Calcutta High Court Weekly Round-Up: October 9 To October 15, 2023

NOMINAL INDEX

State of WB v Sudipta Ghosh 2023 LiveLaw (Cal) 312

Shantibala Naskar Vs. State of West Bengal and others 2023 LiveLaw (Cal) 313

Srimanta Malik & Ors. Vs. The State of West Bengal & Ors. 2023 LiveLaw (Cal) 314

Nanda Dulal Bag Versus The State of West Bengal & Ors. 2023 LiveLaw (Cal) 315

Kanchi @ Sanjit Makhal and Another Vs. The State of West Bengal and others 2023 LiveLaw (Cal) 316

Tijendranath Mahato Vs. The West Bengal State Election Commission & Ors. 2023 LiveLaw (Cal) 317

Suvendu Adhikari v Rajiva Sinha State Election Commissioner & connected applications 2023 LiveLaw (Cal) 318

Review Of Judgement Cannot Be “Cloaked Appeal,” Must Be Within Contours Of Order 47 Rule 1 CPC : Calcutta High Court

Case: State of WB v Sudipta Ghosh

Citation: 2023 LiveLaw (Cal) 312

The Calcutta High Court has recently dismissed a review petition while outlining the powers of review available to the High Court as a Court of record under Article 215 of the Constitution, and the circumscription of the same in view of Order 47 Rule 1 of the CPC, which outlines the grounds for review of a judgement.

A single-bench of Justice Shekhar B Saraf held:

An appeal cannot cloak as review…Courts while exercising their review jurisdiction act as third umpires and are only empowered to look into an error apparent on the face of record. If the courts are required to embark upon a journey in search for the error on which review has been sought, then that error cannot be termed as an error apparent on face of record. Review jurisdiction cannot be treated as second opportunity by the parties aggrieved by a judgement or order to argue afresh.

Calcutta High Court Provides Relief To Family Of Man Killed In Tiger Attack, Says Compensation Can't Be Denied Even If He Transgressed Law

Case: Shantibala Naskar Vs. State of West Bengal and others

Citation: 2023 LiveLaw (Cal) 313

The Calcutta High Court has directed the Principal Chief Conservator of Forest (Head of Forest Force), Government of West Bengal, to disburse a compensation of Rs.5,00,000/- in favour of the petitioner, whose husband died after being attacked by a tiger in the Sundarbans area.

In observing that compensation could not be denied even if the petitioner’s husband had transgressed some laws in entering the forest ‘core’ area to earn his livelihood, a single bench of Justice Sabyasachi Bhattacharya held:

Even if, for argument’s sake, the petitioner’s husband is construed to have transgressed the law for earning his livelihood and stepped into the core area (which, however, is not established by any document whatsoever), it cannot be the law that the family of the poor victim in such cases will be deprived of compensation merely for transgression of law as perceived by the authorities. The cause of death of her husband being a wild animal attack in the Sundarban area, the respondent authorities are duty bound to pay compensation for such demise to the petitioner, who is the wife of the said deceased.

Majority Community Cannot Co-Opt Minority Seat When Minority Candidate Available: Calcutta High Court Directs Appointment Of ST Woman As ‘Pradhan’

Case: Srimanta Malik & Ors. Vs. The State of West Bengal & Ors.

Citation: 2023 LiveLaw (Cal) 314

The Calcutta High Court has dismissed challenges against the selection of an elected candidate belonging to the Scheduled tribe category as the Pradhan of a gram panchayat, against a seat reserved for ST candidates.

Since the incumbent was the only candidate who was eligible for the post, which had been reserved for members of the ST community, she was to be elected as Pradhan unopposed.

The petitioners had challenged her appointment on the grounds that she belonged to a minority party, and did not enjoy the confidence of the people of the village, which may lead to the village “suffering.” Petitioners wished to ‘co-opt’ the seat belonging to the ST community and utilise it to place a candidate of their choice.

In dismissing the plea, a single-bench of Justice Amrita Sinha held:

I am not inclined to accept the aforesaid contention of the petitioners. The election of the Pradhan is yet to be held and the candidate is yet to prove her credence. Prior to giving her an opportunity to serve the people, she ought not to be taken as an incompetent person to assume the office of Pradhan. An opportunity ought to be given to the candidate to prove her credibility. The provision to co-opt clearly mentions that in case of non-availability of persons of reserved category, co-option is permissible. This is not a case of non-availability of reserved category person.

Father Locking Main Gate To Evict Son Without Due Process Of Law Is Mischievous: Calcutta High Court

Case: Nanda Dulal Bag Versus The State of West Bengal & Ors.

Citation: 2023 LiveLaw (Cal) 315

The Calcutta High Court has come to the aid of a man who was ousted by his father from their house by installing a padlock on the main gate.

It was argued by the petitioner-father, that the respondent-son had spent 15 years away from the family, and had only returned “to create disturbances” when the petitioner had gifted a large portion of his property to another son.

In recognising that while the petitioner could evict his licensee son through appropriate civil proceedings, a single-bench of Justice Jay Sengupta expressed disagreement with the petitioner’s forceful and unlawful eviction of his son. It held:

Putting a padlock on the main gate of a property is no way to evict a person. An eviction has to be in accordance with law. It is true that a son stays at the father’s property as a licensee. But for evicting him, due process of law has to be taken recourse of. Putting a padlock to prevent a co-resident from entering is nothing but an act of mischief, which should not be encouraged. Therefore, the private respondent shall be at liberty to seek police help to enter into the said house.

Calcutta High Court Orders State To Reconsider Gang Rape Convicts' Plea For Premature Release, Says Can't 'Blindly' Cite Heinous Nature Of Crime

Case: Kanchi @ Sanjit Makhal and Another Vs. The State of West Bengal and others

Citation: 2023 LiveLaw (Cal) 316

The Calcutta High Court has directed the State Sentence Review Board (“SSRB”) to reconsider the case of two gang rape convicts for premature release after 22 years of incarceration, which had been denied by the Board on earlier occasions.

Petitioners, convicted in 2001, had applied for remission, and the Court noted that not only did the authorities have no complaints regarding their conduct during parole, but another co-accused had earlier been released by the Supreme Court.

In reprimanding the authorities for being unable to fittingly consider the petitioners plea for remission, a single-bench of Justice Sabyasachi Bhattacharya held:

The mere reference to the heinous nature of the crime committed and the vague remark that the age and potentiality of the convicts are against the grant of premature release are not sufficient from any legal perspective whatsoever. The mere gut feeling or doubt “in the mind of the committee” cannot be a relevant consideration to jump to the conclusion that it may instigate the petitioners to commit further crime. Thus, blindly citing the nature of the crime, the age and the perceived „potentiality‟ of the criminal without an objective assessment would frustrate the entire purpose behind reformation in prisons.

Calcutta High Court Upholds Initial Vote Count For Panchayat Samiti Seat, Says BDO Favoured Candidates Of Ruling Party In Recount

Case: Tijendranath Mahato Vs. The West Bengal State Election Commission & Ors.

Citation: 2023 LiveLaw (Cal) 317

The Calcutta High Court has negated the results of recounting for a Panchayat Samiti seat, which took place during the recently concluded Panchayat General Elections in West Bengal.

Petitioner argued that he had been informed of being the winning candidate by six votes on 11^th July, but when he went to collect his winning certificate the next day, he was informed that the votes had been recounted and he had lost.

In directing that the petitioner be reinstated as the elected member of the Panchayat Samiti, and negating the erroneous recount conducted by the Block Development Officer (“BDO”) a single-bench of Justice Amrita Sinha held:

There is absolutely no sanctity in the process of recounting. The same does not appear to have been conducted in accordance with the prescribed law. Neither the counting sequence nor the prayer for recounting was in conformity with the statute. The conduct of the BDO does not appear to be fair, rather it appears that the said officer instead of acting in an unbiased manner, took up the cudgel to bat in favour of the candidate supported by the ruling dispensation. Valid votes ought not to be rejected and the invalid ones ought not to be counted. The result of initial counting ought to be treated as final declaration of result.

Calcutta HC Issues 'Rule Nisi' Against SEC, Asks To Show Why Action Should Not Be Taken For 'Deliberate Violation' Of Orders During Panchayat Polls

Case: Suvendu Adhikari v Rajiva Sinha State Election Commissioner & connected applications

Citation: 2023 LiveLaw (Cal) 318

The Calcutta High Court has issued "Rule Nisi" in a contempt application against the West Bengal State Election Commission (“SEC”) for its “deliberate violation” of court orders during the recently concluded West Bengal Panchayat General Elections 2023.

Rule was issued in accordance with the Rule 19 of the Calcutta High Court Contempt of Court, Rules, 1975, for failing to comply with the Court’s orders for deployment of central forces in the recently concluded Panchayat Elections, in “letter and spirit.”

Court took exception to the SEC’s failure to inter alia provide deployment plans for central forces, “dragging their feet” over the deployment and being reluctant to comply with repeated orders. It held:

In the light of the above discussion and after having elaborately heard the submissions of the respective parties, we are of the clear view that there is deliberate violation of the order and direction passed by this Court and therefore this is a fit case where Rule NISI has to be issued in terms of Rule 19 of the Calcutta High Court contempt of Court Rules, 1975 to the State Election Commission, the respondent contemnor in CPAN 831 of 2023.

OTHER DEVELOPMENTS

"Can't Restrict Journalism To Law Reporting": Calcutta HC Not Inclined To 'Gag' Media In Recruitment Scam Case Against Abhishek Banerjee

Case: Rujira Banerjee v Union Of India & Ors

Case No: WPA/22990/2023

The Calcutta High Court refused to pass orders on a plea moved by Rujira Banerjee, wife of TMC MP Abhishek Banerjee, an accused in the multi-tier recruitment scam in West Bengal being investigated by the CBI and ED, challenging media coverage of her husband’s trial, as creating prejudice and treating him as guilty sans an outcome.

Senior Advocate Kishore Datta argued that the petitioner and her family enjoyed a fundamental right to privacy and that ‘sensational media trial’ against her husband, had led to public perception deeming him guilty, even without a Court verdict.

Datta argued that such sensational coverage would tantamount to criminal contempt of court, as it was interdicting the justice delivery process, and commenting on an ongoing investigation into the petitioner’s husband, thereby taking away his right to a free trial.

Upon hearing the petitioner’s submissions, Justice Sabyasachi Bhattacharya remarked:

"What is sensational? How can you decide that? For you and me the meaning of it may be different. Even if I pass this order, how can you enforce it? It will be a gag order in every sense…that is not expected in a democracy. Access to justice is also information about justice. How can you stop the media from reporting? The maximum you can get, is that we direct factual reporting and that the views of the media cannot be expressed till conclusion of trial. Can we restrict journalism to law reporting? Like AIR? Can you do that to the public? Some views can come in for healthy discussion. How can you interdict that?"

Calcutta High Court Asks WB Education Board To Consider Granting Opportunity To Candidates “Cheated” In Teachers Recruitment Scam

Case: Soumen Nandy v State of WB & Ors

Case No: WPA 9979/2022

The Calcutta High Court directed the West Bengal Board of Primary Education to consider the case of those candidates who were ‘wronged’ due to the large-scale recruitment scam in hiring of primary school teachers, which is being currently investigated by the CBI and ED.

Court observed that the petitioners as well as candidates who were similarly placed to them and had missed out on jobs due to the recruitment scam, which led to the selection of ineligible candidates, deserved a second chance in future recruitments.

In directing for some candidates who were “wronged” to be added as parties to the writ petition, the Court further instructed the various Primary education councils to cancel the recommendation of appointment of around 94 candidates who were found by the Board to be ineligible for the posts to which they were appointed.

A single-bench of Justice Amrita Sinha held:

The Board is directed to recommend names of candidates as appearing in the merit list published by the board in accordance with the merit position. The board is also directed to publish the panel [for 2016 and 2020] in accordance with Rule 8 of the WB Primary School Teacher Recruitment Rules 2016. According to these rules, the committee is supposed to prepare council-wise panels. All panels in accordance with these rules shall be published by [3^rd November 2023.]”

Foreigner Can’t Scuttle Citizens' Rights Under Article 19: Centre To Calcutta HC In Plea By Abhishek Banerjee’s Wife Against Media Coverage

Case: Rujira Banerjee v Union Of India & Ors

Case No: WPA/22990/2023

The Central government opposed a plea moved by Abhishek Banerjee’s wife against the ‘incessant and sensational’ coverage by the media of the petitioner’s family, including her husband, pertaining to the investigation into the multi-tier recruitment scam being carried out by the CBI and ED.

DSG Billwadal Bhattacharya appearing for the Union of India submitted that Rujira Banerjee is a foreign citizen who merely held an OCI card and could not be allowed to espouse her rights under Article 14 and 21, while attempting to stifle the Article 19 rights of the media houses.

"A foreigner is before your lordship pleading that her Article 14 and 21 rights are being violated and is praying to curtail the fundamental rights of the press and other citizens of India. Media reports are speculative, but can a foreigner can scuttle the voice of Indian citizens? Petitioner is a foreigner, merely holding an OCI card," he argued.

Calcutta High Court Reinstates Allegedly Unqualified Law School Principal Ousted By Judge Based On Phone Conversation With Her

Case: Dr. Sunanda Goenka (nee Bhattacharyya) Vs. Md. Danish Farooqui & Ors

Case No: MAT 2009 of 2023

The Calcutta High Court has reinstated Dr Sunanda Goenka (“appellant”) as principal of Jogesh Chandra Chowdhury Law College, who was removed from her position by a single-bench at the behest of students of the college who had submitted that she was not qualified for her role under the UGC guidelines.

Appellants counsel submitted that she had been removed as principal by the single-judge on the basis of the phone-call from court enquiring about her qualifications on 5th October, when she had only been served with a copy of the writ petition at 8pm, the previous day.

In disagreeing with the procedure adopted by the single-judge, a division-bench of Justice Tapabrata Chakraborty and Justice Rai Chattopadhyay held:

It is a cardinal rule both of substantive and procedural law that no person can be condemned unheard. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object is to see that a person is not treated unfairly…only on the basis of a telephonic conversation, the order of removal ought not to have been passed.

Calcutta High Court Orders CID Probe Into Law College Principal, Says Anti-Fraud Dept Failed To Properly Investigate Alleged Financial Irregularities

Case: Neil Basu v State of WB & Ors

Case No: WPA 24065 of 2023

The Calcutta High Court has directed the State’s Crime Investigation Department (“CID”) to conduct a probe into Dr Sunanda Goenka, principal of Jogesh Chandra Chaudhuri Law College in a plea by an erstwhile General Secretary of the College’s Students Union complaining of offences of financial impropriety, forgery, etc. committed by the College’s Governing Body.

Earlier, Justice Abhijit Gangopadhyay had ordered the removal of Goenka as principal, upon noting that she was underqualified for her role, an order which was overturned by a division-bench which noted that the single-judge ought not to have dismissed her without due hearing.

Justice Gangopadhyay directed a CID probe into Goenka upon noting that the police’s anti-fraud unit which had investigated the allegations earlier, had failed to do so properly. It ordered:

I find that the Anti-Fraud Section has failed to investigate the matter properly and, therefore I direct the Criminal Investigation Department of this State to start investigation of the matter forthwith (i.e. from today itself) and to interrogate Smt. Sunanda Goenka. In respect of this CRR 3568 of 2019 there was an order of this court for not taking any coercive step till 05.02.2022 that has expired. Therefore, today there is no impediment for the Investigating Agency if the C. I. D. takes steps forthwith in all respects against the said Smt. Sunanda Goenka.