Calcutta High Court (Appellete Side)
Pralay Chakraborty & Ors vs The State Of West Bengal & Ors on 10 April, 2013
Author: Biswanath Somadder
Bench: Biswanath Somadder
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IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Biswanath Somadder.
W. P. No.20189 (W) of 2012
Pralay Chakraborty & Ors.
Vs.
The State of West Bengal & Ors.
For the petitioners : Mr. Amales Roy,
Mr. Souvik Mukherjee,
Mr. Deborshi Dhar,
Ms. Mousumi Bhowal
For the State : Mr. Anwar Hossain
For the respondent
No.4 : Mr. B. N. Ray,
Mr. Arnab Saha
Heard on : 10th April, 2013.
Judgement on: 10th April, 2013.
Biswanath Somadder, J. :
Seventy-six individuals, having joined together as co-petitioners, have filed the instant writ petition seeking, inter alia, issuance of a writ in the nature of mandamus commanding the concerned respondent authority to forbear from giving effect to and/or further effect to and rescind, recall and set aside the decision taken by the Artha Sanstha Unnayan-O-Parikalpana Stahyee Samity of Kumargram Panchayat Samity dated 29th June, 2012, and the notice dated 6th 2 August, 2012, issued by the Executive Officer, Kumargram Panchayat Samity, Kumargram, Jalpaiguri, for enlistment of new contractors in 3B category, which is maintained by Kumargram Panchayat Samity.
At the time of initial hearing of the matter, on the prayer of the learned advocate representing the concerned Panchayat Samity, the point of maintainability of the instant writ petition - in the absence of any jural relationship between the petitioners inter se - was kept open to be decided later. A report in the form of an affidavit was also directed to be filed by the concerned State respondent, which has since been filed. The instant matter now appears before this Court, under the heading "For Final Disposal".
It is the specific contention of the petitioners that they are all enlisted contractors of different classes and are registered as such both with Jalpaiguri Zilla Parishad as well as Kumargram Panchayat Samity, which falls within the jurisdiction of Jalpaiguri Zilla Parishad. According to the petitioners, both, the notice dated 6th August, 2012, issued by the Executive Officer, Kumargram Panchayat Samity, inviting applications from intending contractors/suppliers for their enlistment as contractors in 3B category and the decision taken by Artha Sanstha Unnayan-O-Parikalpana Stahyee Samity dated 29th June, 2012, are illegal and also invalid in the eye of law.
The learned advocate appearing on behalf of the petitioners has drawn this Court's attention to the provisions of the West Bengal (Zilla Parishad and Panchayat Samiti) Accounts and Financial Rules, 2003. According to him, the said Rules have been framed in exercise of power conferred under section 224 of 3 the West Bengal Panchayat Act, 1973. He then refers to Rule 89 of the said Rules and submits that it would appear therefrom that there are three categories of contractors, namely, general works, sanitary & plumbing works and electrical works and under each such category there are three classes. He submits that Rule 89 allows enlistment of contractors only under the category and class mentioned therein and there is no scope for Artha Sanstha Unnayan-O- Parikalpana Stahyee Samity to introduce a special category, namely, category 3B for the purpose of enlisting other contractors. As such, he submits that the notice dated 6th August, 2012, issued by the Executive Officer of Kumargram Panchayat Samity for enlistment of contractors under 3B category is not sustainable in law and is liable to be set aside. He also submits that the decision taken by Artha Sanstha Unnayan-O-Parikalpana Stahyee Samity dated 29th June, 2012, which formed the basis for issuance of the notice dated 6th August, 2012, by the Executive Officer, Kumargram Panchayat Samity, is de hors the provisions of West Bengal (Zilla Parishad and Panchayat Samiti) Accounts and Financial Rules, 2003, and is, therefore, also liable to be set aside.
On the other hand, it is the specific contention of the learned advocate representing Kumargram Panchayat Samity that neither the notice dated 6th August, 2012, issued by the Executive Officer of Kumargram Panchayat Samity nor the decision taken by Artha Sanstha Unnayan-O-Parikalpana Stahyee Samity dated 29th June, 2012, affects the rights of the petitioners in any manner. He submits that the decision taken by Artha Sanstha Unnayan-O-Parikalpana Stahyee Samity dated 29th June, 2012, and the subsequent issuance of the 4 notice dated 6th August, 2012, were only to facilitate a wider choice of enlisted contractors. As such, he submits that there is no reason for this Court to interfere in the instant matter.
After considering the submissions made by the learned advocates for the parties, it appears that the notice dated 6th August, 2012, issued by the Executive Officer of Kumargram Panchayat Samity is only for the purpose of enlisting other contractors for Kumargram Panchayat Samity. So far as the decision taken by Artha Sanstha Unnayan-O-Parikalpana Stahyee Samity dated 29th June, 2012, is concerned, a bare perusal of the said decision reveals that it does not take away the right of the petitioners to participate as enlisted contractors. The notice dated 6th August, 2012, issued by the Executive Officer of Kumargram Panchayat Samity as well as the decision of the Artha Sanstha Unnayan-O-Parikalpana Stahyee Samity, dated 29th June, 2012, nowhere curtails the accrued legal right of the petitioners in any manner to participate in any work, provided, of course, such work is awarded in favour of the petitioners by Kumargram Panchayat Samity. All the petitioners, in fact, remain enlisted as contractors. As such, it cannot be held that there has been any infringement upon their accrued legal right in any manner.
That apart, the petitioners have filed the instant writ petition challenging the notice dated 6th August, 2012, issued by the Executive Officer of Kumargram Panchayat Samity and the decision of the Artha Sanstha Unnayan-O-Parikalpana Stahyee Samity dated 29th June, 2012, without even adding the contractors who have been enlisted under 3B category in terms of the notice dated 6th August, 5 2012, even though the petitioners knew fully well that any decision taken by this Court in the instant writ petition, is likely to affect the rights of those enlisted contractors in some way or the other. So far as jural relationship is concerned, all the petitioners may have had identical, but independent cause of action. As such, they ought not to have joined together as co-petitioners to take out the instant application under Article 226 of the Constitution of India. It would have been a different proposition altogether, if the writ petition was moved following the principles analogous to the provision under Order 1 Rule 8 of the Code of Civil Procedure, 1908. However, taking into consideration the fact that all the seventy-six petitioners have paid the requisite court fees upon leave granted by Court and it is ultimately a discretion of the Court to allow a writ petition of this nature, this Court does not consider it necessary to hold that the instant writ petition is not maintainable, considering the observations made hereinbefore.
For reasons stated above, this Court, however, does not find any merit in the instant writ petition, which is liable to be dismissed and is accordingly dismissed.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(Biswanath Somadder, J.) PP.
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