DEBANGSU BASAK,J. - (1.) An order of the Sub-Divisional Officer (SDO) dated February 21, 2018, exercising jurisdiction under Section 21B of the West Bengal Municipal Act, 1993, is under challenge in the present writ petition.
(2.) Learned senior advocate appearing for the petitioner submits that, although the impugned order is appealable, nonetheless, the writ petition is maintainable since, the petitioner alleges violation of the principles of natural justice. He submits that, notwithstanding the availability of a statutory alternative remedy, a writ petition is maintainable, when the petitioner can establish that, fundamental rights of the petitioner stands infringed or the impugned order suffers from the vice of principles of natural justice or where the impugned orders stands vitiated on the ground of perversity or where the impugned order is without jurisdiction. Since the impugned order is in breach of the principles of natural justice, the Writ Court should intervene. On such count, he submits that, the writ petitioner is a Councillor of the Municipality. He was taken initially into police custody, and thereafter into judicial custody, for the period from January 7, 2018 till June 6, 2018. Apparently, the impugned order proceeds on the basis of a hearing notice dated January 18, 2018. At that point of time, to the knowledge of the State Authorities, the petitioner was in custody and not available at his residence. The notice of hearing was sought to be served at the residence of the petitioner. The petitioner was denied a reasonable opportunity of hearing by the Sub-Divisional Officer (SDO) who is the competent authority under the West Bengal Municipal Act, 1993. The petitioner was not given copy of the complaint made against him by the complainant. The petitioner was also not provided with the so-called evidence produced before the SDO. Consequently, he submits that, the impugned order stand vitiated by the breach of the principles of natural justice and, therefore, should be set aside. The petitioner should be afforded a reasonable opportunity of contesting the complaint made against the petitioner before the competent authority.
(3.) Learned Advocate General appearing for the State submits that, the writ petition is not maintainable as the impugned order is appealable. He submits that, failure to adhere to the principles of natural justice, ipso facto, does not give rise to a right in favour of the petitioner to have the order quashed. He relies upon 1994 Supp (2) SCC 641 (Ravi S. Naik v. Union of India and Ors.) , particularly paragraphs 20 to 23 thereof. Relying upon AIR 2007 SC 1305 (Rajendra Singh Rana and Ors. v. Swami Prasad Maurya and Ors.) he submits that, the materials placed before the SDO allows an irrefutable inference that, the petitioner is guilty of defection. Consequently, no further hearing is necessary. Giving the petitioner a further opportunity of hearing would be an idle formality. Moreover, he draws the attention of the Court to the pleadings in paragraph 14 to 18 of the writ petition, and submits that, the writ petitioner has not pleaded that, non-grant of an opportunity of hearing, assuming that there was a failure to adhere to the principles of natural justice, has resulted in a failure of justice. The Court, therefore, should not intervene in the instant proceedings.;