Calcutta High Court (Appellete Side)
Mr. Dibyendu Modak & Anr vs State Of West Bengal & Ors on 11 January, 2012
Author: Tapen Sen
Bench: Tapen Sen
1
1.2012 W.P. No. 365 (W) of 2012
Mr. Dibyendu Modak & Anr. ... Petitioners
-Versus-
State of West Bengal & Ors. ... Respondents
Mr. Jayanta Kr. Mitra, Mr. Amitava Nayek, Ms. Athena Ghosh, Mr. Pradipta Panda .. For the Petitioners Mr. Kishore Dutta, Mr. Sirsanya Bandopadhyay, Mr. Vivekananda Bose .. For the Respondent No. 4 Mr. Billwadal Bhattacharyya, Mr. Rajdeep Mazumder, Mr. Srijib Chakraborty, Mr. Abir Ranjan Neogi, Ms. Paramita Pal .. For the Students' Union Mr. Subrata Talukdar, Mr. Saikat Chatterjee .. For the State Heard the parties.
In this Writ Petition the Petitioners, who are two in number, are students of the Budge Budge College. They have come to this Court with a prayer that a Writ of Mandamus be issued directing the Respondents not to give effect to the election of the Students' Union, which was fixed for 6.1.2012 and that they should be asked to show cause as to why all actions after 31.12.2011 should not be declared as illegal in terms of the Constitution of the Budge Budge College Students' Union (Regulation 20 thereof).
The Petitioners have also prayed for a direction upon the Respondents to show cause as to why the term of the existing Students' Union Committee be not extended. Finally, they have prayed 2 for an Order of Injunction restraining the Respondents from holding the election which was fixed on 6.1.2012.
The short facts which are necessary to be taken note of are that a notice was issued on 3.12.2011 purporting to be under the signature of the Chairman of the Election Commission, Budge Budge College intimating inter alia, the schedule in respect of the election. According to the said Notice, the publication of names of the valid candidates was to be made after scrutiny on 19.12.2011 and thereafter the next date being 20.12.2011 was to be the last date for withdrawal of candidatures by 3 p.m. The same day was also earmarked for publication of the final list. The date of the poll was indicated as 23.12.2011 and date of publication and counting of results was also indicated as 23.12.2011.
The Petitioners filed their nomination papers on 17.12.2011 as class representatives of B.Com. 2nd Year (Honours) and B.A. 3rd Year (Honours) (Petitioner Nos.1 and 2 respectively). The scrutiny of the nomination papers were made on 19.12.2011 and the list of valid candidates was published on 19.12.2011 after scrutiny. It is stated that the nomination papers of the Petitioners were found to be valid. However, on the same day i.e. 19.12.2011, the Principal of the College published a Notice (Annexure P-4) intimating inter alia that the College will remain closed sine die till further notice.
According to the Petitioners, the reasons for closing the College was obviously to stop the elections which were to be held on 23.12.2011.
The Petitioners have however, stated that the College reopened on 2.1.2012 without publication of any further notice with regard to the elections and it was then the Petitioner came to learn that the Chairman, Election Commission, Budge Budge College had published a new Notice on 22.12.2011 itself (Annexure P-5) whereby and whereunder and as per decision taken in the 3 emergency meeting of the Governing Body the election was rescheduled to be held on 6.1.2012. According to the Petitioners, the Notice dated 22.12.2011 was issued with ulterior motives and it was done when the Budge Budge College was closed sine die. It is in the background of the aforementioned facts and circumstances that this Writ Petition has been filed with the prayers indicated at the outset.
Learned Counsel for the Petitioners has sought to give much emphasis on the Constitution of the Budge Budge College Students' Union which, inter alia, lays down under no circumstances, the elections can be held after 31.12.2011.
This Court, at the very outset, would like to indicate that the claim of the Petitioners therefore, flows, as submitted and as pleaded, from a non-statutory document, being the Constitution of Students Federation. The notice given by the Chairman of the Election Commission on 22.12.2011 lays down that the decision to reschedule the election was taken in an emergency meeting of the Governing Body. What prompted the College to suddenly close the College sine die and what prompted an emergency meeting to be held are questions of fact which cannot be decided in a Writ Petition. Moreover, a mere statement to the effect that the College concerned runs under the deep and pervasive control of the State, is not sufficient to bring the Writ Petition within the scope of interference by judicial review under Article 226 of the Constitution of India. This Court is fortified by a judgment of another Hon'ble Single Judge of this Court passed in the case of Himadri Sekhar Biswas and others Vs. Behala College and others reported in 2005 (4) CHN 68 in the context of holding that action taken by an authority pertaining to election notice is not open to challenge under Article 226 of the Constitution of India. Paragraph 11 of the said judgment clearly lays down that there can be no dispute that powers under Article 226 of the Constitution of India is very wide but actions taken by an authority and/or actions taken to fulfill an obligation cast on the 4 basis of a non-statutory document, cannot be held to be an action which may be described as a public function or in the discharge of any public duty and therefore closing a college sine die and rescheduling the elections are obviously actions which are the nature of governance of a college and has got nothing to do with discharging a public function.
The Writ Petition therefore, is thoroughly misconceived and does not deserve any further consideration by this Court. It is accordingly, dismissed and all interim Orders that may have been granted or interpreted on the basis of the Order dated 6.1.2012 are hereby rendered non-effective and/or vacated.
Subject to an application for certified copy being made and proof in support thereof being produced, let a plain photocopy of this Order, duly countersigned by the Assistant Registrar (Court), be handed over to the parties.
( Tapen Sen, J. )