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2017 DIGILAW 667 (CAL)

Rekha Bibi v. State of West Bengal

2017-08-07

DEBASISH KAR GUPTA, MD.MUMTAZ KHAN

body2017
JUDGMENT : 1. This appeal is directed against a judgment dated July 4, 2017 passed in the writ application. The application bearing C.A.N. 6653 of 2017 is filed in connection with the aforesaid appeal praying for necessary orders during the pendency of this appeal. It is submitted by Mr. Rabilal Moitra, learned Senior Advocate appearing on behalf of the appellant that the appellant/respondent No. 7 was elected as a candidate belonging to the general category of Domkol Panchayat Samity, District Murshidabad. According to Mr. Moitra, subsequently she was elected as Sabhapati of the above Panchayat Samity. The office of Sabhapati of the above Panchayat samity was reserved for candidate belonging to the Women and Other Backward Classes. According to Mr. Moitra, since the appellant was belonging to Other Backward Classes category she was eligible for election in respect of the office of the Sabhapati of the above Panchayat Samity in accordance with the provision of Chapter XVIII proviso of sub-section (1) of section 98 of the West Bengal Panchayat Act, 1973. 2. The above submissions made on behalf of the appellant is repeated and reiterated by Mr. Swapan Kumar Dutta, learned State Advocate. According to him, a candidate after his/her election under the General Category as a member of Panchayat Samity is eligible for holding office of the Sabhapati of that Panchayat Samity under reserved category under the Chapter XVIII proviso of sub-section (1) of section 98 of the West Bengal Panchayat Act, 1973. As a result, the impugned judgment cannot be sustained in law. 3. On the other hand, it is submitted by Mr. Debabrata Roy, learned Advocate appearing on behalf of the respondent/writ petitioner that in the Voters' Identity Card of the appellant, her name is described as "Rekha Bibi" wife of Ali Hossain Malikhya. Her name appeared in the electoral roll concerned as "Rekha Bibi" but relying upon a certificate for Other Backward Classes issued in favour of one "Rekha Khatun" bearing certificate No. 13055 dated June 5, 2013 issued by the Sub Divisional Officer, Domkol, District Murshidabad. The competent authority allowed the appellant to participate in the election for holding the office of Sabhapati of the above Panchayat Samity. Mr. Roy further prays for filing affidavit in opposition to the application arising out of this appeal for bringing relevant materials on record. 4. The competent authority allowed the appellant to participate in the election for holding the office of Sabhapati of the above Panchayat Samity. Mr. Roy further prays for filing affidavit in opposition to the application arising out of this appeal for bringing relevant materials on record. 4. Having heard the learned Counsel appearing for the respective parties as also after considering the fact and circumstances of this appeal, we find that only one issue was involved in this writ application for consideration. Arguments advanced by the learned Counsel appearing for the respective parties before the learned single judge with regard to the single issue of election of a candidate for holding office of Sabhapati of the above Panchayat Samity under reserved category, who had been elected as a member of such Panchayat Samity under general category. Therefore, the above issue requires to be decided on the basis of the relevant provisions of the West Bengal Panchayat Act, 1973 for which the provisions of XVIII proviso of sub-section (1) of section 98 of the West Bengal Panchayat Act, 1973 is quoted below :- "Sabhapati and Sahakari Sabhapati - (1) Every Panchayat Samiti shall, at its first meeting at which a quorum is present, elect in the prescribed manner, one of its members to be the Sabhapati and another member to be the Sahakari Sabhapati of the Panchayat Samiti : ............................ ............................ ............................ Provided also that any member elected from an unreserved seat or from a seat reserved for another category shall be eligible for election to the office of the Sabhapati or the Sahakari Sabhapati reserved for a particular category if he belongs to such category and produces Scheduled Castes, Scheduled Tribes or a Backward Classes certificate, as the case may be, issued by the competent authority before the presiding officer in order to establish his claim." 5. From the aforesaid provisions, we have no hesitation to arrive at a conclusion that a candidate after his/her election as a member of Panchayat Samity under general category is entitled to hold the office of the Sabhapati of that Panchayat Samity under reserved category. Therefore, the finding of the learned single judge cannot be sustained in law and the same is liable to be quashed and set aside. 6. With regard to the submissions of Mr. Therefore, the finding of the learned single judge cannot be sustained in law and the same is liable to be quashed and set aside. 6. With regard to the submissions of Mr. Roy in respect of the identity of the appellant and the alleged dispute with regard to the certificate issued in the name of "Rekha Khatun", we do not find that the above ground was either agitated before the learned single judge by the respondents/writ petitioner nor it was a part of the pleading in the writ application. 7. The above submissions made by Mr. Roy before us with regard to the aforesaid disputed question of fact for the first time from the bar cannot be entertained. However, this will not prevent the respondent/writ petitioner from agitating his grievance before the competent authority. 8. In view of the discussions and observations made hereinabove, the impugned judgment is quashed and set aside. 9. The appeal as also the application bearing C.A.N. 6653 of 2017 are disposed of accordingly. 10. There will be however no order as to costs. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.