In Re: Banamali Gurai and Another

Mitra, J.—The short question involved in this matter is, whether the learned Munsif hearing out an election dispute u/s 204 of the West Bengal Panchayat Act, 1973, has power to grant injunction restraining the elected member from taking part in the proceedings of the panchayat body to which he has been elected or to prohibit such a member from entering upon his office.

The facts of this case, inter alia are, that the petitioners contested the last Panchayat election held on 28th February, 1988 from the Digampur/X-Gram Panchayat Constituency along with 5 other candidates. In the said gram panchayat election the respondent Nos. 7 and 8 were elected. Against the said result, the petitioners filed an application u/s 204 of the West Bengal Panchayat Act, 1973 challenging the said election of the respondent Nos.7 and 8, inter alia, on the ground of malpractices and also non-compliance of statutory rules by the respondents concerned especially the Presiding Officer namely, the respondent No.5 and filed and application for injunction purported to have been made under Order XXXIX Rule 1 read with Section 151 of the CPC praying for an order restraining the respondent concerned from convening the meeting of the said Gram Panchayat till the petitioners prayer for recounting as made in their application u/s 204 was allowed. The learned Munsif, by his order No.3 dated March 29, 1988. rejected the said application for temporary injunction as misconceived as he was of the view that Section 204(8) of the West Bengal Panchayat Act, 1973, clearly prohibits the Court from granting any injunction relating to election matters. Being aggrieved by the said order, the petitioner has moved the present application under Article 226 of the Constitution of India in this Hon''ble Court. It is submitted by Mr. Mitra, the learned Advocate, appearing on behalf of the petitioners that since the learned Munsif hearing an election dispute u/s 204 of the West Bengal Panchayat Act, 1973, acts as a civil court he has all the powers conferred upon a civil court under the CPC (hereinafter referred to as the Code) including powers under Sections 94, 151 and Order XXXIX, Rules 1 and 2 of the Code and therefore has the power to grant temporary injunction in appropriate cases, notwithstanding The prohibitory provisions of Section 204(8) of the West Bengal Panchayat Act, 1973 (hereinafter referred to as the Act). Mr. Mitra has further submitted that even if the learned Munsif cannot be termed as a ''court'' in the strict sense of the term but acts merely a tribunal or a persona designata, since he has been vested with some important trappings of a court namely, all the power of a civil court for the purposes of receiving evidence, administering oath, enforcing the attendence of witnesses and compelling discovery and production of documents u/s 204(6) of the Act he should be treated/regarded as a Court in the broader sense of the term and is thus vested with also the power to grant injunction in appropriate cases.

Mr. Ukil, the learned Government Pleader appearing on behalf of the State of West Bengal, however, submits that in view of the specific provisions of Section 204(8) of the West Bengal Panchayat Act. 1973, the learned Munsif acting either a a tribunal or as a Court, cannot grant injunction relating to election matters especially postponing the election of the members of the various panchayat bodies or prohibiting the elected persons from taking part in the proceedings of such bodies and also entering upon their offices by the elected members of such bodies and that Section 204(6) of the said Act also makes it clear that the Judges do not have all the powers of the CPC but only limited powers and such provisions does not clothe the learned Judges with the power to grant injunction in election matters.

Several references have cited at the bar by the learned advocates namely, an unreported Single Bench judgment of this court of N. G. Chowdhury, J. in CO. 1559 of 1983 (Munsi Aktar Hossain v. Kaji Nur Md. and Ors.); 47 CWN 473 (Gobinda Ch. Saha and Anr. v. Rashmani Dassya); AIR 1944 Calcutta 401 (Bazlar Rahaman Khandakar v. Amiraddin and, on his death, his sons Apsaraddi and Ors.) and AIR 1971, Orissa 302 (Narayan Swain v. Narendra Kumar Sahu & Ors.).

Section 204 of the West Bengal Panchayat Act, 1973 states about the forum and the time for filing disputes arising as to the validity of an election under the Act. Clause (a) of Sub-Section (1) of the said Section 204 says that where a dispute arises as regards to the validity of an election under the Act in respect of a Gram Panchayat or a Panchayat Samity, then the application is to be filed before the learned Munsif having jurisdiction over such Gram Panchayat or Panchayat Samity. Clause (b) of the said sub-section (1) says that in case of dispute relating to the validity of an election under the Act in respect of a Zilla Parisad, the application is to be filed before the District Judge of the district. In any, case, however, as per the provisions of sub-section (1) of the said Section 204 and application regarding the validity of an election under the Act, is to be made within 30 days after the date of declaration of the result of such election. Sub-section (6) of the said Section 204 says that the Judges shall have all the powers of a civil Court for the purposes of receiving evidence, administering oath, enforcing the attendance of withnesses and compelling the discovery and production of documents, Sub-Section (7) of the said Section 204 says that the decision of the Judge shall be final and shall not be called in question in any court. Sub-Section (8) of the said Section 204 prohibits the Court to grant an injunction to postpone the election of a member of a (sic)rn Panchayat, a Nyaya Panchyat, a Panchayat Samity or a Zilla Parishad, or a Pradhan, an Upa-Pradhan, a Pradhan Vicharak, a Sabhapati, a Sahakari Sabhapati, and Sabhadhipati or a Sahakari; or to prohibit a person declared to. have been elected under the Act, from taking part in the proceedings of the Gram Panchayat, Nyaya Panchayat, Panchayat Samity or Zilla Parishad, as the case may be, to which he has been elected or to prohibit the members formally elected or appointed to a Gram Panchayat, Nyaya Panchyat, Panchyat Samiti or Zilla Parishad, as the case may be, under this Act from entering upon their offices. The provisions of sub-section (1) of the said Section 204, sub-section (6), sub-section (7) and sub-section (8) are quoted below : -

" 204 Disputes as to election. (1) If any dispute arises as to the validity of an election under this Act, any person entitled to vote at such election may, within thirty days after the date of the declaration of the results of such election, file a petition, calling in question such election

(a) before the Munsif having jurisdiction where such election is in respect of a Gram Panchayat or a Panchayat Samiti, and

(b) before the District Judge of the district, where such election is in respect of a Zilla Parishad.

* * * * * *

(6) The Judges shall have all the powers of a Civil Court for the purposes of receiving evidence, administering oath, enforcing the attendence of witnesses and compelling the discovery and production of documents.

(7) The decision of the Judge shall be final and shall not be called in question in any court.

(8) No Court shall grant an injunction -

(i) to postpone the election of -

(a) a member of a Gram Panchayat, a Nyaya Panchayat, a Panchayat Samiti or a Zilla Parishad, or

(b) a Parishad, an Upa-Pradhan, a Pradhan Vicharak, a Sabhapati, a Sahakari Sabhapati, a Sabhadhipati or a Sahakari Sabhadhipati; or

(ii) to prohibit a person declared to have been elected under this Act, from taking a part in the proveedings of the Gram Panchayat, Naya Panchayat, Panchayat Samiti or Zilla Parishad, as the case may be, to which he has been elected; or

(iii) to prohibit the members formally elected or appointed to a Gram Panchayat, Naya Panchayat, Panchayat Samiti or Zilla Parishad, as the case may be, under this Act from entering upon these offices."

From the above provisions, it is quite clear that the Munsif and the District Judge as described in Clauses (a) and (b) respectively of Subsection (1) of Section 4 of the Act are courts and not persona designate and it is more so because of the opening words of sub-section (8) of the said Section 204 namely, "No court shall grant an injunction -" I also find support in coming to such conclusion from the above Division Bench Judgement of this Court in the case of Gobinda Ch. Saha and Anr. v. Rashmani Dassya (supra) and Bazlar Rahaman Khandakar v. Amiraddin and, on his death, his sons Apsaraddi and others (supra). In the case of Gobinda Ch. Saha and anr. (supra) it was held by the Division Bench presided over by Dr. Bijan Kr. Mukherjee, J. that a District Judge or an Addl. District Judge hearing an appeal u/s 40A of Bengal Agricultural Debtors Act, 1936 acts a a "Court" not as a persona designata.

The same view has also been endorsed by another Division Bench of this Hon''ble Court in Bazler Rahaman Khandakar v. Amiraddin and, on his death, his sons Apsarddi and ors. (supra) where their Lordship explaining the meaning of ''Court'' in context with the word ''Addl. District Judge'' as used in Section 40A of the Bengal Agricultural Debtors Act, 1936 held inter alia, that "a Court must be a judicial tribunal, that is to say, a tribunal charged with judicial functions to be exercised judicially. The meaning of the word "judicial" in the context is best understood by contrasting it with "administrative" though an administrative body may also be clothed with judicial functions and act judicially. But there is a great difference between the constitution of courts and that of bodies which are really administrative, though in deciding the questions before them they may have to act judicially in the sense of acting farily and impartially. There is no real antithesis between the expressions "persona designata" and "Court"; even a persona designara may be a Court; that will depend upon his powers and functions and upon the provisions of the statute conferring jurisdiction on him. The fact that the Legislature has not thought it fit to designate the District Judge specifically as a Court by. using any such expression as "the District Court" or "the Court of the District Judge", instead of saying "the District Judge" is of no importance. As these expressions might be regarded as interchangeable, it would not be unreasonable to say that in using the words "District Judge" in Section 40A the Legislature meant to say the "District Court" or the "Court of the District Judge". Reference may also be made to the recent Division Bench judgment of this Court in the case of In re : National Agricultural Cooperative Marketing Federation of India Ltd. v. M/s. Ram Narayan Tech Chand [1988(1) Calcutta High Court Notes, 1] where Monoj Kumar Mukherjee and Sudhangshu Sekhar Ganguly, JJ. held inter alia that the Deputy Registrar, Co-operative Societies, Central Zone, Government of West Bengal adjudicating upon the dispute u/s S7(0(b) of the West Bengal Co-operative Societies Act, 1973 is a ''Court'' and not a mere quasi judicial tribunal inasmuch as "where apart from having the usual trappings of a Court as contemplated by the Civil or the Criminalk Procedure Code, the Authority acting judicially derives his authority to adjudicate from the statute such an authority may be considered to be a Court."

Moreover, in sub-section (8) of Section 204 of the West Bengal Panchayat Act, 1973, it is clearly staled that no Court shall grant injunction in respect of matters or against the persons mentioned therein. Using of the word "Court" in the said sub-section (8) also clearly proves the intention of the legislature really intends to mean that "Munsif" and "District Judge" as described in clauses (a) and (b) of sub-section (i) of the said Section 204 would mean the "Court of the learned Munsif" or the "Court of District Judge". If, therefore, such Munsif and District Judge are civil courts within the meaning of the Bengal, Assam and Agra Civil Court Act, certainly their powers to grant injunction emanate from the provisions of the CPC namely, Section 94 and Section 151 read with Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure.

So far as the power to grant injunction u/s 94 read with Order XXXIX, Rules 1 and 2 of the Code is concerned, such power is subject to those provisions and is to be made in connection with a suit filed in a Civil Court. The application filed u/s 204 of the West Bengal Panchayat Act, 1973 in my view is not a regular suit filed before the Civil Court. No doubt, this is an application filed before a regular Civil Court but such application cannot be termed as a regular suit and therefore, the provisions of Section 94 or Order XXXIX, Rules 1 and 2 of the Code do not apply to such application.

Nonetheless, apart from the express provisions of Section 94 and Order XXXIX and Rules 1 and 2 of the Code, the Court has inherent power u/s 151 of the Code to grant injunction in an appropriate case including in a proceeding even if the provisions of Section 94 Order XXXIX and Rules 1 and 2 of the Code do not apply as the power of the court u/s 151 of the Code is not limited by the Code. It is a power inherent in the Court to do justice between the parties.

Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. Reference may be made to the well-known decision of the Supreme Court in the case of Monohar lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal (AIR 1962 SC page 527). At the same (sic), however, some restrictions have been imposed on the Court in the matter of exercising such inherent power, that is to say, when there are specific provisions in the CPC itself for a particular remedy the Court shall not ordinarily use such inherent power and when there is specific prohibition under a particular statute, Court cannot use inhere(sic) power to override such specific prohibition. When limited discretion has been conferred by a special statute upon court so far as exercising power under the CPC and where there is an express prohibition contained in such special Act/Statute prohibiting the Court''s power to grant injunction in certain matters, the Court has no general discretion to relieve the suitor from the operation of such prohibition. Reference may be made to the well-known case of the Privy Council in the case of Maqbul Ahmed and others v. Pratap Narain Singh and ors. (62 Indian Appeal 81) wherein Judicial Committee of the Privy Council while discussing the scope of Section 4 and Section 14(2) of the Limitation Act, 1908 clearly observed that outside the limited discretion conferred by the Act in certain cases; the Court, has no general discretion to relieve a suitor from the operation of its previsions.

Reference may also be made to the decision of the Supreme Court first in the case of Manilal Mohanlal Shah and others v. Sardar Sayed Ahmed Sayed Makmad and another (AIR 1954 SC 349) where it was categorically held by the Supreme Court while discussing the inherent power u/s 151 of the CPC in relation to the provisions of Order XXI Rule 85 of the Code that the inherent powers of the Court cannot be invoked to circumvent the mandatory provisions of the Code and relieve the auction-purchasers of their obligation to make the deposit of purchase-money under Order XXI, Rule 85. The Supreme Court in its later'' judgment in the case of Cotton Corporation of India Ltd. v. United industrial Bank Limited and Ors. (AIR 1983 SC p. 1272) referring to the provision of Section 41(b) of the Specific Relief Act in the matter of exercising inherent power also held in no uncertain term that "the Court can in appropriate cases" grant temporary injunction in exercise of its inerent power in cases not covered by Order XXXIX of the Code of Civil Procedure. But while exercising this inherent power, the court should not overlook the statutory provision which clearly indicates that injunction to restrain initiation of proceeding cannot be granted. Section 41(b) is one such provision. And it must be remembered that inherent power of the court cannot be invoked to nullify or stultify a statutory provision". In this case the Supreme Court also considered its earlier decision in the cases of Monohar Lal Chopra (supra) and Manilal Mohanlal Shah (supra).

The inevitable conclusion, therefore, is that where there are statutory prohibitions, such prohibitions cannot be by passed by a Court exercising inherent powers u/s 151 of the Code as the Court has no general discretion to relieve a suitor of such statutory prohibitions, even exercising its inherent power and as sub-section (8) of Section 204 in clear terms prohibits a court to grant injunction in pending election proceedings it is thus obvious that the court cannot grant such an injunction either under its general discretion or even exercising the inherent power of the court overriding such express prohibition.

The Division Bench of the Orissa High Court in the case of Narayan Swain v. Narandra Kumar Sahu and others (AIR 1971 Orissa 302) considering the scope of 31(2) of the Orissa Gram Panchayat Act, 1965 which also inter alia prohibits the Court''s power to grant injunction in election matters, held that the nature of the said sub-section is clear and unambiguous and it does not give the Court any power to grant an injunction debarring an elected candidate from holding office during the pendency of an election petition against his election. Similarly, the language of sub-section (8) of Section 204 of the Act is also quite clear and unambiguous and it does not vest the court with any power to grant an injunction against the elected candidates during the pendency of an election petition. Moreover, this point came up for consideration before this Court earlier and N. G. Choudhury, J., in the unreported Single Bench judgment in the case of Munsi Aktar Hossain and Kaji Nur Md. and others (Supra) also held in similar terms and I do not find any reason to differ with the said view of His Lordship.

The Writ application, therefore, fails and is dismissed without any order as to costs. All interim orders are vacated including the interim order by which the elected candidates were restrained from taking part in the election of the Prodhan and Upa-Prodhan of the Panchayat concerned. There should now be a fresh election of the Prodhan and Upa-Prodhan and the elected respondents will be entitled to contest such election which is to be held by the authority concrned after giving due notices and in accordance with law without any delay. The result of such fresh election will also entitle the newly elected Prodhan and Upa-Pradhan as the case may be, to take part in the Panchayat Samiti election which if necessary, and if already held, has to be held afresh in accordance with Jaw. Such elections will be, however, subject to the result of the election petition pending before the learned munsif. I also direct the learned munsif to hear out the election petition filed before him as early as possible but definitely before the coming Puja Holidays because of the nature of the case.

Let this order be sent to the learned munsif of the court below forthwith.