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2018 DIGILAW 737 (GAU)

Chandan Kumar Sarkar v. Nirmalendu Banikya

2018-05-04

SUMAN SHYAM

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JUDGMENT AND ORDER : SUMAN SHYAM, J. Heard Mr. J. Keka, learned counsel for the applicant. I have also heard Mr. M. U. Mahmud, learned counsel representing the OP/election petitioner. 2. By filing the instant application under Order VI Rule 16 read with Order VII Rule 11 of the Code of Civil Procedure (CPC) the applicant/respondent No. 8 has prayed for striking off the pleadings contained in paragraphs 1 to 17, 19, 20 and 25 of the Election Petition and also for rejection of the petition on the ground that the Election Petition does not disclose any cause of action. 3. The opposite party/election petitioner herein had unsuccessfully contested the election held on 11.04.2016 in respect of 35, Abhayapuri South (SC) Legislative Assembly Constituency of Assam wherein the respondent No. 9, viz., Sri. Ananta Kumar Malo, was declared as the elected candidate. The Election Petition had been filed on the grounds that 35, Abhayapuri South Legislative Assembly Constituency is reserved for the Schedule Caste (SC) candidates and since the respondent No. 8 i.e. the present applicant does not belong to the Scheduled Caste (SC) community, his nomination had been illegally accepted by the Returning Officer. It is also the case of the election petitioner that the respondent No. 8 had indulged in corrupt practices as a result of which the election of the respondent No. 9 was liable to be set aside. 4. It would be pertinent to mention herein that originally there were as many as 9 (nine) respondents in the Election Petition. However, by the order dated 07.11.2016 this Court had directed striking off the names of respondent Nos. 1 to 7. The respondent No. 9, who is the returned candidate, has not entered appearance nor contested the Election Petition. The applicant/respondent No. 8 is the sole contesting respondent in the election petition. 5. Referring to the pleadings contained in the Election Petition Mr. Deka, learned counsel for the applicant submits that the petition does not disclose any cause of action and hence, the Election Petition is liable to be dismissed for want of cause of action. 6. By inviting the attention of this Court to the averments made in paragraphs 7, 10, 11, 17 and 18 of the Election Petition numbered and registered as Election Petition No. 2 of 2016, Mr. 6. By inviting the attention of this Court to the averments made in paragraphs 7, 10, 11, 17 and 18 of the Election Petition numbered and registered as Election Petition No. 2 of 2016, Mr. Deka submits that those statements are completely vague, frivolous, vexatious and unnecessary and if permitted to remain on record would amount to abuse of process of the Court. The learned counsel further submits that in this case there is no allegation of corrupt practice against the returned candidate or his agent and therefore, there is no cause of action within the meaning of section 100 of the Representation of the People Act, 1951 permitting institution of the election petition. 7. By referring to two earlier reported decisions of this Court in the case Chandan Kr Sarkar v. Chief Election Commissioner of India reported in 1995 (1) GLR 87 and in Dipak Kumar Ruhidas v. Chandan Kumar Sarkar reported in (2003) 1 GLR 106, Mr. Deka submits that the issue sought to be raised in the Election Petition has been conclusively decided by this Court in the aforesaid decisions whereby, it was effectively held that the Scheduled Caste certificate issued in favour of the applicant/respondent No. 8 was valid. In that view of the matter, submits Mr. Deka, the averments made in the Election Petition, even if taken on their face value, would not give rise to any triable issue. 8. Mr. Deka has further contended that there are no material facts brought on record by the election petitioner so as to disclose a complete cause of action and the election petition is nothing but a calculated attempt for causing harassment and injury to the respondent No. 8, who is an arch political rival of the election petitioner. Mr. Deka has, therefore, prayed for the dismissal of the Election Petition at the threshold with exemplary cost. 9. Mr. Mahmud, learned counsel for the OP/election petitioner, on the other hand, has argued that the issues raised in this application are premature inasmuch the truthfulness of the averments made in the election petition can only be gone into after the evidence is brought on record. It is also the submission of Mr. 9. Mr. Mahmud, learned counsel for the OP/election petitioner, on the other hand, has argued that the issues raised in this application are premature inasmuch the truthfulness of the averments made in the election petition can only be gone into after the evidence is brought on record. It is also the submission of Mr. Mahmud that if the paragraphs, as mentioned in the application, are struck off by this Court then the Election Petition itself will be frustrated as there will be nothing left for the OP/election petitioner to prove during the trial. 10. By referring to the judgment and order dated 15.09.2017 passed by this Court in I.A.(Civil) No. 2009/2016 arising out of Election Petition No. 2/2016, Mr. Mahmud has further argued that a similar petition filed earlier by the applicant questioning the maintainability of the Election Petition had been rejected by this Court by holding that the petition was maintainable. In view of the above, the present application, according to Mr. Mahmud, was barred by the principle of res judicata and therefore, liable to be rejected on such count alone. In support of his aforesaid argument Mr. Mahmud has placed reliance on a decision of the Supreme Court in the case of Ajay Arjun Singh v. Sharadendu Tiwari, reported in (2016) 15 SCC 219 . 11. In his reply argument, Mr. Deka has contended that the plea raised in I.A. (Civil) No. 2009/2016 were under section 86 of the Representation of the People Act, 1951 (hereinafter referred to as the Act of 1951) whereas the plea raised in the present application comes within the purview of section 83 of the Act of 1951. By referring to the decision of the Supreme Court in the case of Manohar Joshi v. Nitin Bhaurao Patil reported in (1996) 1 SCC 169 , Mr. Deka submits that sections 83 and 86 of the Act of 1951 operate in independent fields and since the issues raised under Order VII Rule 11 and Order VI Rule 16 CPC falls under the ambit of Section 83 of the Act of 1951, these provisions would be attracted only after the Election Petition is held to be maintainable on the touchstone of Section 86 of the Act of 1951. 12. I have considered the submissions made by the learned counsel for the parties and have also gone through the materials available on record. 13. 12. I have considered the submissions made by the learned counsel for the parties and have also gone through the materials available on record. 13. It is correct that the applicant had earlier filed another application, registered and numbered as I.A.(Civil) No. 2009/2016, questioning the maintainability of the Election Petition on three grounds, viz.(i) that the election petition was filed beyond the prescribed period of limitation;(ii) that the petition was not personally presented by the election petitioner and (iii) that election petitioner had failed to properly make attestation in the accompanying copies of the Election Petition by marking them as true copies. By the judgment and order dated 15/09/2017 passed in I.A.(Civil) No. 2009/2016, this court had rejected the said application on recording satisfaction that the contentions raised there-in were devoid of any merit. It is in such context that the maintainability of the present application has been questioned by the opposite party/election petitioner by raising the plea of res-judicata. 14. In the case of Manohar Joshi (supra) a question of similar nature arose for consideration of the Hon'ble Supreme Court and after discussing the earlier decisions of the Apex Court covering the issue, the following observations were made in paragraph 19 of the said decision :— “19. There is no dispute that the election petition as presented in the court, was accompanied by as many copies thereof as there were respondents in the election petition; and the copy of the election petition served on the returned candidate with the notice of the election petition was identical with the election petition as it was presented in the court. The requirement of the plain language of Section 81(3) was, therefore, fully met. The object of the provision is clearly to ensure that each respondent to the election petition gets an identical copy of the election petition as presented in the court to acquaint the respondent with the actual and full contents of the election petition as it is presented in the court. On the basis of the identical copy the respondent can prepare his defence and also take the plea of deficiency, if any, in the contents of the election petition with reference to Section 83 of the R.P. Act, in order to apply in the court for action being taken under order 7 Rule 11 or Order 6 Rule 16, C.P.C., as the case may be. These provisions are attracted only after the election petition survives the liability for dismissal at the threshold under Section 86 of the R.P. Act.” 15. Having regard to the observations made by the Supreme Court in the case of Manohar Joshi (supra) I have no hesitation in concluding that the objections raised in this application comes within the fold of section 83 of the Act of 1951 and hence, the same could be taken up for consideration after deciding the plea of maintainable of the election petition on the touch stone of Section 86 of the Act of 1951. Therefore, the present application cannot be held to be barred by the principles of res-judicata. 16. Coming to the merit of the objections raised by the applicant, it would be pertinent to note herein that there were as many as 6 (six) candidates including the election petitioner, respondent Nos. 8 and 9, who had contested the election from the 35, Abhayapuri South (SC) Legislative Assembly Constituency held on 11.04.2016. The total number of votes polled in the election was 1,58,431. The votes polled by the respective candidates as well as on account of “NOTA”, are indicated herein below in tabular form :— Sl. No. Name of Candidate No. of votes polled 1. Ananta kumar Malo 51518 2. Chandan Kumar Sarkar 51280 3. Rabin Banikya 50921 4. Ashok Dutta 1304 5. Dhiren Majumdar 694 6. Nirmalendu Banikya 1601 7. NOTA 1113 17. From the figures indicated in the table above, it would be apparent that the respondent no. 8 had polled the second highest number of votes whereas the election petitioner had polled only 1601 votes which is the lowest amongst all the six candidates in the fray. Dhiren Majumdar 694 6. Nirmalendu Banikya 1601 7. NOTA 1113 17. From the figures indicated in the table above, it would be apparent that the respondent no. 8 had polled the second highest number of votes whereas the election petitioner had polled only 1601 votes which is the lowest amongst all the six candidates in the fray. Notwithstanding the same, the Election Petition has been filed with the following prayers :— “In the premises aforesaid, it is therefore, prayed that Your Lordships may graciously be pleased to consider the above, admit this application, call for the requisite records, issue Notices upon the respondents to show cause as to why the prayer of the petitioner as made in this election petition should not be allowed and upon the cause or causes being shown and after hearing the parties as well as on appraisal of the evidence and other material on record be pleased to :— (i) Set aside the general election held on 11.04.2016 in respect of the 35 Abhayapuri South (SC) LAC declaring the same to be void under Section 98(b) of the Representation of the People Act, 1951, (in short the said Act) on the ground stipulated vide Section 100 (1)(d)(i) of the said Act; (ii) Direct the respondent authorities to re-hold the election of a member (s) to the Assam Legislative Assembly from the 35 Abhayapuri South (SC) LAC debarring Sri. Chandan Kumar Sarkar (respondent No.8) there from, at the earliest convenience but within a reasonable time as may be determined by this Hon'ble Court; (iii) To award the cost of the cost of the instant proceedings; (iv) To pass any such further or other order or orders as to this Hon'ble Court may seem fit and proper in the facts and circumstances of the instant case for the ends of justice.” 18. There is a schedule of corrupt practice appended to the Election Petition which is reproduced herein below :— “SCHEDULE OF CORRUPT PRACTICE Sl. No. Nature of corrupt practice Committed by Paragraph of the election petition containing related material facts and particulars 1. Bribery Sri. Chandan Kumar Sarkar through his supporters, namely, Sri. Babu Sarmah, Sri. Raju Malo and Sri. Mahadev Sarmah, in the house of Sri. Raju Malo. Paragraph Nos. 17 and 18.” 19. No. Nature of corrupt practice Committed by Paragraph of the election petition containing related material facts and particulars 1. Bribery Sri. Chandan Kumar Sarkar through his supporters, namely, Sri. Babu Sarmah, Sri. Raju Malo and Sri. Mahadev Sarmah, in the house of Sri. Raju Malo. Paragraph Nos. 17 and 18.” 19. A plain reading of the pleadings in the Election Petition along with the prayer portion as well as the Schedule of Corrupt Practice leaves no room for doubt that the Election Petitioner does not have any grievance nor has he made any allegation against the returned candidate i.e. the respondent No. 9 but the Election Petition is directed entirely against respondent No. 8, who is evidently and admittedly not the returned candidate. There is also no pleading, whatsoever, in the election petition to show as to how the election of the returned candidate, who had polled the highest number of votes, had been materially affected due to the acceptance of the nomination paper submitted by the respondent No. 8. 20. Section 100 of the Representation of the People Act, 1951 lays down the grounds for declaring election to be void. Section 100 is quoted herein below :— “100. 20. Section 100 of the Representation of the People Act, 1951 lays down the grounds for declaring election to be void. Section 100 is quoted herein below :— “100. Grounds for declaring election to be void.—(1) Subject to the provisions of sub-section (2) if the High Court is of opinion— (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963)]; or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected— (i) by the improper acceptance or any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void. (2) If in the opinion of the High Court, a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice but the High Court is satisfied— (a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent; (c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and (d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void.” 21. As per Section 100(1)(d), election can be declared to be void in case of improper acceptance of any nomination if the result of the election, insofar as it concerns a returned candidate, has been materially affected. 22. Section 100(2) of the Act of 1951 provides that the election can be declared as void if the returned candidate has been guilty by an agent, other than his election agent, of having committed corrupt practice, unless the exceptions enumerated in sub-section 2(a)(b) and (c) are attracted. 23. The materials brought on record further goes to show that the Election Petitioner and the present applicant/respondent No. 8 have a litigating background over the elections held from the same constituency in the past. Assailing the election of the respondent No. 8 from the 35, Abhayapuri South (SC) Legislative Assembly Constituency held on 08/06/1991, the present election petitioner had earlier filed Election Petition No.3 of 1991 before this court, wherein the present applicant had filed an application under Order VII Rules 11 read with Order VI Rule 16 CPC. By the judgement and order dated 09/06/1992 rendered in the case of Nirmalendu Banikya v. The Returning Officer, 35-Abhayapuri South (S.C.) Constituency reported in (1992) 2 GLR, this court had held that the Election Petition did not disclose any material facts and particulars and hence, dismissed the same. 24. The election of the respondent No. 8 from the 35, Abhayapuri South (SC) Legislative Assembly Constituency held in the month of May 2001 was challenged by another defeated candidate Sri. Dipak Kumar Ruhidas alleging that the returned candidate Sri. Chandan Kumar Sarkar (respondent no. 8 herein) was not a Schedule Caste as claimed by him and hence, could not have been permitted to contest the election from the aforesaid constitutency. The maintainability of the Election Petition was assailed by the respondent No. 8 by filing a similar miscellaneous application under Order VI Rule 16 read with Order VII Rule 11 CPC which was registered as Misc case No. 28 of 2001. By relying upon an earlier decision of this court rendered in the case of Chandan Kr. The maintainability of the Election Petition was assailed by the respondent No. 8 by filing a similar miscellaneous application under Order VI Rule 16 read with Order VII Rule 11 CPC which was registered as Misc case No. 28 of 2001. By relying upon an earlier decision of this court rendered in the case of Chandan Kr. Sarkar v. Chief Election Commissioner of India reported in 1995 (1) GLR 87, as affirmed by the Division Bench of this court in Election Commission of India v. Chandan Kr Sarkar reported in 1996 (1) GLT 202, the learned Single Judge had held that the Caste Certificate issued by the competent authority would normally be issued after proper enquiry and the correctness of the same cannot be the subject matter in the election petition. Having held as above, the learned Single Judge had dismissed the election petition as not maintainable. [See: Dipak Kumar Ruhidas v. Chandan Kumar Sarkar reported in (2003) 1 GLR 106]. 25. In the instant case, it is not in dispute that the respondent No. 8 had produced a Caste Certificate before the Returning Officer along with his nomination paper based on which his nomination had been accepted. In the case of Bhaiyalal v. Hari Kishan Singh reported in AIR 1965 1557, the Hon'ble Supreme Court has held that an enquiry as to the caste to which a candidate belongs to shall not be permissible in an election petition in view of the provisions contained in Article 341 of the Constitution. 26. I have carefully perused the pleadings contained in the Election Petition and have also gone through the annexures appended thereto. I am of the opinion that the election petition dose not disclose any cause of action for filing the same. The election petition also does not contain the material facts and particulars as per the requirement of section 83 of the Act of 1951. 27. The applicant also prayed for striking out paragraph Nos. 7, 10, 11, 17 and 18 of the Election Petition. The offensive paragraphs are re-produced here-in below for ready reference :— “7. The election petition also does not contain the material facts and particulars as per the requirement of section 83 of the Act of 1951. 27. The applicant also prayed for striking out paragraph Nos. 7, 10, 11, 17 and 18 of the Election Petition. The offensive paragraphs are re-produced here-in below for ready reference :— “7. That as per the aforesaid Notice of Election, it was notified that nomination papers may be delivered by a candidate or by any of his proposers to the Returning Officer or to Ashrumoni Malakar, ACS, Assistant Returning Officer, at Office of the Sub-Divisional Officer (Civil), North Salmara, Abhayapuri at Room No. 1 between 11 A.M. and 3 P.M. on any day (other than public holiday) not later than the 22.03.2016. Accordingly, the petitioner submitted his nomination papers on 21.03.2016 as an Independent Candidate for election as a member to the Assam Legislative Assembly from 35, Abhayapuri South (SC) LAC; likewise Sri. Chandan Kumar Sarkar (respondent No. 8) also submitted his nomination papers on 22.03.2016. The nomination papers of both the petitioner and the respondent No. 8 were duly accepted by the Returning Officer (respondent No.7) on 24.03.2016.” “10. That after the submission of the nomination papers by all the candidates, the petitioner came to know that Shri. Chandan Kumar Sarkar (Respondent No. 8), in fact is not a member of SC community, but has submitted his nomination papers under the sponsorship from the Indian National Congress as a Scheduled caste candidate to be a member of Assam Legislative Assembly from No.35 Abhayapuri South (SC) LAC, which is exclusively reserved for SC candidates. On further enquiry the petitioner came to know that respondent No. 8 has obtained several SC certificates from various authorities by misrepresenting the true facts; which is evident from the Inquiry Report dated 10.02.1994 of Sri. C.K. Das, Commissioner and Secretary, Government of Assam, Revenue/Panchayat and RD Department, Dispur, Guwahati which was conducted by him as per letter No. PLB 6/94 dated 27.01.1994 of the Secretary, Government of Assam, Political (B) Department, Dispur, in pursuant to the complaint filed by one Sri. Rabin Banikya. C.K. Das, Commissioner and Secretary, Government of Assam, Revenue/Panchayat and RD Department, Dispur, Guwahati which was conducted by him as per letter No. PLB 6/94 dated 27.01.1994 of the Secretary, Government of Assam, Political (B) Department, Dispur, in pursuant to the complaint filed by one Sri. Rabin Banikya. However, the respondent No. 8 along with his nomination papers has submitted his only one SC Certificate dated 31.03.90, which is issued to him by the then District Magistrate, Bongaigaon in clear violation of Rule 3(1)(a) of the Assam Scheduled Castes and Scheduled Tribes (Reservation of vacancies in Services and Posts) Rules 1983, the provisions of which was applicable at the relevant time when the said SC certificate was issued to respondent No. 8; according to which the then District Magistrate, Bongaingaon had no power to issue such certificate. On being satisfied that respondent No. 8 in fact does not belong to SC community, the petitioner vide his Memorandum dated 24.03.2016 before the Hon'ble Returning Officer prayed for cancelling nomination of respondent No. 8 as based on the aforesaid illegal SC certificate dated 31.03.1990. Along with his said Memorandum he has annexed then Annexure, including the Inquiry Report dated 10.02.1994 of Sri. C.K. Das, order dated 15.3.1994 of Election Commission of India, Order dated 19.01.1996 of Additional District Magistrate, Bongaigaon by which he cancelled SC Certificate dated 21.6.1995 issued to respondent No.8, order dated 22.3.1996 of Deputy Commissioner Bongaigaon by which the same was withdrawn and the relevant extract of the aforesaid Rules.” “11. That the learned Returning Officer on 24.3.2016 itself passed order accepting the nomination of Shri. Chandan Kumar Sarkar, in respect of 35, Abhayapuri South (SC) LAC, without considering the relevant documents annexed to his Memorandum dated 24.3.2016 which on the fact of record clearly reveal that Shri. Chandan Kumar Sarkar has obtained SC certificates from various authorities by misrepresenting the fact that he does not belong to SC community.” “17. That the petitioner states that due to arbitrary and illegal acceptance of the nomination of Sri. Chandan Kumar Sarkar (Respondent No.8) by learned Returning Officer (respondent No.7) without considering the relevant documents clearly revealing that the said Sri. That the petitioner states that due to arbitrary and illegal acceptance of the nomination of Sri. Chandan Kumar Sarkar (Respondent No.8) by learned Returning Officer (respondent No.7) without considering the relevant documents clearly revealing that the said Sri. Chandan Kumar Sarkar was not a member of SC community; has gone long way to defeat the petitioner, in as much as, the maximum votes in favour of the petitioner have been purchased by the said Sarkar through his supporters, namely, Sri. Babu Sarmah son of Late Nani Gopal Sarmah, Sri. Raju Malo son of Panu Malo and Sri. Mahadev Sarmah son of Rabin Sarmah, all of village Chalantapara Part-I, Police Station Jogighopa, district Bongaigaon; who were caught red handed bribing the electors and purchasing their votes in the night of 09.4.2016 at about 9.30 p.m. by Sri. Paritosh Malo; who lodged FIR against them on 10.4.2016 with Officer-in-Charge Jogighopa Police Station; which has been registered as Jogighopa P.S. Case No.58/2016 under 171E/341/325/34 of Indian Penal Code, 1860. It is pertinent to mention herein that Sri. Baba Sharma is well known member and supporter of Indian National Congress Party who has been taking extremely active part in campaigning for Sri. Chandan Kumar Sarkar at the relevant time during the election held on 11.04.2016 from 35 Abhayapuri South (SC) LAC. The petitioner came to know about the above fact after the election and accordingly obtained the certified copy of the said FIR.” “18. That the petitioner submits that the aforesaid corrupt practice committed by Sri. Chandan Kumar Sarkar through his associates had also materially affected the result of election in respect of the aforesaid LAC so far it concerns the returned candidate Sri. Ananta Kumar Malo, rendering the same as void.” 28. From a plain reading of the aforesaid paragraphs, I find that those do not disclose any cause of action. Rather, those statements appear to be completely unnecessary, frivolous and vexatious and if allowed to remain on record, would prejudice, embarrass and delay the trial. I am, therefore, of the considered opinion that the statements made in paragraph Nos. 7, 10, 11, 17 and 18 of the Election Petition are liable to be struck off. 29. Rather, those statements appear to be completely unnecessary, frivolous and vexatious and if allowed to remain on record, would prejudice, embarrass and delay the trial. I am, therefore, of the considered opinion that the statements made in paragraph Nos. 7, 10, 11, 17 and 18 of the Election Petition are liable to be struck off. 29. In the case of Dahrtipakar Madan Lal Agarwal v. Rajiv Gandhi reported in 1987 Supp SCC 93 the Supreme Court has held that Order VI Rule 16 of the CPC is applicable in an election petition and those statement which do not disclose any cause of action are liable to be struck off by the court. 30. In Ram Sukh v. Dinesh Aggarwal reported in (2009) 10 SCC 541 , the Supreme Court has observed that material facts in an election petition would mean the entire bundle of facts which would constitute a complete cause of action i.e. the facts if established, would give the petitioner the relief asked for. An Election Petition which lacks material facts and particulars will be liable to be dismissed on that ground alone. 31. Applying the ratio of the aforesaid decisions of the Hon'ble Supreme Court to the facts and circumstances of this case, I am of the view that the pleadings read along with the annexures do not raise any triable issue in the Election Petition. As such, the continuance of this Election petition, in the opinion of this court, would amount to abuse of the process of this court. 32. For the reasons stated above, the preliminary objection as to the maintainability of Election Petition succeeds. The Election Petition is held to be not maintainable. 33. The Interlocutory Application, therefore, stands allowed. 34. Consequently, the Election Petition stands dismissed with a cost of Rs. 3000/-. Office to take necessary steps under section 103 of the Act of 1951 to communicate this order to the competent authorities.