Calcutta High Court
Musuk Rajak vs State Of West Bengal & Ors on 10 July, 2008
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
T. A. No. 60 of 2008
G. A. No. of 2008
A. P. O. T. No. 262 of 2008
W. P. No. 1123 of 2008
Musuk Rajak
Versus
State of West Bengal & Ors.
Mr. G. S. De, Adv. with
Mr. L. M. Mahata, Adv.
Mr. M. R. Mahata, Adv.
. for the appellants
Mr. S. Das Gupta, Adv. with
Ms. Rina Banerjee, Adv.
. for the State
Mr. C. Chakraborty, Adv. with
Mr. Parvez Anam, Adv.
. for the respondent no.8
BEFORE :
The Hon'ble Justice Pratap Kumar Ray And The Hon'ble Justice Manik Mohan Sarkar ___________________________________________________________ Date: 10.07.2008 ___________________________________________________________ Pratap Kumar Ray, J : Heard learned Advocates for the parties.
Leave is granted to file the Memorandum of Appeal without certified copy subject to production of the certified copy at the time of hearing and subject to limitation, if any.2
Challenging the refusal to pass any interim order restraining the function of the co-opted member who has been co-opted in terms of the Circular Letter dated 10th June, 2008 issued by the Principal Secretary, Panchayat and Rural Development Department, Government of West Bengal in any manner whatsoever either by holding the office of Pradhan or by being an ex officio member of Panchayat Samity due to such holding of office of Pradhan, the present appeal has been preferred.
In connection with this appeal for which leave was granted to file it without certified copy and subject to filing of certified copy, a stay application has been filed. A copy of such stay application seeking interim order has already been served upon all the parties. All the parties are appearing before us. Stay application is now taken up for hearing.
To consider the stay application, the grievance as raised by the writ petitioner/appellant in the writ application and the order so passed by the Learned Trial Judge are required to be considered. The writ application was moved by the writ petitioner/appellant on the grievance that when under the provision of Sub-rule 7(a) of Rule 3 of West Bengal Panchayat (Constitution) Rules, 1975, the writ 3 petitioner being a member of schedule caste community due to her success in the Gram Panchayat election by wining the seat so reserved for schedule caste (woman) member is entitled to hold the office of Pradhan, the prescribed authority without allowing her to hold the office of Pradhan of Jhalda Darda Gram Panchayat had allowed a co- opted person who is non-elected but selected by a political party (herein Forward Block), whose members in the election of Gram Panchayat were successful to send the majority number of candidates more than 50%, namely the respondent no.8 herein in the stay application, to hold the said office of Pradhan so reserved for schedule caste (woman) candidate.
The stand taken by the respondent no.8 as well as the State Government to support the action of holding the office of Pradhan by a co-opted non-elected member by relying circular letter being Memo no.2456/PN/O/1/1E-9/2003 dated 10th June, 2008 issued by the Principal Secretary, Panchayat and Rural Development Department, Government of West Bengal whereby and whereunder Section 20 of the West Bengal Panchayat Elections Act, 2003 was clarified providing scope of such co-option as per selection of a political party whose candidates secured majority number of 4 seats in the gram panchayat also became the subject matter of challenge in the writ application. To appreciate the circular letter, the relevant provision of Section 20 aforesaid and the subject matter of challenge of the circular letter are required to be discussed. Section 20 of the Panchayat Elections Act, 2003 reads such:
" 20. Co-option of persons in respective category:- In case of non-availability of persons of reserved category for filling up the office of Pradhan or Upa- Pradhan, Sabhapati or Sahakari Sabhapati and Sabhadhipati or Sahakari Sabhadhipati so reserved, a person of that reserved category may be co-opted to fill up of that office after swearing in an oath of affirmation before the authority as may be specified: Provided that such person so co-opted shall have to be elected within six months from the date of his co- option in regard to that office against a suitable casual vacancy of that body:
Provided further that the person so co-opted shall have the powers and obligations of an ordinary member."
Under Clause 1 of the Circular Letter dated 10th June, 2008 aforesaid the said Section 20 was clarified in the following manner:
"Govt. of West Bengal Panchayat and Rural Development Department Jessop Building (2nd Floor) 63, N. S. Road, Kolkata - 700 001.
Memo No.2456/PN/O/1/1E-9/2003 Dated 10.06.2008 From: Dr. Manabendra Roy Principal Secretary, West Bengal Govt.
To: District Panchayat Election Officer and District Magistrate.5
Subject: Explanation and procedure of Application of Section 20 of West Bengal Panchayat Election Act, 2003. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 1. In the Election held recently if any political party gets absolute majority (more that half of the total numbers) in any Gram Panchayat, Panchayat Samity and Zilla Parishad but no member belonging to the particular class for which the post has been reserved for the post of Pradhan/Sabhapati/Sabhadhipati respectively for the said Gram Panchayat, Panchayat Samity or Zilla Parishad is elected for the said political party in that case the said political party can co-opt any person belong to the said particular class under Section 20 of West Bengal Panchayat Election Act, 2003.
If any elected member from such political party from which one or more than one member has been elected in that panchayat or any elected independent members belongs to the class eligible for the said reserved post in that case also the party having absolute majority will be able to co-opt the member eligible for the election to the reserved post for any particular class. The procedure of application of co-option is being explained.
(A) The said person must have the qualification to become a candidate under Sections 5 and 6 of the West Bengal Panchayat Election Act and the said person shall have no disqualification under Section 7 of the said Act."
On a bare reading of the said Section 20 as quoted and the clarification by the Principal Secretary of the State issuing a Circular Letter dated 10th June, 2008, there is no iota of doubt that under the camouflage of the word "clarification" practically the Section 20 was intended to be amended by adding new words, letters and sentences. Hence, the question involved herein is whether the Principal Secretary under the garb of clarification may tamper or amend or modify the provision of Section 20. It appears that Section 20 and more particularly the provision 6 of co-option of any non-elected member either in the Gram Panchayat or Panchayat Samity or in the Zilla Parishad will come into play when and only when the condition precedent of applicability of the said Section would be fulfilled, namely, "in case of non-availability of persons of reserved category" which means that in the event there is no elected representative of the reserved category in that particular Gram Panchayat or Panchayat Samity or in the Zilla Parishad, any outsider non-elected member could be co-opted to fill up the office of Pradhan, Upa-Pradhan, Sabhapati, Sahakari Sabhapati and Sabhadipati as the case may be so reserved. But by the said Circular Letter dated 10th June, 2008 a completely opposite thing has been asserted by the Principal Secretary in the name of clarification of said Section 20 whereby and whereunder it is provided that when any political party will get absolute majority in any Gram Panchayat, Panchayat Samity or in the Zilla Parishad but there was no member belonging to that particular class for which the post was reserved for the office of Pradhan/Sabhapati/ Sabhadipati respectively for the concerned gram panchayat, Panchayat Samity and in the Zilla Parishad, as the case may be, elected from the said political party, then the said political party can co-opt 7 any person belonging to the said particular class under Section 20 of the said West Bengal Panchayat Elections Act, 2003. Hence, it appears that the foreign words which were not present in the statute in Section 20 as quoted above namely, the power of a political party to select a candidate for co-option in the event of securing the majority number of candidates in the aforesaid gram panchayat, Panchayat Samity and in the Zilla Parishad as the case may be, has been incorporated by the Circular Letter which is as per our reading is nothing but amendment of section 20.
Now question stands whether the Principal Secretary under the law has the jurisdiction to amend the Section 20 in the manner as has been done.
It appears from the said Act, namely Section 20 that there is no provision vesting any executive the power to clarify, modify and/or amend the Section under the said Panchayet Election Act. There is only one Section being Section 137 under the heading of "the removal of difficulties" wherein the Commission has been empowered in consultation with the State Government to issue general or special direction to give effect of the provision of the Act and Rules of the concerned Act framed thereunder. The 8 Commission has been defined under Section 2(5) as the West Bengal State Election Commission referred to in sub-Section 1 of Section 3 of the West Bengal State Election Commission Act 1994. Even if we assume that there is an ambiguity in Section 20 so far as its applicability is concerned in view of the argument as advanced by the learned Advocate appearing for the co-optee member being respondent No.8 herein that at present moment though there is no such situation of non-availability of person of reserved category, still then said ambiguity could be considered and resolved even if we assume for arguendo, by applying Section 137 of the said Act by the Commission and not by the principal Secretary of Panchayat and Rural Development of Government of West Bengal. However, the function of the Commission ends after declaration of the result under Section 76 of the said Act and on publication of the same under Section 77 of the said Act, so there is no doubt about inapplicability of Section 137 also to exercise the power by the Commission to amend any provision of Section 20 and/or to clarify anything. Hence it appears that without making any amendment of Section 20 by the competent authority, namely State legislature there is no scope to 9 incorporate any provision in the said Section 20 in the manner as has been done by the principal Secretary. It appears that composition of gram panchayat has been prescribed under Section 4 Sub-Section (2)A as consisting of members elected under Sub-Section 2 of the West Bengal Panchayat Act 1973. The said circular letter has not only breached the Section 20 of the Panchayat Election Act as aforesaid but at the same time also breached the first proviso of Sub-rule 7(A) of Rule 3 of West Bengal Panchayat (Constitution) Rule 75 which mandates that when a candidate in the reserved category, namely schedule caste, schedule caste (women) or the schedule tribe, the schedule tribe (women) as the case may be is elected in the reserved seat, the candidate will hold the office of the Pradhan without any necessity of seconding the candidature of that person and Presiding Officer is bound to declare that the said elected member has duly been elected as Pradhan of the Gram Panchayat. The said proviso of Sub-Rule 7A of Rule 3 reads such :
"If only one candidate is proposed and seconded, the Presiding Officer shall, in Form 4, declare him to be duly elected to be the Pradhan of the Gram Panchayat : 10
Provided that when an office of the Pradhan is reserved for the category of persons belonging to the Scheduled Castes, the Scheduled Castes (Women), the Scheduled Tribes or the Schedule Tribes (Women) and when -
(i) there is only one seat or constituency of members reserved for the same category of persons in that Gram Panchayat, and
(ii) only one candidate elected from the reserved seat referred to in clause (I) is proposed as candidate for election to the office of the Pradhan, it shall not be necessary to second the candidature of that person and on being proposed, the Presiding Officer shall declare him in Form 4, to be duly elected to be the Pradhan of the Gram Panchayat."
It is a settled legal position that even the State Government in exercise of its executive power under Article 162 of the Constitution of India cannot issue any circular letter and/or notification which would breach the concerned Act and Rule applicable in the field in question. Reliance may be placed on the judgement passed in the case of B.N.Nagarajan vs. State of Karnataka reported in AIR 1979 SC 1676. In that case there was a Rule framed under Article 309 of the Constitution of India, a Service Rule applicable in the field in question for appointment of a candidate, but the State Government issued a regularization circular to regularise the appointees who were appointed without following said rule, which became the subject matter of 11 consideration by the Apex Court. The Apex Court held that even by exercising power under Article 162 of the Constitution of India, the Government had no power to amend or modify any Rule framed under Article 309 of the Constitution of India by issuing Circular aforesaid without amending the Rule. In the instant case Section 20 unambiguously speaks that issue of co-option would be considered by the elected members as it appears from the Section 20 that supposedly to be by the elected members though there is no mentioning of such, in the event of non- availability of any elected candidate in the reserved category. Said provision practically intended to be changed, modified and amended by the said circular letter dated 10th June 2008 issued by the principal Secretary of the State Government which is not permissible. Hence prima facie we are satisfied that the circular letter dated 10 June 2008 was issued by a person who has no jurisdiction to amend Section 20. In another appeal already we have stayed the effect of said circular which intends to clarify Section 20 of the West Bengal Panchayat Election Act, 2003. In this case we are accordingly passing the identical order staying the effect of clause 1 of the said circular letter dated 10 June 2008, namely clarification of Section 20 as 12 made. Before the Learned Trial Judge, said order passed in another appeal was mentioned, but no stay order passed by His Lordship save and except an order restraining to deal with financial matters. The learned Advocate for the appellant before us submits that the co-optee, the respondent No.8 who is now holding the office of Pradhan by dint of such holding of office automatically would get the right to be member of Panchayat Samity as ex-officio member in terms of Section 94 of the Panchayat Act and as a result and effect, he would be entitled to caste a vote to elect members to the respective Sthayi Samities except Artha Sthayi Samity. It has brought to our notice that already a notice has been issued under Form No.1 from the Jhalda 1 Panchayat Samity to elect the different members of Sthayi Samities from the members of Panchayat Samity by fixing the date of meeting today i.e. 10 July 2008 at 1.00 A.M. It has been further submitted that the respondent No.8 in the said meeting of Panchayat Samity will caste the vote for election of members of different Sthayi Samities though the respondent No.8 under Section 20 of said Act was not eligible to be a co-optee member in the gram panchayat.
Having regard to such state of affairs, we are of the view that as the co-optee member, respondent No.8 was not 13 eligible to be a co-optee in view of Section 20 of the said Act for the sole reason that already one elected member of reserved category is available, namely the writ petitioner/appellant, such co-option and subsequent effect of such co-option including his functioning on holding the office of the Pradhan as well as by remaining as a member of Panchayat Samity and thereby casting of any vote in favour of any member for election to the Sthayi Samity of the said Panchayat Samity should be restrained and be made non-est. Accordingly, we direct that the co-optee respondent No.8 will be debarred from holding the office of the Pradhan of the concerned gram panchayat and will not be entitled to attend any meeting of Panchayat Samity as ex- officio member thereof and would not be entitled to caste any vote to elect any member of the Sthayi Samity of Panchayat and if any vote has already been casted by him in today's meeting, such vote to be considered as void and the concerned authority will not consider his vote as a valid vote for the purpose of electing any member in the Sthayi Samity under the Panchayat Samity. This interim order will continue till the disposal of this stay application. 14
In view of our stay order on functioning of the respondent No.8 as a Pradhan and his representation to Panchayat Samity, to avoid this vacuum, We are of the view that as an interim measure for proper functioning of the Gram Panchayat, Panchayat Samity as well as election to such Sthayi Samities, the writ petitioner who on application of the proviso of Sub-rule 7(a) of Rule 3 of the West Bengal Panchayat (Constitution) Rules, 1975 got an automatic right to hold the office of Pradhan without even seconding of his candidature, will hold the office of Pradhan and will function as such and will represent in the Panchayat Samity as a member thereof and function as such till the final disposal of the stay application.
In view of the very fact that there is a total breach of statutory provision of Section 20 read with the proviso of Sub-rule 7(a) of Rule 3 of the said Rule, we have no other alternative but to pass a mandatory order in the form of an ad interim order as aforesaid, considering the balance of this case.
Having regard to the fact that we have already dealt with the matter in depth, the writ application will also be heard by us alongwith the appeal. Let the writ file be called for. Let affidavit-in-opposition to the writ 15 application be filed within one week from date; reply, if any, be filed within one week thereafter. Let the affidavit-in-opposition to the stay application and affidavit-in-reply thereto be filed by the aforesaid terms. Since in adjudicating the stay application practically in the interim stage we have gone into the merits of the matter, the appeal will also be heard along with the writ application and the stay application. Let an informal paper book annexing the writ application and the opposition thereto, reply, if any, stay application, affidavit in opposition thereto and the reply, if any, be filed within three weeks from date and a copy thereof be served upon all the respondents. Let the appeal be posted for hearing at the top of the list as `Specially Fixed Matter' at 10.30 A.M on 4th August, 2008 for final disposal.
Since all the respondents are represented by their respective learned Advocates before us, service of notice of appeal stands waived. All other formalities stand dispensed with.
After the order is passed, the learned Advocate appearing for the co-optee respondent no.8 submitted before us that the Upa-Pradhan may function as per law as pradhan and as such the Court will reconsider the interim order as 16 already passed. We are of the view that there is no scope for further reconsideration as, prima facie, it appears that a fraud committed to the statute, particularly on the proviso of Sub-rule 7(a) of Rule 3 of West Bengal Panchayat (Constitution) Rules, 1975 read with Section 20 of the West Bengal Panchayat Elections Act, 2003 by issuing the circular letter by the Principal Secretary dated 10th June, 2008 allowing the particular political party to co-opt the man of their choice and taking resort of such circular letter, the respondent no.8 was placed in the office of Pradhan depriving the statutory right as vested upon the writ petitioner to hold the office of Pradhan in terms of proviso of Sub-rule 7(a) of Rule 3 aforesaid.
All parties are to act on a xerox signed copy of this order on the usual undertaking.
( Pratap Kumar Ray, J. ) I agree.
( Manik Mohan Sarkar, J. ) AKGoswami/G