Calcutta High Court: A Division bench comprising of T. S. Sivagnanam, CJ., and Hiranmay Bhattacharyya, J., partially allowed the appeal and directed the Secretary, Law Department, Government of West Bengal, to consider the formation of the new Police Station and relevant rules to take steps for the creation of a permanent or temporary Muslim Marriage Registrar (MMR) post. The Court set aside the direction to consider the respondent-writ petitioner’s representation for transfer to MMR post.
Brief Facts
The instant matter revolves around intra-Court appeal filed by State of West Bengal against an order dated 09-01-2023 directing the appellant (Secretary, Law Department, Government of West Bengal), to issue a notification for the appointment of a temporary Muslim Marriage Registrar (MMR) for the Kalitala Ashuti Police Station area by 28-02-2023. The Court also directed the District Registrar, South 24 Parganas, to consider and decide the representation for the transfer of the writ petitioner as MMR to the Kalitala Ashuti Police Station area within a specific timeframe.
Moot Point
Whether the directive to the appellant for the creation of a temporary MMR post and the subsequent transfer approval was within its jurisdiction under Article 226 of the Constitution of India?
Court's Observation
The Court held that the reading of Rule 6 of the Muhammadan Marriage Registration Rules does not mandate the immediate creation of MMR posts upon the creation of new Police Station areas. The Court observed that the respondent-writ petitioner’s request was not just for post creation but also for transfer to that post.
The Court stated that while exercising jurisdiction under Article 226, it’s not appropriate to issue a positive direction for post creation. The single-judge bench order’s expectation for the Law Department to issue a notification for creating a temporary MMR post was found to be valid. The Court opined that the decision to create a post should be left to the authorities’ discretion according to the law.
Court's Decision
The Court partially allowed the appeal, setting aside the positive order of the single-judge bench of this Court, i.e., direction to consider the representation of the writ petitioner for transfer.
The Court directed the Secretary, Law Department, Government of West Bengal, to consider the formation of the new Police Station and relevant rules, and to take expeditious steps for creating either a permanent or temporary MMR post. The Court also disposed of all the connected applications.
[Secretary, Law Dept., Govt. of W.B. v. Md. Habibullah Khan, 2023 SCC OnLine Cal 2436, order dated 23-08-2023]
Advocates who appeared in this case :
Sk. Md. Galib and Mr. Gourav Das, Counsel for the Appellant
Mr. Tushar Kanti Mukherjee, Counsel for the Respondents
