Calcutta High Court (Appellete Side)
Shiladitya Halder vs The State Of West Bengal & Others on 29 September, 2016
1
3 29.09.201 W.P. 21751 (W) of 2016
SL
BD
6.
Shiladitya Halder
Vs
The State of West Bengal & Others
Mr. Ashis Sanyal,
Mr. Pratip Kumar Chatterjee.
... For Petitioner
Mr. L. K. Gupta. Ld. Addl. A. G.
Mr. Abhratosh Majumder,
Mr. Soumitra Mukherjee.
... For State
Mr. Joydip Kar,
Mr. Billwadal Bhattacharya,
Mr. Arkaprava Sen.
... For Respondent Nos. 10 -13,
16-19, 22-24, 26-27, 32-36, 39-42, 45-46, 48-50, 52, 58, 59 to 62, 64, 66-69 & 73-75 Mr. Goutam Banerjee.
... For Respondent Nos. 8, 14, 15, 18, 20, 21, 25, 27, 28, 29, 30-31, 37-38, 43-44 & 47 Pursuant to my order dated September 21, 2016 Mr. Majumder has produced in Court a report in the form of an affidavit affirmed by the Divisional Commissioner, Presidency Division. A copy of it had been served to the petitioner.
Mr. Sanyal, the learned advocate for the petitioner, has vehemently assailed the report on various grounds, a lot of which is extra legal and borders on making political statements. I decide not to mention the same in my order.
The main thrust of the attack on the report is chronometric inconsistency and impossibility of the 2 sequence of events which emerge from the report itself. According to Mr. Sanyal, if, as stated by the prescribed authority in his report, the notice of motion had been received by him at 4 p.m. the same could never have originated or signed in Berhampore on that very day or if the notice was signed by the requisistionists at Berhampore on September 14, 2016, it could not have been received by the prescribed authority on that date in Kolkata, and secondly if the notice had been sent from Berhampore Post Office at 3 p.m. then it could never have been sent to the prescribed authority at 4 p.m. According to him, the Divisional Commissioner, holding such a high rank, had not disclosed how the requisitionists reached Kolkata in such a short time and the report is silent about it. While assailing the conduct of the prescribed authority Mr. Sanyal used certain vilifying words about the prescribed authority which for reasons of sobriety decency I would not like to record in my order. I merely put it on record that the Court does not appreciate such word to be used against anybody without any firm evidence. The political possibilities and the ramification are not the look out of the Court and are definitely beyond its business. The only thing that the Court has to be satisfied is whether the requirements of law as provided in the concerned statute have been meticulously complied with. The only point of the variegated submission of Mr. Sanyal that calls for an explanation was the means by which the copy of the postal receipts could be sent to the Divisional Commissioner within an hour's time.
3Mr. Kar, the learned senior counsel appearing for the requisitionists, produced the original postal receipts. He explained how it was sent to the Commissioner. He said that after the notice was sent by registered post to the petitioner, the requisitionists scanned and sent the same through electronic means to Mr. Mosharaf Hossain who was waiting in Kolkata. He had downloaded it and served a copy to the Divisional Commissioner. Mr. Kar volunteered to file an affidavit putting the same on record. I do not think it necessary as the method submitted by Mr. Kar appears to be sufficiently plausible in a technologically advanced society and the person conversant with the method cannot be blamed if they take recourse to modern day technology. That apart an affidavit from him might only lengthen the longevity of the writ petition which is otherwise absolutely uncalled for.
Mr. Sanyal submitted that if Mosharaf Hossain had signed the requisition notice in Berhampore on September 14, 2016 he could never have reached Kolkata on that date itself or at least the Divisional Commissioner should have mentioned how he did reach.
Mr. Sanyal has submitted that there have been too many missing links in the report raising doubt about its veracity. He states that it was the bounden duty of the prescribed authority to mention how they reached Kolkata within such a short period.
I have considered the submissions and I entirely disagree with Mr. Sanyal that the prescribed authority 4 should mention in his report how and by which means the requisitionists came to Kolkata. It is neither in the know of the prescribed authority nor is it expected to be enquired by him when he says that Mosharaf Hossain had submitted it to him at 4 p.m. That statement not being countered the means of reaching Kolkata from Berhampore is the something which should not have bothered him at all and the prescribed authority rightly did not consider it a subject worth recording in his report. After all it is not an impossibility to reach Kolkata on the same date after signing the notices at Bewrhampore. The only requirement for the prescribed authority is to satisfy himself about the compliance of law and not how the requisitionists came to his office. The requirements of law as set forth in the report in paragraph 4 are precisely what a prescribed authority is required to satisfy himself.
Mr. Sanyal has also taken a point that the report does not say that he had compared the signatures of the requisitionists but merely verified their names from the concerned Gazette Notification. Section 146(3) of the West Bengal Panchayat Act merely requires the prescribed authority to satisfy himself that the motion conforms to the requirement of sub-section 2 of Section 146 of the said Act. Section 146(2) says that one-third of the existing members shall sign a motion expressing their lack of confidence against the Sabhadhipati or recording their intention to remove him, indicating their party affiliations or independent status and shall deliver the motion in person through any of the members or 5 sent by registered post to the prescribed authority. The question is not comparison of signatures until and unless any such challenge is thrown by the petitioner which he has not done in the writ petition. When the petitioner received a notice of meeting on motion he also did not raise the issue to the concerned prescribed authority.
Mr. Sanyal submitted that the report produced in Court by the learned Government Pleader is an apology of it as it has been stated that Mr. Mosharaf Hossain had submitted it to the prescribed authority. According to Mr. Sanyal the dignity of the office required that it should have been received by the office of the Divisional Commissioner and not by him.
This is a point which is clearly beyond the scope of the compliance of the requirement of Section 146(2) of the Act. There are various possibilities how Mr. Mosharaf Hossain submitted it to the Divisional Commissioner. Maybe, he came to the office and he was sent from the office to the Commissioner; maybe he sought for an appointment, etc. The possibilities are varied and limitless. We cannot grope in the dark to make speculative attempt which is entirely beyond the scope of the present exercise.
Mr. Sanyal submitted that it was the obligation of the Divisional Commissioner to explain how Mr. Mosharaf Hossain could enter into his chamber but I do not think the Divisional Commissioner is required to do so unless he makes a grievance that Mosharaf Hossain had by force entered into the chamber by gate crash.
6When the Court wanted to know how he was satisfied it was farthest from the mind of the Court the method and the paraphernalia to enter into the chamber of the prescribed authority should also be mentioned in the report which is irrelevant to for the present purpose. It is entirely irrelevant to explain how the notice was received by the prescribed authority and the method of entering into the chamber. After all a Court of law only considers the compliance of the requirements of law not the other hypothetical aspects based on surmises. Mr. Sanyal lastly assailed the Divisional Commissioner to have acted at the instance of somebody at the top of the administration who is not before us. This is not only outside the record nor is required under the law. I take no cognizance of such submissions.
I consider the report to be conforming to the requirements of law and I find nothing for one to raise ones eye brows about the veracity of any statements made therein. I find the challenges thrown to the report to be without any substance and largely made on the basis of extraneous considerations.
There is no question in keeping the writ petition pending any further.
The writ petition merits no consideration and the same is dismissed.
There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties on priority basis.
7(Dr. Sambuddha Chakrabarti, J.)