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2015 DIGILAW 991 (CAL)

Abdul Majed Molla v. State of West Bengal

2015-12-23

GIRISH CHANDRA GUPTA, SHIVAKANT PRASAD

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JUDGMENT : Shivakant Prasad, J. The appeal is directed against a judgment dated 29th June, 2015 passed in 27870(W) of 2014 by the Learned Single Judge of this Hon'ble Court. 2. Chronology and events of the case is that on 20.6.2014, a complaint was forwarded to the District Magistrate 24 Parganas being the Prescribed Authority by the Sub-Divisional Officer, Canning Sub-Division along-with an enquiry report of Block Development Officer, Basanti against Mr. Abdul Majid Molla, S/O. Late Amir Molla, Vill-Chunakhali, P.S. Basanti & Sahakari Sabhapati, Basanti Panchayat Samiti, alleging suppression of material fact while filing nomination in the Panchayat General Election, 2013 as Mr. Abdul Majid was simultaneously also working as M.R. Dealer and lifting PDS commodities for distribution to the AAY beneficiaries, APL, BPL families, which, it was alleged, in violation of clause(c) of Section 97 of the West Bengal Panchayat Act, 1973 & clause(c) of Sub-Section 1 of Section 100 of the West Bengal Panchayat Act, 1973 and II-(d) of Notification No. 1029(17)-SEC/6D-9/2010 dated 24.5.2013 of the Secretary, West Bengal State Election Commission. 3. Mr. Milon Bhattacharya submitted at the outset that Section 100 (1) (c) of West Bengal Panchayat Act, 1973 specifically provides that the Prescribed Authority may, after giving an opportunity to a member of Panchayat Samiti to show cause against the action proposed to be taken against him if he incurs any of the disqualifications mentioned in Clause (b) to (g) of Section 97 after his becoming a member of Panchayat Samiti which does not deal with the Antodaya Anna Purna Yojana (AAY) or M.R. dealer or any circular issued by the Election Commission as it is not the contact with Panchayat Samiti. The complaint submitted by the private respondent no.6 alleged that the petitioner violated the circular issued by the Election Commission which came under the purview of the West Bengal Election Act, 2003. As such, the District Magistrate has no authority to entertain such a complaint under Section 100(1)(c). 4. Question before the learned Single Judge was for consideration as to whether a circular of the election commission could enlarge the scope of a provision of the Act inasmuch as if something is not in the Act whether that could be supplemented by way of circular. 5. 4. Question before the learned Single Judge was for consideration as to whether a circular of the election commission could enlarge the scope of a provision of the Act inasmuch as if something is not in the Act whether that could be supplemented by way of circular. 5. It is submitted that allocating authority of the AAY is the Department of Food and Supply and there is no contract with the Panchayat in any manner and that every M.R. Dealer is bound to carry out the AAY schemes as compulsory allotment otherwise he will be punished by cancelling the MR license. 6. Accordingly, the applicant has prayed for setting aside the order impugned as bad in law and in fact. 7. It is also submitted that Article 243K of the Constitution of India vests superintendence, direction and control of election upon the State election Commissioner. West Bengal State Election Commissioner Act, 1994 was enacted with effect from 22 March, 1994 by which the said commission was constituted. West Bengal Panchayat Election Rules, 2006 came into effect after Gazette notification. The said Act provides provision that an election dispute to be raised before judicial forum under Section 204 of the Act which provision has been omitted by Amendment Act, 2003 West Bengal Panchayat Rules, 1974 were repealed by West Bengal Panchayat Election Rules, 2006. 8. Learned counsel placed reliance on Sections 5, 7, 42, 48, 49 and 76 of the West Bengal Panchayat Election Act with regard to qualification, disqualification and making up of nominations, scrutiny of nominations and final list of candidates, scrutiny, verification, filing of objection to nominations and publication of final list of candidates and that point of jurisdiction is a point of law which cannot be conferred or created by consent either express or implied and relied on decision of Jagadguru Annadanishwara Maha Swamiji v. V.C. Allipur and another reported in 2009(4) Supreme Court cases 625, wherein it has been held that plea regarding jurisdiction can be raised at any stage. 9. Section 97 of the Panchayat Act is applicable after finality of election and since finality of election has not been challenged by the complainant, section 97 applied to take administrative action tant amounts usurping the power of judicial forum under Section 79 of the Election Act of 2003. Section relates to pre-election whereas section 79 applies to post election. 10. Section 97 of the Panchayat Act is applicable after finality of election and since finality of election has not been challenged by the complainant, section 97 applied to take administrative action tant amounts usurping the power of judicial forum under Section 79 of the Election Act of 2003. Section relates to pre-election whereas section 79 applies to post election. 10. It is also contended that since the candidature of the appellant has not been opposed by the authorities dealing with the scrutiny and publication of final list, the respondents are estopped from canvassing the said point under Section 97 of the Act of 1973 and that the appellant has no contractual relationship with Panchayats authority in any manner whatsoever because M.R. dealership is controlled by West Bengal public distribution system maintenance and control orders 2013 issued by the office of Food and Supplies. 11. It is further contended that the notification dated 24th May, 2013 issued by West Bengal Election Commission has no manner of application since it is not mandatory and not supported by a statute. Accordingly, it is urged on behalf of the appellant that order of District Magistrate is arbitrary, illegal and politically motivated and is devoid of merit. Learned Counsel for the appellant referred to a decision reported in 2011(4) Supreme Court case 616 contending that law cannot be tailored according to facts. 12. We are of view that cited decision has no manner of application in the instant case as the same relates to Arbitration and Conciliation Act 1996. Reference to decision reported in 2012 Supreme Court cases 148 has been made with similar contention. This decision relates to BIFR jurisdiction to restrain transfer of sick industrial companies property. Learned Counsel further referred to a decision reported in 2004(6) Supreme Court cases 331 wherein the dispute raised was relating to election under Bihar Panchayat Election Rules, 1995 wherein it has been held thus- "Rule 79 of the Bihar Panchayat Election Rules, 1995 enables a candidate to file an appropriate application for re counting of votes. Rule 79, unlike rules framed by other states, does not say that such an application would not be maintainable after declaration of the votes polled by the parties or prior thereto. Such an application, therefore, can be filed at any point of time, that is, either before announcement of the result or thereafter. Rule 79, unlike rules framed by other states, does not say that such an application would not be maintainable after declaration of the votes polled by the parties or prior thereto. Such an application, therefore, can be filed at any point of time, that is, either before announcement of the result or thereafter. Though only because such an application had not been filed before the returning officer by itself may not preclude the election tribunal to go into the question of requirement of issuing a direction for recounting but rule 79 serves a salutary purpose. Counting of ballot papers in terms of rule takes place in presence of the candidate or his counting agent. When an agent for counting agent or the candidate himself notices improper acceptance or rejection of the ballot papers, he may bring the same to the notice of the prescribed authority. Once such an application is filed pointing out the illegalities committed by the officers appointed for counting the ballot papers, immediate redress of grievances would be possible. While filing such an application the basis of making a request for recounting of votes is required to be disclosed. The returning officer is statutorily enjoined with a duty to entertain such an application, make an enquiry and pass an appropriate order in terms of subsection 2 of rule 79 either accepting in whole or in part such requests or rejecting the same where for he is required to assign sufficient or cogent reasons. In the event such an application is allowed either in whole or in part, he is statutorily empowered to make the results also. Ordinarily, thus, it is expected that the statutory remedies provided for shall be availed of. If such an opportunity is not availed of by the election petitioner; he has tasted the reasons therefore. If no sufficient explanation is furnished by the election petitioner as to why such statutory remedy was not availed of, the election tribunal may consider the same as one of the factors for accepting or rejecting the prayer for recounting. An order of the prescribed authority passed in such application would render great assistance to the election tribunal in arriving at a decision as to whether a prima facie case for issuance of direction for recounting has been made out." 13. An order of the prescribed authority passed in such application would render great assistance to the election tribunal in arriving at a decision as to whether a prima facie case for issuance of direction for recounting has been made out." 13. The dispute in cited decision pertains to recounting of votes before the Returning Officer which was not entertained. So the appellant had filed an election petition questioning the election of the fourth respondent before the Munsif primarily on the ground of irregularities in counting of votes. In our considered view, ratio of decision cited above is not applicable to the facts and circumstances of the instant case. 14. Yet, case of Rajkumar Saha v. State of West Bengal and others reported in 2009(6) Calcutta Law Journal 126 has been pressed in service by the learned counsel for the appellant which relates to validity of an election to the Panchayat which can be called in question by filing an election petition before an authority and in such manner provided by or under any law made by the State. The court sitting in writ jurisdiction cannot examine the validity of the election certificate issued in favour of the petitioner. Accordingly, Single Bench of this Hon'ble Court held that the writ petition before the High Court is not maintainable on the allegation of the petitioner for non-compliance of the provisions of Panchayat Election Act, 2003 read with the West Bengal Election Rules, 2006. Factual aspect of the cited decision is distinguishable from the facts and circumstances of the instant case. 15. In terms of notification no. 5316/PN/O 1/1A-3/2010 dated 01.07.2010 of Govt. of West Bengal, Dept. of Panchayats & Rural Development, the District Magistrate being the Prescribed Authority under Section 100(1) of the West Bengal Panchayat Act 1973 passed the order for removal of the appellant from the office of member of Basanti Panchayat Samity elected from Charavidya-PS-9 constituency in terms clause (c) of Sub-Section 1 of Section 100 of Panchayat Act 1073 on a complaint of the private respondent. Having regard to the fact situation of the case, we do not find any dispute as regards the issuance of certificate of election in form 24 by the Panchayat Returning Officer who is the authority to issue such certificate of election as per the provision of Sub-Section 5 of Rule 92 of West Bengal Panchayat Election Rules 2006. 16. Having regard to the fact situation of the case, we do not find any dispute as regards the issuance of certificate of election in form 24 by the Panchayat Returning Officer who is the authority to issue such certificate of election as per the provision of Sub-Section 5 of Rule 92 of West Bengal Panchayat Election Rules 2006. 16. Allegation made by Hasem Molla, S/O. Late Abdulla Molla of Village-Khirishkhali, Basanti private respondent against Abdul Majid Molla, member of Basanti Panchayat Samiti as well as Sahakari Sabhapati of the said Panchayat Samiti appellant herein for filing of his nomination paper to contest in the said Panchayat Samiti in the Panchayat General Election' 2013 by suppressing the fact that he is a M.R. Dealer and also AAY Dealer in violation of II-(d) of Notification issued by State Election Commission, West Bengal vide No. 1029(17)-SEC/6D-9/2010 dated 24.5.2013 and action solicited against appellant for making false statement at the time of filing nomination paper to contest in the said Panchayat General Election' 2013 violating the aforesaid Notification. Prescribed Authority has duly considered clause(c) of Section 97 & Clause(c) of Sub-Section 1 of Section 100 of the West Bengal Panchayat Act, 1973 and the Notification No. 1029(17)-SEC/6D-9/2010 dated 24.5.2013 of the Secretary, West Bengal State Election Commission. 17. The District Magistrate has been declared as the Prescribed Authority in terms of Notification No. 5316/PN/O/1/1A-3/2010 dated 01.7.2010 of the Panchayat & Rural Development Department to deal with Clause(c) of Sub-Section 1 of Section 100 of the West Bengal Panchayat Act, 1973. In terms of Sub-Section 1 of Section 100 of the West Bengal Panchayat Act, 1973, a notice of hearing was issued by office Memo No. P-33012/1/2014-DPRDO/13676 dated 04.7.2014 of the Prescribed authority to the appellant and he was asked to appear in person before the said authority on 16.7.2014 adhering to the principle of natural justice. 18. Ergo, necessarily the District Magistrate is vested with judicial power which has to be exercised by a Prescribed Authority under the Act besides performing executive power, conferment of such powers must be held to be confined to the said authority alone and not to others. In terms of Section 2(5) of West Bengal Panchayat Act, 1973 the District Magistrate has not been expressly empowered to delegate his judicial function to the Additional District Magistrate or any other authority. In terms of Section 2(5) of West Bengal Panchayat Act, 1973 the District Magistrate has not been expressly empowered to delegate his judicial function to the Additional District Magistrate or any other authority. The "words" prescribed authority have been defined under section 2(19) of the Act to mean an authority appointed by a State Government by notification for all or any of the performance under the Act. If an authority has been prescribed to discharge a particular function in his capacity as prescribed authority, he alone has to discharge such function and the question of delegating such powers in terms of Section 2(5) of the Act would not arise only because the prescribed authority happens to be the District Magistrate. There is no provision of delegation of power by prescribed authority. [See. Sk. Kausar Ali v. State of West Bengal and Ors. 1998(2) Cal. L.T. (H.C.) 39.] It would appear from the order passed by the prescribed authority that District Magistrate has been declared as the prescribed authority in terms of Notification No. 5316/PN/O/1/1A-3/2010 dated 01.7.2010 of the Panchayat and Rural Development Department to deal with Clause (c) of Sub-Section 1 of Section 100 of the West Bengal Panchayat Act, 1973. Therefore, we are not impressed with the contention of the learned Counsel for the appellant that such a dispute has to be raised before a judicial forum. 19. Undoubtedly, Section 204 which dealt with disputes as to election arising as to the validity of an election under the Panchayat Act has been omitted by Section 19 of the West Bengal Panchayat (Amendment Act) 2003 West Bengal Act VIII of 2003 with effect from 15.7.2003. 20. Learned Counsel placed reliance of Sections 5, 7, 42, 48, 49 and 76 of West Bengal Panchayat Election Act, 2003 with regard to qualification, disqualification notification for election notice of nomination time and place for their scrutiny of nomination and declaration of results of election respectively. 21. Our attention is invited to Sections 78-79 of the Act relating to dispute regarding election. 21. Our attention is invited to Sections 78-79 of the Act relating to dispute regarding election. Section 79 of Panchayat Election Act 2003 deals with disputes as to election if any arise as to the validity of election under the Act then any person entitled to vote at such election may within thirty days from the date of declaration of result of election file a petition calling any question in such election on one or any of grounds as specified in Sub-Section 1 of Section 93 and Section 94 before the Civil Judge having jurisdiction where such election is in respect of a Gram Panchayat or Panchayat Samity. Section 93 deals with the grounds declaring election to be void and Section 94 provides grounds for which a candidate other than the returned candidate may be declared to have been elected. 22. Section 100 of West Bengal Panchayat Act, 1973 deals with removal of member of Panchayat Samiti and Sub-Section 1 enjoins that the prescribed authority may, after giving opportunity to a member of a Panchayat Samiti other than an ex officio member to show cause against the action proposed to be taken against him, by order remove him from office, if he incurs any of the disqualification mentioned in Clauses (b) to (g) of Section 97 after his becoming a member of Panchayat Samiti. Sub-Section (2) of Section 100 provides that any member of a Panchayat Samiti who is removed from his office by the prescribed authority under sub-section 1 may, within thirty days from the date of the order, appeal to such authority as the State Government may appoint in this behalf, and, thereupon, the authority so appointed may stay the operation of the order till the disposal of the appeal and may, after giving notice of the appeal to the prescribed authority, and after giving the appellant an opportunity of being heard, modify, set aside or confirm the order and the order so passed by such authority all such appeal shall be final. 23. Therefore, it was expedient on the part of the appellant to have preferred an appeal before the authority appointed under the Act instead of knocking the door of writ Court. 24. In the context above, we are not in agreement with the submission of Mr. 23. Therefore, it was expedient on the part of the appellant to have preferred an appeal before the authority appointed under the Act instead of knocking the door of writ Court. 24. In the context above, we are not in agreement with the submission of Mr. Bhattacharyya that entire election process including nomination and validity of election was in dispute which could have been challenged only under Section 79 of West Bengal Panchayat Act before the civil forum, where the civil forum has been given the power to declare the election void under Section 93 of the said Act. 25. It is true that Section 79 of the said Election Act of 2003 and the procedure laid down therein are in pari materia with Part-VI of Representation of people Act, 1951, nonetheless, the dispute here is not relating to the election dispute rather it is a complaint against the appellant as member of Panchayat Samiti who by suppressing the fact that he has a M.R. dealership in the same Panchayat area and contested the panchayat general election. 26. The District Magistrate, South 24-Parganas being the prescribed authority on perusal of complaint lodged by private respondent no. 6 as well as written replies, after having considered the report of BDO, Basanti and all relevant documents forwarded by SDO, Canning vide Memo No. 1103/SDO/ONG dated 19.6.2014 found the following - 1. that appellant had contested in the panchayat general election, 2013 from the constituency Charavidya-PS-9 under Basanti Panchayat Samiti and elected in the said election as member of said constituency. 2. He has been elected as Sahakari Sabhapati of said panchayat Samiti and continuing in the said office. 3. That he is an authorised M.R. dealer under food and supplies Department. 4. That he continued his dealership for the entire year of 2013 and is also continuing till date. 5. That as per West Bengal PDS order, he distributed commodities (rice, wheat, sugar et cetera) among the people of APL, BPL and AAY categories and also to AILA beneficiaries. 6. That he simultaneously working as MR dealer and AAY dealer till now. 7. That he has been working as MR dealer and AAY dealer simultaneously at the time of filing nomination and continuing it till now. 8. That as per II-(d) of notification no. 1029(17)-SEC/6D-9/2010 dated 20.05. 6. That he simultaneously working as MR dealer and AAY dealer till now. 7. That he has been working as MR dealer and AAY dealer simultaneously at the time of filing nomination and continuing it till now. 8. That as per II-(d) of notification no. 1029(17)-SEC/6D-9/2010 dated 20.05. 2013 of the Secretary, West Bengal State election commission, when a MR dealer is also a GR dealer or dealer in respect of mid-day meal, Annapurna Anna Yojana or Antyodaya Anna Yojana, he's not eligible. Accordingly, the appellant was found not eligible to contest in the said election as he was in contractual relationship with panchayat body and he incurred disqualification in view of clause(c) of section 97 of the West Bengal Panchayat Act, 1973 and was removed from the office of member of Basanti Panchayat Samiti in terms of clause(c) of sub section 1 of section 100 of the West Bengal Panchayat Act, 1973. 27. The impugned order so passed by Prescribed Authority & District Magistrate, South 24-Parganas with the aforesaid findings was challenged by the appellant before the Single Bench of this Hon'ble Court and the learned Judge discarded the point of challenge by appellant herein that the concerned Block Development Officer who had conducted enquiry on allegation made by the private respondent no. 6 relating to any contract between the Panchayat Samiti and the petitioner as the M.R. dealer regarding the 'AAY' Scheme and also discarded the point of challenge that the District Magistrate had no authority to entertain and decide the complaint under Section 100 of the said Act as the violation if any committed by the petitioner/appellant before the election and at the stage of filing the nomination. 28. It is admitted that the petitioner appellant is running 'AAY' dealership. A question was raised before the writ court as to whether a circular of Election Commission could enlarge the scope of a the provision of the Act and whether that could be supplemented or inserted by way of circular. The learned Judge was of the view that circular relied on by the District Magistrate is not in the nature of creating new disqualification or adding new things or adding criteria of disqualification to the Act, This is not in the nature of supplementing or inserting more disqualification than the Act contemplated. The learned Judge was of the view that circular relied on by the District Magistrate is not in the nature of creating new disqualification or adding new things or adding criteria of disqualification to the Act, This is not in the nature of supplementing or inserting more disqualification than the Act contemplated. This is in the nature of a clarification and to remove the area of any possible doubt whether 'AAY' dealership could qualify as a contract with a Panchayat Samiti. All that the Election Commission has done is to say that the person who has a 'AAY' dealership is in direct relationship with a Panchayat Body having jurisdiction and, therefore, not illegible. We approve the above observation of the learned Judge. 29. Question posed by learned counsel before the Writ court was whether a circular of the Election Commission could enlarge the scope of a provision of the Act inasmuch as if something is not in the Act whether that could be supplemented by way of circular has been well explained by the Learned Judge. 30. We are not impressed with the submission of learned counsel for the appellant that the notification of Election Commission is not a law because Article 13(3)(a) of Constitution of India enshrined that law includes any ordinance, order, bye law, rule, regulation, notification, custom or uses having in the territory of India the force of law. 31. In his complaint, private respondent alleged that the appellant had suppressed material fact while submitting his nomination form. Learned counsel for appellant argued that since candidature of the appellant has not been opposed by the authority dealing with scrutiny and publication of final list, the authority is estopped from canvassing the point under section 97 of the Panchayat Act, 1973 and further submitted that such plea must have been taken before election at the time of scrutiny of the candidature. We are not persuaded by such argument because the provision of Section 100(1)(c) of the Act is attracted if an elected candidate incurred any of the disqualification as mentioned in Section 97(b)-(g) after his becoming a member of Panchayat Samiti. Therefore, there cannot be estoppel against the law. 32. The learned Judge has also found that the appellant admittedly having continued with the 'AAY' Scheme has made himself not eligible in terms of Section 100(c) of the Act to continue as the member of the Panchayat Samiti. Therefore, there cannot be estoppel against the law. 32. The learned Judge has also found that the appellant admittedly having continued with the 'AAY' Scheme has made himself not eligible in terms of Section 100(c) of the Act to continue as the member of the Panchayat Samiti. 33. Bestowing our anxious consideration to the facts and circumstances of the case and findings of the learned single Judge, we do not find any illegality in the impugned judgment and the challenge is devoid of any merit. 34. In the result, the instant appeal fails and the same is dismissed, however, we make no order as to costs. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.