Research › Search › Judgment

Calcutta High Court · body

2000 DIGILAW 606 (CAL)

ISRAIL v. STATE OF WEST BENGAL AND ORS

2000-12-05

D.K.SETH

body2000
D. K. SETH, J. ( 1 ) MR. BARI has filed an application for addition of party. The application is allowed. The applicant be added as respondent in this writ petition. ( 2 ) AFTER the application for addition of party is allowed, by consent of the parties this matter is taken up for hearing. This matter is treated as on day's list for hearing. All the learned counsel for the respective parties had addressed the Court at length. ( 3 ) MR. Chatterjee, the learned counsel for the petitioner has taken 3 points assailing the order passed by the appellate authority in the proceeding under section 213a of the West Bengal Panchayat Act, 1973 declaring the petitioner disqualified. ( 4 ) THE first point was that Md. Habibulla claiming to be the leader of the elected member of the political party was never elected as leader. No meeting was ever held neither any information was given to the prescribed authority within 15 days from the date of such election. Alternatively, he contended that even if it is assumed but not admitting that the leader was so elected then also it appears that he was elected on 21st July, 1998 whereas the first meeting of the elected members of the Panchayat was held on 23rd July, 1998. According to him, unless the first meeting is held there can not be any election of the leader in view of the provisions provided therein to the extent that within one month from the first meeting the leader has to be elected and therefore there can not be any question of election of a leader before the first meeting. ( 5 ) THE second point Mr. Chatterjee has urged is that the copy of the complaint under section 213a had never been served upon him and therefore he had suffered prejudice. He had relied on a decision in support of his contention with regard to the second point to which reference would be made at appropriate stage. ( 6 ) THE third point raised by Mr. Chatterjee was that the prescribed authority had taken peculiar approach for the purpose of hearing of the matter. In as much as he used to call one of the parties or the witnesses at a time. ( 6 ) THE third point raised by Mr. Chatterjee was that the prescribed authority had taken peculiar approach for the purpose of hearing of the matter. In as much as he used to call one of the parties or the witnesses at a time. No notice either was given to the petitioner to remain present on all the dates when the matter was taken up for hearing nor he was given any opportunity to cross-examine. Thus the prescribed authority has violated the principles of natural justice. ( 7 ) WHILE elaborating his contention Mr. Chatterjee pointed out that the appellate authority has not dealt with this question in appropriate manner. He has proceeded in a biased manner and had in fact confused the whole issue while supporting the order passed by the prescribed authority. The infirmity in the order of the prescribed authority has neither been explained not been dealt with by the appellate authority. As such the orders impugned should be quashed. ( 8 ) THE learned counsel for the added respondent Mr. Bari had pointed out that the leader was duly elected and that every procedure has been followed with regard to the election of the leader as provided in sub-section 3 of section 213a and that the copy of the complaint was served upon the petitioner, as is apparent from the statements made in paragraph 20 of the writ petition where the petitioner has admitted that he had received a copy of the complaint. He had also pointed out that there is nothing in sub-section 3 of section 213a to prevent election of a leader before the first meeting is held. According to him, it is only the outer limit that has been specified. The inner limit has not been specified. He contended that the contention of Mr. Chatterjee to the effect that the members do not become elected members of the Panchayat until the first meeting is held since it is only after the first meeting the oath is administered, is not a sound proposition. It is only the members elected in the Panchayat even though they may not have taken oath there is no bar in electing a leader of a particular party so as to enable them to choose the Savapati or the Prodhan in the first meeting itself in which the Prodhan or Savapati is elected. It is only the members elected in the Panchayat even though they may not have taken oath there is no bar in electing a leader of a particular party so as to enable them to choose the Savapati or the Prodhan in the first meeting itself in which the Prodhan or Savapati is elected. Therefore, it is more necessary that such leader should be elected before the first meeting but in any event such election is to be held within one month from the first meeting. He also pointed out that the procedure has been duly followed in the proceeding and proper opportunity was given to the respective parties and there is no infirmity. ( 9 ) MR. S. Dasgupta, the learned counsel for the State has supported the contention of Mr. Bari and had relied on affidavit in opposition filed on behalf of the State as well as the material records to show that sub-section 3 was duly complied with and he had also pointed out from the order passed by the prescribed authority that due process has since been followed. ( 10 ) MR. Subir Bhattacherjee, the learned counsel for respondent No. 5 has also pointed out that all formalities were duly complied with and he had also adopted the submissions of other two counsel on behalf of the respondents. He had also relied upon copies of the documents which were sent to the office of Block Development Officer, being the prescribed authority. From the said copy he has pointed out that it was received in the office of the prescribed authority on 21st July, 1998. Thus sub-section 3 was duly complied with. ( 11 ) I have heard the respective learned counsel at length. ( 12 ) SO far as the question that sub-section 3 has not been complied with, as raised by Mr. Chatterjee, can not be sustained in view of the materials placed by the State in their affidavit in opposition where copies of such document have since been annexed showing that sub-section 3 has since been complied with. From the copies produced by the learned counsel for respondent No. 5 also it appears that sub-section 3 was duly complied with. In as much as from the said records it appears that a meeting was held on 21st July, 1998 in which Md. From the copies produced by the learned counsel for respondent No. 5 also it appears that sub-section 3 was duly complied with. In as much as from the said records it appears that a meeting was held on 21st July, 1998 in which Md. Habibulla was elected as leader of a particular political party CPI (M ). The said document appears to have been addressed to the Block Development Officer being the prescribed authority which was duly received by the said authority under its seal and signature on 21st July, 1998. The notice that was issued for the purpose of election of the leader also bears the signature of the members of the said political party who were elected in the Panchayat. The resolution and/or minutes of the meeting also appears to have been signed by the respective members of the said political party who have since been elected in the Panchayat excepting that of the petitioner. The particulars of the elected members have also been forwarded by the said leader Md. Habibulla. Thus it appears that such notices were sent within 15 days from the date of election of the leader. ( 13 ) NOW the question remains as to whether such leader could be elected before the first meeting. Sub-section 3 of section 213a provides that as soon as may be within one month from the date of the first meeting of a Panchayat or within one month from the date on which the said provision comes into force, as the case may be, elected members set up by the recognised political parties shall by adopting a resolution, select one member from among themselves to be the leader and such leader shall within 15 days from the date of such selection, furnish the prescribed authority as referred to in sub-section 1 a copy of the resolution, a signed statement containing the names and addresses and constituency of himself and other members set up by such recognised political party and a copy of a set of rules and regulations, if any, in whatever named called, of such recognised political party. From the record it appears that a copy of the resolution and the statement as well as the set of rules have since been furnished by Md. Habibulla, the elected leader. From the record it appears that a copy of the resolution and the statement as well as the set of rules have since been furnished by Md. Habibulla, the elected leader. ( 14 ) SO far as the question as to whether such election could be made before the first meeting is concerned, it appears that sub-section 3 does not provide any mandate to the extent that the election of such leader can not be held before the first meeting. On the other hand, it opens with the expression 'as soon as may be' followed by the expression 'within one month from the date of first meeting. ' Thus the phrase 'as soon as may be' makes it clear that it is to be done as early as possible and the expression 'within one month from the date of first meeting' has set down a guide line purporting to set up the outer limit. If the intention of the legislature was to make the period mandatory in that event it would have used an expression that such election of leader is to be made after the first meeting and within one month from the date of such first meeting. Then again, if such an interpretation as contended by Mr. Chatterjee is accepted in that event it will not serve the purpose and the object for which it was so formulated. In as much as in the first meeting the election of Prodhan or Savapati is to be held. A recognised political party may seek to protect its interest by election of its member as Prodhan or the Savapati, as the case may be. Therefore, there is no bar in selecting such leader even before the first meeting is held. It can not be said that the members elected to the Panchayat can not be said to be elected members until the first meeting is held because it is only in the first meeting the oath is administered. In as much as the members so elected may not hold his office and may not discharge his function until he takes oath. But it remains a fact that he was so elected in the election as a member of the Panchayat on being set up by a political party. Therefore, even before taking oath the leader can be elected. In as much as the members so elected may not hold his office and may not discharge his function until he takes oath. But it remains a fact that he was so elected in the election as a member of the Panchayat on being set up by a political party. Therefore, even before taking oath the leader can be elected. The leader of such political party does not hold office of the Panchayat by reason of his election. It is only a question of convenience for the recognised political party for certain purposes, particularly, those within the meaning of section 213a. Thus it can not be said that the meeting can not be held before the first meeting. ( 15 ) N view of the discussion above, I am unable to accept the submissions of Mr. Chatterjee. ( 16 ) SO far as the second point is concerned, though in paragraph 20 of the writ petition it is admitted that a copy of the complaint was served but it was served on a date after the decision of the Prescribed Authority; inasmuch as the copy was admitted to have been served on 26th October, 1998 whereas the order of the Prescribed Authority was passed on 9th October, 1998, thus the submissions in paragraph 20 of the writ petition is not a pointer to the extent that a copy of the complaint was served. Be that as it may, it appears that the petitioner had given his deposition in the explanation itself and had defended the case because from such deposition it appears that he was aware of the case as against him. Thus, even if a copy of the complaint was not served upon him, he does not seem to have been prejudiced by reason of such non-service inasmuch as from the materials produced before this Court it appears that the petitioner had taken all the defence which could be available to him and he participated in the proceedings knowing fully as to the case that was made out against him. Therefore, this technical defence cannot be a ground for setting aside the order of the Prescribed Authority. However, it may be noted that the Prescribed Authority in its order dated 27. 8. 1998 directed that the notices be issued to all concerned including Md. Habibulla. Further in the order of the Prescribed Authority dated 28. 8. Therefore, this technical defence cannot be a ground for setting aside the order of the Prescribed Authority. However, it may be noted that the Prescribed Authority in its order dated 27. 8. 1998 directed that the notices be issued to all concerned including Md. Habibulla. Further in the order of the Prescribed Authority dated 28. 8. 1998 it is mentioned that the notices were duly served and Service return filed, but in the said order though it has not been mentioned that the complaint was also served and in the absence of any material to the contrary the said order is to be accepted that it was properly served and that presumption is to be raised that the complaint was also served along with the notice. Be that as it may, much importance may not be given to the absence of the copy of the complaint on the petitioner in the facts and circumstances of this case. Mr. Chatterjee has cited the decision in the case of Bhagat Ram Patanga v. The State of Punjab reported in AIR 1972 SC 1571 to contend that non-service of the complaint will vitiate the whole proceeding. The said ratio cannot be attracted in the present case in view of the discussion made above. Mr. Chatterjee was also relying on a decision in the case of Mayawati v. Markandeya Chand and others reported in 1998 (8) Supreme Today 16 in support of his contention that unless a leader is properly elected, he cannot be permitted to lodge a complaint for disqualification. In the present case, the leader having been elected as above, the ratio of the said decision cannot be attracted. ( 17 ) NOW let us examine the question raised by Mr. Chatterjee as to the violation of the principle of natural justice with regard to the proceedings itself. The entire proceedings have since been annexed as annexure 'b' to the affidavit-in-opposition on behalf of Respondent Nos. 1, 2 and 3. It appears from the said proceedings that the notice were being issued to the respective different parties on different dates. It is only that Md. Habibulla was directed to be heard on 3rd September 1998 and Mr. Israil on 4th September, 1998 though even notices were issued to all concerned, but it does not appear that Israil was asked to appear on 3rd September, 1998. It is only that Md. Habibulla was directed to be heard on 3rd September 1998 and Mr. Israil on 4th September, 1998 though even notices were issued to all concerned, but it does not appear that Israil was asked to appear on 3rd September, 1998. Neither it appears that the petitioner, Israil, was allowed to cross-examine the other witnesses. Similarly the witnesses were also called separately. There was nothing to indicate that these witnesses were permitted to be cross-examined by the petitioner or that the petitioner had any opportunity to cross-examine them. Thus, it appears that in the proceedings proper procedure has not been followed and that rules of audi alteram partem has not been followed by reason of the absence of any opportunity to the petitioner to cross-exam in the complainant or the witnesses concerned. ( 18 ) THE Appellate Authority did not engage itself in dealing with this aspect and has not gone into the same. Thus, the order of the Appellate Authority also appears to have suffered from perversity in view of the discussion made above. ( 19 ) FOR all these reasons, this writ petition succeeds only on the last point. Therefore, the orders impugned cannot be sustained and are hereby set aside. However, the Prescribed Authority is directed to proceed afresh after giving notice to the respective parties conveying to all of them to appear in the hearing in order to allow them to participate in the proceedings by affording the complainant as well as the witnesses and the petitioner to cross-examination by each other, if any of them wants to do so. Such proceedings may be completed within a period of two months from the date of communication of this order. However, none of the parties shall take the adjournment. ( 20 ) THE Appellate Authority shall conclude the appeal within a period of one month from the date, if any appeal is so preferred. Let the materials already produced in the proceedings be treated as the records of the said case. The parties may be permitted to produce further documents in support of the respective cases, if they are so advised. Let a writ of Certiorari be issued accordingly by quashing the impugned orders. This writ petition is thus allowed. There will be no order as to costs. The parties may be permitted to produce further documents in support of the respective cases, if they are so advised. Let a writ of Certiorari be issued accordingly by quashing the impugned orders. This writ petition is thus allowed. There will be no order as to costs. Let xerox certified copy of the operative portion of this order be given to the parties on the undertaking that they will apply for the certified copy. Let xerox certified copy of this order, if applied for, be given within seven days. Petition allowed.