Calcutta High Court Weekly Round Up: June 12 To June 18, 2023

NOMINAL INDEX

1. Atindra Nath Mondal v State of WB and ors 2023 LiveLaw (Cal) 156
2. Suvendu Adhikari & Ors v. WB State Election Commission 2023 LiveLaw (Cal) 157
3. Sri Santosh Saha and Anr vs The Managing Director, Calcutta State Transport Corporation 2023 LiveLaw (Cal) 158
4. Dinesh Kumar Birla v Institute of Cost Accountants of India and Anr 2023 LiveLaw (Cal) 159
5. Apollo Multispeciality Hospitals Limited & Anr. vs. West Bengal Clinical Establishment Regulatory Commission 2023 LiveLaw (Cal) 160
6. Abdul Maleque Molla & Ors. v. West Bengal State Election Commission & Ors 2023 LiveLaw (Cal) 161
7. Suvendu Adhikari & Anr vs State Of West Bengal & Ors 2023 LiveLaw (Cal) 162
8. Sunit Sarkar v. Commissioner, WB SEC 2023 LiveLaw (Cal) 163
9. State of West Bengal v Soumen Nandy 2023 LiveLaw (Cal) 164
10. WB Panchayat Elections: State Election Commission Tells Calcutta High Court It Can Extend Nomination Period By One Day
11. WB State Election Commission Prima Facie Trying To Make Order On Panchayat Elections 'Unworkable': Calcutta High Court Warns Of Contempt

1. Trial Courts Not Mute Spectators, Judicial Restraint Doesn't Disentitle Them From Taking Exception To Advocate's Extreme Conduct: Calcutta High Court

Case: Atindra Nath Mondal v State of WB and ors CRR 919 of 2023

Citation: 2023 LiveLaw (Cal) 156

The Calcutta High Court has observed that "judicial restraint and discipline" does not mean that even in extreme cases a Judicial Officer is not entitled to take exception against non-conforming acts of an Advocate representing a party.

A single-judge bench of Justice Bibek Chaudhuri observed that where the Counsel of any of the parties disturbs judicial function of a Court, the Judge has every right to pass an order by caution to the Advocate concerned.

Advocates for the petitioner attempted to stop the functioning of the trial court due to not getting an earlier date of hearing. The trial judge had warned the advocates of severe consequences if they continued to disrupt proceedings.

Apparently offended by the observations of the Trial judge, the advocates approached the High Court and complained of the ‘disgraceful’ observations of the trial judge.

2. WB Panchayat Elections: Calcutta High Court Says Can't Issue Mandamus To Extend Date For Filing Nominations, SEC Should Exercise Discretion

Case Title: Suvendu Adhikari and Ors v. WB State Election Commission

Citation: 2023 LiveLaw (Cal) 157

In petitions concerning the upcoming Panchayat elections in West Bengal, the Calcutta High Court refused to direct the State Election Commission to extend the deadline for filing nominations.

The division bench of Chief Justice Sivagnaman and Justice Hiranmay Bhattcharya had earlier said that five days’ time provided for filing nomination papers is prima facie inadequate. However, in its order it said writ of Mandamus cannot be issued for extending the date for filing of nominations.

The development came in petitions filed by Congress leader Adhir Ranjan Chowdhury and BJP's Suvendu Adhikari. The writ petitioners had raised several points of contention such as lack of reasonable notice period for filing nominations, deployment of central reserve forces to maintain law and order, employment of contractual workers as polling officers, among others.

3. Claimant Not Required To Establish Negligence Of Offending Vehicle U/S 163A Motor Vehicles Act: Calcutta High Court

Case title: Sri Santosh Saha and Anr vs The Managing Director, Calcutta State Transport Corporation FMA 3357 of 2015

Citation: 2023 LiveLaw (Cal) 158

The Calcutta High Court has directed the West Bengal State Transport Corporation (WBSTC) to pay about Rs. 2 lakh compensation to the family of a minor girl who was killed in a road accident with WBSTC bus in 2007.

The victims' parents had approached the Court against an order of the Motor Vehicles Accident Claim Tribunal, wherein it only awarded them Rs 15,000 in compensation. They argued that strict interpretation of Section 163A was needed and that the negligence of the offending vehicle would be immaterial in such cases however, the Tribunal proceeded to decide the aspect of negligence.

Justice Bivas Pattanayak modified the order of compensation and held that in a proceeding under Section 163A of the Act, claimant shall not be required to plead or establish that the death in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or of any other person.

The tribunal having gone into the prima facie negligence of the offending vehicle was taken to have committed an error-in-law, and its verdict was overturned.

4. "Can't Interdict Election Process: Calcutta High Court Refuses To Entertain Writ Petition Against Rejection Of Nomination In ICAI Elections

Case Title: Dinesh Kumar Birla v Institute of Cost Accountants of India and Anr

Citation: 2023 LiveLaw (Cal) 159

The Calcutta High Court dismissed a Writ Petition filed by a member of the Institute of Cost Accountants of India (ICAI), Ahmedabad chapter, contesting the rejection of his nomination for elections to the Council of the ICAI.

In dismissing the appeal, a division bench of Chief Justice Sivagnaman and Justice Hiranmay Bhattacharya allowed the petitioner liberty to approach the Election Tribunal of the Institute of Cost Accountants and upon his request also observed that in case the grievances of the petitioner were genuine, the Tribunal may attempt to conclude such proceedings within three months.

The Bench observed that if the petition is allowed, then all the dates as fixed for the election, from the stage of nomination, scrutiny and even the dates for polling would have to be rescheduled. Justice Sivagnaman held that such a direction would amount to interdicting of an election process, which is not within the powers of a Writ Court as it would tantamount to the court calling into question the process of election carried out by the ICAI.

5. Violates Fundamental Right To Trade: Calcutta High Court On State Commission's Order Fixing Treatment Rates For Private Hospitals

Case Title: Apollo Multispeciality Hospitals Limited & Anr. vs. West Bengal Clinical Establishment Regulatory Commission WPA 3858 of 2022

Citation: 2023 LiveLaw (Cal) 160

The Calcutta High Court has held that a number of Advisories and an Order issued by the West Bengal Clinical Establishment Regulatory Commission (“Commission”) for fixation of rates and charges by Clinical Establishments (“CEs”) from patients in the State, were without any statutory backing and thereby violated the Fundamental Right to Trade of the CEs under Article 19(1)g of the Constitution.

While allowing a writ petition by Apollo Multispeciality Hospitals and directing the respondent Commission to rescind their advisories, a bench of Justice Moushumi Bhattacharya observed that on a reading of the provisions of the West Bengal Clinical Establishments (Registration, Regulation and Transparency Act, 2017 (“the 2017 Act”), it became clear that the power to issue Advisories of such a nature was not available to the respondent Commission.

6. WB Panchayat Elections: Calcutta High Court Says Police To Render Assistance If Candidates Complain Of Being Prevented From Filing Nominations

Case Title: Abdul Maleque Molla & Ors. v. West Bengal State Election Commission & Ors WPA 13986 of 2023 Citation: 2023 LiveLaw (Cal) 161

A single-judge bench of Justice Rajasekhar Mantha of the Calcutta High Court allowed a petition on behalf of prospective candidates in the forthcoming three Panchayat elections, praying for police protection to file nomination papers.

The petitioners, who are members of the Indian Secular Front, complained that on 13^th June 2023, when they were in the process of filing their nominations to the aforesaid election process, they were allegedly prevented from doing so by members of the ruling party. They submitted that only one person was able to file her nomination after considerable opposition.

Noting that the last date for filing nominations was 15^th June, the bench directed the Bhangar Police Station and Kashipur Police Station to render all assistance to the petitioners to file their nominations for the aforesaid elections before the last date.

7. WB Panchayat Elections: Calcutta High Court Directs State Election Commission To Requisition Central Forces For All Districts Within 48 Hours

Case: SUVENDU ADHIKARI AND ANR VS STATE OF WEST BENGAL AND ORS WPA(P)/298/2023

Citation: 2023 LiveLaw (Cal) 162

The Calcutta High Court has directed the West Bengal State Election Commission to requisition central forces for all districts in West Bengal for the 2023 Panchayat Elections.

A division bench of Chief Justice Sivagnaman and Justice Uday Kumar passed the order in a plea filed by Leader of Opposition in West Bengal, Suvendu Adhikari.

The bench noted that a direction for earmarking sensitive areas and deploying forces was passed earlier, but no appreciable steps were taken in this regard.

The SEC was thus directed to immediately requisition the deployment of central forces for all districts in West Bengal. The costs for the same would be borne by the central government and no costs would be charged from the State of West Bengal.

8. WB Panchayat Elections: Calcutta High Court Directs SEC To Grant One More Day To 'Shiksha Bandhus' To File Nomination

Case Title: Sunit Sarkar v. Commissioner, WB SEC

Citation: 2022 LiveLaw (Cal) 163

The Calcutta High Court ordered the State Election Commission to grant one more day to the 'Shiksha Bandhus' to file their nominations for the upcoming panchayat elections in West Bengal. The polling is slated to be held on July 8. 15^th June was the last day to file nominations.

Shiksha Bandhus are contractual teachers under the erstwhile Sarva Shiksha Abhiyan. A division comprising Chief Justice Sivagnaman and Justice Uday Kumar said Shiksha Bandhus will be allowed to file nominations till June 16.

The order comes in a petition filed by Sunit Sarkar alleging that Shiksha Bandhus were declared ineligible for filing nominations and it was only on the evening of 14th June that the SEC issued a notification declaring otherwise.

9. Allegations Indicate Complicity Among Ministers': Calcutta High Court Dismisses State’s Appeal Against CBI Probe In Municipality Recruitment Scam

Case Title: State of West Bengal v Soumen Nandy Citation: 2023 LiveLaw (Cal) 164

The Calcutta High Court has dismissed an appeal filed by the West Bengal government against CBI investigation into the infamous municipality recruitment scam wherein government jobs were given out to those who were unqualified, without following the processes laid down. The State had appealed against a decision of Justice Abhijit Gangopadhyay handing over the investigation for this matter to the CBI on the contention that Justice Gangopahdyay did not have jurisdiction over such matters.

A Division Bench of Justice Tapabrata Chakroborty and Justice Partha Sarthi Chatterjee observed that the instances of corruption wherein government jobs were given out in exchange of monetary compensation, were the reason behind “widespread dejection and disillusionment among masses.”

In concluding, the Bench upheld the order of Justice Gangopadhyay’s decision to hand over the probe from the ED, which had been investigating the aforesaid scam since 2022, to the CBI and opined that the State government cannot stop an investigation into such large-scale instances of ministerial collusion and corruption on mere technicalities.

Other developments
1. WB Panchayat Elections: State Election Commission Tells Calcutta High Court It Can Extend Nomination Period By One Day

In petitions concerning the upcoming Panchayat elections in West Bengal, the Calcutta High Court asked the State Election Commission (SEC) if the polling date can be pushed further to grant sufficient time to candidates for filing nominations.

The division bench of Chief Justice Sivagnaman and Justice Hiranmay Bhattcharya had earlier said that five days-time provided for filing nomination papers is prima facie inadequate.

While there was no extension to the date of nomination given by the election commission, other PILs concerning the deployment of central forces, non-engagement of contractual workers and installation of CCTV cameras on a large-scale basis were considered by the court in related Writ petitions, and disposed of by the order in 2023 LiveLaw (Cal) 157.
2. WB State Election Commission Prima Facie Trying To Make Order On Panchayat Elections 'Unworkable': Calcutta High Court Warns Of Contempt

The Calcutta High Court warned the State Election Commission of contempt action for its alleged failure to implement court's order on panchayat elections in the State, including a direction for identification of sensitive areas and deployment of central forces.

A bench headed by Chief Justice Sivagnaman expressed displeasure at the SEC after BJP's Suvendu Adhikari mentioned an urgent plea citing alleged instances of violence in the nomination process and the "insurmountable pressure" being put on candidates to withdraw their nominations.

Justice Sivagnaman noted reported incidents of violence and observed that free and fair elections must be the only objective of the SEC. He further observed that if the State had an objection with its order, they are free to prefer an appeal. However, in absence thereof if the directions are not implemented, then the Court would have to initiate suo moto contempt proceedings. The Court disposed of the petition seeking central forces through its order in 2023 LiveLaw (Cal) 162.