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2002 DIGILAW 424 (CAL)

Santosh Dutta v. Sibadhan Mukhetjee

2002-07-03

SAILENDRA PRASAD TALUKDAR

body2002
JUDGMENT The judgment of the Court was as follows :–– The instant case arises out of an application under Section 227 of the Constitution of India. It is directed against the order dated 20th April, 2002 passed by the learned Judge 5th Court of Additional District Judge, Barasat, 24-Parganas, North in Title Suit No.3 of 2000. The grievance of the petitioner may be capsulated in a few sentences as follows :–– The election for the post of Councillor in Ward No. 19 of North Barrackpore Municipality was held on 28th May, 2000. The petitioner was one of the contesting candidates along with two others who were respondent Nos.1 and 5. The said Municipal election was held on 28th May, 2000 under the control and supervision of the Municipal Returning Officer, Barrackpore and District Municipal Election Officer, 24-Parganas (North). The petitioner was duly elected as Councillor of the said Municipality. The Assistant Municipal Returning Officer issued a Certificate of election in favour of the petitioner declaring him as an elected member of the said Municipality from Ward No. 19. 2. The Sub-Divisional Magistrate, Barrackpore, District 24-Parganas (North) vide his notice dated 16th June, 2000 intimated the petitioner that the first meeting of the Board of Councillors of the North Barrackpore Municipality would be held on 29th June, 2000 at 1-00 p.m. at the office of the said Municipality and the petitioner was requested to attend the meeting for taking oath of affirmation of allegiance to the Constitution and to elect one of the members to act as President to preside over the aforesaid meeting for election of Chairman. The petitioner duly attended the said meeting and took oath of affirmation of allegiance. The respondent No.1, however, filed a Title Suit being No.3 of 2000 under Sections 75 and 76(b) of the West Bengal Municipal Act, 1994 challenging the declaration of the Assistant Municipal Returning Officer declaring the present petitioner as elected Councillor of Ward No.19. In the said case the respondent No.1 sought before the learned Court an order declaring the election of opposite party No.1 as Councillor of Ward No. 19 as null and void. In the said suit some other reliefs were also sought for. The said Title Suit No.3 of 2000 was contested by the present petitioner by filing written statement. The petitioner denied the material allegations made by the present respondent No.1. In the said suit some other reliefs were also sought for. The said Title Suit No.3 of 2000 was contested by the present petitioner by filing written statement. The petitioner denied the material allegations made by the present respondent No.1. The petitioner clearly pointed out that he is an employee of Barrackpore Municipality and so he is eligible to be elected as Councillor of North Barrackpore Municipality. It had been clearly stated in the written statement that according to the clarification issued by the State Election Commission, West Bengal dated 24th April, 1995 an employee of a Municipality is quite eligible and legally entitled to be elected as Councillor in another municipality. It had also been stated that the bar imposed was applicable only when the employee of a municipality is elected as Councillor of the same Municipality. It had been further pointed that the present respondent No.1 did not raise any objection about the candidature of the present petitioner at the time of filing nomination and only his defeat in the election led to his filing of the Title Suit as referred to earlier. 3. Heard learned Advocates for the petitioner as well as for the respondents. At the very outset it has been pointed out by the learned Advocate for the petitioner that the learned Additional District Judge, Barasat, District 24-Parganas (North) by passing the impugned judgment in Title Suit No.3 of 2000 appears to have failed to appreciate the facts and circumstances of the case. Referring to Section 30 of the West Bengal Municipal Elections Act, 1994 it is submitted that a person shall not be eligible for election as a member if such person holds any office of profit under the municipality. There is no dispute as to the fact that the expression 'the' definitely suggests that it relates to Municipality in respect of which election is required to be held. In fact the learned Additional District Judge in his judgment and order dated 20th April, 2002 also held the same view. A controversy, however, arises as to the interpretation of Section 30(g) of the West Bengal Municipal Elections Act, 1994 (hereinafter referred to as the said Act). In fact the learned Additional District Judge in his judgment and order dated 20th April, 2002 also held the same view. A controversy, however, arises as to the interpretation of Section 30(g) of the West Bengal Municipal Elections Act, 1994 (hereinafter referred to as the said Act). The said provision reads as follows:–– "A person shall not be eligible for election as a Member if such person–– (a) … … … … (b) … … … … (c) … … … … (d) … … … … (e) … … … … (f) … … … … (g) … … … … (h) has been elected to or appointed under any........ Municipality or Panchayat or Darjeeling Gorkha Hill Council constituted under the Darjeeling Gorkha Hill Council Act, 1988." 4. According to the learned Advocate for the petitioner the expression "appointed under" relates to appointment of Councillor and not appointment of an employee. 5. In response to this learned Advocate for the opposite party has at the very outset pointed out that the present application under Article 227 of the Constitution of India is not maintainable. He has categorically asserted that the power of superintendence over other Courts and tribunals as referred to in Article 227 of the Constitution of India cannot be so stretched so as to justify interference with the judgment and order under reference. Learned Counsel for the opposite party has further stated that by reason of judicial review the High Court can interfere with the order passed by the Statutory authority, inter alia, on any of the following grounds, viz., (1) Illegality; (2) Irrationality; and (3) Procedural impropriety. 6. It is further submitted by the learned Counsel for the opposite party that Section 78 is a jurisdictional bar of appeal. It is stated that in view of the clear prohibition in Section 78 of the Act, the instant application is just a stalemate game and it amounts to abuse of the process of law. Learned Counsel for the opposite party has referred to the decision of (1) M. B. Fernandes v. C. K. Jafar Shariff & Ors. It is stated that in view of the clear prohibition in Section 78 of the Act, the instant application is just a stalemate game and it amounts to abuse of the process of law. Learned Counsel for the opposite party has referred to the decision of (1) M. B. Fernandes v. C. K. Jafar Shariff & Ors. as reported in (2002)3 S.C.C. 521 in support of his contention that the right to elect or to be elected or dispute regarding election are neither fundamental rights nor common law rights but are confined to the provisions of the Act and the Rules made thereunder and consequently rights and remedies are all limited to those provided by the statutory provisions. It is also stated that fairness imports an obligation to see that no wrong doer candidate benefits from his own wrong doing. Learned Counsel while referring to the decision submits that applicability of Article 227 of the Constitution of India is limited to want of jurisdiction, error of law, perverse findings, gross violation of natural justice and so on. 7, Learned Counsel for the opposite party has further referred to the observation made by Justice Frankfutter in regard to purposive interpretation. According to him legislation has an aim. It seeks to obviate some mischief to supply an inadequacy to effect a change of policy, to formulate a plan of Government. According to him interference is only justified when there in some glaring defect in the procedure or there is manifest error on a point of law and consequently the flagrant miscarriage of justice. In this context reliance has been placed on the decisions as reported in (2) 1982 (3) SCR 318 (Jyoti Basu v. Debi Ghosal, (3) 2002(1) CHN 385 (Prokriti Kumar Ghosh v. Amita Ghosh), (4) 1999 C Cr LR (SC) 17 (Vimal Singh v. Khuman Singh & Anr.) and (5) AIR 1969 SC 430 . 8. Learned Advocate for the petitioner, however, has categorically pointed out that Article 227 of the Constitution of India strictly speaking applies to the facts and circumstances of the Instant case and in fact, that is the proper forum for remedy. 9. 8. Learned Advocate for the petitioner, however, has categorically pointed out that Article 227 of the Constitution of India strictly speaking applies to the facts and circumstances of the Instant case and in fact, that is the proper forum for remedy. 9. After taking into consideration the submissions made by the learned Counsel for both the parties, I am of the view that the High Court can interfere under Article 227 in cases of :–– (a) Erroneous assumptions or excess jurisdiction; (b) Refusal to exercise jurisdiction; (c) Error of law apparent on the face of the record as distinguished from a mere mistake of law or error law relating to jurisdiction; (d) Violation of the principles of natural justice; (e) Arbitrary or capricious exercise of authority or discretion; (f) Arriving at a finding which is perverse or based on no material; (g) A patent or flagrant error in the procedure; (h) Order resulting in manifest injustice. 10. The crux of the present controversy relates to interpretation of Section 30(h) of the West Bengal Municipal Elections Act, 1994. The fact that the present petitioner is an employee in another municipality is not denied or disputed but that is no bar for him to contest the election in the North Barrackpore Municipality in which he is not an employee nor does he holds any office of profit under the said Municipality. The expression "appointed under" in Section 30(h) definitely does not relate to appointment of an employee in a Municipality. The learned Additional District Judge while appreciating the aforesaid provisions of law appears to have missed the woods for the trees. Such appointment within the meaning of Section 30(h) of the Act relates to appointment of a Councillor and it is no one's case that the petitioner is an employee ......... of another municipality at the time of his contesting the election as a Councillor in the North Barrackpore Municipality. 11. After due consideration of all relevant facts and circumstances and in the backdrop of the legal position as referred to earlier, I am of the opinion that this High Court under Article 227 of the Constitution can very well interfere with the impugned order which suffers from error of law on the face of the record resulting in manifest injustice. In the circumstances, the present application under Article 227 of the Constitution is allowed on contest. 12. In the circumstances, the present application under Article 227 of the Constitution is allowed on contest. 12. The impugned order dated 20th April, 2002 passed by the learned Additional District Judge, 5th Court, Barasat, 24-Parganas, North is hereby set aside. 13. Let a copy of this judgment be immediately sent down to the learned Additional District Judge, Alipore along with the lower Court records, if any, immediately. Let xerox certified copy of this judgment, if applied for, be given to the learned Advocates for the parties.