'Bona Fide Mistake': Calcutta High Court Refuses To Initiate Suo Moto Proceedings Against Advocate General For Allegedly 'Misleading' Court

The Calcutta High Court has recently declined a plea to initiate suo moto proceedings against Advocate General S.N Mookherjee for purportedly 'misleading the Court' by making an incorrect averment that a Bill passed in the West Bengal assembly to bifurcate Howrah Municipal Corporation into Howrah Municipal Corporation and Bally Municipality had received the assent of the Governor of West Bengal. 

A Bench comprising Chief Justice Prakash Shrivastava and Justice Kesang Doma Bhutia observed, 

"Having regard to the fact that a bona fide mistake of making incorrect statement was made by the learned Advocate General, we are not inclined to initiate the suo moto proceedings against the Advocate General or any other authority."

The Court was adjudicating upon a batch of petitions questioning as to why the Howrah Municipal Corporation has been excluded from the election schedule notified on December 28, 2021.

On December 23, 2021, the Advocate General clarifying the decision in respect of election of Howrah Municipal Corporation had initially stated that a bill had been passed by the State Legislative Assembly bifurcating the Howrah Municipal Corporation into Howrah Municipal Corporation and Bally Municipal Corporation and that the Bill has been pending assent from the Governor. However, later on, the Advocate General had stated that the Bill had received the assent of the Governor. 

Subsequently, the Advocate General tendered an unconditional apology for making the aforementioned incorrect averment before the Court on December 23, 2021. He submitted that the inaccurate statement had been made due to some misunderstanding of instructions on his part.  

Accordingly, the State sought a modification of the order dated December 23, 2021, to this effect.

The State clarified that the Bally Municipality has been constituted as per the provisions of West Bengal Municipal Act, 1993 vide notification dated February 12, 2021, after exclusion of part of the area from Howrah Municipal Corporation by passing a resolution in West Bengal Legislative Assembly in terms of Section 219 (3) of the Howrah Municipal Corporation Act, 1980.

The Court was further apprised that the West Bengal Legislative Assembly has adopted a resolution in this regard and Schedule 1 (Schedule) of the Act has been amended accordingly by issuing the notification dated February 12,  2021.

However, Howrah Municipal Corporation (Amendment) Bill 2021 relating to Amendment of Clause (a) of Sub-Section (1) and SubSection (2) of Section 5 of the Howrah Municipal Corporation Act, 1980 is pending before the Governor for his consideration under Article 200 of the Constitution of India and that the Governor's assent in this regard is yet to be received, the Court was informed further. 

Pursuant to the submissions, the Bench directed for a modification of the order dated December 23, 2021, and accordingly observed,

"Having regard to the particulars which are disclosed in CAN 3 of 2021 the unconditional apology tendered by the Learned Advocate General is accepted and by allowing the CAN 3 of 2022 the aforesaid part of the Order dated 23.12.2021 is modified and the fact is taken on record that the assent of Hon'ble Governor in the Howrah Municipal Corporation (Amendment) Bill, 2021 is awaited."

The matter is now listed for hearing on February 3, 2022. 

Background 

Earlier, the State Election Commission had informed the Court that the first phase of the remaining municipal polls would be held on January 22, 2022 and would include municipal bodies of Howrah, Chandannagar, Bidhannagar, Asansol and Siliguri. Furthermore, the Court was apprised that the second phase of municipal polls would take place on February 27, 2022 for the remaining 119 municipal bodies.

Subsequently, the Court vide order dated January 13, 2022 had directed the State Election Commission to consider postponing the conduct of the upcoming municipal elections in Siliguri, Chandernagore, Bidhannagar and Asansol for a short period of 4 to 6 weeks in the wake of the 'galloping speed with which the COVID cases are increasing' in the State of West Bengal. A decision in this regard was directed to be taken by the State Election Commission within 48 hours. 

Accordingly, the municipal elections in Siliguri, Chandernagore, Bidhannagar and Asansol had been postponed to February 12, 2022 by the West Bengal Election Commission. 

Case Title: Mousumi Roy v. The West Bengal State Election Commission & Ors and other connected matters 

Click Here To Read/Download Order