Calcutta High Court (Appellete Side)
Apurba Sarkar vs The State Of West Bengal & Ors on 5 July, 2018
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
W.P. No. 5941 (W) of 2018
Apurba Sarkar
Vs.
The State of West Bengal & Ors.
+
C.A.N. 2667 of 2018
+
C.A.N. 2741 of 2018
with
W.P. No. 7307 (W) of 2018
Santana Roy
Vs.
The State of West Bengal & Ors.
with
W.P. No. 7308 (W) of 2018
Debajyoti Roy
Vs.
The State of West Bengal & Ors.
with
W.P. No. 8005 (W) of 2018
Santana Roy
Vs.
The State of West Bengal & Ors.
with
W.P. No. 7937 (W) of 2018
Debajyoti Roy
Vs.
The State of West Bengal & Ors.
For the Petitioner : Mr. Ashish Kumar Sanyal, Advocate
in W.P. No. 5941(W) of 2018 Mr. Pratip Kumar Chatterjee, Advocate
For the Petitioners : Mr. Bikash Ranjan Bhattacharya, Sr. Advocate
in W.P. No. 5941(W) of 2018, Mr. Samim Ahamed, Advocate
W.P. No. 7308 (W) of 2018 and
W.P. No. 7937 (W) of 2018
For the Respondent no. 19 : Mr. Sabyasachi Chatterjee, Advocate
in W.P. No. 7937 (W) of 2018 Mr. Firdous Samim, Advocate Mr. Sayak Chakraborty, Advocate Mr. P. Chakraborty, Advocate Mr. Sourav Mondal, Advocate For the Respondent no. 20 : Mr. Ashish Kumar Sanyal, Advocate in W.P. No. 7937 (W) of 2018 Mr. Pratip Kumar Chatterjee, Advocate For the Respondent nos. 10 to 15 : Mr. Debanik Banerjee, Advocate in W.P. No. 7937 (W) of 2018 For the Applicant in : Mr. Joydip Kar, Sr. Advocate in C.A.N. 2667 of 2018 Mr. Billawadal Bhattacharya, Advocate Mr. Arkaprava Sen, Advocate For the State : Mr. Abhratosh Majumdar, Addl. Adv. General in W.P. No. 7307 (W) of 2018 Mr. Subhobrata Dutta, Advocate Mr. Benazir Ahmed, Advocate For the State : Mr. Abhratosh Majumdar, Addl. Adv. General in W.P. No. 7937 (W) of 2018 Mr. Sirsanya Bandyopadhyay, Advocate Ms. Sudeshna Das, Advocate Hearing concluded on : June 18, 2018 Judgment on : July 5, 2018 DEBANGSU BASAK, J.:-
Five writ petitions have been taken up for consideration as they involve similar issues and relate to alleged defections of Councillors in Kandi Municipality.
Mr. Guru Prasad Mukherjee has filed W.P. No. 9155 (W) of 2016 asking for a direction upon the Sub-Divisional Officer to hear out the writ petition filed by Mr. Guru Prasad Mukherjee under Section 21B of the West Bengal Municipal Act, 1993 against the respondent nos. 6 to 11 of such writ petition.
Mr. Apurba Sarkar has filed a writ petition being W.P. No. 5941 (W) of 2018 in which he has challenged the resolution dated February 19, 2016 taken pursuant to a requisition issued by a section of the Councillors of the Municipality. There are two applications filed in W.P. No. 5941 (W) of 2018. One is an application for transposition made by one of the Councillors for being transposed to the category of a petitioner in the writ petition.
Mr. Bikash Ranjan Bhattacharya learned Senior Advocate appearing for Debajyoti Roy and Santana Roy has submitted that, Guru Prasad Mukherjee had applied under Section 21B of the West Bengal Municipal Act, 1993 before the Sub-Divisional Officer complaining defection of a Councillor from a political party to the other. Such application has not been considered till date. The Sub-Divisional Officer has failed to discharge his statutory duties. He should be directed to discharge the same.
Referring to the Order dated June 21, 2016 passed in W.P. No. 9155 (W) of 2016. Mr. Bhattacharya has submitted that, by such order, the Sub-
Divisional Officer was directed to dispose of the application within the time period specified therein. Despite the same, the Sub-Divisional Officer had not done so.
Mr. Bhattacharya has referred to various provisions of the West Municipality Act, 1993 and has submitted that, it is the incumbent duty of the Sub-Divisional Officer to dispose of an application complaining of defection. Subsequent defections by other members of the political party or otherwise, does not make the initial defection good. In support of his contentions he has relied upon the Tenth Schedule of the Constitution of India, 2006 Volume 11 Supreme Court Cases page 1 (Jagjit Singh v.
State of Haryana & Ors.), 2007 Volume 4 Supreme Court Cases page 270 (Rejendra Singh Rana & Ors. v. Swami Prasad Mourya & Ors.) and 2013 Volume 11 Supreme Court Cases page 794 (Speaker, Orissa Legislative Assembly v. Utkal Keshari Parida).
Mr. Bhattacharya referring to 2004 Volume 8 Supreme Court Cases page 747 (Dr. Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council & Ors.) has submitted that, the process of disqualification is not a lis between persons moving the petition and the other members of the Board of Councillors. It is not an adversarial kind of litigation. Even if the petition is withdrawn, it will make no difference upon the duty of the competent authority to carry out the mandate of the statutory provisions.
Mr. Joydip Kar learned Senior Advocate appearing for the respondent nos. 18 to 26 in W.P. No. 7307 (W) of 2018 has submitted that, the three writ petitions being W.P. No. 5941 (W) of 2018, W.P. No. 7307 (W) of 2018 and W.P. No. 7308 (W) of 2018 does not contain any ground or prayer in relation to defections as sought to be canvassed by Mr. Bhattacharya. Referring to the prayers made in such writ petitions, he has submitted that, his clients as the majority requisitionists, are withdrawing the requisition, consequent upon which the impugned resolution dated February 19, 2017 was taken. He has submitted that, his clients are conceding to the prayers made in such writ petitions seeking quashing of the resolution adopted on February 19, 2017. Moreover, his clients are withdrawing the requisition given. Mr. Kar has submitted that, the Order dated June 21, 2016 has since become infructuous as Mr. Guru Prasad Mukherjee has since withdrawn the complaint made to the Sub-Divisional Officer. The Sub-Divisional Officer, upon withdrawal of such complaint had passed an order. Mr. Bhattacharya's client cannot be construed to be a person aggrieved by such order of the Sub-Divisional Officer. Section 21B of the Act of 1993 does not allow his client to prefer an appeal from an order passed by the Sub-Divisional Officer. Mr. Bhattacharya's client has no locus to make an application before the Sub-Divisional Officer. He has no right of hearing before the Sub-Divisional Officer. Consequently, Mr. Bhattacharya's client cannot come to the Writ Court to enforce any right emanating out of the complaint made by Mr. Guru Prasad Mukherjee or the order passed by the Sub-Divisional Officer consequent upon Mr. Guru Prasad Mukherjee withdrawing the complaint from the Sub-Divisional Officer. He has referred to various provisions of the Constitution as also the Act of 1993 in support of his contentions. He has distinguished Dr. Mahachandra Prasad Singh (supra) by submitting that, the case relates to disqualification of members of a Legislative Council. The Tenth Schedule of the Constitution of India applies to the procedure of disqualification of a member of Legislative Council. The Tenth Schedule prescribes a limitation which is absent in the Act of 1993. Consequently, the ratio laid down therein has no manner of application in the facts of the present case.
Mr. Abhatosh Majumdar, learned Additional Advocate General appearing on behalf of the State has submitted that, Mr. Bhattacharya's client does not have any legal right to canvass in writ jurisdiction. He has referred to 2013 Volume 1 W.B.L.R. page 611 (Amiya Patra v. District Magistrate) in support of his contentions. He has relied upon Section 21B of the Act of 1993 and has submitted that, the second proviso to the first sub-section applies to the facts of the present case. There is an incident contemplated under sub-section 1(a)(iA) of Section 21B of the Act of 1993, in the facts of the present case. The Sub-Divisional Officer has taken such incident into consideration and has not proceeded with the complaint made by Mr. Guru Prasad Mukherjee.
Referring to Tenth Schedule of the Constitution of India, learned Additional Advocate General has submitted that, the Tenth Schedule was introduced to the Constitution by the 52nd Amendment in 1985. He has referred to the statement of objects and reasons for the 52nd Amendment and has submitted that, the same parameters as that envisaged in the Tenth Schedule of the Constitution does not apply to a proceeding under Section 21B of the Act of 1993. He has referred to Article 102 and the insertion of sub-article 2 therein as well as Article 191 and the insertion of sub-article 2 therein and has submitted that, such insertions relate to Members of Parliament and Members of the State Legislature respectively. Similar provisions are not available in the Act of 1993. He has referred to Article 243V(B) of the Constitution of India.
Learned Additional Advocate General has submitted that, Mr. Guru Prasad Mukherjee after filing the complaint before the Sub-Divisional Officer, has admittedly withdrawn such complaint. The Act of withdrawal of the complaint must be treated as the complaint being withdrawn from the records for all times to come. Mr. Guru Prasad Mukherjee having withdrawn his complaint, there was nothing before the Sub-Divisional Officer to decide. In support of his contention that, withdrawal of a complaint means that such complaint stands withdrawn from the records for all times to come, he has relied upon 2007 Volume 1 Supreme Court Cases page 732 (Arun Kumar & Ors. v. Union of India & Ors.). He has submitted that, Article 243V of the Constitution does not refer to the Tenth Schedule. The Court cannot read words into the Constitution which does not exist. By reason of interpretation, Tenth Schedule cannot be incorporated into Article 243V of the Constitution. In support of the contention that, words cannot be read into the Constitution, he has relied upon 2006 Volume 11 Supreme Court Cases page 1 (Jagjit Singh v. State of Haryana & Ors.).
Five writ petitioners relate to Kandi Municipality have been taken analogously for hearing. The writ petitions relate to the conduct of the Councillors in meetings of the Board of Councillors of Kandi Municipality. The writ petitioners in three writ petitions being W.P. No. 5941 (W) of 2018, W.P. No. 7307 (W) of 2018 and W.P No. 7308 (W) of 2018 have grievances with regard to a resolution dated February 19, 2016 being adopted by the Board of Councillors of Kandi Municipality. Such resolution was adopted subsequent to a notice of requisition dated December 18, 2015 for a meeting of the Board of Councillors. The majority of the requisitionists represented by Mr. Joydip Kar have in the course of hearing of the writ petitions, withdrawn the requisition notice dated December 18, 2015 pursuant to which, meeting of the Board of Councillors of Kandi Municipality was held and the resolution dated February 19, 2016 was adopted. The writ petitioners in the writ petitions noted above, seek quashing of the resolution dated February 19, 2016. Mr. Joydip Kar, learned Senior Advocate appearing for the majority of the requisitionists has submitted that, his clients are willing to concede to such prayers made in the three writ petitions being granted. In view of the stand taken by the majority of the requisitionists issuing the notice dated December 18, 2015 by treating the same as withdrawn, the notice dated December 18, 2015 convening the meeting stands withdrawn. Again, as the majority of the requisitionists concede to the prayer for quashing the resolution dated February 19, 2016 as made in the three writ petitions, the resolution dated February 19, 2016 passed by the Board of Councilors of Kandi Municipality stands quashed. In view of such relief being granted, no further intervention is called for in the three writ petitions. The two interim applications made in W.P. No. 5941 (W) of 2018 also does not require any further order in view of such stand taken by the respective parties as noted herein. C.A.N. 2667 of 2018 and C.A.N. 2741 of 2018 stand disposed of accordingly.
Two other writ petitions that remain outstanding are W.P. No. 7937 (W) of 2018 and W.P. No. 8005 (W) of 2018.
In course of hearing of the three writ petitions, learned Additional Advocate General had relied upon few documents which, inter alia, contained the order of the Sub-Divisional Officer exercising jurisdiction under Section 21B of the West Bengal Municipal Act, 1993 in relation to the complaint made by Mr. Guru Prasad Mukherjee and the withdrawal of such complaint. The two writ petitions being W.P. No. 7937 (W) 2018 and W.P. No. 8005 (W) of 2018 seek relief with regard to such order passed by the Sub-Divisional Officer. The writ petitions also assail the vires of the provisions of Section 21B(1) clause (b) of second proviso of the West Bengal Municipal Act, 1993.
So far as the challenge to the vires is concerned, it would be appropriate to give directions for filing affidavits before such an issue is decided. Let affidavit-in-opposition be filed within 4 weeks and reply thereto within 2 weeks thereafter. List the two writ petitions under the heading "For Hearing" 6 weeks hence.
Mr. Bikash Ranjan Bhattacharya, learned Senior Advocate appearing in support of the writ petitioner in W.P. 7937 (W) of 2018 has sought for interim reliefs. He has submitted that, the competent authority exercising jurisdiction under Section 21B of the Act of 1993 has failed to exercise jurisdiction vested upon him in law, in not pronouncing upon the complaint made by Mr. Guru Prasad Mukherjee. The Court, therefore, should direct the Sub-Divisional Officer to take a decision on such complaint. This prayer has been opposed by the other parties.
Provision as to disqualification on the ground of defection was introduced as the Tenth Schedule of the Constitution of India by virtue of the Constitution 52nd Amendment Act, 1985 with effect from March 1, 1985. Two insertions were made under Articles 102 and 191. In both the Articles, Sub-article (2) was introduced. Article 102 deals with disqualification of membership of a Member of Parliament. Sub-article (2) states that, a person shall be disqualified for being a member of either House of Parliament, if he is so disqualified under the Tenth Schedule. Article 191 deals with disqualification for membership from the State Legislative Assembly or Legislative Council, as the case may be. Sub-article (2) makes similar provisions as that of Sub-article (2) of Article 102. These two articles do not deal with municipalities. Article 243V deals with disqualifications of membership of a municipality. Article 243V is as follows:-
"243V. Disqualifications for membership. -
(1) A person shall be disqualified for being chosen as, and for being a member of a Municipality -
(a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned:
Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years;
(b) if he is so disqualified by or under any law made by the Legislature of the State.
(2) If any question arises as to whether a member of a Municipality has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide."
Article 243V(1) stipulates that, a person shall be disqualified for being chosen as, and for being a member of a Municipality, if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned or if he is so disqualified by or under any law made by the Legislature of the State. It makes an exception thereto by the proviso stipulating that no person should be disqualified on the ground that he is less than 25 years of age, if he has attained the age of 21 years. Article 243V(2) provides that, the adjudicating authority with regard to disqualification shall be such authority as the State Legislature may by law provide. The procedure for consideration of a complaint for disqualification by the authority is also to be provided by the State Legislature, by law.
State Legislature has enacted the West Bengal Municipal Act, 1993 which provides for grounds for disqualification of elected members to a municipality. It identifies the competent authority who is to deal with a complaint of disqualification and the procedure in respect thereto. Section 21B of the Act of 1993 deals with disqualification of Councillors. It is as follows:-
"21B. Disqualification for being a Councillor on change of political party by the Councillor.- (1) Notwithstanding anything to the contrary in this Act or in any other law for the time being in force, such competent authority for a Municipality as may be appointed by the State Government by notification in this behalf (hereinafter referred to in this section as the competent authority) may, subject to the other provisions of this section, declare, for reasons to be recorded in writing, a Councillor of such Municipality to be disqualified for being a Councillor thereof, if -
(a) he is an elected Councillor set up by a recognized political party and has-
(i) voluntarily given up his membership of such recognized political party, or (iA) joined another recognized political party, or
(ii) exercised the voting right contrary to the manner of voting of the majority of the Councillors who are the members of such recognized political party in such Municipality, or
(b) he is an elected Councillor not set up by a 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 competent authority shall not declare any Councillor to be disqualified under this section without giving to such Councillor a reasonable opportunity to represent his case and to be heard in person:
Provided further that an elected Councillor refer to in sub- clause (iA), or sub-clause (ii) of clause (a) shall not, on the competent authority being satisfied in this behalf, be declared to be disqualified, if -
(a) the action of such Councillor was taken on obtaining prior permission of, or was condoned by, such recognized political party, or
(b) such Councillor claims that he and any other Councillors, who are the members, of such recognized political party, constitute in the Municipality a group representing a faction consisting of not less than one-third of the total number of Councillors set up by such recognized political party in the Municipality and that all the Councillors constituting such group have voluntarily given up their membership of such recognized political party, or
(c) the former recognized political party of the Councillor merges with another recognized political party, and he claims that he and the other members of his former recognized political party
(i)have become members of such other recognised 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 Councillors constituting not less than one-third of the total number of Councillors set up by the former recognized political party in the Municipality, 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 Councillor shall, subject to the provisions of sub-section (12), stand removed from the Board of Councillors from the date of such declaration.
(3) As soon as may be within one month from the date of the first meeting of the Board of Councilors or within one month from the date on which this section comes into force, as the case may be, the elected Councillors set up by the recognized political parties shall, by adopting a resolution, select one Councillor from amongst themselves to be the leader and such leader shall, within fifteen days from the date of such selection, furnish to the competent authority referred to in sub-section (1)-
(i) a copy of the resolution,
(ii) a signed statement containing the names, addresses and constituencies of himself and other Councillors set up by such recognized political party, and
(iii) a copy of a set of rules and regulations, if any, by whatever name called, of such recognized political party:
Provided that an office-bearer may also hold the office of the leader:
Provided further that the competent authority shall not refuse to accept, or to rely on, the documents furnished by the leader merely on the ground that the resolution selecting the leader was not adopted within one month from the date of the first meeting of the Board of Councillors or within one month from the date on which this section comes into force, as the case may be, or that the documents as aforesaid were not furnished to him within fifteen days from the date of such selection.
(4) Where there is only one elected Councillor set up by a recognized political party in a Municipality, he shall furnish the documents referred to in sub-section (3) in relation to himself:
Provided that in the event of any increase in the number of Councillors who are the members of such recognized political party, the provisions of sub-section (3) shall apply as if the first meeting of the Board of Councillors was held or this section came into force, as the case may be, on the date on which such increase took place.
(5) A Councillor not belonging to any recognized political party shall furnish a statement to that effect to the competent authority within one month from the date of the first meeting of the Board of Councillors.
(6) In the event of any change of the information furnished under sub-section (3), sub-section (4) or sub-section (5), the leader or the Councillor, as the case may be, shall, as soon as may be within fifteen days from the date of such change, furnish in writing such change of information to the competent authority. (7) The leader referred to in sub-section (3), who is a member of a recognized political party, may at any time file a petition endorsed by the General Secretary, or if there is no General Secretary, the Secretary, of the district unit or the Head of the district functionary in whatever designation he may be called of such recognized political party to the competent authority, stating that -
(a) one or more Councillors who are the members of such recognized political party have -
(i) voluntarily given up his or their membership of such recognized political party, or (iA) joined another recognized political party, or
(ii) have exercised the voting right contrary to the manner of voting of the majority of the Councillors set up by such recognized political party in such Municipality, or
(b) the Councillor referred to in sub-section (4) has voluntarily given up his membership of the recognized political party that set him up, or
(c) the Councillor referred to in sub-section (5) has joined a recognized political party on the expiry of six months from the date of election, and that such Councillor or Councillors should be declared to be disqualified under sub-section (1) and should be removed from the Board of Councillors.
(8) Every petition referred to in sub-section (7) -
(a) shall contain a concise statement of the material facts on which the petitioner relies, and
(b) shall be accompanied by copies of the documentary evidence, if any, on which the petitioner relies and, where the petitioner relies on any information furnished to him by any person or persons, a statement containing the names and addresses of such person or persons and the gist of such information as furnished by such person or each of such persons.
(9) On receipt of the petition referred to in sub-section (7), the competent authority shall, as soon as possible within six weeks from the date of the receipt of such petition, proceed to make an enquiry to satisfy himself, among others, as to -
(a) the common decision in regard to the manner of voting to be exercised by the majority of the Councillors set up by the recognized political party, and
(b) whether the Councillor or Councillors, against whom such petition is filed, exercised the voting right in a meeting of the Board of Councillors contrary to such manner of voting.
(10) For the purpose of enquiry under sub-section (9), the competent authority, may summon such members of the recognized political party or other persons, and may require such signed statement from, and production of such documents and records by the members or other persons as aforesaid, as he may deem necessary.
(11) As soon as possible within eight weeks from the date of receipt of the petitioner referred to in sub-section (7), the competent authority shall, in consideration of the statements, documents and records before it,
(a) reject the petition, or
(b) admit the petition wholly or in part and declare any member or members of such recognized political party to be disqualified under sub-section (1) for being Councillor or Councillors of the Municipality.
(12) Any Councillor declared disqualified under sub-section (1) or the leader of the recognized political party referred to in sub-
section (7), if aggrieved by the decision of the competent authority, may, within thirty days from the date of the order, appeal to such authority as the State Government may appoint in this behalf and thereupon, the authority so appointed may stay the operation of the order till the disposal of the appeal and may, after giving notice of the appeal to the competent authority, and after giving the appellant and the opposite parties an opportunity of being heard, set aside or confirm the order or declare any Councillor or Councillors to be disqualified under, and in accordance with the provisions of, sub-section (1) within a period of eight weeks from the date of receipt of the appeal under this sub-section and, upon such declaration, the Councillor or Councillors shall stand removed from the Board of Councillors.
(13) The order passed by the authority referred to in sub-section (12) on the appeal shall be final.
(14) Notwithstanding anything to the contrary contained in this Act or in any other law for the time being in force, no Court shall have any jurisdiction in respect of any matter arising out of a Councillor of a Municipality being declared to be disqualified under sub-section (1) for being a Councillor of such Municipality. Explanation. - For the purposes of this section, an elected Councillor shall be deemed to be set up by a recognized political party if he has contested election with the symbol reserved for such recognized political party or if he has contested election with a free symbol and joins a recognized political party and furnishes a declaration to that effect to the competent authority before the expiry of six months from the date of election." Section 21B of the Act of 1993 was inserted with effect from March 18, 1998. Section 21B(1) empowers the State Government to appoint a competent authority to decide on the disqualification of a Councillor of a municipality. It provides the grounds, any of which, if satisfied, disqualifies a Councillor. It also provides for the exceptions on which, although the Councillor may satisfy the grounds of disqualification, nonetheless such Councillor need not be disqualified. Section 21B(1)(a) and (b) stipulates four grounds for disqualification of a Councillor. An elected Councillor set up by a recognized political party will be considered to be disqualified if :-
(i) he voluntarily gives up his membership of such recognized political party; or (ii) joins another recognised political party; or (iii) exercises voting right contrary to the manner of voting of the majority of the Councillor who are the members of such recognised political party in the municipality; or
(iv) he is an elected Councillor not set up by a recognised political party and has joined a recognised political party on the expiry of six months from the date of election. Sub-section (1) of Section 21B requires the competent authority to adhere to the principles of natural justice while considering a proceeding for disqualification of a member. It requires the competent authority to provide a reasonable opportunity to the concerned Councillor to represent his case and be heard in person. It requires the competent authority to give reasons for his decision. The proviso to Sub-section (1) of Section 21B provides for various grounds on which such elected Councillor will not be disqualified, although, an elected Councillor may incur disqualification on the grounds enumerated in Section 21B(1)(a) and (b).
Section 21B(3) prescribes the manner in which the recognized political party will nominate its leader. Sub-section (4) allows only one elected Councillor of a recognized political party to furnish documents required under Sub-section (3). Sub-section (5) allows a Councillor not belonging to any recognised political party to furnish such document to such effect to the competent authority. Sub-section (6) allows the persons named in Sub- sections (3), (4) and (5) as the case may be, to furnish change of information, if any, to the competent authority. Sub-section (7) allows the leader referred to in Sub-section (1) to file a petition endorsed by the Joint Secretary or there is no Joint Secretary, the Secretary of the District Unit or Head of the District functionary in whatever designation called, of the recognized political party to the competent authority complaining of defection. Section (8) of Section 21B stipulates the contents of a petition under Section (7). Sub-sections (9), (10) and (11) delineates the manner in which the competent authority will deal with such petition and for the time period for taking the steps noted in such sub-sections. Sub-section (13) provides an appeal forum from the order of the competent authority. Sub- section (14) ousts the jurisdiction of a Civil Court in respect of a matter covered under Section 21B.
Dr. Mahachandra Prasad Singh (supra) has considered a petition under Article 32 of the Constitution quashing of an order of the Chairman, Bihar Legislative Council holding the petitioner as disqualified. In discussing the provisions of the Tenth Schedule and the Rules of the Bihar Legislative Council Members (Disqualification on Ground of Defection) Rules, 1994, it has held that :-
"16. ........................................................There is no lis between the person moving the petition and the member of the House who is alleged to have incurred a disqualification. It is not an adversarial kind of litigation where he may be required to lead evidence. Even if he withdraws the petition it will make no difference as a duty is cast upon the Chairman or the Speaker to carry out the mandate of the constitutional provisions viz. the Tenth Schedule..................................................................."
Article 243V of the Constitution stipulates that, a member of a municipality can suffer disqualification. Essentially, Article 243V of the Constitution enshrines that, a person elected as a member of a municipality can incur a disqualification. The law for disqualification is to be provided by the State Legislature. A citizen could, therefore, have a right, flowing out of Article 243V to ensure that, a person elected as a member of a municipality, incurring the disqualification prescribed by law enacted by the State Legislature, is removed therefrom, in accordance with law. Failure of the competent authority established by law, to consider and decide the question of disqualification, would be justiciable. A citizen of India has a legal right to ensure that, the authorities under Article 12 do not act in derogation of the constitutional or statutory provisions.
Section 21B mandates the competent authority to arrive at a decision on disqualification of a Councillor of a municipality. The competent authority has to undertake the exercise stipulated under Section 21B on a petition filed under Sub-section (7). In the present case, the competent authority was activated by a petition of Mr. Guru Prasad Mukherjee. Mr. Guru Prasad Mukherjee had lodged the complaint and had sought to withdraw the same on September 19, 2016. In the interregnum, there is an Order dated June 21, 2016 passed by the High Court requiring the competent authority to decide the complaint of Mr. Guru Prasad Mukherjee. The effect of withdrawal of such complaint requires consideration. Arun Kumar & Ors. (supra) considered the validity of Rule 3 of the Income Tax Rules, 1962. It has held that, existence of a jurisdictional fact is a sine quo non for the exercise of power. If the jurisdictional facts exist, the authority can proceed with the case and take appropriate decision in accordance with law. A jurisdictional fact is a fact which must exist before a Court, Tribunal or an authority for it to assume jurisdiction over a particular matter. If the jurisdictional fact does not exist, the authority or officer cannot act. In this case, there is a complaint, in accordance with Section 21B(7) of the Act of 1993, to the competent authority, alleging disqualification consequent upon defection. This complaint, disclosing an incident, if found true on enquiry, would constitute disqualification of the member concerned. The competent authority, therefore, has sufficient material before it to assume jurisdiction. The subsequent withdrawal of the complaint, does not absolve the competent authority, of its statutory duty to enquire into the incident and pronounce thereon. When faced with a complaint of disqualification of a member, the competent authority cannot wish it away by saying that the complaint has since been withdraw. Withdrawal of the complaint does not absolve the member concerned of the rigours of Section 21B or permit the competent authority not to exercise jurisdiction thereunder.
The Act of 1993 was amended to incorporate Section 21B so as to fulfil the obligations cast under Article 243V of the Constitution. A member of a municipality may stand disqualified on the happening of the incidents disqualifying a member under Section 21B. Such section also lays down the parameters when, despite the incidents stipulated for disqualification happening, the member, on the satisfaction of the competent authority with regard thereto, need not be declared to be disqualified. Therefore, the satisfaction of the competent authority with regard to disqualification and the exemption, therefrom, as the case may be, is mandatory. The competent authority, upon perusal of the relevant materials placed before him, after affording the concerned member an opportunity of representing his case, has to return a finding, in writing, whether such member stands disqualified under Section 21B or whether such member comes within the exemptions provided under Section 21B or whether no action need be taken against the member. This duty is cast on the competent authority by statute. He cannot refuse to exercise the jurisdiction vested upon him by law on the plea that, the complaint stood withdrawn. Withdrawal of complaint is of no consequence, in the scheme of the Act of 1993. If a member has acted in a manner which incurs to him disqualification under Section 21B, he does not cease to be disqualified by reason of the withdrawal of the complaint. Membership to the Board of Councillors of a municipality is subject to the compliance of the provisions of Section 21B of the Act of 1993. Incidents leading to disqualification have to be looked into, considered and pronounced upon by the competent authority. It is the contention of the State that, the pronouncements of the Supreme Court are on the Tenth Schedule. That is so. However, the Supreme Court is of the view that, a charge of disqualification must be enquired into and pronounced upon by the designated authority. The analogy applies squarely to Section 21B of the Act of 1993 as its origin lies on the Tenth Schedule and Article 243V of the Constitution.
By the impugned order, the competent authority noticing the request for withdrawal has chosen not to proceed any further on the question of disqualification. With respect, the competent authority is not entitled to do so. A petition filed under section 21(7) is required to be dealt with under Section 21B(11). Withdrawal of the same is of no consequence as the competent authority is with the duty to decide the issue under Section 21B of the Act of 1993. The competent authority may reject the petition or admit the petition wholly or in part. In either of the two situations, he has to arrive at a finding and give reasons in writing for such finding. In the present case, the impugned order of the competent authority does not disclose that, he has applied his mind to the act of disqualification complained of and the grounds on which he does not find the petition to be sustainable. He has to do so.
Jagjit Singh (supra) has held that, the Speaker while deciding a proceeding for disqualification of a member of the State Legislative Assembly acts as a Tribunal. The Speaker has to arrive at a decision whether the elected member is guilty of defection or not. Rejendra Singh Rana & Ors. (supra) has considered incidents happening at the 14th Legislative Assembly of the State of Uttar Pradesh on August 27, 2003 and subsequent thereto and the consequent disqualification proceedings initiated. Utkal Keshari Parida (supra) has read down provisions of members of Orissa Legislative Assembly (Disqualification on Ground of Defection) Rules, 1987 to mean that not only a member of the House but any person interested, would be entitled to bring to the notice of the Speaker the fact that, the member of a House has incorporated disqualification under the Tenth Schedule of the Constitution of India. On receipt of such information, the Speaker of the House would become entitled to decide as to whether the member concerned had in fact incurred such disqualification and pass appropriate orders on his findings.
Amiya Patra (supra) has considered a challenge to an order passed by the competent authority exercising jurisdiction under Section 21B of the Act of 1993. It has held that, the petitioner has no locus standi to submit an application complaining of defection and as such the petitioner cannot be aggrieved by the decision arrived at by the competent authority. With respect, Amiya Patra (supra) did not have the opportunity of considering Dr. Mahachandra Prasad Singh (supra) where the Supreme Court has held that, the withdrawal of the complaint is of no consequence.
In such circumstances, the order of the competent authority dated September 23, 2016 is quashed. The competent authority will comply with the Order dated June 21, 2016 passed in W.P. No. 9155 (W) of 2016, in accordance with law.
So far as the other issues are concerned, as raised in the two subsisting writ petitions it would be appropriate to give an opportunity to the parties to file affidavits. Let the affidavit-in-opposition be filed within three weeks from the date; reply thereto, if any, be filed two weeks thereafter.
List the writ petitions being W.P. No. 8005 (W) of 2018 and W.P. No. 7937 (W) of 2018 under the heading "For Hearing" four weeks hence.
Urgent certified website copies of this judgment and order, if applied for, be made available to the parties upon compliance of the requisite formalities.
[DEBANGSU BASAK, J.]