Back
HIGH COURT OF CALCUTTA
P. B. Mukharji
NITYA GOPAL DE - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. R. 4047 Of 1960
Decided On : JULY 26, 1962
ELECTION - PANCHAYAT - PRADHAN - QUALIFICATION - FOREIGNER - ELECTION OF FOREIGNER AS PRADHAN - VALIDITY - WRIT UNDER ARTICLE 226 OF THE CONSTITUTION - MAINTAINABILITY - ALTERNATIVE REMEDY BY WAY OF ELECTION PETITION - EXISTENCE OF - EFFECT.
Fact of the Case:
The petitioner, a voter of Madhya Narayanpur Gram Panchayat, challenged the election of the 8th respondent, Abdur Rahaman, as Pradhan of the Anchal Panchayat on the ground that he was a foreigner and therefore disqualified to be elected as a Pradhan. The petitioner relied on an order passed by the Superintendent of Police and Civil Authority under the Foreigners Act and Foreigners Order, asking Abdur Rahaman to leave India within seven days from the receipt of the order.
Finding of the Court:
The court found that Abdur Rahaman was served with a Quit Notice under the Foreigners Act and Foreigners Order on the ground that he was a foreigner. The court also found that Abdur Rahaman had filed an affidavit-in-opposition to the petition, admitting that there was an order under the Foreigners Act and the Foreigners Order against him, but disputing the fact that he was a Pakistan National or Pakistan citizen.
Issues: 1. Whether a foreigner can be elected as a Pradhan under the West Bengal Panchayat Act, 1956? 2. Whether the petitioner had an alternative remedy by way of an election petition and whether the existence of such a remedy barred the maintainability of the writ petition under Article 226 of the Constitution?
Ratio Decidendi: 1. The court held that a foreigner cannot be elected as a Pradhan under the West Bengal Panchayat Act, 1956. The court reasoned that Section 7 of the Act provides that every Gram Sabha shall consist of all persons whose names are included in the electoral roll of the West Bengal Legislative Assembly for the time being in force pertaining to the area for which the Gram Sabha has been constituted. Reading Section 7 (1) of the Act with Article 326 of the Indian Constitution, the court held that only Indian citizens alone are entitled to be on the electoral roll. It follows that the Pradhan must also be an Indian citizen. 2. The court held that the petitioner had no alternative remedy by way of an election petition. The court reasoned that Rule 30 of the West Bengal Panchayat Rules 1958 only empowers a candidate to the office of the Pradhan to file an election petition and no one else. Since the petitioner was not a candidate for the office of the Pradhan, he had no alternative remedy by way of an election petition.
Final Decision: The court made the Rule absolute and set aside the election of Abdur Rahaman as Pradhan of the Anchal Panchayat.
( 1 ) THIS is an application under Article 226 of the Constitution by Nitya Gopal De, a voter of Madhya Narayanpur Gram Panchayat, P. S. Karimpur, Union Nara-yanpur in the district of Nadia. The petition is directed against the election of Pradhan under the West Bengal Panchayat Act of 1956.
( 2 ) IN the petition it is alleged that the petitioner Is a voter and his name is included in the Electoral Roll of the West Bengal Legislative Assembly in Part 35 at page 3 of village Narayanpur (Purbapara), Union Narayanpur, P. O. Amiya Narayanpur, Police Station Karimpur, district Nadia pertaining to the constituency in which Gram Panchayat Madhya Narayanpur is situate. The Electoral Roll is prepared by the prescribed authority under Section 7 of the West Bengal Panchayat Act, 1956. That Electoral Roll is the only register of voters which determines and governs the election of members of Gram Panchayats, members of Anchal Panchayats, election of Adhyaksa, Upa-Adhyaksha of Gram Panchayats and Pra-dhin and Upa-pradhan of Anchal Panchayats. The petitioner is an elected member of the Anchal Panchayat of Narayanpur on the result of the election, held on 25th of July, 1960, on the votes of the members of the Gram Sabha, Madhya Narayanpur.
( 3 ) IT is the petitioner's case that the 3th resaondent Abdul Rahaman is a foreigner and was therefora disqualified to be elected as a Pradhan. Abdur Rahaman was elected Pradhan of Anchal Panchayat, Narayanpur, district Nadia on the 10th August, 1960. It is alleged by the petitioner that he is a Pakistan citizen and was served with a Quit notice order bearing date 1st August, 1960 by the Superintendent of Police and Civil Authority, Nadia tinder the Foreigners Act, 1946 and Foreigners Order, 194s. Such Superintendent is the 11th respondent to this application, Abdur Rahaman who was elected Anchal Panchayats was served on the 1st of August, 1960 by an Order No. P-5993 under the Foreigners Act, 1946 and Foreigners Order, 1948 by the 11th respondent asking him to leave India within seven days from the receipt of that order. His wife Jahanara Khatun was also similarly served with order No, P-5994 by the respondent No. 11 to leave India within a week from the receipt of the order.
( 4 ) IT is on this ground mainly that the election of the 8th respondent, Abdur Rahaman, is challenged in this petition. The petitioner obtained a Rule as early as 16th September, 1960 and in fact there was also an interim injunction restraining: publication of the result of the election pending the disposal of the Rule. The Rule was at first made returnable on the 16th of November, 1960. After a chequered history extending over two years the matter has now come up for hearing.
( 5 ) MR. Dutta, learned Advocate for the petitioner, has confined his argument to grounds (III) and (IV) of the petition. Those grounds are that Abdul Rahaman cannot remain a Pradhan of Anchal Panchayat as he is not an Indian citizen but a Pakistan citizen and a Pakistan National as appears from order No. P-5993 dated 1st August 1960 and also Order No. P-5994 of the same date by the Superintendent of Police, Nadia and the Civil Authority under the Foreigners Act and the Foreigners Order as mentioned above. The ground further is that the Pradhan so elected is disqualified to be a Pradhan of the Anchal Panchayat concerned.
( 6 ) SO far as the facts are concerned it is admitted that Abdur Rahaman has been served with Quit Order on the ground that he is a foreigner. Abdur Rahaman himself has filed an affidavit-in-opposition to the petition. He admits that there is an order under the Foreigners Act and the Foreigners Order against him. He however states that by an order of the Secretary, Home Department of the Government of West Bengal dated September 16, 1950 further action on the order of deportation has been stayed. According fo Abdur Rahaman's affidavit, he disputes the fact that he is a Pakistan National or Pakistan citizen. He claim
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
