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IN THE HIGH COURT OF CALCUTTA (DB)
Girish Chandra Gupta and Shivakant Prasad, JJ.
Abdul Majed Molla - Appellant
Versus
State of West Bengal & Ors. - Respondents
A.S.T. 188 of 2015 with A.S.T.A. 116 of 2015
Decided On : 23-12-2015
PANCHAYAT ELECTION - DISQUALIFICATION - MR DEALER - AAY DEALER - WEST BENGAL PANCHAYAT ACT, 1973 - SECTION 97(C) - SECTION 100(1)(C) - WEST BENGAL ELECTION COMMISSION NOTIFICATION NO. 1029(17)-SEC/6D-9/2010 DATED 24.5.2013 - VALIDITY OF ELECTION - ELECTION DISPUTE - JURISDICTION - WEST BENGAL PANCHAYAT ELECTION ACT, 2003 - SECTION 79 - ELECTION PETITION - WRIT JURISDICTION - MAINTAINABILITY - ESTOPPEL - CIRCULAR CLARIFYING DISQUALIFICATIONS - LEGAL EFFECT - ARTICLE 13(3)(A) OF THE CONSTITUTION OF INDIA - INTERPRETATION.
Fact of the Case:
The petitioner, a member of the Basanti Panchayat Samiti, was removed from office by the District Magistrate, acting as the Prescribed Authority under Section 100(1) of the West Bengal Panchayat Act, 1973, for incurring disqualification under Section 97(c) of the Act. The petitioner had filed his nomination for the panchayat election while working as an MR dealer and AAY dealer, which was in violation of Notification No. 1029(17)-SEC/6D-9/2010 dated 24.5.2013 issued by the West Bengal State Election Commission.
Finding of the Court:
The court held that the District Magistrate had the authority to entertain and decide the complaint under Section 100 of the West Bengal Panchayat Act, 1973, as the violation was committed by the petitioner before the election and at the stage of filing the nomination. The court also held that the circular issued by the Election Commission clarifying the disqualification under Section 97(c) of the Act was valid and did not enlarge the scope of the provision. The court further held that the petitioner was estopped from challenging the validity of his election on the ground that his candidature was not opposed at the time of scrutiny, as the provision of Section 100(1)(c) of the Act is attracted if an elected candidate incurs any of the disqualifications mentioned in Section 97(b)-(g) after becoming a member of the Panchayat Samiti.
Issues: 1. Whether the District Magistrate had the authority to entertain and decide the complaint under Section 100 of the West Bengal Panchayat Act, 1973? 2. Whether the circular issued by the Election Commission clarifying the disqualification under Section 97(c) of the Act was valid? 3. Whether the petitioner was estopped from challenging the validity of his election on the ground that his candidature was not opposed at the time of scrutiny?
Ratio Decidendi: 1. The District Magistrate, being the Prescribed Authority under Section 100(1) of the West Bengal Panchayat Act, 1973, had the authority to entertain and decide the complaint against the petitioner for incurring disqualification under Section 97(c) of the Act. 2. The circular issued by the Election Commission clarifying the disqualification under Section 97(c) of the Act was valid and did not enlarge the scope of the provision, as it was in the nature of a clarification and to remove any possible doubt whether 'AAY' dealership could qualify as a contract with a Panchayat Samiti. 3. The petitioner was estopped from challenging the validity of his election on the ground that his candidature was not opposed at the time of scrutiny, as the provision of Section 100(1)(c) of the Act is attracted if an elected candidate incurs any of the disqualifications mentioned in Section 97(b)-(g) after becoming a member of the Panchayat Samiti.
Final Decision: The appeal filed by the petitioner was dismissed, and the order of the District Magistrate removing the petitioner from office was upheld.
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. 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, w
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