Calcutta High Court (Appellete Side)
Sk. Maison & Ors vs The State Of West Bengal & Ors on 27 October, 2008
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
A.S.T. No. 2506 of 2008
Sk. Maison & ors.
...Petitioners
Versus
The State of West Bengal & ors.
...Respondents
Mr. Subir Sanyal Mr. S.N. Ghosh ...for the petitioners Mr. S. Sengupta ... for the State Mr. N.C. Bihani ...for the Election Officer Present : The Hon'ble Justice Dipankar Datta Heard on : 24.10.2008 Judgment on : 27.10.2008 Fourteen petitioners have joined in this petition having common grievance. They are aggrieved because reservation of seats in connection with election to the Board of Councilors of Jhargram Municipality (hereafter the Municipality), allegedly, has not been made in accordance with the provisions contained in the West Bengal Municipal Election (Reservation of Seats) Rules, 1994 (hereafter the said Rules). According to them while one seat has been shown as reserved for the third successive time, four other seats have never been reserved during the last ten years. Incidentally, all the petitioners claim to be voters entitled to vote in the election for constituting the Board of Councilors of the Municipality.
This Court has heard Mr. Sanyal, learned Counsel for the petitioners and Mr. Bihani, learned Counsel for the District Municipal Election Officer at length. A preliminary objection in regard to maintainability of the writ petition having been raised by Mr. Bihani, the said objection has to be decided first and only if the objection is overruled would the Court be justified in entering into the merits of the controversy.
Mr. Bihani referred to the provisions contained in Article 243ZG of the Constitution. According to him, in terms of clause (b) thereof the issue raised herein should be raised only by an election petition presented to such authority and in such manner as is provided in the West Bengal Municipal Elections Act, 1994 (hereafter the Act). He invited the attention of the Court to Chapter VIII of the Act titled "Disputes Regarding Election" and in particular to Section 75 of the Act, which provides for the procedure to present election petition, and the first proviso thereunder to demonstrate that only in cases of situations covered either by clause (a) or by clause (b) thereof that presentation of an election petition would be barred. To drive home the point that having regard to the special remedy provided in the Act this Court in exercise of jurisdiction under Article 226 of the Constitution ought not to interfere, he relied on the following decisions:
1) AIR 1952 SC 64 : N.P. Ponnuswami vs. The Returning Officer & ors.;
2) AIR 1995 SC 1512 : State of U.P. & ors. vs. Prodhan Sangh Kshettra Samiti & ors.;
3) AIR 1978 SC 851 : Mohinder Singh Gill & anr. Vs. The Chief Election Commissioner & ors.;
4) (1976) 3 SCC 211 : Nanhoo Mal & ors. vs. Hira Mal & ors.;
5) AIR 1977 SC 1703 : K.K. Shrivastava etc. vs. Bhupendra Kumar Jain & ors.;
6) (1996) 6 SCC 303 : Anugrah Narain Singh & anr. Vs. State of U.P. & ors.;
7) 1994 CWN 1161 : O.C. Cheku vs. Lt. Governor, Andaman & Nicobar Islands; and
8) unreported decision dated 17.10.08 of a learned Single Judge of this Court on W.P. 26660 (W) of 2008 (Shibnath Chowdhury & ors. vs. State of West Bengal & ors.).
Mr. Sanyal sought to counter the preliminary objection by placing reliance on the decision reported in (2004) 7 SCC 492 : Manda Jaganath vs. K.S. Rathnam & ors. He invited the attention of the court to paragraph 14 of the decision which reads as under:
"14 The word 'election' has been judicially defined by various authorities of this Court to mean any and every act taken by the competent authority after the publication of the election notification".
According to him, an election has various stages and in view of the authority referred to above election can be said to commence only with publication of the election notification and any act prior to publication of such notification is not embraced by the word 'election'. Since election notification in the present case has not been issued by the competent authority, he contended that any act in relation to reservation of seats prior to publication of election notification cannot be the subject matter of challenge in an election petition particularly in view of the fact that Section 75 of the Act entitles a voter to question the validity of any election of a member, which necessarily must mean acts subsequent to such publication. By not making reservation according to the provisions contained in the Rules, the Election Officer according to him instead of promoting fair election had prevented the same. It was contended that the Apex Court has decried any act which has the effect of interfering in the free flow of scheduled election or hinders the progress of the election, which is the paramount consideration. He urged that if by an erroneous order conduct of election is hindered, then the Courts under Article 226 would be justified in interfering with such erroneous order. He, therefore, submitted that the issued raised herein is not one which can be raised by way of an election petition and on the authority of the decision in Manda Jaganath (supra), the issue is within the demarcated area which is available for interference by the High Court.
Before proceeding to decide the objection, it would be profitable to take note of the parent decision of the Apex Court relating to the laws of election in Ponnuswami (supra) which was rendered at the dawn of the Constitution. The Constitution Bench observed thus:
"7. ****As we have seen, the most important question for determination is the meaning to be given to the word 'election' in Article 329(b). That word has by long usage in connection with the process of selection of proper representatives in democratic institutions, acquired both a wide and a narrow meaning. In the narrow sense, it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected. In Srinivasalu v. Kuppuswami, A.I.R. (15) 1928 Mad. 253 at 255 the learned Judges of the Madras High Court after examining the question, expressed the opinion that the term 'election' may be taken to embrace the whole procedure whereby an 'elected member' is returned, whether or not it be found necessary to take a poll. With this view, my brother, Mahajan, J. expressed his agreement in Sat Narain v.
Hanuman Parshad, A.I.R. (33) 1946 Lah.85 ; and I also find myself in agreement with it. It seems to me that the word 'election' has been used in Part XV of the Constitution in the wide sense, that is to say, to connote the entire procedure to be gone through to return a candidate to the legislature. The use of the expression 'conduct of elections' in Article 324 specifically points to the wide meaning, and that meaning can also be read consistently into the other provisions which occur in Part XV including Article 329(b). That the word 'election' bears this wide meaning whenever we talk of elections in a democratic country, is borne out by the fact that in most of the books on the subject and in several cases dealing with the matter, one of the questions mooted is, when the election begins. The subject is dealt with quite concisely in Halsbury's Laws of England, in the following passage see p.237 of Halsbury's Laws of England Edn.2 Vol.12 under the heading 'Commencement of the Election':
'Although the first formal step in every election is the issue of the writ, the election is considered for some purposes to begin at an earlier date. It is a question of fact in each case when an election begins in such a way as to make the parties concerned responsible for breaches of election law, the test being whether the contest is 'reasonably imminent'. Neither the issue of the writ nor the publication of the notice of election can be looked to as fixing the date when an election begins from this point of view. Nor, again, does the nomination day afford any criterion. The election will usually begin at least earlier than the issue of the writ. The question when the election begins must be carefully distinguished from that as to when 'the conduct and management of' an election may be said to begin. Again, the question as to when a particular person commences to be a candidate is a question to be considered in each case.' The discussion in this passage makes it clear that the word 'election' can be and has been appropriately used with reference to the entire process which consists of several stages and embraces many steps, some of which may have an important bearing on the result of the process.
9. The question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution (the ordinary jurisdiction of the courts having been expressly excluded), and another after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which, as I shall point out later, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a Special Tribunal and should not be brought up at an intermediate stage before any court. It seems to me that under the election law, the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to call the election in question. Article 329(b)was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question, could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like Article 329(b) and in setting up a Special Tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the pre-polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it.
12. It is now well-recognized that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. ****
16. The conclusions which I have arrived at may be summed up briefly as follows:
(1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted.
(2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the 'election'; and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the 'election' and enable the person affected to call it in question, they should be brought up before a Special Tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress."
(emphasis supplied) The authoritative pronouncement in Ponnuswami (supra) has been consistently followed by the Apex Court in it subsequent decisions. Some have been referred to by Mr. Bihani. The decision in Manda Jaganath (supra), relied on by Mr. Sanyal has also followed it. It has also been followed in the decisions reported in (1976) 1 SCC 204 : State of Karnataka vs Gunjahalli Nagappa and (1988) 1 SCC 277 : Election Commission of India vs Shivaji & ors.
In Shivaji (supra), the Apex Court was considering a dispute regarding election to a Legislative Council. The governing statute was the Representation of the People Act, 1951. While reiterating the meaning given to the word 'election' in Ponnuswami (supra), on assumption of jurisdiction by the High Court in exercise of writ powers, it proceeded to observe as follows:
"6. The disputes regarding the elections have to be settled in accordance with the provisions contained in Part VI of the Act. Section 80 of the Act states that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI of the Act. The expression 'election' is defined by Section 2(d) of the Act as an election to fill a seat or seats in either House of Parliament or in the House or either House of the legislature of a State other than the State of Jammu and Kashmir. Thus a dispute regarding election to the Legislative Council of a State can be raised only under the provisions contained in Part VI of the Act. Section 80-A of the Act provides that the court having jurisdiction to try an election petition shall be the High Court. An election petition has to be presented in accordance with Section 81 of the Act. In view of the non obstante clause contained in Article 329 of the Constitution the power of the High Court to entertain a petition questioning an election on whatever grounds under Article 226 of the Constitution is taken away."
It would now be worthwhile to notice the scheme of the Act. It has been enacted to consolidate and amend the laws relating to the holding of elections to the Municipalities in West Bengal. Election has been defined in Section 2(e) to mean 'election to fill a seat or seats in a Municipality'. Section 3 empowers the West Bengal State Election Commission to delimit areas into wards for the purpose of election of members of a Municipality. Chapter III of the Act deals with electoral rolls for Municipality. Elections are covered by Chapter V of the Act. Section 29 thereof, in so far as is relevant for a decision on the preliminary objection, reads as follows:
"29. (1) Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every Municipality in such manner as may be prescribed and the number of seats so reserved shall bear as nearly as may be, the same proportion to the total number of seats to be filled by direct election to the Municipality as the population of the Scheduled Castes in the municipal area or of the Scheduled Tribes in the municipal area, as the case may be, bears to the total population of that municipal area, and such seats may be allotted population of that municipal area, and such seats may be allotted by rotation to different constituencies of that Municipality by the Commission in such manner as may be prescribed.
(2) Not less than one-third of the total number of seats reserved under sub-section (1) shall be reserved for women belonging to the Scheduled Castes, or as the case may be, the Scheduled Tribes. (3) Not less than one-third of the total number of seats, including the seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes under sub-section (2), to be filled by direct election to a Municipality, shall be reserved for women, and such seats may be allotted by rotation to different constituencies of the Municipality by the Commission in such manner as may be prescribed. (4) ******"
Other sections of the Chapter (Sections 29A to 35) provide for qualifications/disqualifications for membership of a Municipality. Notification for general election to a Municipality is provided for in Section 36 of the Act. Section 36, in so far as is relevant, reads thus:
"36 (1) The first general election to a Municipality, newly constituted, shall be held not later than six months from the date of notification constituting the Municipality.
(2) A general election shall be held for the purpose of constituting a new Municipality on the expiration of the duration of the existing Municipality or on its dissolution and completed before the expiry of the duration of the Municipality.
(3) For the purpose as aforesaid, the State Government shall, subject to the provisions of section 8 of the West Bengal State Election Commission act, 1994, by one or more notifications published in the Official Gazette on such date or dates as may be determined, call upon the Municipality to elect members in accordance with the provisions of this Act and the rules and the orders made thereunder:
Provided that ********** Provided further that ********** Provided also that**********".
Chapter VI of the Act deals with conduct of election once a notification under Section 36 has been issued. Chapter VII deals with poll and as has been noticed earlier, disputes regarding election are covered under Chapter VIII.
At this stage, this Court would also remind itself of the settled law that in the absence of any provision in the Act to the contrary, the principles applicable to parliamentary elections or election to the state legislatures are equally applicable to cases of elections to local bodies also.
From a conspectus of judicial decisions, it appears to be clear that the word 'election' when construed narrowly, would mean the final selection of a candidate on contest if there be a poll, or a particular candidate being returned unopposed when there is no poll. However, construed in a wider sense, the word election would connote the entire process consisting of several stages by which a candidate is returned as an elected member, whether or not it is necessary to hold a poll. The word 'election' in Article 329(b) of the Constitution has been construed in the wider sense by the Apex Court. Article 243ZG is similarly worded, starting with a non-obstante clause. There is no reason to construe the word 'election' therein differently.
In the context of the Act, this Court is minded to hold that the process of election for constituting the Board of a Municipality, if it is a new Municipality, would commence with determination of wards upon division of the Municipal area. In the case of an existing Municipality the wards of which have been determined in accordance with Section 3 of the Act, the process through which a candidate is elected would essentially include preparation of electoral rolls for the constituencies comprised within the Municipality, reservation of seats for the specified sections, issuance of election notification, presentation of nomination papers, scrutiny thereof, the poll, and declaration of result. Having regard to the Apex Court's concurrence in Ponnuswami (supra) with the passage in Halsbury's Laws of England on 'Commencement of the Election', the stage from which the process of election begins must depend upon the statute governing it. The Act itself provides reservation of seats to be made in connection with election to a Municipality, which has an important bearing on the result of the process, in the manner prescribed prior to issuance of election notification announcing the election programme. This is so because the people including the voters' concerned and the prospective candidates must know which of the constituencies are reserved and which are not so as to enable them decide their next course of action. Reservation of seats therefore is an integral part of the election process and hence any action taken by the competent authority in erroneously reserving seats contrary to the roster appended to the Rules or not reserving a seat which ought to be reserved in accordance with such roster, as claimed by the petitioners, are not to be allowed to be called in question at an intermediary stage or else election for constituting the Board of a Municipality, which is a time-bound programme, would be disturbed. However, having regard to provisions contained in Section 75 of the Act, a person aggrieved would not be without a remedy. The action of the Election Officer impugned herein can well be the subject matter of decision in an election petition presented in accordance with law.
The decision in Manda Jaganath (supra) has been looked into by this Court. Contents of paragraph 14 thereof support the stand taken by Mr. Sanyal that any act prior to publication of the election notification would not be embraced by the word 'election'. However, as held earlier, reservation of seats being an important step in the process of holding of election to a Municipality under the Act and being part of the entire process culminating in a candidate being declared elected, the view taken by the Apex Court in paragraph 14 of Manda Jaganath (supra) may not apply here. In any event, the view expressed in paragraph 14 of Manda Jaganath (supra) seems to be inconsistent with the view taken in paragraph 7 of the decision in Ponnuswami (supra) and the other decisions of the Apex Court following it and, therefore, this Court being bound by both the decisions would prefer to be guided by the law laid down in Ponnuswami (supra) not because of the numerical supremacy of Judges constituting the Bench but, to this Court, it appears to be better in point of law.
In a plethora of decisions, it has been consistently held that the High Court in exercise of writ jurisdiction must resist the temptation of interfering with an election at the intermediary stage for granting relief.
This Court is therefore unable to entertain the writ petition not because it has no merit at all but the petitioners have a remedy under the Act. It stands dismissed. Dismissal of the writ petition shall not preclude the petitioners from availing the special remedy provided by the Act.
There shall be no order for costs.
Urgent photostat copy of this judgment, if applied for, be furnished to the parties within 4 days from date of putting requisites therefor.
(DIPANKAR DATTA, J.)