Calcutta High Court
Shurat Machhuar vs State Of West Bengal & Ors on 7 July, 2008
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
ORDER SHEET IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION ORIGINAL SIDE T. A. No. 59 of 2008 G. A. No. of 2008 A. P. O. T. No. 252 of 2008 W. P. No. 1080 of 2008 Shurat Machhuar Versus State of West Bengal & Ors.
Mr. G. S. De, Adv. with Mr. L. M. Mahata, Adv.
Mr. M. R. Mahata, Adv.
. for the appellants BEFORE :
The Hon'ble Justice Pratap Kumar Ray And The Hon'ble Justice Sankar Prasad Mitra ___________________________________________________________ Date: 07.07.2008 ___________________________________________________________ Heard learned Advocates for the parties.
In view of the urgency of the matter, as prayed for at the first sitting of the Court, leave was granted to move the stay application after serving a copy to the other side and the matter was fixed at 12.45 P.M. Stay application is now taken up for hearing.
None appears to oppose this application though a copy has been served as per our direction. Notice of Motion has also been filed as a proof of service of the stay application. 2
The facts leading to the writ application are to the following effect.
The post of Pradhan of Bagmundi Gram Panchayat within the District of Purulia is reserved for SC candidate. In the last election a SC candidate has been successful.
Under Section 20 of the West Bengal Panchayat Elections Act, 2003, a provision has been made that in case of non-availability of persons of reserved category for filling up the office of Pradhan so reserved, a person of that reserved category may be co- opted to fill up that office subject to the first proviso whereby it is provided that such co-opted candidate should be elected thereafter within six months against a suitable casual vacancy of that body.
There is no scope to apply Section 20 in that panchayat to fill up the post of Pradhan as under the proviso of Sub-rule 7(a) of Rule 3 of West Bengal Panchayat (Constitution) Rules, 1975, the writ petitioner became entitled to hold the office of Pradhan irrespective of the fact that he was not supported by majority elected members and as so far as the reserved category is concerned there is no question of seconding a candidate's name in terms of the said proviso. Despite such, the elected members of the body of said Gram Panchayat belonging to a particular 3 political party co-opted one outsider from their own party and intended to fill up the said post of Pradhan on the strength of the Circular Letter dated 10th June, 2008 issued under circular no.2456/PN/O/1/1E-9/2003 by the Principal Secretary, Panchayat and Rural Development Department, Government of West Bengal whereby and whereunder a clarification was made about the provision of said Section 20 of the Panchayat Elections Act, 2003 to this effect that in the event candidates of any political party are elected to form a majority group, the concerned political party may co-opt any candidate of reserved category as per their choice to hold the office of Pradhan so reserved for a particular category. This circular was challenged by filing a writ application. The Learned Trial Judge did not interfere with the said circular. Against that, this appeal has been preferred along with stay application. For effective adjudication of the stay application the relevant provisions of statute are required to be discussed.
Section 20 of the Panchayat Elections Act, 2003 reads such:
" 20. Co-option of persons in respective category:- In case of non-availability of persons of reserved category for filling up the office of Pradhan or Upa-Pradhan, Sabhapati or Sahakari Sabhapati and Sabhadhipati or Sahakari Sabhadhipati so reserved, a person of that reserved category may be co-opted to fill up of that office after swearing in an oath of 4 affirmation before the authority as may be specified:
Provided that such person so co-opted shall have to be elected within six months from the date of his co-option in regard to that office against a suitable casual vacancy of that body: Provided further that the person so co-opted shall have the powers and obligations of an ordinary member."
The first proviso of Sub-rule 7(a) of Rule 3 of the West Bengal Panchayat (Constitution) Rules, 75 reads such:
"(7)(a) If only one candidate is proposed and seconded, the Presiding Officer shall, in Form 4, declare him to be duly elected to be the Pradhan of the Gram Panchayat:
Provided that when an office of the Pradhan is reserved for the category of persons belonging to the Scheduled Castes, the Scheduled Castes (Women), the Scheduled Tribes or the Scheduled Tribes (Women), and when -
(i) three is only one seat or constituency of members reserved for the same category of persons in that Gram Panchayat, and
(ii) only one candidate elected from the reserved seat referred to in clause (i) is proposed as candidate for election to the office of the Pradhan, it shall not be necessary to second the candidature of that person and on being proposed, the Presiding Officer shall declare him in Form 4, to be duly elected to be the Pradhan of the Gram Panchayat."
On a bare reading of the provision, it appears that under Section 20, the legislatures categorically have specified a procedure of co-option in the event there is no elected candidate from reserved category but the circular letter dated 10th June, 5 2008, however, created a situation by which the said Section 20 has practically been amended whereby even if there is any elected member in a reserved category seat in a Gram Panchayat whose political party has not been able to send majority candidates as elected members to form a gram panchayat, he would be denied to hold the office of Pradhan under Section 20 of Panchayat Elections Act, 2003 read with Sub-rule 7(a) of Rule 3 as already referred to. As the Section 20 provides for a particular contingency that in the event of absence of any elected candidate from reserved category a new candidate could be co-opted which without any amendment cannot be clarified by a Principal Secretary of State of West Bengal. No such power has been vested to the Principal Secretary to amend the Panchayat Elections Act, 2003. Under Section 137, there is a provision of removal of difficulties whereby the Commission in consultation with the State Government may issue a general or special direction. In the instant case, there is no question of removal of difficulties as under Section 20 there is no ambiguity and further no direction has been issued by Commission. Furthermore, under the West Bengal Panchayat (Constitution) Rules, 1975 there is a provision that a candidate elected in a reserved seat of Pradhan from reserved category as stipulated could hold the post of Pradhan and there is no 6 necessity of seconding that candidate in terms of Sub-rule 7(a) of Rule 3 of the said Rules. Hence, the circular letter dated 10th June, 2008, prima facie, in our view, so far as amendment of Section 20 of the Panchayat Elections Act is concerned totally de- hors the said Act itself. The Principal Secretary never was vested with the power to amend the said provision of law. Hence, prima facie, being satisfied about the illegality which goes to the root of the matter, circular letter dated 10th June, 2008 whereby clarification of Section 20 of Panchayat Elections Act, 2003 was made, we allow the prayer staying effect of said circular letter dated 10th June, 2008 till the hearing of the appeal and as a consequence of such, as an interim relief, the present writ petitioner should be allowed to hold the office of Pradhan in terms of West Bengal Panchayat (Constitution) Rules, 1975 as already discussed. The prescribed authority is directed to take steps in the matter.
The aforesaid order is passed as an interim measure. Let affidavit-in-opposition to the stay application be filed within two weeks from date; reply, if any, be filed within one week thereafter. Matter will appear at the top of the list three weeks hence.
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The appellant is directed to file informal paper book incorporating therewith all the papers used in the Trial Court and before this Court.
All parties are to act on a xerox signed copy of this order on the usual undertaking.
( Pratap Kumar Ray, J. ) ( Sankar Prasad Mitra, J. ) AKGoswami