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2001 DIGILAW 556 (CAL)

Mohit Sengupta v. State of West Bengal

2001-08-30

D.P.Kundu

body2001
JUDGMENT D.P. Kundu, J. : This writ proceeding relates to dispute regarding election of Chairman in Raiganj Municipality, Raiganj, District Uttar Dinajpur. 2. Shri Mohit Sengupta, the writ petitioner is a Councillor of the aforesaid Raiganj Municipality. Raiganj Municipality consists of twenty-six Councillors. The last election of the Councillors of Raiganj Municipality was held on 15th July, 2001. The result of the election was declared on 17th July, 2001 and the party-wise position in the election was as follows: 1. Indian National Congress - 10 2. CPI(M) - 9 3. CPI - 1 4. BJP - 1 5. Independent - 5 Total - 26 3. A Notification was duly published on July 18, 2001 publishing the names of the elected Councillors. On 27th July, 2001 all the twenty six Councillors of Raiganj Municipality took oath of allegiance to the Constitution of India and in terms of Rule 3 of the West Bengal Municipalities (Procedure and Conducting of Business) Rules, 1995 (hereinafter referred to as the said Rules) elected Shri Monindra Kumar Sarkar, Councillor elected as a CPI(M) candidate from Ward No. 10 of Raiganj Municipality, as President for conducting election of Chairman of the said Municipality. Section 17 sub-section (1) of West Bengal Municipal Act, 1993 (hereinafter referred to as the said Act) lays down that the Board of Councillors, in its first meeting under section 50B shall elect, in accordance with such procedure as may be prescribed, one of its elected members to be the Chairman who shall assume office forthwith after taking oath of secrecy under section 50A. Section 2 sub-section (47) of the said Act lays down that the word "prescribed" means prescribed by rules made under the said Act. The said Rules were framed under the provisions of the said Act and have statutory force of law. 4. The petitioner and respondent No.6 Shri Arup Ghosh, Councillor, Ward No.6, Raiganj Municipality contested the election of the Chairman of the Raiganj Municipality. Rule 4 of the said Rules lays down the procedures regarding election of the Chairman. The said Rule 4 is set out hereunder: "4. Election of the Chairman. 4. The petitioner and respondent No.6 Shri Arup Ghosh, Councillor, Ward No.6, Raiganj Municipality contested the election of the Chairman of the Raiganj Municipality. Rule 4 of the said Rules lays down the procedures regarding election of the Chairman. The said Rule 4 is set out hereunder: "4. Election of the Chairman. – The election of the Chairman of the Municipality shall proceed as follows : - (1) any Councillor present may propose the name of an elected member as a candidate for the office of the Chariman; (2) no candidature shall be taken into consideration unless it has been seconded by a Councillor other than the proposer; (3) if there is only one candidate duly proposed and seconded for election, the President shall forthwith declare such candidate to be elected; (4) if names of more than one Councillor are proposed and seconded as Chairman, the Chairman shall be elected by vote by secret ballot by the Councillors present in the meeting; (5) the President shall, under specification detailed below, cause the ballot papers to be distributed among the Councillors present. Ballot-paper for the election of the Chairman Counterfoil Names of candidates Space for placing of mark ‘X’ Signature of the President Signature of the Councillor 1) 2) 3) (6) the counterfoil shall bear the signature of the President and the Councillor in the space provided, while the ballot paper shall bear the signature of the President only on the back; (7) the ballot paper shall be invalid if the mark 'X' is placed opposite the name of more than one candidate, or if it is so placed as to render it doubtful as to which candidate such mark is intended to apply; (8) each Councillor, after placing the mark 'X' on the ballot paper, shall fold the same so as to conceal the vote recorded, and hand it over to the President; (9) as soon as all the ballot papers have been delivered to the President, he shall, in the order hereinafter specified,- (a) reject any ballot paper which does not bear the signature of the President; (b) reject any ballot paper which is irregularly marked or unmarked; (c) read out the names of the candidates against which the mark 'X' has been validly placed; (d) count the votes; and (e) declare the candidate to whom the largest number of votes has been given to be elected as the Chairman of the Municipality; (10) in the case of equality of votes, the President shall have a casting vote; (11) the President shall keep a record of the proceedings of the meeting in the Minute Book of the Municipality in continuation of the proceedings recorded by the officer and send one copy of the same to the Director of Local Bodies, West Bengal, who shall cause publication of the name of person elected as Chairman in the Official Gazette. The President shall also send the counterfoils and the ballot papers used for electing the Chairman in a sealed cover to the District Magistrate for preservation for a period of one year from the date of such election. A copy of the proceedings of the meeting shall also be sent to the "District Magistrate. 5. The election for Chairman of Raiganj Municipality was held. After counting of votes the President declared Shri Arup Ghosh, respondent No.6, as Chairman elected. In this writ proceeding the election of Shri Arup Ghosh as Chairman of Raiganj Municipality has been called in question. 5. The election for Chairman of Raiganj Municipality was held. After counting of votes the President declared Shri Arup Ghosh, respondent No.6, as Chairman elected. In this writ proceeding the election of Shri Arup Ghosh as Chairman of Raiganj Municipality has been called in question. There is no forum mentioned either in the statute or in the said Rules regarding where election of Chairman of a Municipality can be called in question. Therefore, the writ petitioner invoked the writ jurisdiction questioning the election of Shri Arup Ghosh as Chairman of Raiganj Municipality. 6. Mr. Pal, ld. Senior Advocate for the petitioner argued that form of the ballot paper has been specified in the said Rules and from the said specification it is evident that two columns have been separately kept first of which will contain names of the candidates and the other one is the space for placing of mark 'X'. It was argued by Mr. Pal that if instead of putting mark 'X' in the space meant for placing of mark it is placed in the column meant for names of candidates then such ballot paper should be rejected by the President under sub-clause(b) of sub-rule-9 of Rule 4 of the said Rules on the ground that it is irregularly marked. Mr. Pal argued that the term "irregular" means contrary to a rule, standard or convention and he, in support of his argument, referred to Shorter Oxford Dictionary. Mr. Pal also referred to Black's Law Dictionary and argued that the term "irregular" means not in accordance with law, method, or usage; not regular. Mr. Pal referred to AIR 1966 SC 529 (Martin Burn Ltd. vs. Calcutta Corporation) and had drawn my attention to paragraph 13 of the reported decision wherein it has been laid down: “There is, however, no reason to restrict the ordinary meaning of the word 'irregularity' and confine it to procedural defects only. None has been advanced. Such a contention was rejected, and we think rightly, in 57 Cal WN 882: AIR 1953 Cal 773 ." 7. Mr. Pal argued that the person who is casting vote cannot travel beyond the space meant for placing of mark 'X' and if he does so then it is irregular and is liable to be rejected by the President under Rule 4 sub-rule 9 clause (b) of the said Rules. Mr. Mr. Pal argued that the person who is casting vote cannot travel beyond the space meant for placing of mark 'X' and if he does so then it is irregular and is liable to be rejected by the President under Rule 4 sub-rule 9 clause (b) of the said Rules. Mr. Pal argued that in one of the ballot papers mark 'X' had been placed in the space meant for name of candidates instead of space meant for marking 'X' and such ballot paper instead of being rejected was counted in favour of Shri Arup Ghosh, the respondent No.6. Mr. Pal argued that if that ballot paper was rejected and not counted in favour of Shri Arup Ghosh then Shri Arup Ghosh could not have been declared as Chairman elected. 8. Ld. Advocate General appearing for the State and District Magistrate argued that the rules should be read as a whole. One or two sub-clauses cannot picked up and considered in isolation of others. Ld. Advocate General argued that if from the ballot paper it is apparent that a vote has been cast in favour of a particular person then such vote cannot be rejected even if 'X' mark has been placed in the space meant for name of candidates instead of space for placing of mark 'X' because this type of marking does not go to the root of the matter. The ld. Advocate General referred to sub-rule 7 of Rule 4 and argued that only in the two circumstances the ballot paper shall be invalid; firstly when the mark 'X' is placed opposite the name of more than one candidate and secondly if the mark 'X' is so placed as to render it doubtful as to which candidate such mark is intended to apply. The ld. Advocate General argued that except these two circumstances the President has no authority to declare the ballot paper as invalid and if the ballot paper is not invalid then under clause (c) of sub-rule 9 of Rule 4 the President is bound to read out the names of the candidates against which the mark 'X' has been validly placed. The ld. Advocate General argued that the word "irregularly" used in clause (b) sub-rule 9 of Rule 4 should be read in the context of sub-rule 7 of Rule 7 of the said Rules. The ld. The ld. Advocate General argued that the word "irregularly" used in clause (b) sub-rule 9 of Rule 4 should be read in the context of sub-rule 7 of Rule 7 of the said Rules. The ld. Advocate General argued that even when mark 'X' is placed in the space meant for names of candidate it will not be considered as "irregularly marked" unless it is so placed as to render it doubtful as to which candidate such mark is intended to apply. 9. Mr. Bhattacharya, the ld. senior Advocate for the added respondents argued that even if 'X' mark is not placed in the space meant for placing such mark and is placed in the space meant for name of candidates then no prejudice is suffered by the petitioner and if the petitioner does not suffer any prejudice then there is no reason why the said ballot should not be taken into account. To bring home his contention Mr. Bhattacharya referred to and relied upon three decisions (1) State Bank of Patiala and Ors. vs. S.K. Sharma, reported at (1996) 3 SCC 364 ; (2) Aligarh Muslim University vs. Mansoor Ali Khan, reported at (2000) 7 SCC 529 and (3) Union of India vs. Elphinstone Spinning and Weaving Co. Ltd., reported at AIR 2001 SC 724 . 10. Mr. Pal in his reply argued that it does not matter whether the petitioner suffers any prejudice or not. He argued it is well settled that when a particular procedure has been laid down to do a certain thing in a certain way then that must be done according to that procedure or not to be done at all. 11. After considering the aforesaid arguments of the ld. Advocates I am of the view that like construction of statute, Rule 4 of the said Rules should also be read as a whole, one or two sub-clauses should not be picked up in isolation for construction. The expression "irregularly marked" has not been defined in the said Rules. In my view the meaning of the said expression should be found out in the context and setting it has been used. In my view here the Court should apply, the 'subject and object rule'. In this connection reference may be made to a Supreme Court decision in Tarlochan Dev Sharma vs. State of Punjab (2001 AIR SCW 2689). In my view the meaning of the said expression should be found out in the context and setting it has been used. In my view here the Court should apply, the 'subject and object rule'. In this connection reference may be made to a Supreme Court decision in Tarlochan Dev Sharma vs. State of Punjab (2001 AIR SCW 2689). In paragraph 9 of the aforesaid decision Supreme Court observed as follows : “To find the meaning of a word or expression not defined in an enactment the Courts apply the 'subject and object rule' which means ascertain carefully the subject of the enactment where the word or expression occurs and have regard to the object which the Legislature has in view. Forego the strict grammatical or etymological propriety of language, even its popular use; let the subject or the context in which they are used and the object which the Legislature seeks to attain be your lenses through which look for the meaning to be ascribed. 'In selecting one out of the various meanings of a word, regard must always be had to the context as it is a fundamental rule that the meanings of words and expressions used in an Act must take their colour from the context in which they appear. Therefore, when the context makes the meaning of a word quite clear, it becomes unnecessary to search for and select a particular meaning out of the diverse meanings a word is capable of, according to lexicographers ............................................................ Judge learned Hand cautioned 'not to make a fortress out of the dictionary’ but to pay more attention to the sympathetic and imaginative discovery' of the purpose or object of the statute as a guide to its meaning (See Principles of Statutory Interpretation, Justice G.P. Singh, 7th Edition, 1999, pp. 258-259)." 12. It is an admitted position that Councillors of the Municipality present in the meeting shall elect the Chairman by vote by secret ballot. Sub-rule 4 of Rule 4 of the said Rules lays down that if names of more than one Councillor are proposed and seconded as Chairman, “the Chairman shall be elected by vote by secret ballot" by the Councillors present in the meeting. Sub-rule 4 of Rule 4 of the said Rules lays down that if names of more than one Councillor are proposed and seconded as Chairman, “the Chairman shall be elected by vote by secret ballot" by the Councillors present in the meeting. The words "Chairman shall be elected by vote by secret ballot" means that the Chairman shall be elected by the expression of ones will or choice or preference or opinion as manifested by ballot which is cast in such a manner that person expressing such choice cannot be identified with the choice expressed. Thus ones will or choice or preference or opinion as manifested by ballot is the prime consideration for election. I am of the opinion that even if mark 'X' is placed in the space meant for name of candidates instead of the space meant for placing for mark 'X' then also such placing of mark expresses the will or choice or preference or opinion unless it is so placed as to render it doubtful as to which candidate such mark is intended to apply. In my opinion the expression 'irregularly marked' in sub-clause (b) of sub-rule 9 of Rule 4 of the said Rules, in the context and setting in which it has been used, means a ballot paper wherein mark 'X' has been so placed as to render it doubtful as to which candidate such mark is intended to apply. 13. Pursuant to my order dated 31.7.2001 the ld. Advocate General on 21.8.2001 produced a sealed cover before the Court. I by myself opened the sealed cover and examined the documents in the Court. I found that only in one ballot paper mark 'X' was placed in the space meant for name of candidates instead of the space meant for placing mark 'X'. I found that in the said ballot paper mark 'X' has not been so placed as to render it doubtful as to which candidate such mark is intended to apply. I found from the said ballot paper that it is absolutely clear, without any doubt whatsoever, that mark 'X' has been placed clearly in favour of Shri Arup Ghosh, the respondent No.6. I found from the said ballot paper that it is absolutely clear, without any doubt whatsoever, that mark 'X' has been placed clearly in favour of Shri Arup Ghosh, the respondent No.6. It is to be noted here that there is no provision in the said Rules that if the mark 'X' is placed in the space meant for name of candidates instead of the space for placing of mark 'X' then such ballot paper shall be invalid or shall be treated as irregularly marked. In my view, the proper construction of the Rule 4 of the said Rules is that the President of the meeting cannot either treat a ballot paper as invalid or "irregularly marked" even when mark 'X' has been placed in the space meant for name of the candidates instead of space for placing of mark 'X' if by such marking the expression of ones will or choice or preference or opinion as manifested by ballot is absolutely clear. The President of the meeting can only treat such ballot paper as "irregularly marked" when the mark 'X' is so placed as to render it doubtful as to which candidate such mark is intended to apply. Therefore, I am of the view that the aforesaid one ballot paper which was cast in favour of Shri Arup Ghosh, the respondent No.6, wherein mark 'X' was placed in the space meant for name of candidates instead of the space for placing of mark 'X' cannot be treated as "irregularly marked" under sub-clause (b) of sub-rule 9 of Rule 4 of the said Rules. In view of the discussions made hereinabove, I hold that Shri Arup Ghosh, the respondent No.6 was rightly declared as Chairman elected by the President. 14. Under the circumstances, I am of the view that the petition has no merit and the same is dismissed. All interim orders are vacated. However, there shall be no order as to costs. The records produced by the learned Advocate General and kept in sealed cover under the safe custody of Registrar General of this Court be returned to the learned Advocate & for the District Magistrate on proper receipt. Later: After the judgement was delivered, the learned Advocate for the petitioner prayed for stay of operation of the order for 10 days. The same is considered and rejected. Writ petition dismissed.