Jakiya Parvin vs State Of West Bengal & Ors.

The present writ petition appears to levy a challenge to an election held for a post in a Gram Panchayat and calls into question the election and seeks a

by-poll before this court under Article 226 of the Constitution of India. The petition has been moved on service and the respondents are present. Let

the affidavit-of-service be kept with the record. I treat the writ petition ready as regards service. At the outset a preliminary objection has taken by

Mr. Tapan Mukherjee, learned senior advocate for the State-respondents, and Mr. Debasish Ghosh, learned advocate for the Election Commission.

Their preliminary objection is that the jurisdiction of the writ court is barred in terms of clause (b) of Article 243 O to the Constitution of India. Mr.

Ghosh further draws the attention of the court to Section 79 of the West Bengal Palchayat Elections Act, 2003 and he submits that this is a statute

made within the meaning of Article 243 O(b). He further submits that disputed questions of fact will have to be gone into and evidence required to be

taken for it and the court under Article 226 of the Constitution of India is singularly handicapped in such an examination.

Mr. Samim Ahmed, learned advocate for the petitioner, attempts to deal with these provisions by submitting that there is an inherent inconsistency

between Section 136 of the West Bengal Panchayat Election Act, 2003 and Section 79. For appreciation of his point the two sections are set out

hereinbelow: Section 79. (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 declaration of the results of such election, file a petition, calling in question such election on one or more of the

grounds specified in sub-section (1) of section 93 and section 94 â€

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

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

(2) When filing a petition under sub-section (1), the petitioner shall deposit in court, as security for the costs likely to be incurred, -

(a) five hundred rupees, where the petition is filed before the Civil Judge,

(b) one thousand rupees, where the petition is filed before the District Judge.

(3) Every petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be

attested by the petitioner under his own signature to be a true copy of the petition.

(4) The District Judge may transfer any petition filed before him under subsection (1) to any Judicial Officer subordinate to him not below the rank of

a Subordinate Judge;

(5) In dealing with a petition under sub-section (1), the Civil Judge, the District Judge or the judicial Officer to whom the petition is transferred under

sub-section (4)

(hereinafter referred to as the Judge) may hold such enquiry as he deems necessary.

(6) The Judges shall have all the powers of a civil court for the purposes of receiving evidence, administering oath, enforcing the attendance 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.

Section 136- No civil court shall have jurisdiction to question the legality of any action taken or of any decision given by they Panchayat Returning

Officer or by any other person appointed under this Act in connection with an election. He would submit that while on the one hand the legislature has

debarred the jurisdiction of a civil court on the other it has relegated the matters as provided for in Section 79 to a Civil Judge having jurisdiction. He

further submits that in view of what is provided for under Section 115 of the said Act, of 2003 as also Section 119, offences have been constituted in

respect of the infarctions provided for in those provisions and no civil suit or other legal proceedings lie in such matter. He would therefore, submit that

such ouster of jurisdiction would not affect the plenary jurisdiction of the High Court under Article 226 of the Constitution of India.

However, the provision of Article 243 O(b) of the Constitution of India is too sweeping and the West Bengal Panchayat Election Act, 2003 is too

comprehensive for me to rush in where wiser men have feared to tread. Accordingly, I hold that once election is over and it has been questioned and

re-poll is being sought on matters which relate to checking and balancing and deciding of preponderance of evidence this court is singularly illequipped

to give adequate relief and is debarred under Article 243 O(b) of the Constitution of India to intervene.

In the instant case Mr. Ahammed has argued that the provisions of Section 93(2) and 94 clarify where the election tribunal constituted Section 79

have jurisdiction. He submits however, on instruction that he would rather withdraw the petition and be relegated to the constitutional and statutory

remedies as are available to his client in accordance with law than suffer a dismissal of the writ petition on the ground of maintainability. Therefore, I

am not deciding this matter on the question of maintainability, but on the submissions of Mr. Ahmed after having recorded the above as observations, I

dismiss the writ petition as withdrawn with liberty reserved to the writ petitioner to approach the appropriate statutory and constitutional forum in

respect of these allegations in accordance with law, if so advised. If such approach is made before the appropriate tribunal/forum for adjudication the

forum shall take the appropriate decision in accordance with law without being influenced by any observation contained in this order.

Since affidavits have not been called for the allegations contained in the writ petition are not admitted. I make it clear that the submission of Mr.

Ahmed at present constitute only allegations of fact which shall be decided as and when such approach is made. I am confident that the learned

Election Tribunal constituted under the Act, 2003 and Article 243 O (b) shall consider and dispose of the matter in accordance with law expeditiously

and preferably within a period of eight months. There shall be no order as to costs.