Calcutta High Court (Appellete Side)
Sk.Abu Bakkar Ali vs The State Of West Bengal & Ors on 6 April, 2023
Author: Shampa Sarkar
Bench: Shampa Sarkar
06.04.2023
Ct.19/sl.2
W.P.A. 2682 of 2023
Sk.Abu Bakkar Ali
Vs.
The State of West Bengal & Ors.
Mr. Dibyendu Chatterjee
Mr. Soumish Ghosh
Mr. Rahul De Goenka ..for the petitioner.
Mr. Jahar Lal De
Mr. Rudranil De ..for the State
The petitioner has challenged the reservation of the
seat of the Pradhan of Mysora Gram Panchayat for
Schedule Tribe. Although, the voting population under the
OBC category was 6149, reservation of the seat for an OBC
candidate, had never been made. The calculation of the
petitioner is based on a communication received from the
Pradhan Mysora Gram Panchayat.
According to the petitioner, the seat has been
reserved for SC, ST and General in the earlier rounds of
elections on rotational basis, but never for OBC. Such
executive action, according to the petitioner, violated the
statutory mandate of reservation on rotational basis.
According to Mr. Chatterjee, that highest voting
population belonged to the unreserved category. For the
panchayat election of 2018, the seat was reserved for
general category. By taking into account the voting
population of OBC category and the principle of rotation,
the seat should have been reserved for OBC in the 2023
panchayat election.
2
When the draft notification was published on December 7,
2022, the petitioner filed an objection. The objection of the
petitioner was disposed of by the District Panchayaat
Election Officer, inter alia holding that reservation was
rightly done in terms of Rule 2A of the West Bengal
Panchayat (Constitution) Rules, 1975.
As the court had, prima facie, found that the system
of the reservation should have been clarified further. Mr.
Dey was asked to file a report, explaining the procedure in
detail. Today a detailed procedure has been filed in the
form of a report prepared by the District Panchayat and
Rural Development Officer, Tamluk. The reservation was
made in terms of Section 18 of West Bengal Elections Act,
2003 read with Rule 2A of the West Bengal Panchayat
(Constitution) Rules, 1975, and following the roster for first
term election.
Reservation of the offices under the Gram Panchayat
and Panhayat Samitis, is governed by rule 2A of the
constitution rules. The provision is set our below:-
"2A. Reservation of offices at Gram
Panchayat and Panchayat Samiti.
(1) As soon as may be, but not later than six
weeks before the date of poll appointed for any
general election, the District Magistrate and District
Panchayat Election Officer, shall, by an order in
Form 1B, after previous publication of the draft of
the order in Form 1A not later than nine weeks
before the date of poll, determine, [subject to such
direction as may be issued by the Commission] in
this behalf, from among the total number of the
offices of -
(i) the Pradhan,
(ii) the Upa-Pradhan,
(iii) the Sabhapati, and
(iv) the Sahakari Sabhapati
3
in a district, such number of offices reserved for-
(a) the Scheduled Castes, the Scheduled Tribes
and the Backward Classes as shall bear, as nearly as
may be, the same proportion to the total number of
the offices of the Pradhan, the Upa-Pradhan, the
Sabhapati or the Sahakari Sabhapati, as the case
may be, in the district as the population of the
Scheduled Castes or the Scheduled Tribes or the
Backward Classes, as the case may be, in the Blocks
within the district, bears with the total population in
the Blocks:
Provided that for the purpose of determination of
offices of the Pradhan or the Upa-Pradhan, the
Sabhapati or the Sahakari Sabhapati, as the case
may be, to be reserved under this clause for
aforesaid categories of persons, the provisions under
sub-section (1) of section 9 and sub-section (1) of
section 98 of the Act shall be taken into
consideration:
Provided further that while determining the ceiling
limit of fifty per cent of the total number of offices of
the Pradhan or the Upa-Pradhan, the Sabhapati or
the Sahakari Sabhapati, as the case may be, only the
whole integers shall be taken into consideration,
ignoring any figure after the decimal point."
Thus, the first contention of Mr. Chatterjee that the
reservation of OBC should have been based on the voting
population of the OBC, is not correct. Rather, the law
provides that the total population should be taken into
consideration.
The Election Commission by notification No. 2294-
SEC/1D-237/2022 dated July 27, 2022 also gave certain
directions as to how the total population under the SC, ST
and OBC should be calculated.
The notification dated July 27, 2022 provided that
the population census of 2011 was to be taken into
consideration for the purpose of proportionate reservation
4
vis-a-vis the population. As the Directorate of Census
Operation, West Bengal had informed the Commission that
there was no authenticated record pertaining to the figures
relating to the OBC population in the State, the calculation
of the OBC population was to be made on a door to door
enumeration. The Commission issued an order clarifying
that the Panchayats and Rural Development department
should proceed with a house to house local enquiry for
determination of the OBC population.
This process was directed to be completed
expeditiously. It was further provided that in order to keep
a parity with the population data of the OBCs so obtained,
it was necessary to add a decadal growth to the figures
obtained from census 2011 in respect of SC, ST and total
population, as was done during the previous delimitation
cum reservation process, 2012. The relevant portion of the
order of the commission is quoted below:-
"Whereas, as per the provisions laid down in the
above Rules the number of the Scheduled Castes or
the Scheduled Tribes or the Backward Classes
persons or the total population of a Gram Panchayat
or Panchayat Samiti or Zilla Parishad area, as the
case may be, or the proportion of the Scheduled
Castes or the Scheduled Tribes or the Backward
Classes population as aforesaid shall be determined
on the basis of the last preceding census of which the
relevant figures have been published; and
Whereas, the data pertaining to the last preceding
census, i.e. the Population Census 2011, has duly
been published and the figures for total population
as well as that of SC & ST population are available in
that Census data, they are to be used for the purpose
as above;
Provided that as the Directorate of Census
Operations, West Bengal as well as the Backward
Classes Welfare Department, being the competent
Department of the State Government, have informed
the Commission that there is no authenticated
record pertaining to the population figures relating
5
to the OBCs in the State; and as it has been provided
in the said Rules that when census figures or other
authenticated record is not available, it may be
determined on the basis of a local enquiry as per
directions of the Commission, the Commission, in
pursuance of the said Rules, has already issued an
order to the State Government in the Panchayat &
Rural Development Department to proceed to get
local enquiry conducted for determination of
constituency-wise OBC population figures, which
may include house to house enumeration,
consultation of any portion of the census report,
electoral roll of the West Bengal Legislative
Assembly or any other authenticated record that
may be of assistance and to make such population
figures available for the purpose of reservation with
the Prescribed Authorities concerned latest by
29.08.2022, vide its no. 2271-SEC/1E-106/2022
dated 19.07.2022;
Provided further that to keep parity with the
population data for OBCs so obtained, it is found
necessary to add decadal growth to the figures
obtained from Census 2011 in respect of SC, ST &
total population, as was previously done during the
previous delimitation cum reservation process, 2012
and as such the Census Directorate was
communicated with and that a clarification from
them was duly received to the effect that "the
estimated rate of growth of population during 2011
to 2021 would be 7.5 percent";
Now, therefore, the Commission after considering
all the above facts and in exercise of the powers
conferred by Article 243K of the Constitution of
India read with Section 3 of the West Bengal
Panchayat Elections Act, 2003 and Rules 22, 24 &
26 of the West Bengal Panchayat Elections Rules,
2006, hereby directs that for the purpose of
reservation of seats as well as reservation of office
bearers for the three-tier panchayat bodies in
connection with the forthcoming Panchayat General
Elections, the figures for total population as well as
that for the SC and ST categories shall be calculated
by adding the estimated rate of growth of population
during 2011 to 2021 i.e. 7.5 percent to the relevant
figures as published in Census 2011. "
The Commission directed that for the purpose of
arriving at the total population of SC, and ST categories, a
decadal growth of 7.5% to the relevant figure of census of
2011 should be added, but in the case of OBCs, a house to
house enumeration was to be made. By this process, the
6
population of OBC was calculated in respect of Mysora
gram panchayat and the percentage of the OBC population
of Mysora Gram Panchayet was found to be 13.63%, of the
total population. The total population was 4647.
The number of offices of the office bearers to be
reserved for SC, ST and OBC was calculated in terms of rule
2A (1)(a) of the 1975 rules. As per Explanation II, the
number of offices in a particular category was taken as 1 as
it came to 1.16. Consecutive serial numbers to all 223 gram
were assigned according to the sequence of numbers
assigned to the Legislative Assembly Constituencies, in
terms of Rule 2A(2)(a)(i). As and when the population
under SC, ST or OBC exceeded more than 5% of the total
population, the seat was reserved, as per Rule 2A(2)(a)(ii)
of the 1975 Rules. By this process, grams at serial No.-
28,30,31 34 and 35 came within the zone of consideration
for being reserved for ST candidates. Rule 2A(2)(a)(iii) of
the 1975 Rules was applied and those serial numbers were
arranged in ascending order into groups of fifty grams. The
roster for 1st term election was applied to determine
reservation of the office bearer for ST candidate according
to the Rules and the West Bengal State Election
Commission's order No. 3107-SEC/3R-145/2022 dated
November 29, 2022. The relevant portion of the order is
quoted below:-
"Whereas, the process of reservation for the office
bearers i.e. Pradhan & Upa-Pradhan for Gram
Panchayats and Sabhapati & Sahakari Sabhapati for
Panchayat Samiti has already been started under
Rule 2A of the West Bengal Panchayat
7
(Constitution) Rules, 1975 vide Commission's No.
2743-SEC/3R-138/2022 dated 31.10.2022;
Now, therefore, it is hereby ordered that the
Prescribed Authorities shall determine the number
of offices to be reserved for the Scheduled Tribes,
the Scheduled Castes, the Backward Classes and
Women from among the total number of offices of
Pradhan & Upa-Pradhan for Gram Panchayats and
Sabhapati & Sahakari Sabhapati for Panchayat
Samitis within a district as per provisions as laid
down in Section 18 of the West Bengal Panchayat
Elections Act, 2003 read with Rule 2A of the West
Bengal Panchayat (Constitution) Rules, 1975 and as
per rosters for the First Term of General Elections as
prescribed in the said Rules.
It is further ordered that the Prescribed Authorities
shall make necessary arrangements for publication
of the Draft of the Order for Reservation of Offices at
Gram Panchayats and Panchayat Samitis in Form 1A
on 07.12.2022 as per provisions of Rules ibid and
publish the same in such places where the Final
Order showing the Delimitation of Constituencies
and Reservation of Seats thereto were published.
It is further ordered that any person affected by such
order(s) may submit any objection or suggestion in
writing stating the reason thereof so as to reach the
Prescribed Authority within two weeks from the date
of publication of the Draft Order, i.e., upto
20.12.2022 and the Prescribed Authority shall
consider such objections or suggestions, if any,
received by him within the stipulated period and
dispose of the same from 21.12.2022 to 27.12.2022.
The date of publication of the Final Order in Form
1B will be communicated in due course."
Mysora was assigned serial No.28 in the process of
sequential numbering against Assembly Constituencies.
Thereafter it was arranged in ascending order into groups
of fifty grams. By following the first term roster, the office
of Pradhan of Mysora gram panchayat at Serial No.28, was
reserved for ST.
The contention of the petitioner that the seat of the
pradhan had never been reserved for OBC candidate which
led to denial of the right of the OBC population to be
represented by an office bearer (Pradhan) belonging to the
8
OBC category, cannot be entertained by a writ court. The
election is imminent.
The writ court should be slow to interfere in an
election process specially when the election is round the
corner. The decision of this court can only be restricted to
determining whether the executive action of the District
Election Panchayat Officer, relating to reservation of the
seat of the Pradhan of Mysora Gram Panchayat, had been
done in accordance with the provisions of law or not.
The contention of the petitioner that the non
reservation of the office of the Pradhan for a OBC
candidate in the last few elections, including the present
election resulted in discrimination, cannot be a ground for
allowing the writ petition. The authority has been able to
satisfy the court that the statutory provisions have been
followed.
This proceeding can only be restricted to
determining whether the executive action of the District
Election Panchayat Officer was in accordance with law or
whether the said decision was either tainted by malafide or
suffered from violation of the rules. The explanation given
by the District Election Panchayat Officer and the chart
prepared, indicate how the entire exercise of reservation
was done by the authority. The writ court cannot enter into
such domain of experts unless there is blatant violation of
any provision of law or the reservation had been done
without hearing the objections to the draft order.
9
The contention of Mr. Chatterjee that the OBC
population was never represented in the office of the
Pradhan of the said gram panchayat, is not to be decided by
this court in this proceeding. The notification under Form
1B of the Constitution Rules has already been published.
The District Magistrate acted on the basis of the
direction of the Election Commission which was first
issued sometime in July 2022. The process of delimitation
and reservation started at that time and continued through
phases. The District Election Panchayat Officer is bound by
the direction of the Commission. The Commission is the
supreme authority, empowered by the statute to pass
orders with regard to alteration of the delimitation and
reservation. The petitioner did not approach the
Commission at any stage.
So far the method of household survey adopted for
ascertaining OBC population is concerned, the judgment of
the Hon'ble Supreme Court in the matter of Anugrah
Narain Singh and Another vs. State of U.P. and
Others reported in (1996) 6 SCC 303 is referred to. The
relevant portions are quoted below:-
"33. In our view, the argument advanced on behalf
of the State must be upheld. It is true that Article
243-P(g) has defined 'population' to mean
"population as ascertained by the last preceding
census of which the relevant figures have been
published". The delimitation of constituencies and
also preparation of electoral rolls will have to be
done on the basis of the figures available from the
last census which was taken in 1991. Reservation of
seats for Scheduled Castes and Scheduled Tribes is
mandatory under Article 243-T of the Constitution.
This must also be done on the basis of the available
figures from the census. Clause (6) of Article 243-T
of the Constitution has made it permissible for the
10
State Government to reserve seats for other
Backward Classes. The census of 1991 has not
enumerated the number of persons belonging to
Backward Classes. Therefore, in order to reserve
seats for citizens belonging to Backward Classes,
their number will have to be found out. Clause (6) of
Article 243-T has impliedly empowered the State
Government to ascertain the Backward Classes and
the number of people belonging to such classes.
Otherwise, the provisions of clause (6) of Article
243-T will become otiose and meaningless. Merely
because, such an enumeration of people belonging
to Backward Classes was made, does not mean that
the figures enumerated by the last census were
discarded. The latest available census figures had to
be the basis for delimitation of the constituencies,
preparation of electoral rolls and also for reservation
of seats for Scheduled Castes, Scheduled Tribes and
women. But census figures are not available for
persons belonging to Backward Classes. The next
census will be in the year 2001. There is no way to
reserve seats for Backward Classes in the meantime
except by making a survey of the number of persons
belonging to such classes for the purpose of giving
them assured representation in the municipal
bodies. To do this exercise is not to do away with the
last available census figures but to find out what was
not to be found by the last census. Had such
counting been done in the census, then it would not
have been open to the State Government to embark
upon a survey of its own. The State Government
here had only two choices. It could say that there
will be no reservation for people belonging to
Backward Classes because, the census figures of
such people are not available or it could make a
survey and count the number of people belonging to
the Backward Classes and reserve seats for them in
the municipal bodies. The State Government has
taken the latter course. This is in consonance with
the provisions of clause (6) of Article 243-T.
Therefore, the survey made by the State Government
for finding out the number of persons belonging to
Backward Classes was not in any way contrary to or
in conflict with any of the provisions of the
Constitution.
34. Moreover, the U.P. Act of 1959 was amended to
make it consistent with the provisions of Part IX-A
of the Constitution. 'Population' was defined in
Section 2(53-A) to mean "population as ascertained
at the last preceding census of which the relevant
figures have been published". This is identical to the
definition given in Article 243-P(g). Section 32
which deals with delimitation, inter alia, provides
that the State Government shall by order determine
the number of seats to be reserved for Scheduled
Castes, Scheduled Tribes, Backward Classes and for
11
women. Section 7 lays down that in every
Corporation, seats shall be reserved for Scheduled
Castes, Scheduled Tribes and Backward Classes.
There is a second proviso to Section 7 which lays
down that if the figures of Backward Classes are not
available, their population may be determined by
carrying out a survey in the manner prescribed by
the rules. These provisions come within the ambit of
the phrase "any law relating to the delimitation of
the constituencies or allotment of seats to such
constituencies". The validity of this law cannot be
challenged because of the protection given by Article
243-ZG of the Constitution. Therefore, the question
whether the survey made by the State Government
to ascertain the figures of persons belonging to
Backward Classes was lawful or not cannot be raised
in any Court."
The third last proviso to Section 4(2) of the
West Bengal Panchayat Act, 1973 provides as
follows:-
"Provided also that the Slate Election
Commissioner may, at any time, for reasons
to be recorded in writing, by order, direct the
prescribed authority to make fresh
determination of the number of members of a
Gram Panchayat or fresh reservation on
rotation of the number of seats of such Gram
Panchayat and, on such order being issued by
the State Election Commissioner, the
determination of the number of members or
the number of seals to be reserved or the
sequence of rotation of reservation of seats or
any combination of them as may be specified
in such order shall not be varied for the next
two successive general elections"
In State of Goa v. Fouziya Imtiaz Shaikh,
reported in (2021) 8 SCC 401, the Hon'ble Apex
Court recognized the power of Commissioner and
held as follows:-
"68.1. Under Article 243-ZG(b), no election to
any municipality can be called in question
except by an election petition presented to a
12
Tribunal as is provided by or under any law
made by the legislature of a State. This would
mean that from the date of notification of the
election till the date of the declaration of result a
judicial hands-off is mandated by the non
obstante clause contained in Article 243-ZG
debarring the writ court under Articles 226 and
227 from interfering once the election process
has begun until it is over. The constitutional bar
operates only during this period. It is therefore a
matter of discretion exercisable by a writ court
as to whether an interference is called for when
the electoral process is "imminent" i.e the
notification for elections is yet to be announced.
68.4. Under Article 243-ZA(1), the SEC is in
overall charge of the superintendence, direction
and control of the preparation of electoral rolls,
and the conduct of all municipal elections. If
there is a constitutional or statutory infraction
by any authority including the State
Government either before or during the election
process, the SEC by virtue of its power under
Article 243-ZA(1) can set right such infraction.
For this purpose, it can direct the State
Government or other authority to follow the
Constitution or legislative enactment or direct
such authority to correct an order which
infracts the constitutional or statutory mandate.
For this purpose, it can also approach a writ
court to issue necessary directions in this
behalf. It is entirely up to the SEC to set the
election process in motion or, in cases where a
constitutional or statutory provision is not
followed or infracted, to postpone the election
process until such illegal action is remedied.
This the SEC will do taking into account the
constitutional mandate of holding elections
before the term of a municipality or Municipal
Council is over. In extraordinary cases, the SEC
may conduct elections after such term is over,
only for good reason.
......
......
68.10. The result of this position is that it is the duty of the SEC to countermand illegal orders made by any authority including the State Government which delimit constituencies or allot seats to such constituencies, as is provided in Proposition 68.4 above. This may be done by the SEC either before or during the electoral 13 process, bearing in mind its constitutional duty as delineated in the said proposition." The Hon'ble Apex Court has also settled the law with regard to interference by the writ court in matters relating to elections. Usually a judicial hands off is practised by the writ court in cases when the election is notified. When the election is imminent, the court can exercise its discretion sparingly. Such discretion cannot amount to rewriting the rules and interfering with the procedure followed, unless the petitioner can prove blatant illegality.
In the decision of Boddula Krishnaiah and anr. Vs. State Election Commissiner, A.P. and Ors. reported in (1996) 3 SCC416, the Hon'ble Apex court held that a writ petition challenging delimitation/reservation could be entertained only if the draft order had not been published or objections were neither invited to the draft order nor entertained by the authority.
Under such circumstances the report filed by the District Panchayet Election Officer, satisfies the court that the decision making process of the executive was not vitiated. The plea of the petitioner who is a voter belonging to OBC category, that a person from the said category was never elected as a Pradhan, is not open to judicial review.
The petitioner was always at liberty to approach the Commission with his grievance. If such approach is made in future, the same shall be disposed of in accordance with 14 law and preferably within a week from receipt of the petitioner's representation.
Accordingly, the writ petition is disposed of. However, there will be no order as to costs. All the parties are directed to act on the basis of the server copy of this order.
(Shampa Sarkar, J.)