Calcutta High Court (Appellete Side)
Somnath Das vs The State Of West Bengal & Ors on 20 August, 2018
W.P. No. 14174 (W) of 2018
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Somnath Das
Vs.
The State of West Bengal & Ors.
For the Petitioner : Mr. Bikash Ranjan Bhattacharya, Sr. Advocate
Mr. Samim Ahmed, Advocate
For the Respondent : Mr. Joydip Kar, Sr. Advocate
Nos. 7 to 18, 20 and 21 Mr. Billwadal Bhattacharya, Advocate Mr. Anish Kumar Mukherjee, Advocate For the Respondent No. 19: Mr. Asish Kumar Sanyal, Advocate Mr. Pratip Kumar Chatterjee, Advocate For the Respondent No. 22: Mr. Sabyasachi Chatterjee, Advocate Ms. Payel Nandi, Advocate Mr. Sourav Monda, Advocate For the Respondent No. 23: Mr. Firdous Samim, Advocate For the State : Mr. Abhratosh Majumder, Sr. Advocate Mr. Subhabrata Datta, Advocate Mr. Nilotpal Chatterjee, Advocate Hearing concluded on : August 16, 2018 Judgment on : August 20, 2018 DEBANGSU BASAK, J.:-
The petitioner seeks a direction upon the respondent no. 5 to dispose of the disqualification petition against the respondent nos. 7 to 19. The petitioner assails the vires of proviso to Section 21B(2) of the West Bengal Municipal Act, 1993.
Learned Senior Advocate appearing in support of the petitioner submits that, the petitioner being a tax payer and voter of Kandi Municipality, is entitled to ensure that, the candidates after being elected on the basis of a declared manifesto, does not defect. He submits that, the complaints of defection against the respondent nos.
7 to 22 ought to be looked into and considered, in accordance with law, by the respondent no. 5. He relies upon 2018 Volume 12 Supreme Court Cases page 61 (Bharati Reddy v. The State of Karnataka & Ors.) in support of his contention. He submits that, any person can bring to the notice of the Writ Court that, there is an infraction on the part of a statutory authority to discharge the duties enjoined on it by law. In support of his contention he relies upon 2013 Volume 11 Supreme Court Cases page 794 (Speaker, Orissa Legislative Assembly v. Utkal Keshari Parida). According to him, the respondent no. 5 is obliged to look into the complaint of defection even if not made in accordance with the prescribed procedure. At times, the respondent no. 5 can take cognizance suo motu. In support of such contention, he relies upon 2004 Volume 8 Supreme Court Cases page 747 (Dr. Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council & Ors.).
Learned Senior Advocate appearing for the respondent nos. 7 to 18, 20 and 21 submits that, the petitioner has no locus to maintain the writ petition. The petitioner is not an elected member of the Board of Councillors of Kandi Municipality. The petitioner is not a party to the proceedings in which, similar issues were considered by the Writ Court. In fact, the petitioner is seeking to champion the cause of persons who are not aggrieved by the Order dated July 5, 2018 passed in W.P. No. 5941 (W) of 2018 (Apurba Sarkar v. The State of West Bengal & Ors.) and the four writ petitions dealt with by such order. No right of the petitioner stands infringed by any action or inaction of the respondent no. 5. There is no lis pending between the petitioner and any of the respondents for the petitioner to complain that the respondent no. 5 is not acting. The respondent no. 5 is not a person entitled to make a complaint of defection under Section 21B of the Act of 1993. In support of such contentions, he relies upon 2012 Volume 4 Supreme Court Cases page 407 (Ravi Yashwant Bhoir v. District Collector Raigad & Ors.), 2007 Volume 2 Calcutta High Court Notes page 57 (Lutfa Begum & Anr. v. State of West Bengal & Ors.) and 2013 Volume 1 West Bengal Law Reporter page 611 (Sri Amiya Patra & Anr. v. District Magistrate, Bankura & Ors.).
Learned Senior Advocate appearing for the respondent nos. 7 to 18, 20 and 21 submits that, the writ petitioner cannot be allowed to raise the same issues as raised earlier in the five writ petitions dealt with by the Order dated July 5, 2018. The complaint of defection made against the respondent nos. 13 to 19 in the present writ petition, is a complaint by the respondent no. 22 who was a party in the earlier round of litigations. The respondent no. 22 did not seek any relief with regard to his complaint. Moreover, the respondent no. 22 had made the complaint immediately after the date of conclusion of the hearing of the earlier litigation.
Learned Additional Advocate General appearing for the State respondents draws the attention of the Court to the various pleadings of the writ petition. He submits that, the writ petitioner has access to various documents of one of the private parties. The writ petitioner is seeking to espouse the cause of such private respondent. He submits that, the petitioner must demonstrate personal interest and, at least, sufficient interest in the subject matter to maintain a writ petition. In the present case, the petitioner does not have any personal interest or sufficient interest to maintain the present writ petition.
Learned Advocate appearing for the respondent no. 19 adopts the submissions made on behalf of the State and the respondent nos. 7 to 18, 20 and 21.
The issue of maintainability of the writ petition requires consideration.
The writ petition relates to alleged defections in Kandi Municipality. The petitioner describes himself to be a resident of Kandi and as a tax payer of Kandi Municipality. The petitioner has grievances with regard to alleged defections allegedly made by some of the members of the Board of Councillors from one political party to other. According to him, the competent authority under the Act of 1993 should decide on such issue. The contention that, the competent authority should decide on the allegation of defection of the member of Councillors of Kandi Municipality received the consideration of the High Court in Apurba Sarkar (supra) and in another writ petition being W.P. No. 9155 (W) of 2016 disposed of by an Order dated June 21, 2016.
By the order dated June 21, 2016 passed in W.P. No. 9155 (W) of 2016, the respondent no. 5 was directed to dispose of the complaint of defection within six weeks from the date of communication of such order. By the judgment and order dated July 5, 2018, the respondent no. 5 was directed to comply with such order, in accordance with law. The issue of maintainability of the five several writ petitions raised in Apurba Sarkar (supra) was decided by holding that, any citizen can approach the Writ Court to ensure that, authorities under Article 12 do not act in derogation of the constitutional or statutory provisions.
Bharati Reddy (supra) considers a writ petition filed by voters who are not members of a Zilla Panchayat challenging the election of a person to the office of Adhyaksha. It holds such writ petition to be maintainable. It is of the following view:-
"12. We do not find any merit in this contention. We are of the view that a voter in a particular panchayat cannot be rendered remediless if he is aggrieved by the election of the Adhyaksha of the Panchayat. In His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr. (1973) 4 SCC 225, a thirteen Judge Bench of this Court held that Article 368 of the Constitution does not enable the Parliament to alter the basic structure or framework of the Constitution. The basic structure of the Constitution could not be altered by any constitutional amendment and it was held in unambiguous terms that one of the basic features is the existence of constitutional system in judicial review. This view was followed by a Constitution Bench in Minerva Mills Ltd. and Ors. v. Union of India and Ors. (1980) 3 SCC 625. In L. Chandra Kumar v. Union of India and Ors. (1997) 3 SCC 261, a seven Judge Bench of this Court has held that jurisdiction conferred upon the High Courts under Articles 226/227 of the Constitution and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and tribunals may perform a supplementary role in discharging the powers conferred by Articles 226/227 and Article 32 of the Constitution of India. It has been held as under:
"We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded." In I.R. Coelho (dead) by Lrs. v. State of Tamil Nadu (2007) 2 SCC 1, a Bench of nine Judges has again held that power of judicial review is the part of the basic structure of the Constitution.
The power to amend cannot be equated with the power to frame the Constitution.
13. It is thus clear that power of judicial review under Articles 226/227 of the Constitution is an essential feature of the Constitution which can neither be tinkered with nor eroded. Even the Constitution cannot be amended to erode the basic structure of the Constitution. Therefore, it cannot be said that the writ petition filed by respondent Nos. 6 to 9 under Article 226 of the Constitution is not maintainable. However, it is left to the discretion of the court exercising the power under Articles 226/227 to entertain the writ petition.
14. In Charan Lal Sahu (supra) relied upon by the learned senior counsel, the question for consideration was maintainability of an election petition presented by a candidate challenging the election to the Office of the President of India who has not been duly nominated under Section 14A of the Presidential and Vice-Presidential Elections Act, 1952. This decision has no application to the facts of the present case.
15. As noticed above, though respondent Nos. 6 to 9 are the voters are not the members of the Zilla Panchayat. They are aggrieved by the election of the appellant to the office of the Adhyaksha. They cannot challenge the election of the appellant to the office of Adhyaksha by filing an election petition as they are not the members of the Zilla Panchayat in question. In our view, a voter of the Zilla Panchayat who is not a member cannot be denied an opportunity to challenge the election to the office of Adhyaksha under Articles 226/227 of the Constitution. Therefore, we hold that the writ petition filed by respondent Nos. 6 to 9 before the High Court is maintainable."
Ravi Yashwant Bhoir (supra) is a case where an order passed by the State of Maharashtra disqualifying the writ petitioner as a member of the Uran Municipal Council for the balance period was challenged. In such writ petition, an attempt was made by the complainant at whose instance, the proceedings were undertaken resulting in the order of dismissal, to be added as a party in the writ proceedings. In such background, the complainant was found not to have any legal right to be a party to the writ petition. It holds that, a person having a remote interest cannot be permitted to become a party to the lis, as he has to establish that, he has proprietary right which has been or is threatened to be violated. In the present case, the petitioner as a tax payer of a municipal area is seeking to ensure that the Board of Councillors is manned by persons who do not stand disqualified under Section 21B of the Act of 1993. The petitioner has a right to canvass in the sense that it has a right to have a municipality where he resides and for which he pays the rates and taxes, to have a Board of Councillors constituted by persons who have not attracted any disqualification under Section 21B of the Act of 1993. Such a right, according to me, is justiciable.
Lutfa Begum & Anr. (supra) is a case where the removal of the Pradhan was challenged by petitioners who were not the Pradhan of the Gram Panchayat. It notices that, the Pradhan himself did not challenge his removal. Although the writ petitioners therein were members of the Gram Panchayat, no interest of theirs were found to be breached by the Gram Panchayat taking a decision passed by the majority of the members. In any democratic organization, the decision of the majority prevails. In such context, the writ petitioners were not allowed to challenge the decision of the Gram Panchayat in removing the Pradhan particularly when the Pradhan did not challenge his removal. Sri Amiya Patra & Anr. (supra) considers a challenge to an order passed by the competent authority exercising jurisdiction under Section 21B of the Act of 1993. It finds the petitioner not to have locus to submit an application complaining of defection and the petitioner not to be a person aggrieved by the decision arrived at by the competent authority. In the present case, the petitioner is not aggrieved by any decision taken by the competent authority. He also did not submit any application complaining of defection. He seeks that the complaint lodged by the respondent no. 22 with the competent authority in relation to defection of some of the members of the Board of Councillors of the Municipality to be considered and decided by the competent authority. Dr. Mahachandra Prasad Singh (supra) considers a petition under Article 32 of the Constitution of India seeking quashing of an order of the Chairman, Bihar Legislative Council holding the petitioner as disqualified. It is of the view that, a complaint of disqualification is not adversarial in nature. There is no lis pending between the person complaining of defection and the member against whom the defection is alleged. It notes that, even if the initial complaint is withdrawn, then also, the competent authority vested with the jurisdiction to decide the issue of disqualification, is required to decide such issue. In the present case, there are complaints pending against the respondent nos. 7 to 19 before the competent authority. The issue of locus of a person to maintain a writ petition about the functioning of the competent authority in relation to Section 21B of the Act of 1993 was considered and decided in respect of Kandi Municipality in W.P. No. 5941(W) of 2018 (Apurba Sarkar v. State of West Bengal & Ors.) along with four other writ petitions on July 5, 2018. The Court is informed that none of the parties in Apurba Sarkar (supra) has preferred any appeal. Therefore, a view different to that expressed in Apurba Sarkar (supra) with regard to the locus of the writ petitioner to maintain a writ petition challenging the action of a competent authority under provisions of Section 21B of the Act of 1993 need not be taken. The complaints against the respondent nos. 7 to 12 are covered by the direction contained in Apurba Sarkar (supra). By such order, the competent authority was directed to comply with the Order dated June 21, 2016 passed in W.P. No. 9155 (W) of 2016, in accordance with law. There are complaints made by the respondent no. 23 against the respondent nos. 13 to 19 of the writ petition. Those complaints are required to be decided by the competent authority in accordance with law. The writ petition is maintainable.
In such circumstances, the competent authority, the respondent no. 5 will, decide the complaints lodged by the respondent no. 23 against the respondent nos. 13 to 19, in accordance with law. It will do so within a period of eight weeks from the date of communication of this order to him.
The issue of vires of Section 21B of the Act of 1993 can best be decided after permitting the respondents to file affidavits.
Let affidavit-in-opposition be filed within two weeks, reply thereto, if any, be filed within one week thereafter.
List this writ petition under the heading "For Hearing" three 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.] Later:-
Learned Advocate appearing for the respondent nos. 7 to 18 and 20 to 21, seeks stay of the judgment and order.
Such prayer is considered and refused.
[DEBANGSU BASAK, J.]