Research › Search › Judgment

Calcutta High Court · body

2009 DIGILAW 833 (CAL)

MD. Nuruddin v. STATE OF WEST BENGAL

2009-11-25

PRANAB KUMAR DEB

body2009
Judgment :- (1.) The moot question in the instant writ petition is whether the provision as contained in sub-section 2 of Section 12 of the West Bengal Panchayat Act is ultra vires the legislative competence of the legislature or violative of Part - III of the Constitution. (2.) The petitioner was elected as Pradhan of Sahapur-I Gram Panchayat under Goalpokher - Block Development. Following a resolution being adopted by the members in the meeting, the elected Pradhan was removed from his office. In the wake of his removal from the post of Pradhan, process was underway to elect a new Pradhan. in view of the embargo imposed on the outgoing Pradhan to contest the election for the post of new Pradhan, the writ petitioner has come up before the writ Court, challenging the Constitutional validity of the amended provision of Section 12 of the Panchayat Act. (3.) With the amendment of Section 12 of West Bengal Panchayat Act, Sub-Section 2 of Section 12 has been incorporated. As per the amended provision, the Pradhan or the Upa-Pradhan, who is removed from his office in terms of a resolution carried under sub-section (1), shall not be eligible for election to that office before completion of a period of one year from the date of such resolution. (4.) Challenging the Constitutional validity of the amended provision of sub-section 2 of Section 12 of the West Bengal Panchayat Act, Mr. Kashi Kanta Maitra, learned senior Counsel, has submitted that with the amendment of Section 12 of the Principal Act, an unreasonable clarification amongst the elected members of the Gram Panchayat has been introduced. Claiming that the right to contest the election of Pradhan enures to the benefit of all the representative members of a Panchayat, it is argued that such clarification and distinction between an outgoing Pradhan and the other members of the Panchayat is contrary to the provision of equality as enshrined in the Constitution of India. The Act of segregation is violative of the tenets of equality, as guaranteed under Article 14 of the Constitution and, therefore, the amended provision of Section 12 of the Principal Act should be declared ultra vires the Constitution. (5.) Dwelling on the right of the elected members to vie for the post of Pradhan, Mr. The Act of segregation is violative of the tenets of equality, as guaranteed under Article 14 of the Constitution and, therefore, the amended provision of Section 12 of the Principal Act should be declared ultra vires the Constitution. (5.) Dwelling on the right of the elected members to vie for the post of Pradhan, Mr. Maitra has submitted that curtailment of such right violates the basic norms of fair play and, as such, the amended provision should be deemed to be unconstitutional. Commenting on the aspect of classification, Mr. Maitra has submitted that in considering the aspect of reasonable classification, it is to be ensured that indivious distinction or arbitrary discrimination shall not be made by the State between two citizens who answer the same description. (6.) Referring to the case of Hoop Chand Adlakha and Ors. v. Delhi Development Authority and Ors., reported in 1989 SCC (L and S) 235, Mr. Maitra has submitted that the process would be constitutionally valid if it recognizes a pre-existing inequality and acts in aid of amelioration of the effects of such pre-existent inequality. The process cannot merely blow up or magnify insubstantial or microscopic differences on merely meretricious or plausible differences. The overemphasis on the doctrine of classification or any anxious and sustained attempts to discover some basis for classification may gradually and imperceptibly deprive the article of its precious content and end in replacing doctrine of equality by the doctrine of quality by the doctrine of classification. The presumption of good faith in and of constitutionality of a classification cannot be pushed to the point of predicating some possible or hypothetical but undisclosed and unknown reason for a classification rendering the precious guarantee of equality "a mere rope of sand". (7.) It is submitted that the amendment has not been done to undo a pre-existent inequality, nor it has been engrafted for amelioration of the effect of such pre-existent inequality. The artificial barrier and discrimination, as urged by Mr. Maitra, cannot be justified in the name of reasonable classification either. (8.) Relying on the case of State of Jammu and Kashmir v. Shri Triloki Nath Khosa and Ors., reported in 1974 SC (L and S) 49, Mr. The artificial barrier and discrimination, as urged by Mr. Maitra, cannot be justified in the name of reasonable classification either. (8.) Relying on the case of State of Jammu and Kashmir v. Shri Triloki Nath Khosa and Ors., reported in 1974 SC (L and S) 49, Mr. Maitra has argued that classification must be truly founded on substantial differences which distinguish person grouped together from those left out of the group and such differential attributes must bear a just and rational relation to the object sought to be achieved. Mr. Maitra has argued that the embargo imposed under sub-section 2 of Section 12 of the Panchayat Act not having been enacted on just rational manner, the provision transgressing the constitutionally right is to be struck down as being discriminatory. The classification not having been founded on reasonable basis, amended provision is required to be struck down as violative of the principle of equality, as guaranteed in the Constitution. (9.) Defending the constitutional validity of the Act, Mr. Sumitro Dasgupta has submitted that in view of the tendency on the part of large number of outgoing Pradhans to cling to their power by throwing all norms to the winds, it was found expedient to impose limited restriction and embargo on their rights and power. It is submitted that experience has shown that the outgoing Pradhans often resort to horse-trading to regain their lost authority and power. To eliminate such corrupt practice and dubious way of regaining the power, limited restriction has been imposed. It is not a ban for unlimited period. The outgoing Pradhans are restricted from contesting the post of Pradhan for a limited period of one year only. Such reasonable classification having been made to root out corruption as well as for effecting a healthy precedent in the democratic set up, the reasonable classification through the amendment of Section 12 of the Panchayat Act should not be struck down as being ultra vires the Constitution. Mr. Dasgupta has cited the case of Bakhtawar Trust and Ors. v. M.D. Narayan and Ors., reported in (2003)5 SCC 298 , to emphasize his stand that the State has got unfettered power to impose reasonable restriction on the liberty of a citizen in the greater interest of the society and country. Mr. Dasgupta has cited the case of Bakhtawar Trust and Ors. v. M.D. Narayan and Ors., reported in (2003)5 SCC 298 , to emphasize his stand that the State has got unfettered power to impose reasonable restriction on the liberty of a citizen in the greater interest of the society and country. (10.) The principle of equality postulates that there should not be discrimination between one person and another when their position is identical with regard to subject matter of legislation. The divergent requirements and the social needs, however, quite often justify separate treatment. As underlined in the case of Budhan Choudhary and Ors. v. State of Bihar, reported in AIR 1955 SC 191 , while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. (11.) Mere differentia or inequality in the matter of treatment does not tantamount to discrimination. What is to be ascertained is whether the differentia has got a just and reasonable relation to the object of legislation. As highlighted in the case of Kedar Nath Bajoria and Ors. v. The State of West Bengal, reported in AIR 1953 SC 404 , the equal protection of the laws guaranteed by Article 14 of the Constitution does not mean that all laws must be general in character and universal in application and that the State is no longer to have the power of distinguishing and classifying persons or things for the purpose of legislation. All that is required in class or special legislation is that the legislative classification must not be arbitrary, but should be based on an intelligible principle having a reasonable relation to the object which the legislature seeks to attain. All that is required in class or special legislation is that the legislative classification must not be arbitrary, but should be based on an intelligible principle having a reasonable relation to the object which the legislature seeks to attain. If the classification on which the legislation is founded fulfills this requirement, then the differentiation which the legislation makes between the class of persons or things to which it applies and other persons or things left outside the purview of the legislation cannot be regarded as a denial of the equal protection of the law. (12.) Two things are required to justify reasonable classification - (i) the classification must be founded on an intelligent differentia and (ii) differentia must have a rational connection with the object sought to be achieved. The main object behind introduction of the amendment of the Panchayat Act is to make the governance of Panchayat more responsible and accountable. Prudence and experience have shown that an outgoing Pradhan should not be allowed to usurp the power of Pradhan immediately after his removal. To root out corrupt practice and to prevent horse-trading the limited ban on the outgoing Pradhan to contest the election of a Pradhan has been imposed. Such ban, as submitted by Mr. Dasgupta, has been taken to generate healthy atmosphere in the democratic set up and also to eliminate all sorts of corrupt practices regarding the functioning of a Panchayat. Such differentia having been made with the object of making the Panchayat more responsible and accountable, embargo cannot be called to be unconstitutional as being violative of the provisions contained in Chapter-III of the Constitution of India. For the security, safety and well being society, legitimate exercise of state action to regulate private rights in the public interest can always be maintained. There is no concept of uncontrolled liberty. The enjoyment of rights may be subject to certain reasonable conditions that may be required for safety, peace, general order and moral of the community as well as for integrity of the country. What is required is to strike out a balance between individual liberty and social control. Individual liberty must not be in conflict with public welfare or general morality. It is hot correct that certain sections of the society have been targeted or singled out. It does not come within the zone of class legislation either. What is required is to strike out a balance between individual liberty and social control. Individual liberty must not be in conflict with public welfare or general morality. It is hot correct that certain sections of the society have been targeted or singled out. It does not come within the zone of class legislation either. Such restriction has been imposed to make Panchayat more accountable. I am afraid I cannot subscribe to the view that provision of subsection 2 of Section 12 of Panchayat Act is violative of the principle of equality, as enshrined in Part-Ill of the Constitution. (13.) In the result, the writ petition is dismissed. The result of the election for appointment of the new Pradhan is to be published immediately if it has not been done in the meantime. (14.) Considering the nature of the case there will be no order as to costs.