Calcutta High Court (Appellete Side)
Smt. Sikharani Biswas vs State Of West Bengal & Ors on 25 August, 2009
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Tapan Mukherjee
F.M.A. 501 of 2009
Smt. Sikharani Biswas
Vs.
State of West Bengal & Ors.
For the Appellant : Mr. Aninda Lahiri
For the State Election
Commission : Mr. L. C. Bihani
Mr. N. C. Bihani
For the State : Mr. Kallol Basu
For the respondent No. 5 : Mr. Dipankar Mondal
Heard On: 01.07.2009 & 18.08.2009.
Judgment On: 25.08.2009.
PRANAB KUMAR CHATTOPADHYAY, J.
Instant appeal has been preferred at the instance of the writ petitioner assailing the judgment and order dated 26th November, 2008 passed by a learned Single Judge of this court whereby and whereunder the said learned Judge dismissed the writ petition on merits.
The appellant herein filed the writ petition challenging the validity and/or legality of the notice issued by the Panchayat Returning Officer and Block Development Officer, Ranaghat-I Development Block under Memo No. 2616(5) dated 22nd May, 2005. The appellant herein was a candidate in the last Panchayat election for the post of Member, Gram Panchayat in Khisma/VI-8 constituency. The aforesaid election in respect of the concerned Gram Panchayat was held on 21st May, 2008. The appellant herein claimed that the Counting officer declared the said appellant as a winning candidate but the Panchayat Returning Officer and Block Development Officer, Ranaghat-I Development Block by the aforesaid Memo dated 22nd May, 2008 cancelled the certificate issued by the counting officer in favour of the said appellant. The aforesaid notice issued by the Panchayat Returning Officer and Block Development Officer, Ranaghat-I Development Block under Memo dated 22nd May, 2008 is set out hereunder:
" Government of West Bengal
Office of the Block Development Officer
Ranaghat-I Development Bolck
Habibpur, Nadia
Notice
This is to certify that a certificate in Form-24 and a declaration of result in Form-23 have inadvertently been issued to Shikha Rani Biswas a contesting candidate of Khishma/VI-8 seat, as a winning candidate by the counting officer of Polling Station No. RGT-I/22 Ka (Auxiliary Booth of RGT-I/22). This has been issued in contravention with the provision of Sec 23(2) of West Bengal Panchayat Election Act, 2003 and rule 107 of West Bengal Panchayat Election Rules, 2006. Whereas in terms of Notification No. SEC 1343 (17) SEC dated 24.04.2008 vide para 4 Vii(c) the certificate in Form 24 is supposed to be issued by the counting Officer of the main table where the counting of the main polling station is assigned by compiling the counting sheet of the auxiliary table.
Therefore the certificate issued from the counting officer of the auxiliary table is declared null and void and stands cancelled.
All concerned are hereby informed to treat the aforementioned declaration in Form-23 and subsequently issued certificate in Form- 24 as cancelled.
Sd/-
Panchayat Returning Officer (GP & PS) & Block Development Officer, Ranaghat-I Dev. Block.
Memo No. 2616 (5) Dated. 22.05.2008."
The learned Single Judge, however, observed that the actual issue raised in the writ petition relates to the dispute in connection with the election of a Gram Panchayat although the appellant challenged the validity of the impugned Memo dated 22nd May, 2008 issued by the concerned Panchayat Returning Officer and Block Development Officer, Ranaghat-I Development Block as well as the authority of the said Panchayat Returning Officer to cancel the certificate issued by the concerned counting officer by the said notice dated 22nd May, 2008.
Relying on the various decisions of the Supreme Court and also considering the provisions of the Panchayat Act and Clause (b) to Article 243-O of the Constitution of India the learned Single Judge, however, arrived at the conclusion that the writ petition is not at all maintainable since the dispute raised in the writ petition relates to the cancellation of the winning candidate.
We, however, fail to understand how a winning candidate can raise the dispute questioning the validity of her own election as a member of the Gram Panchayat.
The appellant herein claimed herself as a winning candidate in the post of Member, Gram Sabha of Khisma/ VI-8 seat on the basis of the certificate issued by the concerned counting officer and, therefore, it cannot be said that the said appellant virtually raised any election dispute questioning the validity of her own election as a member of the concerned Gram Panchayat. The Panchayat Returning Officer and Block Development Officer, Ranaghat-I Development Block by the impugned Memo dated 22nd May, 2008 cancelled the certificate issued by the concerned Counting officer and, therefore, the appellant herein being the aggrieved person challenged the validity and legality of the aforesaid decision of the said Panchayat Returning Officer and also questioned the power and/or authority of the said Panchayat Returning officer to cancel the certificate issued by the counting officer.
The learned Single Judge, in our opinion, failed to appreciate the real issue involved in the writ petition.
We have already observed that the appellant herein being the winning candidate could not and did not raise any election dispute questioning the validity and/or legality of her own election and was really aggrieved by the decision of the concerned Panchayat Returning Officer and Block Development Officer, Ranaghat-I Development Block as communicated under the impugned Memo dated 22nd May, 2008 since the said Panchayat Returning Officer by the aforesaid Memo cancelled the certificate issued by the counting officer in favour of the appellant as a winning candidate in the Gram Panchayat election in relation to Khisma/VI-8 seat.
Therefore, we are constrained to hold that the writ petition was dismissed by the learned Single Judge on improper and invalid grounds and the findings of the learned Single Judge cannot be approved and/or affirmed by us.
Let us now consider whether the challenge thrown by the appellant herein in the writ petition questioning the validity and/or legality of the impugned notice dated 22nd May, 2008 issued by the concerned Panchayat Returning Officer and Block Development Officer, Ranaghat-I Development Block can be sustained in the eye of law.
The provision relating to declaration of results in respect of the election to a Gram Panchayat has been provided in Rule 92(1) of the West Bengal Panchayat Election Rules, 2006 and the same is set out hereunder:
"92. Declaration of results.-(1) In case of an election to a Gram Panchayat, the Presiding Officer shall as soon as the counting of votes is completed and result sheets in Form 21 is signed, declare in Form 23 the candidate or candidates elected on the basis of highest number of valid votes secured by him or them. He shall hung up immediately one copy of such Form at the polling station and send the other copy in a sealed cover to the Panchayat Returning Officer concerned who shall inform the District Panchayat Election Officer and Commissioner of Panchayats and Rural Development of the results of the poll. The Commissioner of Panchayats and Rural Development shall cause the names of the elected candidates published in the Official Gazette."
In the present case, the counting officer of the auxiliary booth declared the appellant herein as a winning candidate by issuing the certificate in Form 24 on 21st May, 2008. On that very day, i.e. on 21st May, 2008, the counting officer of the main table, where the counting of the main polling station was assigned, after compiling the counting sheet of the auxiliary table declared the result in Form 23 and issued certificate in Form 24 in favour of the respondent No. 5, Smt. Kalyani Mondal. The Panchayat Returning Officer received two sets of result sheets and certificates in respect of the said Khisma/VI-8 seat relating to the concerned Gram Panchayat election and upon considering the relevant provisions of the West Bengal Panchayat Election Act, 2003 and Rule 107 of the West Bengal Panchayat Election Rules, 2006 and also taking note of the notification No. SEC 1343 (17) SEC dated 24th April, 2008 accepted the Forms 23 & 24 issued by the counting officer of the main table as valid and cancelled the other certificate issued in favour of the appellant herein by the counting officer of the auxiliary table. The Panchayat Returning Officer could not accept both the certificates in respect of a particular seat as valid. The said Panchayat Returning Officer is bound to accept certificate issued in Form 24 and the declaration of the result in respect of the Gram Panchayat seat in Form 23 by the competent officer under the statute and in terms of the notification dated 24th April, 2008 issued by the West Bengal State Election Commission i.e. the counting officer of the main table of the main polling station as valid.
In terms of Para 4(VII)(c) of the Notification dated 24th April, 2008 issued by the West Bengal State Election Commission the certificate in Form 24 is to be issued by the counting officer of the main table.
In the present case, therefore, the Panchayat Returning Officer rightly accepted the result declared in Form 23 and certificate issued in Form 24 by the counting officer of the main table and in terms of Rule 92(1) of the West Bengal Panchayat Election Rules, 2006 informed the District Panchayat Election Officer and the Commissioner of Panchayats and Rural Development about the results of the aforesaid poll.
It is also not in dispute that the name of the respondent No. 5 was thereafter published in the official Gazette as the elected candidate as a member of the Gram Panchayat from Khisma/VI-8 seat. The result of the appellant herein was admittedly, never notified as a winning candidate in the official Gazette. The action of the concerned Panchayat Returning Officer and Block Development Officer, Ranaghat-I Development Block was in consonance with the relevant provisions of the West Bengal Panchayat Election Act, 2003 and Rules framed thereunder.
We do not find any infirmity and/or illegality in the decision of the Panchayat Returning Officer and Block Development Officer, Ranaghat-I Development Block in declaring the certificate issued by the counting officer of the auxiliary table in Form 24 in favour of the appellant herein as null and void. The said Panchayat Returning Officer and Block Development Officer, Ranaghat-I Development Block took the correct stand in compliance with the provisions of the West Bengal Panchayat Election Act, 2003 and West Bengal Panchayat Rules, 2006 and also in terms of notification dated 24th April, 2008 by refusing to accept the declaration of result in Form 23 and issuance of certificate in Form 24 by the concerned counting officer of auxiliary table. The aforesaid act on the part of the Panchayat Returning Officer and Block Development Officer, Ranaghat-I Development Block, in our opinion, is valid and legal.
Therefore, the challenge thrown by the appellant herein questioning the authority of the Panchayat Returning Officer and Block Development Officer, Ranaghat-I Development Block to cancel the certificate issued by the concerned counting officer of the auxiliary table in favour of the appellant/writ petitioner by the impugned notice dated 22nd May, 2008 fails.
The writ petition filed by the appellant herein was required to be dismissed on the aforesaid ground of non-existence of any infirmity and/or illegality and/or irregularity in the order passed by the Panchayat Returning Officer and Block Development Officer, Ranaghat-I Development Block impugned in the writ petition and not on the ground mentioned by the learned Single Judge in the judgment and order under appeal.
Although we do not aprove the ground which was the basis of dismissal of the writ petition by the learned Single Judge yet the fate of the writ petition filed by the appellant herein will remain unchanged in view of the non-existence of any infirmity and/or illegality and/or irregularity in the order impugned in the said writ petition. We, however, set aside the direction passed by the learned Single Judge relating to the payment of costs of Rs. 5,000/- by the appellant herein to the respondent No. 4.
With the aforesaid observations and directions, we dismiss this appeal without awarding any costs.
Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.
[PRANAB KUMAR CHATTOPADHYAY, J.] TAPAN MUKHERJEE, J.
I agree.
[TAPAN MUKHERJEE, J.]