Atul Suba and Others vs The State of West Bengal & Ors.

Parties/Parties are represented in the order of their name/names as printed above in the cause title.

This Court is taken to the order dated 31st August, 2017 in W.P. No.21652 (W) of 2017 which permits the Prescribed Authority (for short PA,) being the Commissioner, Jalpaiguri Division/the Respondent No.7 to this petition, to complete the exercise for holding the meeting for removal of the Sabhadhipati of Alipurduar Zilla Parishad (for short AZP) within a prescribed time limit.

This Court is further taken to the order impugned of the PA dated the 18th of September, 2017, i.e. four days prior to expiry of the stipulated time period, which, inter alia, essentially makes the point that there has been failure of compliance with the provisions of Section 146 (2) of the West Bengal Panchayat Act, 1973 (for short the 1973 Act).

Mr. De, Learned State Counsel, opposes the prayer of Mr. Bhattacharjee on the ground that both regarding the description of the party affiliation or, the independent status of the requisitionist No.9 to the removal notice dated the 28th of July, 2017 and the service of the copy of the motion upon the PA as well as the office bearer involved, viz. the Sabhadhipati, AZP there is no legal infirmity in the findings arrived at by the PA.

Although Mr. Bhattacharjee produces Affidavit of Service showing refusal to accept the notice of the writ petition by the Private Respondent No.7/the Sabhadhipati, Mr. Gupta, Learned Counsel, appears today and seeks a copy of the writ petition. Since refusal is good service, this Court is not in a position at this stage to accede to the prayer of Mr. Gupta.

The Affidavit of Service filed by Mr. Bhattacharjee be retained with the record.

Next, coming to the order impugned dated 18th September, 2017, this Court observes as follows:- (a) That with regard to the First Category/Class of Service upon the PA, the documents on record purport to show compliance with the procedure mandated by Section 146 (2) (supra).

(b) With regard to the 2nd Category/ Class Category of Service upon the office bearer concerned, viz. the Private Respondent No.7, again the documents relied upon by Mr. Bhattacharjee demonstrate both physical delivery and service by post as mandated by Section 146(2) (supra).

(c) However, with regard to the description of the party affiliation or independent status of the requisitionist No.9 this Court finds an ambiguity which has been correctly noticed by the PA.

(d) Such ambiguity can be gathered from the endorsement of the Presiding Officer indicating the newly elected status of the requisitionist No.9 as belonging to a party under the name and style of GJMM. However, Mr. De informs this Court and, such is not disputed by Mr. Bhattacharjee, that GJMM is not a recognised political party.

(e) At this stage Mr. Bhattacharjee points out that the requisitionist No.9 has clearly stated his primary status as that of an independent and had been so elected. Such independent status is reflected by the requisitionist No.9 in the notice itself outside the bracketed portion which only mentions GJMM. Therefore, proceeding on the judicially settled line that such technicality would not impair the validity of the requisition notice, the meeting ought to have been held as directed by the Court vide its order dated 31st August, 2017 in W.P.21652 (W) of 2017 (Supra).

(f) However, at this stage Mr. De argues and, in the opinion of this Court prima facie correctly so, that in the event the technicality surrounding the postal service and the delivery embodied in Section 146(2) (supra) are to be strictly construed, even the party affiliation or independent status of a requisitionist cannot be loosely understood. A fluid understanding, according to Mr. De, would undermine the conceptual sanctity of the No Confidence Motion, thereby rendering the statutory condition to such effect otiose

This Court, at this stage, permits Mr. Bhattacharjee to use a Supplementary Affidavit.

Let the Supplementary Affidavit be made available to Learned State Counsel and, to Mr. Gupta.

The State Counsel and Mr. Gupta shall be entitled to respond to the Supplementary Affidavit by way of a Counter Affidavit.

Let the above directed exercise for exchange of affidavits be completed within a cumulative period of three weeks from date.

Parties shall be at liberty to mention for inclusion under the heading "Mentioned Matters" strictly upon notice to the other sides after the period granted to exchange affidavits is complete.