Calcutta High Court (Appellete Side)
Naspa Mahato vs The State Of West Bengal & Ors on 8 November, 2023
08-11-2023
vacation Bench
ct no. 6
Sl.41
sp/b.das
High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
WPA 25841 of 2023
Naspa Mahato
-Versus-
The State of West Bengal & Ors.
Mr. Bikash Ranjan Bhattacharyya, ld. Sr. Adv.,
Mr. Prahlad Chandra Ghosh,
Mr. Subir Hazra,
Ms. Amrita Pandey
....for the petitioner
Mr. Tapan Kumar Mukherjee,
Mr. Mansur Alam,
Mr. Md. Ahsanuzzaman
...for the State
1. Affidavit of service filed in Court today is
taken on record.
2. The present writ application has been filed,
inter alia, challenging the notice dated 27th
September, 2023 and the order dated 12th
October, 2023 issued under Section 9(1) of
the West Bengal Scheduled Castes and
Scheduled Tribes (Identification) Act, 1994
(hereinafter referred to as the said Act) read
with Rule 3 of the West Bengal Scheduled
Castes and Scheduled Tribes (Identification)
Rules, 1995.
2
3. Mr. Bhattacharyya, learned Senior Advocate
representing the petitioner by placing
reliance on the provision of Section 9(2) of
the said Act submits that it is only the
Committee under the provisions of the said
Act, which is empowered to go into the
question whether on the basis of false
information or misrepresentation of fact
that a certificate has been obtained.
According to Mr. Bhattacharyya, the Sub-
Divisional Officer is not competent to
initiate proceedings under Section 9(1) of
the said Act consequent upon amendment
of the provisions of the said Act, for the
purpose of cancellation of the certificate
issued under the provisions of the said Act.
4. In support of his contention, he has placed
reliance on an unreported judgment
delivered by the Division Bench of this
Hon'ble Court on 13th April, 2023 in MAT
574 of 2023 (Subhajit Mandal vs. State of
West Bengal and Ors.).
5. Per contra, Mr. Mukherjee, learned Senior
Advocate representing the State
respondents submits that the present writ
application may not be maintainable before
this Court. By referring provisions of
Section 9A of the said Act, it is submitted
that the provisions of the said Act provides
elaborate procedure for preferring an
appeal. The petitioner without exhausting
its alternative remedy cannot be permitted
to invoke the extraordinary jurisdiction of
this Court. It is still further submitted that
this matter pertains to question of fact,
which cannot be conveniently adjudicated
by this Court.
6. In any event, it is submitted that in terms of
Section 8(a) of the said Act, the Committee
is not competent to inquire into the
aforesaid issue, especially when the matter
pertains to allegation of fraud and forgery.
7. Having heard the leaned advocate appearing
for the respective parties and considering
the materials on record, I find that the
petitioner questions the order dated 12th
October, 2023 on the ground that the said
order has been passed in excess of
jurisdiction. It would appear that in terms
of Section 9 Sub-section (2) of the said Act,
the Committee has been conferred with the
jurisdiction and authority to consider the
question whether a certificate has been
obtained by any person by furnishing any
false information or by misrepresentation. It
would further appear from the aforesaid
provisions that the authority granted to the
Committee to decide on the aforesaid issue,
has an overriding effect on the provisions of
Section 9 (1) of the said Act.
8. Having regard to the aforesaid and further
taking note of the fact that the Division
Bench of this Court in the case of Subhajit
Mandal Vs. State of West Bengal and
others by taking note of the aforesaid
provisions having doubted the authority of
the Sub-Divisional Officer to initiate
proceedings under Section 9 of the said Act
had been, inter alia, pleased to grant any
interim order. The relevant portion of the
aforesaid order passed by the Division
Bench is extracted hereinbelow;
3: The legal issue involved in this case is
whether the 3rd respondent, namely, the
Sub-Divisional Officer, Diamond Harbour
could have cancelled the Scheduled Tribe
Community Certificate issued to the
appellant. In terms of the decision of the
Hon'ble Supreme Court it is the State
Vigilance Commission which would be
competent authority to enquire into the
genuineness of the Caste certificate and
thereafter come to the conclusion. There
are several decisions on the point which
have laid down the guidelines as to how
the enquiry should be commenced and
completed before an order cancelling the
Caste certificate is passed. Since the
primary ground raised by the appellant is
on the ground of lack of jurisdiction of the
3rd respondent to pass the impugned
order, we find that the appellant has
made out a prima facie case for
entertaining this appeal.
4: Accordingly, the appeal is admitted
and the order passed by the 3rd
respondent dated 3rd February, 2023
cancelling the appellant's Caste
certificate shall remain stayed till the
disposal of this appeal.
9. Since, the jurisdictional issue has been
raised by the petitioner, I am of the view
that the alternative remedy is not a bar for
this Court in entertaining the present writ
application. The point of maintainability as
raised by Mr. Mukherjee, thus fails and I
am of the view that the present writ
application should be heard.
10. As the petitioner has made out a prima facie
case, there shall be an interim order
restraining the respondents from giving
effect or further effect to the order dated
12th October, 2023, which is annexed to the
writ application as Annexure P-7, till the
disposal of the main writ application.
11. Let affidavit-in-opposition to the present
writ application be filed within two weeks
after reopening of the Court. Reply, if any,
be filed within a week thereafter.
12. Liberty to mention after expiry of period for
exchange of affidavits.
(Raja Basu Chowdhury, J.)
