Calcutta High Court (Appellete Side)
Arjaul Hoque vs The State Of West Bengal & Ors on 4 August, 2016
Author: Arijit Banerjee
Bench: Arijit Banerjee
In the High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
WP 34032 (W) of 2014
Arjaul Hoque
-vs.-
The State of West Bengal & Ors.
Coram : The Hon'ble Justice Arijit Banerjee
For the petitioner : Mr. Bikash Ranjan Bhattacharjee, Sr.
Adv.
Mr. Partha Sarathi Deb Barman, Adv.
Mr. Md. Sarwar Jahan, Adv.
For the respondents : Mr. Malay Kumar Basu, Adv.
(Nos. 7 to 12) Mr. Sardar Amjad Ali, Adv.
Mr. Jayanta Kumar Das, Adv.
Mr. Gourav Das, Adv.
For the State : Mr. Biswajit De, Adv.
Mr. K. M. Hossain, Adv.
Heard On : 25.08.2015, 14.09.2015, 04.12.2015,
11.01.2016
22.04.2016
CAV On : 22.04.2016
Judgment On : 04.08.2016
Arijit Banerjee, J.:-
(1) In this writ petition the short question that arises for consideration is a true and proper interpretation of Sec. 213A(1) of the West Bengal Panchayat Act, 1973 (in short the 'Act'). The petitioner's case is that in the Panchayat election of 2013, he was elected as a member of Harishchandrapur-I Panchayat Samity, Malda (in short the said 'Panchayat'). Subsequently, in a meeting conducted by the 14 elected members of the said Panchayat, the petitioner with party affiliation of a particular political party (CPIM) was selected as the party leader of that political party in respect of the said Panchayat. The said Panchayat consists of 21 elected members out of whom 14 members including the petitioner were elected with party affiliation of CPIM, 2 members were elected with party affiliation of All India Forward Bloc, and the remaining 5 members were elected with party affiliation of Indian National Congress.
(2) The petitioner received a letter dated 14 November, 2014 written by the respondent nos. 7 to 12 who had been elected with party affiliation of CPIM, communicating that they had voluntarily given up their memberships of CPIM and had formed a separate group (Independent). In the above factual background the petitioner made an application on 22 November, 2014 under Sec. 213A of the said Act before the Prescribed Authority praying for cancellation of Panchayat membership of the respondent nos. 7 to 12.
(3) By an order dated 24 November, 2014 the Prescribed Authority rejected such application holding as follows:-
"As per Sec. 213A(1) of the West Bengal Panchayat Act, 1973, the prescribed authority shall not declare any member to be disqualified under this section, if such member claims that he and any other members of the recognized political party in the Panchayat constitute a group representing a faction consisting of not less than one-third of the total number of members set up by such recognized political party in the Panchayat and that all the members of such group have voluntarily given up their membership of such recognized political party.
Since 6(six) members mentioned in your complaint constitute more than 1/3 (one third) of the elected members of the party, they do not come under the purview of Sec. 213A(1) of the said Act.
Hence, your petition U/s. 213A(1) is hereby rejected."
(4) The petitioner preferred an appeal before the Appellate Authority being the District Magistrate, Malda, which was dismissed by an order dated 19 December, 2014.
(5) Being aggrieved by the orders of the Prescribed Authority and the Appellate Authority the petitioner has filed the instant writ petition challenging the said two orders. The sole question that falls for determination is whether the Prescribed Authority and the Appellate Authority were correct in rejecting the petitioner's application for disqualifying the respondent nos. 7 to 12 in the facts of the present case.
(6) Sec. 213A(1) and (2) of the said Act as amended by the West Bengal Panchayat (Amendment) Act, 2014, which took effect on 1 June, 2014 provides as follows:-
"S. 213A. (1) Notwithstanding anything to the contrary contained in this Act or in any other law for the time being in force, the prescribed authority for such Panchayat as may be specified by notification in this behalf, may, subject to the other provisions of this section, declare, for reasons to be recorded in writing, a member of such Panchayat to be disqualified for being a member thereof, if-
(a)He is an elected member set up by a recognized political party and has-
(i) Voluntarily given up his membership of such recognized political party, or
(ii) Exercised the voting right contrary to the manner of voting of the majority members set up by such recognized political party in such Panchayat; or
(b) He is an elected member not set up by any recognized political party and he has joined a recognized political party on the expiry of six months from the date of election:
Provided that the prescribed authority shall not declare any member to be disqualified under this section without giving to such member a reasonable opportunity to represent his case and to be heard in person:
Provided further that an elected member referred to in sub-Clause (ii) of Clause (a) shall not, on the prescribed authority being satisfied in this behalf, be declared to be disqualified, if-
(a)The action of such member was taken on obtaining prior permission of, or was condoned by, such recognized political party, or
(b) Such member claims that he and any other members of such recognized political party in the Panchayat constitute a group representing a faction consisting of not less than one-third of the total number of members set up by such recognized political party in the Panchayat and that all the members of such group have voluntarily given up their membership of such recognized political party, or
(c) The former recognized political party of the member merges with another recognized political party, and he claims that he and other members of his former recognized political party-
(i) Have become members of such other recognized political party or of a new recognized political party formed out of merger, as the case may be, or
(ii) Have not accepted the merger, and from the time of such merger, he and such other members constituting not less than one-third of the total number of members set up by the former recognized political party in the Panchayat, have opted to remain members of the former recognized political party or have formed a new recognized political party."
(2) On being declared to be disqualified under sub-Section (1), a member shall, subject to the provisions of sub- Section (12), stand removed from the Panchayat from the date of such declaration."
(7) Learned Counsel for the petitioner submitted that the legislative intent to disqualify members of a Panchayat on the ground of changing of political party is clear from Sec. 213A(1)(a)(i) of the said Act. If a member after being elected being set up by any recognized political party, voluntarily gives up his membership of such political party, then and in that event, he/she would be liable to be disqualified as an elected member of the Panchayat without any protection. In the instant case, the respondent nos. 7 to 12 were elected as members of the said Panchayat as candidates set up by the CPIM and they having voluntarily given up their membership of CPIM, it was the statutory duty/responsibility of the Prescribed Authority and/or Appellate Authority to declare all of them as disqualified for being members of the said Panchayat.
(8) Learned Counsel further submitted that the plea of constitution of a group representing a faction consisting of not less than 1/3 of the total members belonging to the recognized political party is available only to those members referred to in sub-Clause (ii) of Clause (a) of Section 213A(1) and not to those members referred to in sub-Clause
(a)(i) of Section 213A(1) of the said Act.
(9) The next submission of Learned Counsel for the petitioner was that the respondent nos. 7 to 12 are not entitled to take the plea of formation of any group since their claim as to formation and/or constitution of a group is not proper. They have allegedly formed a group but have identified themselves as independent. It is not credible or acceptable that there can be a group as independent. (10) Learned Counsel finally submitted that the language in Sec. 213A(1) of the said Act is clear and effect should be given to the clear legislative intent as reflected in the unequivocal words of the said Section.
(11) Learned Counsel appearing for the respondent nos. 7 to 12 submitted that on a proper interpretation of sub-Sec. (1) of Sec. 213A of the said Act, it would appear that voluntary giving up of party membership without attracting disqualification is admissible in certain cases. He submitted that if the protection of the second proviso to Sec. 213A(1) is held to be applicable only to members referred to in sub-Clause (ii) of Clause (a), the same would result in discrimination and would be in violation of Art. 14 of the Constitution of India. If a member set up by recognized political party, resigns from the said political party, the same is a ground for being declared as disqualified. However, such a member shall not be declared as disqualified if he shows that he along with other members of such political party in the Panchayat constitute a group representing a faction of at least 1/3 of the total number of members set up by such political party and that all members of such group have voluntarily given up their membership of such political party. If that be so, if a member voluntarily gives up his membership of a recognized political party which had set him up, he should also enjoy the protection against disqualification if he establishes that he along with other members of such political party in the Panchayat constitute a group representing a faction consisting of not less than 1/3 of the total number of members set up by such political party and all the members of such group have voluntarily given up their membership of the recognized political party. Learned Counsel submitted that any other interpretation of the said provisions of the statute would led to an absurd conclusion as defecting members of a political party who exercise their voting rights contrary to the manner of voting of the majority members set up by such political party would enjoy the protection against disqualification under the second proviso of Sec. 213A(1), if they establish certain facts, but members of the political party who simply resign from the political party but do not vote in a manner contrary to the manner of voting of the majority members set up by such political party would not enjoy protection of the second proviso of Sec. 213A(1) even if they establish the facts mentioned in the said proviso. He submitted that to avoid such an absurd result, sub-Sec. (1) of Sec. 213A should be interpreted so as to extend the protection under the second proviso to a member referred to in Clause (a)(i) also.
(12) Learned Counsel relied on two decisions of the Hon'ble Apex Court. He first referred to the decision in the case of Madanlal Fakirchand Dudhediya-vs.-Shree Changdeo Sugar Mills Ltd., AIR 1962 SC 1543. In that case while interpreting Sec. 76 (1) and (2) of the Companies Act, 1956, the Hon'ble Supreme Court at paragraph 17 of the judgment observed as follows:-
"In construing section 76 (1) and (2), it would be necessary to bear in mind the relevant rules of construction. The first rule of construction which is elementary, is that the words used in the section must be given their plain grammatical meaning. Since we are dealing with two sub- sections of s. 76, it is necessary that the said two sub- sections must be construed as a whole "each portion throwing light, if need be, on the rest." The two sub-sections must be read as parts of an integral whole and as being inter- dependent; an attempt should be made in construing them to reconcile them if it is reasonably possible to do so, and to avoid repugnancy. if repugnancy cannot possibly be avoided, then a question may arise as to which of the two should prevail. But that question can arise only if repugnancy cannot be avoided."
Learned Counsel then referred to the Hon'ble Supreme Court's decision in the case of Dwarka Prasad-vs.-Dwarka Das Saraf, AIR 1975 SC 1758, wherein at paragraph 18 of the judgment the Hon'ble Apex Court observed, inter alia, as follows:-
"...............................The law is trite. A proviso must be limited to the subject matter of the enacting clause. It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment. 'Words are dependent on the principal enacting words, to which they are tacked as a proviso. They cannot be read as divorced from their context' (1912 A.C. 544). If the rule of construction is that prima facie a proviso should be limited in its operation to the subject matter of the enacting clause, the stand we have taken is sound. To expand the` enacting clause, inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a proviso. A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction.
"The proper course is to apply the broad general rule of construction which is that a section or enactment must be construed as a whole each portion throwing light if need be on the rest.
The true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause, and proviso, taken and construed together is to prevail."
(Maxwell on Interpretation of Statutes, 10th Edn. P. 162)"
(13) Learned Counsel finally submitted that the respondent no. 8 and the respondent no. 10 have already been elected as Sabhapati and Sahakari Sabhapati of the said Panchayat. This would give rise to a fresh cause of action in so far the writ petitioner is concerned.
However, such appointments have not been challenged in the present writ petition and as such the present writ petition has become infructuous.
Court's View:-
(14) The decision of this writ petition would depend on a true and proper construction of Sec. 213A(1) of the said Act as amended in 2014. The said Sec. has been extracted above. Before expressing my views in that regard, I would like to discuss a few decisions of the Hon'ble Apex Court on the principles of statutory interpretation. (15) In Chandavarkar Sita Ratna Rao-vs.-Ashalata S. Guram, (1986) 4 SCC 447, the Hon'ble Apex Court observed that the Rule of construction is to give effect to the intention of the legislature and not to amend what is actually expressed. Where the language is plain and admits of one meaning, the task of interpretation can hardly be said to arise. The words of a statute must, prima facie, be given their ordinary meaning. Where the grammatical construction is clear and manifest and without doubt, that construction ought to prevail unless there are some strong and obvious reasons to the contrary. In finding out the meaning of the expressions used in a statute, the courts must find out what is legal, not what is right.
(16) In The Sales Tax Commissioner-vs.-B. G. Patal, (1995) 6 JT 271, the Hon'ble Supreme Court held that the proviso and the main part of the Act, or Rule are to be harmoniously read together and interpreted to give effect to the object of the provision.
(17) In Sultana Begum-vs.-Prem Chand Jain, (1997) 1 SCC 373, the Hon'ble Apex Court observed that while interpreting two inconsistent or obviously repugnant provisions of an Act, the Courts should make an effort to so interpret the provisions as to harmonize them so that the purpose of the Act may be given effect to and both the provisions may be allowed to operate rendering neither of them otiose. The statute has to be read as a whole to find out the real intention of the legislature. Every clause of a statute should be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject matter. The Hon'ble Supreme Court, after discussing its earlier decisions, laid down the following principles of construction:-
(i) It is the duty of the courts to avoid a head-on clash between two Sections of the Act and to construe the provisions which appear to be in conflict with each other in such a manner as to harmonise them.
(ii) The provisions of one Section of a statute cannot be used to defeat the other provisions unless the court, in spite of its efforts, finds it impossible to effect reconciliation between them.
(iii) It has to be borne in mind by all the courts all the time that when there are two conflicting provisions in an Act, which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. This is the essence of the rule of "harmonious construction".
(iv) The courts have also to keep in mind that an interpretation which reduces one of the provisions as a "dead letter" or "useless lumber" is not harmonious construction.
(v) To harmonise is not to destroy any statutory provision or to render it otiose.
(18) In Mor Modern Cooperative Transport Society Ltd.-vs.-Financial Commissioner & Secretary to Govt. of Haryana, (2002) 6 SCC 269, it was observed that the intention of the legislature must be found by reading the statute as a whole. The court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute. It must compare the clause with the other parts of the law and the setting in which the clause to be interpreted occurs. The rule is of general application as even the plainest terms must be controlled by the context. The expressions used in a statute should ordinarily be understood in a sense in which they best harmonize with the object of the statute and which effectuate the object of the legislature. Therefore, when two interpretations are feasible, the court will prefer that which advances the remedy and suppresses the mischief as the legislature envisioned. (19) In Union of India-vs.-Rajiv Kumar, AIR 2003 SC 2917, the Hon'ble Supreme Court while interpreting a provision, observed that the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See. Commissioner of Sales Tax, M. P.-vs.-Popular Trading Company, Ujjain, (2000) 5 SCC 515). The legislative casus omissus cannot be supplied by judicial interpretative process.
Two principles of construction - one relating to casus omissus and the other in regard to reading the statute/statutory provision as a whole - appear to be well-settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself. But, at the same time a casus omissus should not be readily inferred and for the purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. 'An intention to produce an unreasonable result', said Danackwerts, L. J. in Artemiou v. Procopiou(1966 1 QB 878), 'is not to be imputed to a statute if there is some other construction available'. Where to apply words literally would 'defeat the obvious intention of the legislation and produce a wholly unreasonable result' we must 'do some violence to the words' and so achieve that obvious intention and produce a rational construction, (Per Lord Reid in Luke v. IRC (1966 AC
557) where at p. 577 he also observed: 'this is not a new problem, though our standard of drafting is such that it rarely emerges'.
It is then true that, 'when the words of a law extend not to an inconvenience rarely happening, but do to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law intended quae frequentius accident.' 'But, on the other hand, it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom' (See Fanton v. Hampton, 11 Moore PC
345). A casus omissus ought not to be cured by interpretation, save in some case of strong necessity. Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod semel aut bis existit proetereunt legislatores, the rule is that the particular case, thus left un-provided for, must be disposed of according to the law as it existed before such statute - Casus omissus et oblivion datus disposition communis juris relinquitur; 'a casus omissus,' observed Buller, J. in Jones v. Smart (1 TR 52), 'can in no case be supplied by a Court of law, for that would be to make laws.' The golden rule for constructing wills, statutes, and, in fact, all written instruments has been thus stated: 'The grammatical and ordinary sense of the words lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further' (See Grey v. Pearson & H. L. Case 61). The latter part of this 'golden rule' must, however, be applied with much caution, 'if', remarked Jervis, C. J., 'the precise words used are plain and unambiguous in our judgment, we are bound to construe them in their ordinary sense even though it may lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning' (See. Abley v. Dale 11, C. B. 378.) (20) In Nair Service Society-vs.-District Officer, Kerala Public Service Commission, (2004) 100 FLR 957, it was observed that it is a well- settled principle of law that the court should not substitute the provisions of a statute by its own decision.
(21) The principle of construction of statutes that is clearly discernible in the judgments referred to above, is that when the language of a statute is absolutely clear and there is no ambiguity, the question of interpretation hardly arises. When the words of a particular Section of an Act are unequivocal, admitting of no two meanings or of any uncertainty, the plain and grammatical meaning of the words must be given effect to. The court may feel that the result is not desirable but then, it is not the function of the court to legislate. Legislation is the prerogative of the Parliament in so far Central Acts are concerned and of the State legislatures in so far as the State Acts are concerned. It is the duty of the court to apply the provisions of a statute to a given set of facts. The courts must apply the law as it is and not as what it thinks it should be. (22) The question of interpretation arises when there appears to be inconsistency or contradiction between two provisions of the same statute or between a series of statutes operating in the same field. The courts are also faced with the task of interpretation of statutory provisions when two provisions of the same statute are repugnant to each other. The word repugnancy has been defined by the Pocket Oxford Dictionary of current English (1969) as 'aversion, disinclination, (to, against); inconsistency or incompatibility of ideas, statements tempers'.
The Black's Law Dictionary (9th Ed.) defines the word repugnant as 'inconsistent or irreconcilable with; contrary or contradictory to'.
The Wharton's Law Lexicon (16th Ed.) defines repugnant as 'inconsistent with and when they cannot stand together at the same time and one law is inconsistent with another law when the command or power or provision in the one law conflicted directly with the command or power or provision in the other; that which is contrary to what is stated before'.
In Biswas on Encyclopaedic Law Dictionary (2nd Ed.) the doctrine of repugnancy is explained as follows:-
'Repugnancy between two pieces of legislation means that conflicting results are produced when both the laws are applied to the same facts. There is a case of repugnancy when one statute says 'do' while the other says 'don't' in regard to the same set of facts. Art. 254 of the Constitution of India provides for a solution. The marginal note of the Art. uses the expression 'inconsistency', while the body of the Art. uses the expression 'repugnancy'. Hence, two expressions are identical. 'Inconsistency' connotes the idea of incompatibility. The etymological things are inconsistent when they cannot stand together at the same time and one law is inconsistent with another law'. (23) From the above, it is clear that repugnancy between two pieces of legislation means that conflicting results are produced when both the laws are applied to the same set of facts. Repugnancy arises when the provisions of both laws are fully inconsistent or are absolutely irreconcilable and that it is impossible to obey one without disobeying the other.
(24) In the instant case, the words of the statute are absolutely clear leaving scope for no ambiguity. The second proviso makes it amply clear that it applies to only an elected member referred in sub-Clause
(ii) of Clause (a) under sub-Section (1) of Section 213A. In other words, the protection from disqualification is extended only to a member referred to in sub-Clause (ii) of Clause (a) i.e. a member who exercises voting right contrary to the manner of voting of the majority members set up by the concerned political party. The said proviso does not apply to a member referred to in sub-Clause (i) of Clause (a) i.e. a member who has voluntarily given up his membership of the concerned political party. If the intention of the legislature was to extend the protection of the second proviso, to both the classes of members, there was no necessity to make segregation between the members referred to in sub-Clause (i) and the members referred to in sub Clause (ii).
(25) As would appear from the principles of statutory interpretation discussed above, where the words of a statute are clear and unequivocal, the words in the statute must be given their plain grammatical meaning. In such a case hardly any occasion arises for interpretation of the concerned statute or any section thereof. In my opinion, the present case falls in such category of cases where the statutory provision under consideration is crystal clear admitting of no two meanings.
(26) In so far as the point of repugnancy is concerned, as urged by Learned Senior Counsel for the respondents, in my opinion, no question of repugnancy or inconsistency arise in the present case. It is not that the second proviso which is under consideration cannot be given effect to without acting contrary to any other portion of Sec. 213A(1). No question of conflict or irreconcilability arises in the present case. (29) Going by the view I have taken, an elected member set up by a recognized political party who voluntarily gives up his membership of such recognized political party does not get the protection of the second proviso. However, an elected member set up by a recognized political party who has exercised his voting right contrary to the mode of voting of the majority members set up by such recognized political party is protected from disqualification by the second proviso if he demonstrates that he along with other members of such recognized political party in the Panchayat constitute a separate group representing a faction consisting of at least 1/3 of the total members set up by such recognized political party in the Panchayat and that all the members of such group have voluntarily given up their membership of such recognized political party. This may appear to be somewhat illogical or incongruous. However, it is not for the court to correct such anomaly or incongruity by twisting the words of a statute by adding to or altering the words of an enactment. The legislature in its wisdom has enacted the statutory provision under consideration. So long as the provision is clear and does not violate any of the principles enshrined in the Constitution of India, the court is obliged to apply such provision as it stands and not as it should be according to the court. The vires of the second proviso on the ground of unreasonableness or arbitrariness or as being unconstitutional on any other ground is not under challenge before me. This court cannot amend or bend the words of a statute to achieve a result which according to the court is desirable. That would amount to judicial legislation which is not countenanced by the legal system and structure of our country.
(28) In view of the aforesaid, this application succeeds. I hold that the Prescribed Authority in its order dated 24 November, 2014 wrongly applied the second proviso to the six members who had voluntarily given up their membership of CPIM and had formed a separate group.
Consequently the Prescribed Authority erred in law in rejecting the petitioner's application for disqualifying the aforesaid six members. The Appellate Authority also erred in upholding the order of the Prescribed Authority. Accordingly the Appellate Authority's order dated 19 December, 2014 and the Prescribed Authority's order dated 24 November, 2014 are set aside. The matter is remanded back to the Prescribed Authority for being considered afresh in the light of the observations made in the present judgment. The Prescribed Authority shall consider the petitioner's application for disqualifying the respondent nos. 7-12 afresh and shall pass a reasoned order after giving an opportunity of hearing to the petitioner and the respondent nos. 7-12 within a period of two weeks from the date of communication of this order.
(29) This writ application is, accordingly, disposed of. (30) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.
(Arijit Banerjee, J.)