Bharat Das vs State of West Bengal and Others

Biswanath Somadder, J.—The petitioner has described himself as the Sabhadhipati of North 24-Parganas Zilla Parishad. He has filed the instant writ petition, challenging an order dated 26th March, 2012, issued by the Principal Secretary, Government of West Bengal, Panchayats and Rural Development Department, in exercise of power conferred in terms of section 212 of the West Bengal Panchayat Act, 1973. When the matter was initially taken up for consideration on 27th June, 2012, it was adjourned in order to enable the learned senior counsel for the petitioner to produce a copy of the resolution of North 24-Parganas Zilla Parishad, duly empowering and/or authorizing the writ petitioner to represent the said Zilla Parishad on its behalf. The preliminary point of maintainability was kept open and this Court had further directed the concerned authority of the State to produce all relevant records, in connection with the matter on the adjourned date. Subsequently, when the matter was taken up for consideration on 4th July, 2012, after hearing the parties, this Court had directed filing of affidavits. Consequently, the matter now appears under the heading, "For Final Disposal". The preliminary point of maintainability, which was kept open when the matter was initially moved, is now sought to be pressed by the learned Advocate General, who represents the District Magistrate, 24-Parganas (North), being the Executive Officer of the North 24-Parganas Zilla Parishad. He submits that the order, which has been impugned in the instant writ petition, was passed under the provision of section 212 of the West Bengal Panchayat Act, 1973. The said provision of law does not contemplate issuance of any specific instruction or direction to be given to a Sabhadhipati of a Zilla Parishad by the State Government. As such, the Sabhadhipati of North 24-Parganas Zilla Parishad cannot be an "aggrieved person" for the purpose of approaching this Court under Article 226 of the Constitution of India. According to the learned Advocate General, only some of the powers of the North 24-Parganas Zilla Parishad have been taken away, consequent upon the impugned order coming into force. He also submits that the petitioner has not produced any copy of a resolution, adopted by the North 24-Parganas Zilla Parishad, duly empowering and/or authorising him to represent the interest of the North 24-Parganas Zilla Parishad in respect of the impugned order dated 26th March, 2012. He also refers to the various provisions of the West Bengal Panchayat Act, 1973, in order to submit that the relevant provisions of law would amply demonstrate that the Zilla Parishad is a body corporate and the Sabhadhipati is chosen from its members, to be its official spokesperson and administrative head. The powers of the Sabhadhipati have not been curtailed in any manner, upon the impugned order coming into force. He, thus, submits that since the concerned Zilla Parishad has not approached this Court, the writ petition cannot be held to be maintainable at the instance of the Sabhadhipati. He relies on the following judgments on the point of maintainability:

(I) Rajahmundry Electric Supply Corporation Ltd. Vs. A. Nageswara Rao and Others,

(II) Kalyan Singh Vs. State of U.P.,

(III) Ayaaubkhan Noorkhan Pathan Vs. The State of Maharashtra and Others,

(IV) Director of Settlements, Andhra Pradesh and Others Vs. M.R. Apparao and Another,

(V) Sekhar Chandra Set v. State of West Bengal reported in (2003) CHN 288 (paragraph 4).

On the other hand, learned senior counsel representing the petitioner does not dispute the settled proposition of law as laid down by the Hon''ble Supreme Court in its judgments, which have been relied upon by the learned Advocate General. He, however, submits that it will be clear from a mere glance of the impugned order dated 26th March, 2012, that a copy of the same had been forwarded to his client, namely, the Sabhadhipati, North 24-Parganas Zilla Parishad. He submits that the impugned order seeks to curtail the powers of the Sabhadhipati of North 24-Parganas Zilla Parishad and as such it cannot be said that the Sabhadhipati is not an aggrieved person for the purpose of approaching this Court under Article 226 of the Constitution of India. In this context, he relies on a judgment of the Hon''ble Supreme Court in the case of A. Subash Babu Vs. State of A.P. and Another,

After considering the respective submissions of the parties, this Court is of the view that in order to answer the issue with regard to maintainability of the instant writ petition, it is necessary to advert to the impugned order dated 26th March, 2012, which is reproduced hereinbelow, in its entirety:

In view of the persistent default in effective functioning of the North 24-Parganas Zilla Parishad and in exercise of power conferred in terms of section 212 of the West Bengal Panchayat Act, 1973, the Governor is pleased hereby to empower the District Magistrate, North 24-Parganas and Executive Officer, North 24-Parganas Zilla Parishad to execute and implement on behalf of the Zilla Parishad all the schemes out of the Central and State Government funds, to release the respective shares of funds earmarked for Panchayat Samitis, Gram Panchayats and Municipalities, as the case may be, as well as to make payment of salary, wages and alt other office expenses in the public interest by utilizing the service of officials of the North 24-Parganas Zilla Parishad until further order.

A plain reading of the impugned order reveals that it has been issued by the State Government in exercise of power conferred u/s 212 of the West Bengal Panchayat Act, 1973, which is also reproduced hereinbelow:

Directions by State Government. - In the discharge of their Junctions the Gram Panchayat, Panchayat Samiti or Zilla Parishad shall be guided by such instructions or directions as may be given to them by the State Government from time to time in conformity with the provisions of this Act.

The aforesaid provision of law does not contemplate of any specific instruction or direction to be given to a Sabhadhipati of a Zilla Parishad. On the contrary, it only allows issuance of instructions or directions to be given by the State Government to a Gram Panchayat or Panchayat Samiti or a Zilla Parishad (emphasis supplied), while they discharge their statutory functions for the purpose of guiding them from time to time in conformity with the provisions of the West Bengal Panchayat Act, 1973. Although a copy of the impugned order dated 26th March 2012 was forwarded to the writ petitioner - which he received in his capacity as the Sabhadhipati of North 24-Parganas Zilla Parishad - such receipt of a forwarded copy of the impugned order ipso facto cannot transpose the Sabhadhipati to that of being an "aggrieved person." A closer scrutiny of the copy of the impugned order reveals that it has been forwarded "for kind information" to four distinct authorities/persons and the Sabhadhipati, North 24-Parganas Zilla Parishad, merely happens to be one of them. That apart, and in any event, the petitioner has not been able to produce any copy of a resolution taken by the North 24-Parganas Zilla Parishad, duly empowering and/or authorising him to represent the interest of the said Zilla Parishad before this Court.

Undoubtedly, the expression "aggrieved person" denotes an elastic and elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors, such as the content and intent of the statute of which the contravention is alleged, the specific circumstances of the case, the nature and extent of complainant''s interest and the nature and the extent of the prejudice or injury suffered by the complainant. [see A. Subhas Babu (supra)].

However, it is a trite expression in law that only a person who has suffered or suffers from legal injury can challenge the act/action/order, etc. in a Court of law. In this context, one may take notice of the observations made by the Hon''ble Supreme Court in Ayaaubkhan Noorkhan Pathan (supra), wherein it has been held, inter alia, as follows:

..........A writ petition-under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the Authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same.

In R.E.S. Corporation Ltd. (supra), the Hon''ble Supreme Court has observed, inter alia, that the validity of a petition must be judged on the facts as they were at the time of its presentation.

The Hon''ble Supreme Court, in the case of Director of Settlements, A.P. & Ors. (supra) has observed, inter alia, in paragraph 17 thereof that in order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition. While making such observation, the Hon''ble Supreme Court had proceeded to refer to and rely upon its earlier judgment rendered in Kalyan Singh (supra).

In the instant case, the impugned order issued by the State Government u/s 212 of the West Bengal Panchayat Act, 1973, seeks to empower the District Magistrate, North 24-Parganas, being the Executive Officer of North 24-Parganas Zilla Parishad, to "execute and implement on behalf of the Zilla Parishad all the schemes out of the Central and State Government funds..."

Therefore, by virtue of the impugned order, the Executive Officer, North 24-Parganas Zilla Parishad is empowered to "execute" and "implement" on behalf of the Zilla Parishad, only some of its functions, as specifically stated in the impugned order. The said order does not appear to have usurped the statutory powers of the Zilla Parishad in its entirety, as provided u/s 153 of the West Bengal Panchayat Act, 1973. However, and in any event, this issue cannot be decided now and is kept open for the present, since this Court is only answering the question of maintainability of the writ petition by the Sabhadhipati of a Zilla Parishad. What is crucial for the purpose of deciding the case on the point of maintainability is that the impugned order u/s 212 of the West Bengal Panchayat Act, 1973, does not affect the general functions and duties of the Sabhadhipati, as envisaged u/s 165 of the West Bengal Panchayat Act, 1973.

As such, there is no manner of doubt, whatsoever, that in the facts and circumstances of the instant case, no right of the writ petitioner is sought to be affected upon issuance of the impugned order under the provision of section 212 of the West Bengal Panchayat Act, 1973. It, therefore, cannot be held that the writ petitioner - as the Sabhadhipati of the North 24-Parganas Zilla Parishad - is an "aggrieved person". The North 24-Parganas Zilla Parishad, is a body corporate and the writ petitioner has approached this Court as its Sabhadhipati, without producing any copy of a resolution of the Zilla Parishad empowering and/or authorizing him to represent the interest of the Zilla Parishad before this Court by filing the instant petition under Article 226 of the Constitution of India. The writ petition is, therefore, held to be not maintainable by the writ petitioner, in his capacity as the Sabhadhipati of North 24-Parganas Zilla Parishad and is liable to be dismissed on this ground alone and is accordingly dismissed.

Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on priority basis.