Calcutta High Court (Appellete Side)
Mina Parween vs 23.05.2018 The State Of West Bengal & Ors on 23 May, 2018
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
1
Vacation W. P. No. 6985(W) of 2018
Bench
Court No. 7
Mina Parween
Vs.
23.05.2018 The State of West Bengal & Ors.
(SL 18)
(S. Banerjee)
Mr. Anjan Bhattacharya, Ld. Advocate
... for the petitioner
Mr. Tapan Mukherjee, Ld. Sr. Advocate
Mr. Shamim Ul Bari, Ld. Advocate
Mr. Benazir Ahmed, Ld. Advocate
... for the State-respondents
Mr. Debasish Ghosh, Ld. Advocate Mr. Debobrato Sen, Ld. Advocate Ms. Anuradha Sengupta, Ld. Advocate ... for the Election Commission Present writ petition appears to levy a challenge to an election held for a post in a Gram Panchayat and calls into question the election and seeks a by-poll before this court under Article 226 of the Constitution of India.
The petition has been moved on service and the respondents are present. Let the affidavit-of-service be kept with the record. I treat the writ petition ready as regards service.
At the outset a preliminary objection has taken by Mr. Tapan Mukherjee, learned senior advocate for the State-respondents, and Mr. Debasish Ghosh, learned advocate for the Election Commission. Their preliminary objection is that the jurisdiction of the writ court is barred in terms of clause (b) of Article 243 O to the Constitution of India. Mr. Ghosh further draws the attention of the court to Section 79 of the West Bengal Palchayat Elections Act, 2003 and he submits that this is a statute made within the meaning of Article 243 O(b). He further submits that disputed questions of fact will have to be gone into and evidence required to be taken for it and the court under Article 226 of the Constitution of India is singularly handicapped in such an examination.
Mr. Anjan Bhattacharya, learned advocate for the petitioner, attempts to deal with these provisions by submitting that there is an inherent inconsistency between Section 136 of the West Bengal Panchayat Election Act, 2 2003 and Section 79. For appreciation of his point the two sections are set out hereinbelow:
Section 79. (1) If any dispute arises as to the validity of an election under this Act, any person entitled to vote at such election may, within thirty days after the date of declaration of the results of such election, file a petition, calling in question such election on one or more of the grounds specified in sub-section (1) of section 93 and section 94 -
(a) before the Civil Judge having jurisdiction where such election is in respect of a Gram Panchayat or a Panchayat Samiti,
(b) before the District Judge of the district, where such election is in respect of a Zilla Parishad or the Siliguri Mahakuma Parishad. (2) When filing a petition under sub-section (1), the petitioner shall deposit in court, as security for the costs likely to be incurred, -
(a) five hundred rupees, where the petition is filed before the Civil Judge,
(b) one thousand rupees, where the petition is filed before the District Judge.
(3) Every petition shall be accompanied by as many copies thereof as there are respondents mentioned in 3 the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. (4) The District Judge may transfer any petition filed before him under sub- section (1) to any Judicial Officer subordinate to him not below the rank of a Subordinate Judge; (5) In dealing with a petition under sub-section (1), the Civil Judge, the District Judge or the judicial Officer to whom the petition is transferred under sub-section (4) (hereinafter referred to as the Judge) may hold such enquiry as he deems necessary.
(6) The Judges shall have all the powers of a civil court for the purposes of receiving evidence, administering oath, enforcing the attendance of witnesses and compelling the discovery and production of documents. (7) The decision of the Judge shall be final and shall not be called in question in any court.
Section 136- No civil court shall have jurisdiction to question the legality of any action taken or of any decision given by they Panchayat Returning Officer or by any other person appointed 4 under this Act in connection with an election.
He would submit that while on the one hand the legislature has debarred the jurisdiction of a civil court on the other it has relegated the matters as provided for in Section 79 to a Civil Judge having jurisdiction.
He further submits that in view of what is provided for under Section 115 of the said Act, of 2003 as also Section 119, offences have been constituted in respect of the infarctions provided for in those provisions and no civil suit or other legal proceedings lie in such matter. He would therefore, submit that such ouster of jurisdiction would not affect the plenary jurisdiction of the High Court under Article 226 of the Constitution of India.
However, the provision of Article 243 O(b) of the Constitution of India is too sweeping and the West Bengal Panchayat Election Act, 2003 is too comprehensive for me to rush in where wiser men have feared to tread. Accordingly, I hold that once election is over and it has been questioned and re-poll is being sought on matters which relate to checking and balancing and deciding of preponderance of evidence this court is singularly ill- equipped to give adequate relief and is debarred under Article 243 O(b) of the Constitution of India to intervene.
I, therefore, dismiss the writ petition as not being maintainable before this court and relegate the writ petitioner to an appropriate statutory remedy which, I understand, is available for a period of thirty days from the date of declaration of these results.
I make it clear that I have not gone into the merits of the allegations and whether the incidents alleged to have happened in the writ petition actually occurred or not.
Since affidavits have not been called for on the preliminary point of jurisdiction, the allegations contained in the writ petition are not deemed to be admitted.
Sometimes, the court has to be blind.
5(Protik Prakash Banerjee, J.)