Calcutta High Court (Appellete Side)
Maya Sarkar vs Swapna Halder & Ors on 12 January, 2010
Author: Biswanath Somadder
Bench: Biswanath Somadder
1
12.1.2010 C.O.42 Of 2010
(4)
Maya Sarkar -vs- Swapna Halder & Ors.
Mr.Ashok Chakraborty, (Sr. Advocate)
Mr. R.S. Chattopadhyay,
Mr. U. S. Chattopadhyay,
......for the petitioner.
Mr. T. K. Tewari,
Mr. K.J. Tewari...for O.P. No.1.
Mr. L. C. Behani, (Sr. Advocate)
Mr. N. C. Behani,
Ms. P. Banerjee Behani..for O.P. No.2.
Affidavit of service filed in court today be kept on
record.
Heard the learned advocates appearing on behalf of
the parties.
Upon consideration of the prayer made by the
learned advocate for the petitioner, leave is granted to
correct the names of the opposite party nos. 1 and 2,
which have been incorrectly stated, due to inadvertence.
This is an application under Article 227 of the
Constitution of India, in respect of an order, being order
No.24 dated 16th December, 2009, passed by the learned
Civil Judge (Junior Division), Bongaon, 24-
Parganas(North), in an election petition numbered as Title
Suit No.55 of 2008.
The petitioner, in the instant application is the
opposite party no.6 in the said election petition and was a
returning candidate in respect of the election which was
2
challenged before the learned court below, by the opposite
party no.1 herein.
The subject matter of challenge before the learned
court below pertains to election of the Panchayat Samity
in the Helencha Constituency, PS-22, 24-Parganas(North).
By the order impugned, the learned court below, in
exercise of his powers under the West Bengal Panchayat
Elections Act, 2003 (hereinafter referred to as the 'said
Act'), has held, inter alia, that the opposite party no.1
herein, being the petitioner before the learned court below,
should be declared as the returned candidate. The very
basis on which the learned court below came to such
conclusion was upon drawing of adverse presumption
against the petitioner herein, in respect of seven missing
ballot papers, which were not produced before the court
below.
The learned advocate appearing on behalf of the
petitioner submits that when there was no evidence on
record to show that the missing ballot papers were, in fact,
in possession or power of the petitioner herein, the learned
court below ought not to have drawn any adverse
inference against the petitioner herein in that respect. In
support of his submission, learned advocate for the
petitioner relied on Devidas and others Vs.
Shrishailappa and others, reported in AIR 1961 SC
1277.
3
He further relies on another judgment of the
Supreme Court in the case of The Bihar State Board of
Religious Trust, (Patna) Vs. Mahanth Sri Biseshwar
Das, reported in AIR 1971 SC 2057 (para 10) to
buttress his submission further.
Relying on various provisions of the said Act,
particularly those which fall under PART VII, he submits
that the learned court below ought to have taken into
consideration those provisions of the said Act, which, it
had failed to do. In this regard, he draws this Court's
attention to Section 81 of the said Act, which reads as
follows:
"81. Parties to the petition. - A petitioner shall join
as respondent to his petition -
(a) where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates, and
(b) any other candidate against whom allegations of any corrupt practice are made in the petition." He submits that even on the face of it, the election petition ought to have been summarily rejected by the learned court below solely on the ground of non-joinder of necessary parties, since, the opposite party no.1 herein, did not make all the contesting candidates as party to the election petition, in terms of the aforesaid mandatory provision of law.
4
He further submits that the procedure laid down in the statute for the purpose of trial of election petitions, had not been adhered to by the learned court below, and in the facts and circumstances of the instant case, pending final adjudication of the instant application, an interim order may be passed, as prayed for.
On the other hand, learned advocate appearing on behalf of the opposite party no.1 herein, being the petitioner who had filed the election petition before the learned court below, submits that the impugned order does not suffer from such gross error of law or palpable infirmity of reasoning which would warrant interference of this Court, in exercise of its jurisdiction under Article 227 of the Constitution of India. In particular, he submits that the provision of section 81 of the said Act is directory in nature and, as such, it was not incumbent to make all the contesting candidates as party to the proceeding.
The learned advocate, representing the West Bengal State Election Commission, being the opposite party no.2, herein, submits that due process of law as laid down under the said Act has not been followed by the learned court below. He further submits that election petitions are highly technical in nature and non-following of the statutory procedure can vitiate any finding of a court adjudicating an election petition.
After considering the submissions made by the learned advocates appearing on behalf of the parties and 5 upon perusing the instant application and order impugned, it appears that while recording his finding, the learned court below, inter alia, observed in the order impugned that he did not find any material corrupt practice at all. It further appears that even then the learned court below formed an opinion that the missing ballot papers ought to be counted in favour of the petitioner, being the opposite party no.1 herein.
In my opinion, prima facie, the ratio of the decision of the Supreme Court in Devidas and others(supra) is squarely applicable in the facts and circumstances of the instant case, since, it does not appear from a plain reading of the impugned order that the learned court below drew adverse inference against the petitioner herein on the basis of a finding of fact that the missing ballot papers were, in fact, in the possession of the petitioner herein or in the possession of the other opposite parties herein, namely opposite party nos. 2 to 6. That apart, the provision of section 81 of the said Act makes it clear that a petitioner filing an election petition claiming declaration that the election of all or any of the returned candidates is void and claiming a further declaration that he himself or any other candidate has been duly elected, shall join as respondent to his petition, all the contesting candidates as well as all the returned candidates. In the facts of the instant case, it appears that the opposite party no.1 herein, being the petitioner before the learned court below, 6 chose not to include any of the contesting candidates as party to the proceeding. Thus, the other contesting candidates, viz. Putul Mondal, Banani Mondal and Sampa Banik have been left out of the proceeding. In my view, this is clearly against the express mandate of the statute, which is clear from a plain reading of section 81 of the said Act, which has been reproduced hereinabove.
In the facts and circumstances of the instant case, I am of the opinion that the petition has made out a prima facie case for the purpose of grant of interim order of stay of operation of the impugned order, being order No.24 dated 16th December, 2009, passed by the learned Civil Judge (Junior Division), Bongaon, 24-Parganas(North) in an election petition, being numbered as Title Suit No.55 of 2008, till disposal of the instant application.
The opposite parties herein are directed to file their affidavits-in-opposition within a period of three weeks from date; reply, if any, within a fortnight thereafter. The matter shall appear for final disposal, under the heading "Contested Application", in the monthly combined list of March, 2010.
Photostat plain copy of this order, duly countersigned by the Assistant Registrar (Court), be given to the parties on usual undertakings.
(Biswanath Somadder, J.)