Lakshmi Mukherjee vs Tapan Kumar

Satyabrata Sinha, J.—Although this appeal was directed against an interim order dated June 4, 1996 passed by a learned single Judge of this Court, keeping in view the points involved in the writ application the learned Counsel for the parties agreed that the entire appeal and the writ application both may be disposed of.

One Tapan Kumar who is said to be a member of the Chekka Gram Panchayat filed a writ application claiming, inter alia, the following reliefs:

a) A Writ of or in the nature of Mandamus commanding the Respondents and each one of them and more particularly the Respondent No. herein to revoke, cancell, withdraw or set aside the notice of election of office bearers of Chekya Gram Panchayat being annexure ''C'' herein and further not to give effect or further effect to the impugned notice being annexire ''C'' and not to proceed with the said notice before proper gazette notification and to act in accordance with law;

b) A Writ of or in the nature of Mandamus commanding the Respondents to publish the names of all the elected candidates of Chekya Gram Panchayat in the Official Gazette and to act in accordance with law;

c) A Writ of or in the nature of Certiorari directing the Respondents to transmit and produce the records of the said case to the Registrar, Appellate Side. High Court, Calcutta or to cause them produce at tie time of hearing of the said application so that conscionable justice may be done by quashing the notice of election being annexure ''C'' herein and to act in accordance with law.

The fact of the matter is not in dispute. One Lakshmi Mukherji and Sundari Kalindi, Respondents Nos. 5 and 6 to the writ application contested in the election held on May 30, 1993 from seat Nos. 1 and 2 of the Chekka-I Gram Panchayat. They were declared as successful candidates and certificates were also issued in their favour and handed over to them.

However, an allegation was made that there had not been any proper counting and allegedly after proper recounting held in the office B.D.O. two other candidates: namely, Aparna Mukherjee and Shakuntala Ruhidas, were also declared elected from Cnekya-I Gram Panchayat from seal Nos. 2 and 1 respectfully and certificates in form No. 24 were also issued in their favour. The result of the election was published in the official Gazette on July 12, 1993. However, result of two seats were not published on the ground that the same was disputed as the Presiding Officer issued four certificates instead of issuing two certificates against the two winning candidates. A copy of the said Gazette is contained in annexure ''A'' to the writ application. Thereafter the Respondents Nos. 5 and 6 to the writ petition moved this Court and by a judgment dated July 30, 1933 Ajit Kumar Sengupta, J. allowed the said writ application by declaring the said Petitioners as duly elected candidates and set aside the certificate of election issued in favour of Aparna Mukherjee and Shakuntala Ruhidas. However, two election petitions were filed by the aforementioned Aparna Mukherjee and Shakuntala Ruhidas in the Court of the learned Munsif at Purulia.

The learned Munsif by order dated December 16, 1993 rejected the application for recounting of ballot papers filed by the aforementioned Aparna Mukherjee and Shakuntala Ruhidas. Against the said order, two applications under Article 227 of the Constitution of India were filed which were marked as C.O. No. 24 of 1994 and C.O. No. 25 of 1994. A contempt application was filed for non-compliance of the order dated July 30, 1993 passed by Ajit Kumar Sengupta, J. whereupon a learned single Judge of this Court by an order dated January 2, 1995 directed the concerned authority to comply with the order passed by this Court. Aparna Mukherjee filed a contempt appeal in this Court against the said order which was registered as F.M.A.T. No. 163 of 1993. However, because of pendency of the matter the election of Prodhan and Up-Prodhan could not be held since 1993, whereupon one Jadupati Kumar, an elected member of Chekya Gram Panchayat, moved a writ application which was marked as CO. No. 17460 (W) of 1995 wherein a learned single Judge of this Court directed the prescribed authority to hold election of Office bearers of the said Gram Panchayat within a month in accordance with law.

The said order was also questioned by Aparna Mukherjee by preferring an appeal which was registered as F.M.A.T. No. 3382 of 1995.

Both the aforementioned two appeals as well as the said two applications under Article 227 of the Constitution of India came up before this Bench and by a judgment and order dated March 25, 1996, a copy whereof is contained in annexure ''B'' to the writ application, this Court upheld the order passed by Ajit Kumar Sengupta, J. and dismissed the applications filed by Aparna Mukherjee and Shakuntala Ruhidas against the order dated December 16, 1993 passed by the learned Munsif.

In view of the order passed by a learned single Judge of this Court in the writ application filed by Jadupati Kumar being C.O. No. 17460 (W) of 1995 admittedly oath was administered to the Respondents Nos. 5 and 6. In the meanwhile a writ application was filed questioning the participation of the Respondents Nos. 5 and 6 in the meeting convened for the purpose of electing Prodhan and Up-prodhan. The said writ application was filed, inter alia, on the ground that on the names of Respondents Nos. 5 and 6 to the writ petition having not been published in the Official Gazette they could not have participated in the said meeting. As an interim order was granted on June 4, 1996 by a learned single Judge of this Court, this appeal was preferred by Lakshmi Mukherjee. During the pendency of the writ application, the names of Shakuntala Ruhidas and Lakshmi Mukherjee were published in the notification dated July 2, 1996. The only question, therefore, which survives for consideration in the writ application and consequently in this appeal is as to whether the aforementioned Shakuntala Ruhidas and Lakshmi Mukherjee could participate in the meeting in view of the fact that their names were published in the official Gazette on July 2, 1996.

Mr. Rabilal Maitra, learned Counsel appearing on behalf of the writ Petitioner/Respondent No. 1, Tapan Kumar, inter alia, submitted that keeping in view the phraseology of Sub-section (4) of Section 4 and 197A(b) of the West Bengal Panchayat Act there cannot be any doubt whatsoever that the publication of the names of the members of the Gram Panchayat is mandatory in nature. According to the learned Counsel, so long the names are not published in the Official Gazette they would not be entitled to discharge their function as members of the Gram Panchayat. In support of the aforementioned contention, the learned Counsel has placed strong reliance upon the case in Govind Das and Others Vs. The Income Tax Officer and Another, and Sri Vijayalakshmi Rice Mills, New Contractors Co. and Others Vs. State of Andhra Pradesh,

Mr. Bhattacharjee, learned Counsel appearing on behalf of the Appellant on the other hand sumitted that the writ Petitioner has no locus standi to file the writ application. In support of his aforementioned contention reliance has been placed on the case reported in R.K. Jain Vs. Union of India and Others, It was further submitted that keeping in view the fact that the election was held as far back as on May 30, 1993 publication of their names in the notification must be held to be a ministerial job and in this connection our attention has been drawn to Section 73 of the Representation of People Act, 1957 as well as the decisions of the-different High Court reported in Hardwari Lal Vs. G.D. Tapase and Others, Hari Vishnu v. Ahmed Syed AIR 1954 Nag 166 and M/s. Jayalakshmi Talkies Vs. The Assistant Commercial Tax Officer, Chirala, In any event, the learned Counsel contended that the said publication of notification being procedural in nature, the same should be held to be retrospective.

In the instant case, the basic fact is not in dispute. The fact remains that the Appellant as well as the Respondent No. 6 were elected in a duly constituted election. They were also granted certificates in Form No. 24.

A dispute had arisen as the Returning Officer had issued two certificates in favour of two other persons and in relation thereto several litigations had been pending. The said litigation evidently had ended in favour of Respondents Nos. 5 and 6.

Sections 4(4) and 197A(b) of the Act reads thus:

Section 4(4). Every Gram Panchayat constituted under this section shall be notified in the Official Gazette and shall come into office with effect from the date of its first meeting at which a quoram is present.

Section 197A(b) the name of any member of a Gram Panchayat, Panchayat Samiti or Zilla Parishad subsequently elected shall be notified in the Official Gazette and such member shall be entitled to assume office and remain a member for the unexpired period of five years referred to in Sub-section (1) of Section 7, Sub-section (1) of Section 96 or Sub-section (1) of Section 141, respectively.

The election to office of the member of a Gram Panchayat prima facie, therefore, does not depend upon the issuance of the notification in the official Gazette. It is true that in the notification two names were not published, namely, the names of Respondents Nos. 5 and 6 of the writ petition despite they having been granted certificates in form No. 24.

It is now well-settled principle of law that a person cannot suffer owing to the mistake committed by any statutory authority. If the statutory authority committed a mistake in issuing four certificates instead and place of two certificates, the Respondents Nos. 5 and 6 were not to be blamed therefor. It their was any dispute as regards legality or validity of their election they could have been the subject-matter of the election petition and despite their names have been published in the official Gazette in terms of Section 4(4) of the Act a declaration could have been issued and the election could have been set aside as well as the applicants of the said election petitions could have been declared as elected. In a democracy, a right to take part in the democratic process be it Gram Panchayat or in other forum, accrues as soon as a certificate is granted and oath is administered in accordance with law.

It has not been contended before us nor could it be contended that for the purpose of constitution of Gram Panchayat in the official Gazette the names of four persons could have been published. Furthermore it has not been contended before us that there existed any provision in the said Act to deal with such situation. Section 197A deals with a situation where majority of members elected are allowed to function when in a constituency poll is counter manded or not held for the reasons stated therein. Clause (b) of Section 197A deals with a situation where election is held and consequently in such a situation, the name of any member so elected is required to be notified in the official Gazette and such member shall be entitled to assume office and remain a member for the unexpired period of five years. In the instant case the aforementioned provision has no application. Had the concerned authority not committed a mistake in issuing four certificates in place of two certificates, admittedly the names of the Respondents Nos. 5 and 6 would have been published in the Gazette, Due to pendency of the litigation, they were not allowed to function as a member of the Gram Panchayat. The Respondents Nos. 5 and 6 thus could not suffer any prejudice because of the pendency of the aforementioned litigation. As soon as the litigations ended in their favour they would be deemed to have been duly elected along with other members and in that view of the matter, the publication of their names in the Gazette dated July 2, 1996 would merely be a formality so as to give effect to the judgment of this Court. In fact the said notification dated July 2, 1996 itself states that the same had been issued in partial modification of the Department Notification No. 2300/1/Panch, dated July 8, 1993. It is therefore not a new or separate notification. It is in continuation of the said notification and it was issued in continuation of the old notification and thus it would be held to be a part thereof.

In the peculiar facts and circumstances of this case we are of the opinion that it is not necessary to consider the decisions cited at the Bar as none of the decisions are applicable to the fact of the present case. It is evident that the Respondents Nos. 5 and 6 have suffered a lot because of the pretty village politics. It is also incumbent on the part of the State to comply with the order passed by A.K. Sengupta, J. immediately after the same was pronounced on July 30, 1993. It is further evident that at this juncture even the aforementioned Aparna Mukherjee and Shakuntala Ruhidas are not interested in the subject-matter. The writ application has been filed by a person who belongs to a rival party.

For the reason aforementioned, we are of the opinion, that there is no merit in the writ application

In the result, the appeal is allowed and the writ application filed by Tapan Kumar is dismissed.

There will be no order as to costs.

If applied for urgent xerox certified copy of this order, the same shall be supplied to the parties on priority basis.

Satya Narayan Chakrabarty, J.

I agree.