the relaxation of the upper age
limit of the private respondent was approved by the Law Department of the
State on 21.12.2021 which would be evident from the document enclosed with
the Report of the State. The date mentioned in the impugned appointment and
enclosed with the writ petition namely "26.2.2020" appears to be a
typographical mistake when compared to the date given on the same document
at the right-hand bottom corner of the page. Hence, the allegation that the
order of relaxation was passed one year after issue of the licence to the private
respondent does not appear to have any basis.
10. Above all, the grievance of the petitioner is essentially that of sharing the
territorial-pie with the private respondent. It is relevant that the only grievance
raised in the writ petition is that of the petitioner not being given a hearing
before the impugned appointment made in favour of the private respondent.
Neither the Act nor the Rules contemplate such a hearing being given to an
existing MMR. In any event, the Act and the Rules gives the power to the State
Government to relax the upper age limit whenever expedient subject to the
reason being indicated by way of a written order. This has been satisfied in the
present case. Hence, the petitioner has not been able to establish any
infraction of the governing Act and the Rules in the impugned appointment.
Even if the Court discounts the dense Muslim population in the concerned area
and the consequent need for two MMRs, the State has acted within the power
conferred upon it in the Rules and satisfied the procedural requirement.
11. Moreover, the alleged delay in the publication of reasons after the
appointment of the private respondent as temporary MMR satisfies the test of
substantial compliance. Since age-relaxation is permitted under Rule 4B, the
petitioner would not have been placed in a worse position if the reason for
relaxation was communicated earlier. J & K Public Service Commission vs. Dr.
Narinder Mohan; (1994) 2 SCC 630, State of Odisha vs. Sulekh Chandra
Pradhan; (2022) 7 SCC 482, Renu vs. District and Sessions Judge, Tis Hazari;
(2014) 15 SCC 731 were cases where there had been serious violations of the
mandatory rules and procedures in the appointment/recruitment of
government employees without following the recruitment rules. These decisions
are hence distinguishable on facts. On the other hand, the Supreme Court in
State of U.P vs. Harendra Arora; (2001) 6 SCC 392, opined that the theory of
substantial compliance would apply for procedural provisions other than those
of a fundamental nature and that objections on this account would have to be
judged on the touchstone of prejudice.
12. Since this Court is of the view that the impugned appointment of the
private respondent was made in accordance with the Act of 1876 and the Rules
as notified on 14.8.1929, the allegations made by the petitioner are found to be
without any factual or legal basis.
13. WPA 16967 of 2021 is accordingly dismissed without any order as to
costs.
Urgent photostat certified copies of this judgment, if applied for, be
supplied to the parties upon fulfillment of requisite formalities.
(Moushumi Bhattacharya, J.)
