Research › Search › Judgment

Calcutta High Court · body

2001 DIGILAW 457 (CAL)

Akbar Hossain v. District Panchayat Officer

2001-07-30

PRATAP KUMAR RAY

body2001
JUDGMENT 1. The petitioner, at present holding the post of Pradhan of Kurshamari Gram Panchayat has challenged the order dated 29.1.99 passed by the District Panchayat Officer, Cooch Behar, an appellate authority under Section 213A sub-section (12) of West Bengal Panchayat Act, 1973 in Appeal Case No.1 of 1998 as well as order issued under Memo No. 1171/N-31/98 dated 3.11.98 passed by the Block Development Officer, Mathabhanga-I communicating the decision of the prescribed authority dated 3.11.98 disqualifying the petitioner by removing him from his membership from the said Gram Panchayat on hearing the complaint in terms of Section 213A sub-section (7) of the West Bengal Panchayat Act (hereinafter referred to as the said Act) as filed by one Ramesh Chandra Barman claiming himself as the leader of the recognised political party, being Communist Party of India (M) in respect of the elected representative of that party in the said Gram Panchayat. 2. It is submitted by the petitioner herein that there was no cause of action to entertain the application filed by the said Ramesh Chandra Barman who alleged himself to be the leader of the elected members of the said Gram Panchayat of recognised political party, C.P.I. (M), that he was not at all a leader selected by all elected members of the said Panchayat who contested with the political symbol of C.P.I. (M) in terms of Section 213A(3) of the said Act. It is further submitted that in terms of Section 213A sub-section (7) any complaint by a competent person as a leader of a recognised political party since is required to be filed by a verified petition in terms of West Bengal Panchayat (Members' Disqualification) Rules, 1994, but in the instant case, when the same was not verified admittedly by the alleged leader Sri Barman, the prescribed authority had no jurisdiction even to entertain the matter and to pass the order cancelling the election under the disqualification clause. It is contended further by the petitioner that the said rule requires that the verification is to be made in terms of Order 6 Rule 15 of the Code of Civil Procedure and such rule is mandatory in nature and, accordingly, there was a violation of such mandatory provision and as such, the prescribed authority had no jurisdiction to decide the question. It is further submitted that the prescribed authority being a statutory authority under a statute, is required to act in terms of the statute, and unless and until an application is placed as per statute, the prescribed authority has no jurisdiction to decide the question. It is submitted further that since the complainant Sri Barman was not at all a leader of C.P.I. (M), there was no question of passing such an order. Learned Advocate of the petitioner relied upon on the point of exercising of power by a statutory authority, the judgment reported in (1) AIR 1964 SC 1680 . 3. Learned Advocate for the opposite party Nos. 10, 11 and 15, on the other hand submitted that the original complaint as filed by Sri Barman on 10.9.98 though admittedly was not verified, but the same was a procedural defect for which the complainant's substantive right of adjudication of the matter as per law, could not be denied. It is further submitted that a procedural defect cannot take away the substantive right. It is also submitted that since there was an endorsement by the Secretary, Cooch Behar District Committee of C.P.I. (M), the question of verification was simply a procedural defect, which easily could be cured and in that event, the impugned order as passed was justified and the petitioner has not been prejudiced. 4. Considering the rival contentions of the parties, hence, the point for decision in this matter, in my view, entirely depends upon interpretation of the statutory provision, namely, Section 213A, vis-a-vis. the concerned rule regarding filing of a complaint for declaring membership of an elected member as cancelled taking resort to the disqualification clause as mentioned thereto. Under sub-section (7) of Section 213A of the said Act, a complaint was filed by Sri Barman claiming himself as the leader of elected members of the said Panchayat in the ticket of political party C.P.I. (M). Under sub-section (7) of Section 213A of the said Act, a complaint was filed by Sri Barman claiming himself as the leader of elected members of the said Panchayat in the ticket of political party C.P.I. (M). Sri Barman lodged a complaint against the petitioner under Section 213A (7)(a)(ii) of the said Act on the ground that the petitioner though was elected member on the ticket of the political party C.P.I. (M), in utter disregard to the direction as passed by the leader of elected members from such political party relating to such Panchayat, he did not support the official candidate of the party, but himself got elected with the help of six of other political party members, namely, Trinamul Congress and Bharatiya Janata Party, including some members elected on the ticket of C.P.I. (M). The relevant provision of Section 213A(7)(a)(ii) reads as follows: “(7) The leader of any recognised political party referred to in sub-section (3) may at any time file a petition endorsed by the General Secretary, or, if there is no General Secretary of the district unit of such recognised political party to the prescribed authority referred to in sub-section (1), stating that (a) one or more members of such recognised political party have (ii) have exercised the voting right contrary to the manner of voting of the majority members set up by such recognised political party, in the Panchayat, or Sub-section (8) is the provision by which such complaint is to be filed, which reads thus : "(8) Every petition referred to in sub-section (7)(a) shall contain a concise statement of the material facts on which the petitioner relies, and (b) shall be accompanied by copies of the documentary evidence, if any, on which the petitioner relies and, where the petitioner relies on any information furnished to him by any person or persons, a statement containing the names and addresses of such person or persons and the gist of such information as furnished by such person or each of such persons." 5. Sub-section (9) vests the jurisdiction of the prescribed authority to determine the complaint as filed under sub-section (7), which reads as follows : “(9) On receipt of the petition referred to in sub-section (7), the prescribed authority referred to in sub section (1) shall, as soon as possible within six weeks from the date of the receipt of such petition, proceed to make an enquiry to satisfy himself, among others, as to- (a) the common decision in regard to the manner of voting to be exercised by the majority members set up by the recognised political party, and (b) whether the member or members against whom such petition is filed, exercised the voting right, in a meeting of the Panchayat contrary to such manner of voting." 6. The West Bengal Panchayat (Members' Disqualification) Rules, 1994 under Rule 5 provides the procedure following which any petition under sub-section (7) of Section 213A of the said Act is to be filed, which reads as follows ; “5. Reference by petition.-Every petition referred to in sub-section (7) of Section 213A and the annexure thereto, if any, shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings." 7. For adjudication of this matter, another sub-section (3) of Section 213A of the said Act which relates to election of leader amongst the elected members of the Panchayat of respective political parties is to be looked into. The said provision is quoted in extenso for appreciation of the matter : “(3) 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 this section 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 amongst themselves to be the Leader and such Leader shall, within fifteen days from the date of such selection, furnish to the prescribed authority referred to in sub-section (1)(i) a copy of the resolution, (ii) a signed statement containing the names, addresses and constituencies of himself and other members set up by such recognised political party, and (iii) a copy of a set of rules and regulations, if any, by whatever name called of such recognised political party." 8. In terms of sub-section (3) of Section 213A which provides that a leader amongst the elected members of a particular political party relating to the election in the Panchayat is to be selected in a meeting by adopting resolution to that effect and such resolution is to be communicated to the prescribed authority. Admittedly, from the order of the prescribed authority, it appears that the present petitioner though was elected with the symbol of political party C.P.I. (M), but he was not present in the meeting on 26.7.98 when Sri Barman was elected as leader of the said Gram Panchayat members to represent the political party C.P.I. (M). It is the case of the present petitioner that no meeting was held on 26.7.98 by the elected members of the Panchayat who had been elected with the symbol of political party C.P.I. (M) and he was not at all noticed and, accordingly, he could not attend the meeting. It is an admitted fact even in the complaint as filed by Sri Barman and also from the order sheet dated 3.11.98 of the prescribed authority that out of 7 members of the said Gram Panchayat who were elected with the symbol of the political party C.P.I. (M), the petitioner was absent in the said meeting. There was no discussion on the issue whether the petitioner was noticed and he deliberately remained absent. Be that as it may, sub-section (3) of Section 213A of the said Act provides (that elected members set up by the recognised political parties, shall, select one member from amongst themselves to be the leader. Hence, elected members when has not been defined with the prefix 'majority', it will be deemed for interpretation of the particular provision that all the elected members set up by the recognised political parties are required to take a decision jointly in a meeting for selection of their leader in the Panchayat. In the instant case, it is an admitted position that all elected members, that is total 7 did not attend any meeting in terms of sub-section (3) of Section 213A to select Sri Barman as the leader of the said party. In the instant case, it is an admitted position that all elected members, that is total 7 did not attend any meeting in terms of sub-section (3) of Section 213A to select Sri Barman as the leader of the said party. Accordingly, in the instant case, the condition precedent and/or sine qua non of filing a complaint in terms of subsection (7) of Section 213A of the said Act is absent, namely, Sri Barman was not even accepted by the petitioner as leader of the elected members set up by the recognised political party, namely, C.P.I. (M). Under sub-section (7) of Section 213A of the said Act, a petition on issue of declaring an elected member as disqualified on the grounds as mentioned thereto, is required to be filed in terms of the West Bengal Panchayat (Members' Disqualification) Rules, 1994 (hereinafter referred to as the said Rules). Rule 5, as already quoted, of the said Rules provides that every such petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings that is, it must be verified as per Order 6 Rule 15 of the Code of Civil Procedure. The question is whether this provision of verification of a petition is a directory provision or mandatory provision as the same will decide the fate of this application. It appears that by a particular petition, a complaint is being lodged on certain allegations against an elected member to disqualify him to remain as a member of the Panchayat. Hence, a penal consequence is to be suffered by a member concerned who has already been elected. As there is a penal consequence, surely, the complaint must be in terms of the procedures as prescribed, and, accordingly, the procedural law, namely, Rule 5 under the said Rules prescribing the manner of verification following the verification of pleadings in terms of the Code of Civil Procedure, in my view, is a mandatory provision and not a directory provision. The point whether the requirement of the procedure under Bihar Panchayati Rules is mandatory or directory has been considered in the judgment reported in (2) AIR 1947 Patna page 207, wherein it is held that the said provision is mandatory on interpreting the statutory provisions of Bihar Panchayati Rules. The point whether the requirement of the procedure under Bihar Panchayati Rules is mandatory or directory has been considered in the judgment reported in (2) AIR 1947 Patna page 207, wherein it is held that the said provision is mandatory on interpreting the statutory provisions of Bihar Panchayati Rules. In the instant case, it appears that a complaint under sub-section (7) of Section 213A of the said Act is required to be filed with proper verification. In the instant case, admittedly, there was no verification of such complaint filed by Sri Barman claiming himself as the leader of recognised political party C.P.I. (M). Hence, when the show-cause notice was issued on this complaint to the present petitioner by the prescribed authority to adjudicate the matter in exercise of the power vested upon him under sub-section (9) of Section 213A of the said Act, a categorical point was taken by the petitioner in Paragraph 18 of his objection as filed before the prescribed authority by contending to this effect :- "That the complaint lodged by Sri Ramesh Chandra Barman is also not maintainable in form and in law inasmuch as it is not verified by him (the complainant) as per Rule 15 of Order VI of the Code of Civil Procedure as laid down in Rule 5 of the West Bengal Panchayat (Members' Disqualification) Rules, 1994. The Secretary of the Coach Behar District Committee of the C.P.I. (M) Party besides endorsing the complaint has verified the same, but he is not legally entitled to verify the complaint. The proceeding on such a complaint, which is not legally maintainable is liable to be quashed and dropped, forthwith." 9. Since a categorical point was taken on the issue of maintainability due to lack of verification, the prescribed authority, before exercising the power under sub-section (9) of Section 213A of the said Act, was required to consider the issue as a preliminary issue by framing the same before adjudication of the matter, but in the instant case, it appears that the prescribed authority did not frame any preliminary issue on this point, namely, without any verification whether any application was legally entertainable under the statute. It appears from the order of the prescribed authority that this point has not at all been considered. It appears from the order of the prescribed authority that this point has not at all been considered. Since the prescribed authority under the statute under sub-section (9) is legally authorised to entertain application in terms of sub-section (7) thereof, when there is no petition in terms of subsection (7) of Section 213A of the said Act, he had no jurisdiction to decide the matter. A statutory body must act in terms of the statute. This point is a settled law. The prescribed authority is a creature of statute. He cannot act beyond the statute. It is now a settled legal position that a statutory authority must act in terms of the statute. Reference is made to the judgments reported in (3) 40 CWN 17 ; (4) AIR 1949 Calcutta 20; (5) 1974 (2) SCC 506 ; (6) 1995 (2) CLJ 270 ; and AIR 1964 SC 1680 . Furthermore, under Article 335 in the Book of Crawford's Interpretation of Statute, it has been clearly held that a statutory body is empowered to act in terms of the statute and he cannot act otherwise. It has been a settled legal position now that a private individual can do everything save and except as are not prohibited under the law, but a statutory body must act in terms of the statute and cannot act beyond the statute as prescribed. In the instant case, a mandatory provision for filing of an application in terms of sub-section (7) of Section 213A has been violated, and in the eye of law there was no petition filed by Sri Barman as was legally entertainable by the prescribed authority under the Act, to determine the issue. The endorsement of the Secretary of the District Committee has not cured such defect, as has been wrongly held in favour of complainant by the appellate authority, order of whom is under challenge herein. The word 'endorsement' means "to support", and the word endorsement is not synonymous with the word verification. Since the original complainant Sri Barman even did not verify the petition, so there was no petition in terms of subsection (7) of Section 213A of the said Act, and when there was no petition, there was no question of endorsement by anybody. The word 'endorsement' means "to support", and the word endorsement is not synonymous with the word verification. Since the original complainant Sri Barman even did not verify the petition, so there was no petition in terms of subsection (7) of Section 213A of the said Act, and when there was no petition, there was no question of endorsement by anybody. Accordingly, the finding of the appellate authority under the statute that endorsement was suffice to consider that the petition was verified, is not legally sustainable and to that effect the contention as raised by the learned Advocate of the opposite parties herein also is not legally sustainable. 10. I have already held that there is a penal consequence as to be suffered by an elected member, the petition, accordingly, is required to be verified and it is a mandatory provision. The purpose of incorporation of such provision surely has an obvious reason so that unnecessary litigation is not cropped up regarding election of any member in a Panchayat. A verified petition, accordingly, binds a party who lodges a complaint against someone, otherwise no responsibility is taken by anybody so far as the statements as made in the complaint. No quasi judicial proceeding can proceed when a penal consequence is the ultimate order without having any verification of such type of complaint. Hence, the jurisdiction vested to the prescribed authority as per the statutory provision by the wisdom of the legislature a mandatory direction was given by mentioning the manner by which a petition of such nature would be filed, and in the absence of such a petition cannot be said as a petition under sub-section (7) of Section 213A of the said Act, and in that view of the matter, the prescribed authority also had no jurisdiction to entertain and proceed with the matter. 11. Considering the entire issue in question on the interpretation of the statutory provision, since the prescribed authority did not at all consider that aspect and the appellate authority considered that aspect wrongly upon considering that the endorsement as was made by the Secretary of the District Committee as sufficient, in my view, the impugned orders cannot be sustained. 11. Considering the entire issue in question on the interpretation of the statutory provision, since the prescribed authority did not at all consider that aspect and the appellate authority considered that aspect wrongly upon considering that the endorsement as was made by the Secretary of the District Committee as sufficient, in my view, the impugned orders cannot be sustained. As I have already held that all these provisions are mandatory provisions so far as lodging of a complaint is concerned, and the manner of filing such application, the impugned orders cannot be sustained and, accordingly, those are set aside and quashed. The revisional application is allowed. Xerox certified copy of the order, if applied for, be supplied expeditiously.