Calcutta High Court (Appellete Side)
Ratna Devi Sonkar vs State Of West Bengal & Ors on 20 April, 2009
Author: Indira Banerjee
Bench: Indira Banerjee
Form No. J.(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
(APPELLATE SIDE)
Present:
The Hon'ble Justice
Indira Banerjee.
W.P. No.26461 (W) of 2008
Ratna Devi Sonkar
Vs.
State of West Bengal & Ors.
For the Petitioner: Mr. Samit Talukdar
Mr. Biswajit Konar
For the respondent No.4: Mr. Somendra Chandra Bose, Sr. Adv.
Mr. Arun Kanti Maity Mr. T.K. Chatterjee For the respondent No.2: Mr. L.C. Bihani, Sr. Adv.
Mr. N.C. Bihani
Heard on: 16.04.2009
Judgment on: 20.04.2009
INDIRA BANERJEE, J.: In this writ petition, the petitioner has inter alia prayed for the
following orders:
"(a) A writ in the nature of Quo warranto against the respondent no.4 from holding the post of Councillor of the Ward no.25 under the Kolkata Municipal Corporation forthwith.
(b) A writ in the nature of Mandamus against the respondent no.2 & 3 to declare the election of the respondent no.4 as illegal, null and void.
(c) A writ of Certiorari be issued directing the respondent authorities to produce all records of the present case before this Hon'ble Court, so that conscionable justice may be done."
In 2005, the petitioner contested the election to the Kolkata Municipal Corporation from Ward No.25 as a Scheduled Caste woman candidate. The said constituency was for the first time, reserved for the Scheduled Caste in 2005.
The petitioner was, however, unsuccessful and one Smita Bakshi, impleaded as the Respondent No.4, was elected from the said constituency.
The petitioner has apparently filed an election petition challenging the election of the respondent No.4. The election petition being Petition No.1 of 2005, is pending before the Chief Judge, Small Causes Court at Calcutta.
It appears that in the election petitions, it was inter alia contended that the respondent No.4 had indulged in corrupt practice by producing a false Scheduled Caste certificate.
On a complaint made by the petitioner, proceedings were initiated for cancellation of the Scheduled Caste certificate issued to the respondent No.4.
By an order dated 3 rd July, 2006, the Additional District Magistrate (Judicial), South 24 Parganas cancelled the Scheduled Caste certificate granted to the respondent No.4.
The respondent No.4 preferred an appeal being Appeal Case No.3 of 2006 before the Appellate Authority and the Commissioner, Presidency Division. By an order dated 24 th May, 2007, the Appellate Authority and the Commissioner, Presidency Division dismissed the said appeal.
Challenging the order dated 24 th May, 2007 of the Appellate Authority and the Commissioner, Presidency Division dismissing the appeal, the respondent No.4, filed a revisional application in this Court under Article 227 of the Constitution of India. The said application was dismissed by an order dated 5th October, 2007 of this Bench.
The respondent No.4, it appears, did not prefer any appeal in the Supreme Court against the order dated 27 th September, 2007. In any case, the order dated 27 th September, 2007 was not interfered with and/or set aside.
The Scheduled Caste certificate on the basis of which the respondent No.4 contested the elections stands cancelled. The respondent No.4 as of now is to be deemed to be a general caste candidate, her Scheduled Caste certificate having been cancelled.
On behalf of the petitioner, Mr. Samit Talukdar argued that the petitioner was seeking a writ of quo warranto since the petitioner had no authority to occupy the office of Councillor in as much as her Scheduled Caste certificate had been cancelled.
As argued by Mr. Somendra Chandra Bose, Senior Advocate, appearing on behalf of the respondent No.4, a writ of quo warranto may be issued calling upon a person to show-cause under what authority he is in occupation of an office.
Mr. Bose submitted that the petitioner was functioning as Councillor on the basis of a certificate of election issued by the Municipal Returning Officer certifying that the petitioner had duly been elected by the said Board to be a member of the Kolkata Municipal Corporation.
The petitioner contested the election as a Scheduled Caste candidate and was elected as a Scheduled Caste candidate. The certificate of the Municipal Returning Officer was issued on the basis of the number of votes she got. If the Scheduled Caste certificate, on the basis of which the petitioner was elected, has been cancelled, the petitioner is not eligible to continue as Councillor.
However, as rightly argued by Mr. Bose and Mr. L.K. Bihani, appearing on behalf of the respondent No.2, the petitioner has in effect, challenged an election which can only be done by way of an election petition under Sections 75(1) and 76 read with Section 78 of the West Bengal Municipal Elections Act, 1994. The said Sections are set out hereinbelow:
"75. Election petition and procedure.--(1) If the validity of any election of a member is called in question by any person qualified to vote at such election, such person may, at any time within ten days immediately after the date of declaration, of the result of the election, file a petition before the District Judge of the district within which the election has been or should have been held and shall, at the same time, deposit two hundred rupees in the Court as security for the cost likely to be incurred:
Provided that the validity of such election shall not be called in question in any such petition--
(a) on the ground that the name of any person qualified to vote has been omitted from the electoral roll, or
(b) on the ground that the name of any person not qualified to vote had been inserted in the electoral roll:
Provided further that if only two candidates contested such election, the petitioner may, in addition to calling in question the election of the returned candidate, claim that if the election of the returned candidate is set aside, the other candidate may be declared duly elected.
"76. Setting aside of election.--If the District Judge, after holding such inquiry as he deems fit in respect of an election petition, is satisfied that--
(a) a candidate has committed any corrupt practice within the meaning of section 123 of the Representation of the People Act, 1951, or
(b) the result of the election has been materially affected by any act or omission in violation of the provisions of this Act or the rules made thereunder, or
(c) the result of the election has been vitiated by any offence punishable under the West Bengal Local Bodies (Electoral Offences and Miscellaneous Provisions) Act, 1952, he shall set aside the election of such candidate, if he has been elected, and may, if the election is set aside for any cause which is the result of any act of a candidate or his agent, declare that candidate to be disqualified for the purpose of a fresh election caused by such setting aside:
Provided that if the District Judge in setting aside the election holds a candidate guilty of any corrupt practice, he may declare such candidate disqualified for contesting an election to a Municipality for a period not exceeding six years.
78. Bar to jurisdiction of Court.--Save as provided in this Act, no Court shall entertain any application in any form whatsoever for adjudication of any matter relating to election to a Municipality."
On a reading of the said Sections, it is apparent that all questions pertaining to the election of a candidate including the question of corrupt practice would have to be agitated by way of an election petition. Contesting in an election on the basis of an incorrect caste certificate is also a corrupt practice.
Significantly, the petitioner has also prayed for a declaration that the election be declared null and void, which this Court has no power to do.
Article 243ZG of the Constitution provides as follows:
"243ZG. Bar to interfere by courts in election matters. - Notwithstanding anything contained in this Constitution,--
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243ZF shall not be called in question in any court;
(b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State."
In view of the constitutional bar of Article 243ZG of the Constitution, the writ application fails and the same is dismissed.
It will, however, be open to the petitioner to make a prayer before the Chief Judge, Small Causes Court for expeditious hearing and disposal of the Election Petition, which has been pending for several years.
It is expected that the Chief Judge, Small Causes Court shall dispose of the Election Petition as expeditiously as possible, preferably within three months from the date of communication of this order, without granting any unnecessary adjournments to either of the parties.
Urgent xerox certified copy of this judgment and order, if applied for, be supplied to the learned Advocates appearing for the parties, subject to compliance with the requisite formalities.
(Indira Banerjee, J.) (sent to server on 22.4.09)