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2019 DIGILAW 51 (CAL)

Sangita Majhi v. State of West Bengal

2019-01-11

SUBRATA TALUKDAR

body2019
JUDGMENT : SUBRATA TALUKDAR, J. 1. The above referred four writ petitions were analogously heard since each and all essentially raise a common point of law. 2. The issue raised is as follows:- Whether a candidate, although belonging to the Reserved Category (R), who has not declared himself as belonging to the R Category at the point of contesting for a seat/constituency to the Gram Panchayat (GP) in issue, can subsequently be allowed to declare his R category and, on the basis of the subsequent declaration, contest for an office of the GP, i.e. Pradhan or UpaPradhan which stands reserved for the R Category. 3. Straightaway taking this Court to Form 2 of the West Bengal Panchayat Election Rules, 2006 (for short the 2006 Election Rules), Mr. Bikash Ranjan Bhattacharya, Ld. Senior Counsel appearing for the writ petitioner in WP 15616(W) of 2018 (In Re: Sudan Kaibarata vs. State of West Bengal & Ors.) (hereinafter referred to for convenience as only WP-I), submits that Form 2 is the nomination paper to be filled in by a candidate at the time of contesting for a seat/constituency to the GP in issue. Form 2 also contains the rider attached to the filing of the nomination that to the best of his knowledge and belief the candidate is qualified and also not dis-qualified to be nominated as a candidate under any law for the time being in force. 4. Referring to the facts in WP-I, Mr. Bhattacharya submits that in respect of Birgram GP, Purulia the respondent No.6 (R6)/one Mrityunjay Rajak was elected as a candidate from a General Category (G) seat. The fact that R6 was elected from a G Category seat can be gathered from the Election Certificate issued in favour of R6 after the results to the Panchayats Election, 2018 (the 2018 Election) were declared. 5. Mr. Bhattacharya submits that thereafter R6, who claims to belong to the R Category and particularly, the Scheduled Caste (SC) Category, was permitted to obtain a SC certificate after declaration of his election from the G Category seat. Then on the basis of the SC Certificate subsequently handed over to R6 on his application, R6 was permitted to contest and eventually won the office of the Pradhan of Birgram GP which was reserved for a SC candidate. 6. Ld. Then on the basis of the SC Certificate subsequently handed over to R6 on his application, R6 was permitted to contest and eventually won the office of the Pradhan of Birgram GP which was reserved for a SC candidate. 6. Ld. Senior Counsel for the petitioner points out that the subsequent conduct of R6 to embrace and take for himself a SC Certificate goes against the grain of his declaration in the nomination form, i.e. Form 2 (supra). Having regard to the precise requirement of Form 2, R6 was under a conscious obligation to declare himself as belonging to the SC Category at the threshold of the election process. Withholding of such declaration amounts to suppression of a material fact and therefore violates basic electoral norms imposing upon a candidate the obligation to declare complete particulars to the electorate. 7. Relying on the authority of In Re: Resurgence India vs. Election Commission of India & Anr., (2014) 14 SCC 189 Mr. Bhattacharya argues that it is essential that the candidate should disclose all relevant information to the voter in order to enable the latter to participate in an informed exercise of his franchise. 8. Appearing for the petitioner in WP 15725(W) of 2018 (hereinafter referred to for convenience as only WP-II), Mr. Arun Naskar, Ld. Advocate relies upon provisions of the West Bengal Panchayat Act, 1973 (for short the 1973 Act) and particularly Section 4 thereof. Ld. Advocate points out that the 1973 Act makes a provision for a ceiling limit of seats to be exclusively earmarked for R Category candidates. Therefore, at the time of filling in Form 2 under the 2006 Election Rules the ceiling limit of seats in the GP in issue for R category candidates is fixed by allotting a particularly ratio under Section 4 of the 1973 Act. Derivatively, therefore, the subsequent action of any candidate, although belonging to the R Category but not having declared himself to be so at the threshold while filing nomination under Form 2, has the effect of violating the ceiling limit. 9. Mr. Naskar argues that since the Respondent No.9 (R9) to WP-II subsequently obtained the R Category Certificate, such action has the effect of violating the ceiling limit originally fixed by apportionment applying Section 4 of the 1973 Act. 9. Mr. Naskar argues that since the Respondent No.9 (R9) to WP-II subsequently obtained the R Category Certificate, such action has the effect of violating the ceiling limit originally fixed by apportionment applying Section 4 of the 1973 Act. It is pointed out that R9 to WP-II obtained her caste certificate subsequent to her election as a member of the GP and did not declare her SC Category in the nomination paper vide Form 2 (supra). 10. It is asserted by Mr. Naskar that the procedure adopted by R9 is an exercise which is not countenanced by law. In the event there is an artificial increase in the ceiling limit after the declaration of the total number of R Category seats which can comprise the GP in issue, such artificial increase shall have the effect of violating the mandate under Article 243 of the Constitution of India. 11. The further point taken by Mr. Naskar is that the office of the Pradhan of the GP in issue stood reserved for the SC Category. Therefore, there can be no ambiguity with regard to the requirement of a candidate wishing to contest for the office of the Pradhan to declaring his R Category status at the appropriate stage, which is at the stage of filling up Form 2. Having regard to the above aspects, Mr. Naskar submits that the election of R9 to the office of the Pradhan be set aside and only those candidates who declared themselves as belonging to the R Category while filing their nominations be permitted to contest for the office of the Pradhan. 12. Mr. Supradip Roy, Ld. Counsel appearing for the writ petitioners in WP 17709(W) of 2018 (WP-III) and WP 12282(W) of 2018 (WP-IV) respectively, submits that both WP-III and WP-IV contain a similarity of facts. It is pointed out that the office of the Prodhan in both WP-III and WP-IV were reserved for Women SC candidates. The election notification in March, 2018 made it abundantly clear that the office of the Pradhan is reserved for an elected member belonging to the Woman SC Category. Mr. Roy submits that the petitioners contested the seat reserved for SC Women candidates and won the election. 13. The Private Respondents (PRs) contested the election from a G Category seat. The election notification in March, 2018 made it abundantly clear that the office of the Pradhan is reserved for an elected member belonging to the Woman SC Category. Mr. Roy submits that the petitioners contested the seat reserved for SC Women candidates and won the election. 13. The Private Respondents (PRs) contested the election from a G Category seat. Subsequently the PRs, both women, obtained their SC certificates from the competent authority and utilising such SC certificates the PRs have been declared to be elected as office-bearers of the GPs in issue. 14. Mr. Roy argues that the election of PRs as office-bearers to seats reserved exclusively for elected Women SC candidates is an example of abuse of the majority first principle since exercise of their right of vote to office by a particular group in the majority cannot be de hors to recognized canons of electoral practice. Mr. Roy therefore argues that both WP-III and WP-IV are fit cases for issuing a writ of Quo warranto since it is an admitted position that the offices of the GPs in issue have been filled up by persons not authorized by law. 15. Ld. Counsel for the petitioners in all the writ petitions adopt the legal position argued by Mr. Bhattacharya, Ld. Senior Counsel in WP-I on the strength of In Re: Union of India vs. Association for Democratic Reforms & Anr., (2002) 5 SCC 294 (at Paragraph 46) that an election process is indivisible and, cannot be split up into two processes, viz. first for election to seats/constituencies and, second to elect the office bearers of the GPs. It is further argued on the strength of 2002 (5) SCC 294 (supra) that the candidates must maintain a maximum amount of transparency qua their voters enabling the latter to exercise their informed choice. 16. Ld. Counsel for the petitioners additionally rely upon the authorities of In Re: Peoples s Union of Civil Liberties (PUCL) & Anr. vs. Union of India & Anr., (2003) 4 SCC 399 (at Paragraphs 73, 78 and 79) and In Re: Bharati Reddy vs. State of Karnataka & Ors, (2018) 6 SCC 162 . 17. Mr. Bhattacharya, Ld. 16. Ld. Counsel for the petitioners additionally rely upon the authorities of In Re: Peoples s Union of Civil Liberties (PUCL) & Anr. vs. Union of India & Anr., (2003) 4 SCC 399 (at Paragraphs 73, 78 and 79) and In Re: Bharati Reddy vs. State of Karnataka & Ors, (2018) 6 SCC 162 . 17. Mr. Bhattacharya, Ld. Senior Counsel, seeks to distinguish the judgment of the Hon'ble Division Bench of the Court as reported in, In Re: Rekha Bibi vs. State of West Bengal, (2018) 1 CalHN 32 on the ground that the effects of nondisclosure under Form 2 were not considered by the Hon'ble Appellate Bench. 18. On behalf of the State-respondents, Mr. Sirsanya Bandopadhyay, Ld. Junior Standing Counsel, leads the arguments which are basically adopted by the other counsel also appearing for the State and the PRs as reflected from the cause-title of names printed with this judgment. 19. The common arguments of the Ld. Counsel for the respondents can be summarized as follows:- First, that Section 4 of the 1973 Act and particularly Sub-Section 2 First Proviso thereof, provides for reservation to seats in a GP. Section 9 of the 1973 Act, Last Proviso thereof, permits a member elected from an unreserved category to contest the post of an office bearer reserved for any other category provided the member so contesting satisfies the Presiding Officer (PO) with regard to his caste status. The Last Proviso to Section 9 of the 1973 Act (supra) is pari materia to Section 98 Sub-Section 1 of the 1973 Act applicable to Panchayat Samity Offices as noticed by the Hon'ble Division Bench in 2018 (1) CHN (Cal) 32 (supra). Second, Rule 2A Sub-Rule (i) of the West Bengal Panchayats Constitution Rules, 1975 (for short the 1975 Rules) provides for reservation to offices, not seats/constituencies. It is therefore argued that the reservation initially provided for contesting seats of the GPs in issue is both relatable and distinguishable from the procedure for reservation of offices under Rule 2A of the 1975 Rules (supra). It is therefore argued that the reservation initially provided for contesting seats of the GPs in issue is both relatable and distinguishable from the procedure for reservation of offices under Rule 2A of the 1975 Rules (supra). Since no argument is raised by the petitioners that Section 9, Last Proviso thereof, of the 1973 Act, is not intra vires, the convenient position cannot be now taken by the petitioners that a certificate pertaining to a R Category to which an elected candidate genuinely belongs to, cannot be subsequently applied for and granted to contest the position of an office-bearer to a GP. Third, Form 2 of the 2006 Election Rules provides for a declaration of R Category status by a candidate only in the event such candidate at the time of filling up Form 2 is desirous of filing nomination from a R Category seat/constituency and is in a position to produce, while declaring so, his certificate in support of his/her R Category status. Merely because a candidate intends to contest from any other category of seat/constituency other than R without the obligation by law to produce a certificate of his caste status having regard to the clear language and intention of Form 2, would not invalidate either the candidature or subsequent contest on the basis of a Caste Certificate for a separate/distinct electoral contest to the office of a GP. 20. Next, relying upon the authority of 2018 (6) SCC 162 (supra) at Paragraphs 6, 23, 24, 29, 30 and 32 it is submitted for the Respondents that till the caste certificate subsequently obtained by the PRs/the elected office-bearers is declared to be fraudulent by the Competent Authority, their action to contest for office under the extant Panchayat law cannot be invalidated. 21. There can be no question of a writ of quo warranto. Only in the ultimate event of the Competent Authority declaring the candidate in issue to be in possession of a fraudulent or invalid caste certificate, then the issue of unauthorized occupation of office may arise empowering the challenger to invoke quo warranto. 22. 21. There can be no question of a writ of quo warranto. Only in the ultimate event of the Competent Authority declaring the candidate in issue to be in possession of a fraudulent or invalid caste certificate, then the issue of unauthorized occupation of office may arise empowering the challenger to invoke quo warranto. 22. Distinguishing the position relied upon by the petitioners in, In Re: Mairembam Prithviraj Alias Prithviraj Singh vs. Pukhrem Sharatchandra Singh, (2017) 2 SCC 487 and In Re: Banibrata Das vs. State of West Bengal & Ors., (2008) 3 CalHN 1016 it is submitted that the above referred authorities do not present apropo facts persuading a similarity of conclusions. 23. The authority of 2002 (5) SCC 294 (supra) is distinguished on the strength of Paragraph 45 thereof which purports to define an election in its particular context. It is submitted that the transparency discussed in the context of the Representation of People' Act, 1951 surrounds the declaration of assets and criminal antecedents, if any, of a candidate. The law settled does not collide with the eligibility of a candidate to adopt a process permitted to him/her by the State Statutes/Rules governing elections to seats/constituencies followed by elections to offices of GPs respectively. 24. Ld. Counsel for the Respondents rely upon the authority of In Re: Kasambhai F. Ghanchi vs. Chandubhai D. Rajput & Ors., (1998) 1 SCC 285 which permits contest for a R Category office even by an elected member from an unreserved or any other seat/constituency. It is reiterated that the panchayat law as applicable creates a conscious but relatable distinction between seats/constituencies and office that is not offensive to democratic majoritarianism. 25. Replying to the point of ceiling limit for reserved seats, it is submitted that reservations, be it of seats or offices, is an enabling provision. In view of such enabling provision a genuine R Category candidate can be a subsequent participant in an electoral exercise which, on print, stands to the hilt. The ceiling limit is proportionate or relative, never absolute. 26. It is finally submitted that the issues raised in the writ petition relate to the scope, ambit and purview of a special tribunal. Such special tribunal is constituted under the 2003 Panchayat Elections Act. Therefore, this Court may not choose to exercise jurisdiction over the nature of the election dispute raised in the writ petitions. 27. 26. It is finally submitted that the issues raised in the writ petition relate to the scope, ambit and purview of a special tribunal. Such special tribunal is constituted under the 2003 Panchayat Elections Act. Therefore, this Court may not choose to exercise jurisdiction over the nature of the election dispute raised in the writ petitions. 27. It is submitted that Rule 3 Sub-Rule 7(A) (i) of the 1975 Rules (supra) must be read in the context of proposing and seconding a candidate intending to offer himself for election to the post of Pradhan and Upa-Pradhan, as the case may be. Therefore, the question of Rule 3(7) (A) (i) playing a role in the alleged requirement to declare R Category status at a particular stage may not be apropo to the facts under the scanner in the writ petitions. 28. Having heard the parties and considering the materials placed this Court finds as follows:- (A) It will be relevant to notice the basics first. While noticing the basics the attention of this Court is drawn to Form 2 of the 2006 Rules. The first declaratory part of Form 2 permits a candidate to declare his R Category status. The second declaratory part of Form 2 is to the effect that the candidate so declaring shall, in the event of filing a nomination for a constituency reserved for SC/ST/OBC, enclose his/her SC/ST/OBC certificate. In other words, on a plain reading of Form 2 it does transpire to this Court that the requirement of production of a SC/ST/OBC certificate would arise only and, only if, the candidate seeks to file his/her nomination from a reserved constituency. In the happening of any other event, viz. filing of a nomination for an unreserved or any other constituency, the mandate of production of SC/ST/OBC certificate stands lifted and there is only the requirement of a declaration which can at best be described as optional or voluntary in nature. Logically it must be deduced there from that there is no constitutional inhibition on a R Category candidate not initially declaring but opting to try his luck from an unreserved or any other Category seat/constituency. (B) This Court also notices that Form 2 does not provide and/or carry any penal provision flowing out of a voluntary non-declaration by a candidate of R Category status intending to contest from an unreserved or any other constituency. (B) This Court also notices that Form 2 does not provide and/or carry any penal provision flowing out of a voluntary non-declaration by a candidate of R Category status intending to contest from an unreserved or any other constituency. As stated above the requirement of production of SC/ST/OBC certificate arises only in the event of filing a nomination from a reserved constituency. (C) It is an admitted position in all the four writ petitions before this Court that the candidates/the private respondents whose appointments to the respective offices of Pradhan or Upa-Pradhan are sought to be challenged, did not contest from a reserved constituency but, filed their nominations from an unreserved/general/any other constituency. In such view of the matter the sole mandate of Form 2 of production of their SC/ST/OBC certificates is not attracted since such production is only tied to their nomination from a reserved constituency. (D) It is relevant to also examine that the nomination under Form 2 is to be examined by the Panchayat Returning Officer (PRO) under Rule 38 of the 2006 rules. Rule 38 of the 2006 Rules, inter alia, provides for scrutiny of the list of validly nominated candidates. Rule 38 (1) reads as follows:- "38. Scrutiny and list of validly nominated candidates. (1) The nomination papers filed-shall be taken up for scrutiny by the Panchayat Returning Officer at the appointed place, date and hour in presence of any two persons among the candidates, election agent and proposer when the nomination papers shall be either accepted or rejected in terms of section 49." Therefore in terms of Rule 38(1) a nomination requires to be either accepted or rejected in terms of Section 49 of the 2003 Act. (E) Now turning the attention of this Court to Section 49 of the 2003 Act it would be relevant to quote Clauses 1, 2, 3 and 4 thereof:- "49. Scrutiny of nominations. (1) On the date fixed for the scrutiny of nominations under section 48 the candidates or their election agents, and such other persons as may be prescribed, may attend at such time and place as the Panchayat Returning Officer may appoint; and the Panchayat Returning Officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time, and in the manner, laid down in section 46. (2) The Panchayat Returning Officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary enquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds:- (a) that on the day fixed for the scrutiny of nominations the candidate either is not qualified or is disqualified for being chosen to fill the scat under any of the following provisions that may be applicable, namely:- (i) article 243F of the Constitution of India, and (ii) Part II of this Act; (b) that there has been a failure to comply with any of the provisions of section 45 or section 46, or section 47; (c) that the signature of the candidate or the proposer on the nomination paper is not genuine; (d) that the proposer is not a voter of the constituency concerned. (3) Nothing contained in clause (a) or clause (b) or clause (c) of subsection (2) shall be deemed to authorise the rejection of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed. (4) The Panchayat Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character." From a plain reading of Section 49(1) of the 2003 Act, it is apparent that all candidates or, their election agents, have been given the reasonable opportunity/facility of examining each other' nomination papers in the manner as laid down by Section 49 of the 2003 Act (supra). (F) It follows that the issues raised before this Court at this stage connected to the non-declaration by the private respondents of their R Category status at the stage of filing their nominations, was an issue which could have been raised by the challengers at the time of scrutiny before the PRO at the stage of Section 49 (supra). (F) It follows that the issues raised before this Court at this stage connected to the non-declaration by the private respondents of their R Category status at the stage of filing their nominations, was an issue which could have been raised by the challengers at the time of scrutiny before the PRO at the stage of Section 49 (supra). This Court must validly conclude that the petitioners having abandoned their first legally provided forum of facts in the hope of ultimately succeeding to both seat and office of their respective GPs, cannot be permitted to convert their grievance now into a claimed enforceable action under Article 226 of the Constitution of India. (G) Now the attention of this Court must turn to Section 9, Last Proviso thereof, of the 1973 Act. Section 9 has been the favourite hunting ground of Ld. Counsel for both the petitioners and the respondents. The Last Proviso therefore requires to be reproduced for the benefit of this discussion and reads as follows:- ".......... 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 Pradhan or the Upa-Pradhan 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............" (H) From the fairly unalloyed language used under the Last Proviso to Section 9 (supra), it is hard to miss the legislative intent that a candidate could offer himself/herself as a R Category candidate for the office of the GP in issue on production of his/her R Category status only if such candidate had been elected to the seat of the GP from an unreserved or, any other category seat. Again, reading the Last Proviso to Section 9 with the fine print of the declaration sought under Form 2, it does not, in the view of this Court, need rocket science to appreciate that two plus two makes four. Again, reading the Last Proviso to Section 9 with the fine print of the declaration sought under Form 2, it does not, in the view of this Court, need rocket science to appreciate that two plus two makes four. (I) Next, addressing the issue of ceiling limit for candidates for the post of office bearers in the R Category, it does transpire from the language of the 4th Proviso to Section 9 of the 1973 Act, that Section 9 with its attending Proviso (supra) addresses the issue of election to offices in a GP with its attached contingencies. The ceiling limit for reservation shall be as far as practicable proportionate to the total number of offices weighed against the total R Category of population of the seats/constituencies in the GP. The ceiling limit, to the mind of this Court, does not detract from the right of a candidate to seek election in a category of his choice and eligibility as provided by Section 9 Last Proviso thereof, read with Form 2 (supra). To paraphrase the poet Robert Frost, it would be statutory injustice to miss the trees for the wood. (J) Before parting with this discussion it would be relevant to notice the Memo No. 7260 (23)/PN/O/I/IE-I/2017 dated the 9th of August, 2018 (the said Memo) addressed to the District Magistrates and District Panchayat Election Officers in the State by the Special Secretary/Department of Panchayats and Rural Development (DPRD). Guideline 3 (b) of the said Memo reiterates the position laid down vide Form 2 read with the Last Proviso to Section 9 (supra). Guideline 3 (b) reads as follows:- "The members may be requested to bring with them the certificate of election and any photo identity card issued by the Government for production before the Presiding Officer to facilitate identification of the members up to the satisfaction of the Presiding Officer. If a member proposes to contest an office reserved for the Scheduled Castes, Scheduled Tribes or backward Classes, she or he should bring such certificate issued in her/his favour unless she or he has already contested from a seat reserved for that specified category of Scheduled Castes or Scheduled Tribes or Backward Classes. If a member proposes to contest an office reserved for the Scheduled Castes, Scheduled Tribes or backward Classes, she or he should bring such certificate issued in her/his favour unless she or he has already contested from a seat reserved for that specified category of Scheduled Castes or Scheduled Tribes or Backward Classes. In the latter case, her/his SC/ST/BC certificate should not be insisted upon as she or he had already produced such certificate before the Returning Officer at the time of scrutiny." (K) Admittedly again, it is not the case of the petitioners that the PRs do not belong to the R Category. The dispute raised is with regard to the timing of their respective declarations. The law must be read as it is unless compellingly arbitrary or obscure. With the legislative sanction standing tall behind the provisions governing the electoral stages (supra), this is not a case where this Court thinks it fit to be able to step in donning the interpretative hat. 29. The petitioners themselves allowed the declarations to stand till the last moment which points to their desire to test the electoral waters as well as apprehension of a remand to the Special Tribunal in the event their objections, if any, stood overruled at the Section 49 (supra) stage before the PRO. Furthermore, 2018 (6) SCC 162 is, with respect, unequivocal on the point that till the Competent Authority decides on each R Category Certificate granted by it, there cannot arise a perception of fraud. 30. For the above reasons, the issue common to all the petitions stands answered in the negative against the petitioners. 31. WP 17709(W) of 2018, WP 15616(W) of 2018, WP 15725(W) of 2018 and WP 12282(W) of 2018 stand accordingly dismissed. 32. There will be, however, no order as to costs. 33. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities.