calcutta high court

Calcutta High Court: In a petition challenging the election of the West Bengal Medical Council (WBMC), specifically focusing on the election of the President and Vice President, a single-judge bench comprising of Sabyasachi Bhattacharyya,* J., while acknowledging a minor technical irregularity, dismissed the petition, finding no gross illegality in the election process significant enough to warrant intervention. The Court emphasised on the potential disruption to WBMC activities if the challenge were sustained and clarified that other aspects of the election were not addressed due to insufficient arguments.

Brief Facts

The petitioner, an Overseas Citizen of India (OCI), challenged the election of the WBMC, which concluded on 01-11-2022. While seeking the dissolution of the entire Council, the primary arguments centered around alleged violations of Sections 11-A and 11B of the Bengal Medical Act, 1914, related to the timing of the Council’s first meeting and the nomination of office bearers.

Parties’ Contentions

The petitioner claimed that the election violated Sections 11-A and 11-B of the Bengal Medical Act, 1914 (the Act), as the Council’s meeting and the nomination of office bearers occurred before the official publication of the election notification.

The respondent contended that the petitioner, an OCI, lacked the right to challenge the election process, citing Section 7-B of the Citizenship Act, 1955, which purportedly restricts OCI participation in election processes. The respondent questioned the petitioner’s eligibility, asserting that, as an OCI, the petitioner was neither a citizen of India nor a resident, thus ineligible to vote or stand as a candidate for the election.

Court’s Assessment

The Court rejected the respondent’s objection to the petitioner’s locus standi, stating that the petitioner, as a registered medical practitioner with the right to practice in West Bengal, had the right to challenge irregularities in the election process that could affect his practice rights. The Court clarified that the petitioner met the requirements under Section 4(1) of the Act. The Court ruled that the provisions cited by the Medical Council did not apply to the election of honorary posts like the President and Vice President of the Medical Council. The petitioner, as an OCI, was deemed entitled to challenge the election on par with a citizen of India.

The Court examined the timing of the election vis-a-vis the official publication of the notification and found that the meeting and nomination had occurred on 01-11-2022, before the official publication on 03-11-2022. However, the Court held that the language of Section 11A(1) did not mandate the meeting to occur strictly after the notification’s publication. The Court also considered the “factum valet” principle, stating that no substantial illegality occurred.

The Court acknowledged a minor technical irregularity but emphasized that challenging the election on this basis would disrupt the WBMC’s decisions and activities for over a year, affecting numerous individuals. The Court found no gross illegality in the election process related to the nomination and election of office bearers, including the nomination of the President and election of the Vice President. The Court also noted that since the petitioner did not present substantial arguments on other aspects of the election, those issues were not addressed in the judgment.

“…not find any gross illegality in the process of recommending and nominating the President and electing the Vice President or the election process of the new West Bengal Medical Council sufficient to upset the apple cart at this belated stage.”

Court’s Decision

The Court dismissed writ petition on not finding substantial grounds to invalidate the election process, considering the minor technical irregularity and the potential adverse impact on the WBMC’s decisions and functions.

[Kunal Saha v. West Bengal Medical Council, 2023 SCC OnLine Cal 4659, order dated 20-11-2023]

*Judgment by Justice Sabyasachi Bhattacharyya

Advocates who appeared in this case :

Dr. Kunal Saha (in person), Counsel for the Petitioner

Mr. Sakya Sen, Mr. Sunil Gupta, Counsel for the WBMC

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