Samir Kumar Dutta vs State of West Bengal

Kalyan Jyoti Sengupta, J.—A few days before the Municipal Election was held this application had been taken out, challenging an order dated May 24, 2003 of the S.D.O. being the Municipal Returning Officer, Alipurduar. By the impugned order the Respondent No. 4 had overruled the objection raised by the writ Petitioner as to qualification of the Respondent No. 5 to stand for election. In sum and substance the objection was that the aforesaid Respondent being appointed Additional Public Prosecutor in the Court of the learned S.D.J.M. Alipurduar is not entitled to stand for election as he is disqualified under the provisions of Section 30(1)(g) of the West Bengal Election Act, 1994 (hereinafter referred to as the said Act).

The Returning Officer held that the above Respondent is not disqualified nor ineligible to stand for election on that ground as he is not employee of State of West Bengal and not really receiving any remuneration nor getting any benefit while holding the aforesaid post, rather he receives the retenion charges and/or fees at the time of Rs. 2,000/- per month. According to him he is not holding any office of profit nor he is deriving any pecuniary benefit out of the said office.

At the ad interim stage I did not pass order stalling the election process following well-established principle of law that once election is started the same should not be interfered with. The matter is being heard after the election is over.

Mr. L.C. Bihani, learned Senior Advocate for the Respondent No. 2, Mr. Tarun Roy learned Additional Government Pleader for the Respondent No. 1 and Mr. Chakraborty learned Advocate for the Respondent No. 5 have raised a preliminary point as to maintainability of the writ petition and also the question of jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.

However, on the last day of the argument the learned Counsels for the Respondents conceded that this Court possess as power under Articles 226 and 227 to entertain this dispute so this petition is maintainable. In my view concession of the learned Counsels on the question of law does not help to solve the problem nor helps the court to make any declaration on this legal issue. So I thought to survey the position of the law on this particular question. Learned Counsels for both the sides have brought good number of decisions which are much relevant on this point in different angles.

Mr. Bihani at the first instance has drawn my attention on this issue to law namely Article 243ZG which is set out hereunder:

243ZG. Notwithstanding anything in this Constitution, -

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made Article 243ZA shall not be called in question in any court;

(b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.

He contends in exercise of the aforesaid power, the West Bengal State Legislature had enacted the aforesaid Act and Section 75 of which provides for mechanism for adjudication of the disputes in relation to the Municipal Election. The said Section 30(1)(g) of the West Bengal Election Act, 1994 is stated hereunder:

Election petition and procedure. - (1) If the validity of any election of a member is called in question by any person qualified to vote at such election, such person may, at any time within ten days immediately after the date of declaration of the result of the election, file a petition before the District Judge of the district within which the election has been or should have been held and shall, at the same time, deposit two hundred rupees in the Court as security for the cost likely to be incurred:

Provided that the validity of such election shall not be called in question in any such petition -

(a) on the ground that the name of any person qualified to vote has been omitted from the electoral roll, or

(b) on the ground that the name of any person not qualified to vote has been inserted in the electoral roll;

Provided further that if only two candidates contested such election, the Petitioner may, in addition to calling in question the election of the returned candidate, claim that if the election of the returned candidate is set aside, the other candidate may be declared duly elected.

(2) The provisions of the Code of Civil Procedure, 1908, shall apply as far as may be, in the matter of adjudication of an election petition under Sub-section (1).

He contends if both the aforesaid Sections are read conjointly then it would appear that all the disputes must be resolved by the Tribunal formed under the aforesaid Act and by no other Court.

He submits that disputes with regard to the elections anywhere in our country under the Constitution of India be it for Parliament, Assemblies or for Local Bodies, are always allowed to be resolved and/or decided by the Tribunal formed under the appropriate legislation in consonance with the provisions of the Constitution of India.

His further contention is that the intention of the framer of the Constitution as this issue is very clear, as the election process is the democratic process in this country and this should not be disturbed and/or interfered with by any Court of law and for this purpose Election Commission and election officials are appointed and conferred with this power to deal with any situation during election or after election by the Tribunal. He has relied on two decisions on this point, of the Supreme Court reported in N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, , Nanhoo Mal and Others Vs. Hira Mal and Others, , Anju W/o. Sh. Sukhdev Singh (Smt.) v. Civil Judge (S.D.), Pashowar AIR 1998 P.H. 140 , Guttakonda Kanaka Durga Vs. State Election Commissioner, Govt. of A.P., and others, .

He submits that it will appear to this Court in each and every case cited above the consistent views of all the Courts right from Apex Court to High Courts, is not to entertain any election dispute under the writ jurisdiction but are left with the Tribunal specially formed. He submits that this Court should follow the course of action adopted previously by all the Courts, since beginning till today.

Mr. Tarun Roy learned Advocate while supporting the contention of Mr. Bihani submits that the scope and jurisdiction of the District Judge under this Municipal Act can be found upon reading Sections and together. If those two Sections are read together carefully it will appear that all kinds of disputes in relation to the election right from the beginning stage on notification and up to the declaration of result are brought under the jurisdiction of the learned District Judge. Writ Court advisedly should not entertain and usurp the power of the District Judge easily. He contends the phraseology ''election'' has wide connotation and it starts from the stage of publication of notification of election and up to declaration of the result. In support of his submission he has sought reliance on three decisions of Apex Court Thansingh Nathmal and Others Vs. A. Mazid, Superintendent of Taxes, , Veerappa Pillai Vs. Raman and Raman Ltd. and Others, , Mafatlal Industries Ltd. and Others Vs. Union of India (UOI) and Others,

Mr. Chakraborty appearing for the Respondent No. 5 has adopted the argument of Mr. Bihani and Mr. Tarun Roy.

Mr. S. Panda Senior Counsel for the Petitioner appearing with Mr. Lahiri submits that whatever may be the provisions of the aforesaid Article 243Z(g) of Constitution or any other Articles in relation to the General Election or any laws framed thereunder by the appropriate legislature, the power of judicial review under Articles 226 and 227 of the Constitution of India so far High Court is concerned, and Article 32 so far Supreme Court is concerned, cannot be taken away. He contends that it is settled position of law power of judicial review of the superior Court as above are part of the basic structure and/or feature of the Constitution of India. It is also by now settled the basic structure is inviolable and/or unassailable even by any amendment of the Constitution not to speak of by any Act of the appropriate legislature.

He submits further that the aforesaid questions have been recently dealt with by a Full Bench decision of the Punjab and Haryana High Court reported in Lalchand v. State of Haryana AIR 1999 P.H. 1, Election Commission of India Through Secretary Vs. Ashok Kumar and Others, , K. Venkatachalam Vs. A Swamickan and Another, .

His contention is that it is for the High Court whether in its discretion would entertain such election petition or not. The aforesaid Tribunal can at best be termed to be an alternative and ordinary forum for adjudication of the disputes. It is settled position of law that existence of the alternative remedy is not a bar for exercising power of judicial review under the Constitution of India.

I think the issue of maintainability and entertainability is to be decided before I discuss the argument on merit. For convenience sake and in order to save the time I allowed both the parties to advance their respective arguments on merit also.

The question of maintainability has arisen with regard to the jurisdiction under Article 226 of this Court and in view of Article 243Z(G) of the Constitution of India and furthermore the provision of Section 76 read with Section 78 of the West Bengal Municipal Election Act, 1994 (hereinafter referred to as the said Act).

Learned Counsel for all the sides though submitted that the jurisdiction under Article 226 of the Constitution of this Court cannot be ousted and/or taken away but then the Respondents placed reliance on various earlier decisions of the Supreme Court, as well as other High Courts on this issue. So, I think that all the authorities should be examined how far their concession with regard to jurisdiction of the Court can be accepted, as it is well settled principle of law that by making concession, the provision of the law cannot be changed and/or done away with.

I will examine first the implication of Article 243ZG on this context vis-a-vis power of Article 226 of the Constitution of India. Therefore, I set out the above Articles as follows:

243ZG. Notwithstanding anything in this Constitution, -

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made Article 243ZA shall not be called in question in any court;

(b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.

(1) Notwithstanding anything in Article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by part III and for any other purpose.

(2) The power conferred by Clause (1) to issue directions, orders or writ to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under Clause (1), without-

(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by Clause (2) of Article 32

In case of N. Ponnuaswami v. Returning Officer, Namakhal Supra, which was the first ever decision of the Supreme Court in relation to election matters, while examining the scope and purview of Article 329 of the Constitution it was held amongst others that any proceeding under Article 226 in relation to the election dispute is barred and the High Court is not competent to decide this matter. The aforesaid decision was more or less followed consistently by the Supreme Court almost without any departure until 1999 when the Supreme Court examined the scope and purview of the aforesaid Article and held slightly differently from the view taken in N. Ponnuswami''s Supra case.

Even in Ponnuswami''s case in paragraph 19 it was observed that ''question as to what the powers of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 136 of the Constitution may be, is one that will have to be decided on proper occasion''.

When the Supreme Court decision rendered in 1952 the scope of the power under Articles 226 and 227 of the Constitution of India was not examined, later in the historic judgment in His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala, case it has been observed that power of the High Courts under Articles 226 and 227 and under Article 32 of the Supreme Court are the plenary power and is inviolable provision of the Constitution of India, meaning thereby it is part of the basic structure of the Constitution of India.

This has been explained and reiterated in number of decisions subsequently. In Minerva Mills Ltd. and Others Vs. Union of India (UOI) and Others, case Supreme Court has also follows and explained the power of the High Court under Articles 226 and 227 as being part of the basic structure of the Constitution. It is found from time to time the legislature with the help of the executive tried to curb and/or affect the power of the High Court under Articles 226 and 227 and also Article 32 of the Constitution by making various enactments, such attempt was thwarted with a heavy hand by the Apex Court. The Minerva Mills Ltd. and Others Vs. Union of India (UOI) and Others, case was one of such occasion when an unconstitutional attempt was made to prevent the citizens from having accessibility to the justice delivery system under the constitutional provision, to challenge any unconstitutional piece of legislation.

Central Administrative Tribunal was enacted under Article 323(A) of the Constitution whereby and whereunder power of the Supreme Court under Article 136 as well as High Courts power under Articles 226 and 227 were expressly taken away by making simple legislation and this was challenged and the Supreme Court in its land mark decision in L. Chandra Kumar Vs. Union of India and others, reported in paras. 78 and 79 held amongst others as follows:

...We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Article 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded.

We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided.

Again in para. 90 of the said decision Their Lordships have been pleased to hold that jurisdiction of the High Courts under Articles 226 and 227 cannot be excluded.

In paragraph 99 ultimately Their Lordships held that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B of the Constitution to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional.

In spite of holding as above Their Lordships however, pleased to lay down the law that citizen cannot straight way resort to the provision of Articles 226/227 in respect of the matters which are required to be resolved and decided by the Tribunals framed under Articles 323A and 323B of the Constitution. The reason being as it was observed by Their Lordships that the Tribunal constituted under the aforesaid Articles are treated to be supplemental justice delivery system to the High Court and further it has been observed these Tribunals are clothed with all the trapping of the Constitutional Court, not being a Constitutional authority.

It has been noticed by the aforesaid Articles 323A and 323B jurisdiction of this Court under Articles 226/227 can be expressly taken away by the legislature. But in this case namely under Article 243Z(G) the jurisdiction of this Court is sought to be taken away by necessary implication with the non-obstante clause namely ''notwithstanding anything in this Constitution''. It is significant to mention that this Article has been inserted later on. It was not there originally. The founding father of the Constitution with due deliberation thought that the two Articles 226 and 227 of the Constitution should be made basic structure of the Constitution and with this insertion of the non-obstante Clause which purports to take away the power of High Courts under Articles 226 and 227 and that of Supreme Court under Article 32, the legislature has not only betrayed the wishes and intention of the founding father of the Constitution but has also sought to destroy one of the basic features and structures of the Constitution of India. Therefore, aforesaid provision should be read down with words ''subject to the provision of Articles 226 and 227 and Article 32 of the Constitution of India''.

The bar created by the aforesaid Act is also held to be unconstitutional to the extent as it seeks to take away the jurisdiction of this Court under Articles 226 and 227 for the simple reason this Act has been enacted under the provision of 243Z(G) Clause (B). The aforesaid bar is sought to be created by Section 78 of the said Act is unconstitutional to the extent as above and such bar cannot stand in the way in entertaining a writ petition under Articles 226 and 227 of the Constitution.

In the case of K. Venkatachlam v. A. Swamickan Supra in para. 27 the Supreme Court held amongst others that--

Article 226 of the Constitution is couched in widest possible term and unless there is clear bar to jurisdiction of the High Court its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. In circumstances like the present bar of Article 329(b) will not come into play when case falls under Articles 191 and 193 and whole of the election process is over. Considered the case where the person elected is not a citizen of India. Would the Court allow a foreign citizen to sit and vote in the Legislative Assembly and not exercise jurisdiction under Article 226 of the Constitution?

In another decision of the Supreme Court Ashok Paper Mills Kamgar Union Vs. Union of India and Another, it has been observed in para. 30 amongst others that--

the right of a citizen to approach the Court so as to have the wrong done remedied by involing the judicial forum; nevertheless lesson is that the elections rights and remedies are statutory, ignore the trifles even if there are irregularities or illegalities, and knock the doors of the Courts when the election proceedings in question are over ....

In a Full Bench decision of Punjab and Haryana High Court reported in Lalchand v. State of Harayana Supra while considering a large number of decisions of Supreme Court and various High Courts in case of the municipal election it has been observed that the relevant statute framed under Article 243ZG will not oust the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.

In a Full Bench of the Andhra Pradesh High Court reported in G.K. Durga v. State Election Commissioner, A.P. Supra. In para. 8 it has been observed that--

by reason of the said provision, a bar has been created in the matter of interference by Courts in electoral matters. Although as noticed herein before, such a bar may not, in true sense, apply to constitutional remedies but it is now well settled that the Court while making an exception to the said provision of entertaining an application must, inter alia, be satisfied that the action on the part of Respondents is wholly without jurisdiction.

In para. 4 of the said judgment it has been observed by Their Lordships (S.B. Sinha, C.J.) as His Lordship then was, speak for the Bench as follows:

There cannot be any doubt whatsoever, as has been held by the Apex Court in Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, ) as also Sangram Singh ( AIR 1995 S.C. 425), that by reason of a Central or State Act, the jurisdiction of the High Court under Article 226 of the Constitution of India cannot be taken away. The Court exercises a rule of self restraint in such matters having regard to the fact as to whether the extraordinary jurisdiction should be exercised in the fact, situation obtaining in each case.

I respectfully follow and adopt this principle and I hold that the power of this Court under Article 226 cannot be taken away as it has been held that it is basic structure of the Constitution of India.

Accordingly, I hold that the writ petition is maintainable. Now the question remains as to whether on the given facts and circumstances of this case this writ petition may be in exercise of it discretion, entertained by this Court or not. The consistent views and the judicial pronouncements of all the Courts despite having held as above, is that the ordinary and usual forum as created by the statute should not be allowed to be skipped by the litigants. The scope and purview of the provision of Sections 75, 76 and 77 are quite exhaustive and disputes with regard to qualification and disqualification can also be decided by the learned District Judge under the aforesaid Sections.

In my view the writ Court will exercise discretion by entertaining a writ petition involving dispute relating to interpretation and substantial question of law. Where a disputed question of fact, which requires elaborate evidence by way of witness action the writ court, will not obviously entertain such a dipute, for it is difficult to resolve on affidavit evidence.

Here is a case, the writ Petitioner has raised the fundamental questions as to qualification of the Respondent No. 5 to stand for election. The substantial question of law and the interpretation of the statute and Sections are involved in this matter. The question raised here is whether the holding of office of the Respondent No. 1 of the Additional Public Prosecutor appointed u/s 25 of the Code of Criminal Procedure can be construed to be in service in or to have been receiving remuneration from the State Government or not. This interpretation has to be given by the Court in this matter. When such disputes are involved and admittedly no evidence is required in my view this writ Petitioner should not be non-suited for having the statutory remedy for obtaining decisions, particularly when the writ petition was filed even before an election was held. It would be unjust if the writ Petitioner is asked to go to the ordinary forum in view of pendency of this writ petition. The writ Petitioner could not go to the ordinary forum and particularly limitation period of ten days having expired, therefore I intend to decide these questions on merit.

It is the case of the Petitioner so it is contended by Mr. Panda appearing for the Petitioner that the Respondent No. 5 on the date of filing of nomination to stand for election, was holding the office of Additional Public Prosecutor having been appointed by the order of the Governor dated August 1, 2002 u/s 24 (Sub-Section 3) of Code of Criminal Procedure, 1973 at a remuneration and on the terms and conditions as mentioned in the order so he was disqualified. He was and still is in the service of State Government and further receives remuneration from the State Government.

He contends that the Municipal Returning Officer being the Respondent No. 4 has committed error in while overruling the objection raised by the Petitioner. He submits that it is immaterial what consideration is being received in lieu of rendering services as Additional Public Prosecutor and on what terms and conditions he has been appointed. The mere holding of the office of and discharging the duty, as Additional Public Prosecutor is good enough to hold that he is in service of the State Government and further receives remuneration from the State Government. The Returning Officer should have held hold that the Respondent No. 5 was disqualified. Though he has been elected, in view, of this disqualification since beginning his election should be set aside and/or be held null and void. In support of his contention he has relied on a decision of the Supreme Court reported in Rabindra Kumar Nayak Vs. Collector, Mayurbhanj, Orrisa and Others, .

Mr. Bihani contends that the concerned Returning Officer has considered the objection raised by the Petitioner and with reasons. He has decided the matter in his own way, his decision appears to be reasonable. He contends that while interpreting the law one may come to a different conclusion but for the erroneous interpretation the order cannot be set aside by this Court in exercise of writ jurisdiction. The reasoning of the High Court should not take place for that of the concerned Returning Officer. Therefore, this Court should ignore objection raised in this writ petition.

Mr. Tarun Roy the learned Counsel appearing on behalf of the State contends that the terms and conditions of the appointment of the Respondent No. 5 clearly suggest that it was not a regular employment and it is merely contractual assignment. The relationship of master and servant will not be apparent in the order of appointment. He is being paid the retaining fees of Rs. 2,000/- per month and in addition there to a sum of Rs. 225/- per case is allowed, subject to maximum limit as prescribed by the Government. His contention is that the interpretation of the word ''retainer'' given by the officer concerned is justified and supported by authority. He has drawn my attention to the meaning of the ''retainer'' as well as ''fee'' mentioned in the Black''s Law Dictionary (7th Edition) to make a distinction between the meaning of the words ''retainer'' and the ''fees''. He contends that the word ''fee'' connotes a consideration whereas the meaning of the word ''retainer'' does not suggest so. His further contention is that he is a member of the Bar and is free to disassociate himself from this assignment. So, it is not really a service under the State Government nor he is receiving any remuneration in real sense. He further submits that ''retainer'' means authorization of one person in favour of another. He is not subjected to disciplinary control of the State Government and this payment is mere temporary and ad hoc. He further contends that he is a very eminent person in the locality and he has already been elected. As such his election should not be set aside.

Mr. Chakraborty appearing for the Respondent No. 5 adopts the argument of Mr. Roy and further contends that it is a contractual assignment and no relationship of employer and employee exists. The terms and conditions of the appointment would suggest that it is merely an authorization to act as a lawyer on behalf of the Government, which is usually done by state empanelled lawyers. This does not debar him from contesting election.

Having considered the respective contention on merit it appears to me that two issues are involved namely (i) whether by the appointment of the Respondent No. 5 by order dated August 1, 2002 he can be declared to be service or receiving remuneration from the State Government or not. and (ii) whether by this appointment the Respondent No. 5 was disqualified under provision of Section 30(1)(g) of the West Bengal Municipal Elections Act, 1994 (hereinafter referred to as the said Act) so it would be apposite to set out the exact text of the order dated August 1, 2002 by which he was appointed.

ORDER

No. 8759A/G.P. 4/87(pt.) Dated, Kolkata, the 1st August, 2002.

In exercise of the powers conferred under Sub-section (3) of Section 24 of Code of Criminal Procedure, 1973 the undersigned is directed by the order of the Governor to say that the Governor has been pleased to appoint Shri Anuj Mitra, Advocate Alipurduar Court, to be the Additional Public Prosecutor, Alipurduar, for conducting the prosecution cases in the courts at Alipurduar in the District of Jalpaiguri with effect from the date on which he assumes charge of the said office and until further orders.

By Order of the Governor,

Legal Remembrancer-in-Charge

to the Govt. of West Bengal,

Judicial Department.

No. 8795A/11A. Dated, Kolkata, the 1st August, 2002.

Copy forwarded for information and taking necessary action to:

Sri Anuj Mitra, Advocate, Alipurduar, Criminal Court Bar Association, Dist. Jalpaiguri.

He is requested to take charge immediately.

He is entitled to a monthly retainer of Rs. 2,000/- and daily fee of Rs. 225/- per case subject to ceiling prescribed by the existing rules. He is also requested to send authenticated documents in support of his age.

In addition to the aforesaid order the District Magistrate, Jalpaiguri on the same date passed a separate order under Rule 97 of L.R. manual. He in his order says that Shri Anuj Mitra was appointed to act as an Additional Public Prosecutor temporarily in the Court of Additional Session Judge and Assistant Session Judge, Alipurduar, Jalpaiguri till a regular Public Prosecutor appointed by the Government. In my view the order of the District Magistrate is substantially at variance with the order of the Governor dated August 1, 2002. The order of Governor nowhere mentions that his appointment is temporary one or for that matter ad hoc one. The language of the order of the Governor is clear and it is substantive appointment until further orders. Therefore, the order of the District Magistrate should be ignored to the extent of inconsistency and/or contradiction to the order of the Governor.

So, I hold that the terms and conditions and the appointment of Respondent No. 5 should be regarded and/or considered from the order of the Governor alone.

The disqualification, which is sought to be raised in respect of the candidature of the Respondent No. 5 u/s 30 of the said Act is set out hereunder:

General disqualifications for, membership of a Municipality.

(1) A person shall not be eligible for election as a member if such person - (c) has been adjudged by a competent court to be of unsound mind; or

(d) is under twenty-one years of age; or

(e) is an undischarged insolvent; or

(f) being a discharged insolvent, has not obtained from the court a certificate that his insolvency was caused by misfortune without any misconduct on his part; or

(g) holds any office of profit under the Municipality; or

(h) has directly or indirectly by himself or by his partner or employer or any employee, any share or interest in any contract or employment with, by, or on behalf of, the Municipality; or

(i) is in the service or receives remuneration from the Central or the State Government or the Municipality; or

(j) has been elected to, or appointed under, any other Municipality or Panchayat or the Darjeeling Gorkha Hill Council constituted under the Darjeeling Gorkha Hill Council Act, 1988;

Provided that notwithstanding anything contained in Clause

(f) no person shall be deemed to be disqualified thereunder by reason only of his having a share or interest in

(k) any lease, sale or purchase of land or any agreement for the same; or

(2) any agreement for the loan of money or any security for the payment of money only; or

(3) any newspaper in which any advertisement relating to the affairs of the Municipality is inserted; or

(4) any incorporated or registered company which contracts with, or is employed by the Municipality.

(2) A person shall be disqualified for being chosen as, and for being, a member of a Municipality if he is so disqualified by or under any law for the time being in force for the purpose of elections to the State Legislature;

Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he is attained the age of twenty-one years.

(3) If any question arises as to whether any person or any member has become subject to any of the disqualifications mentioned in Sub-section (1) and Sub-section (2), the question shall be referred for decisions to such authority and in such manner as the State Government may notify from time to time.

Now it has to be considered as to whether the mode of appointment and the terms and conditions thereto, of the Respondent No. 5 by the order of the Governor can be said to be in service of the State Government or not or he receives remuneration from the State Government or not. In my view the word ''or'' used in the above Section is meant and should read disjunctively giving ordinary and plain grammatical meaning. If a particular candidate is in the service of the State Government then this is good enough to declare him ''disqualified'' regardless of payment of remuneration or honorarium. Disqualification can be said to have been invited even though not being in service if the person receives remuneration from the State Government for rendering any service either contractual or otherwise. Therefore, in either of the eventualities a candidate can be said to be disqualified.

The intention of the legislature while using the word ''or'' is very clear to mandate that no person having any nexus and relationship pecuniary or otherwise in any way with the State Government either rendering any service in any capacity or receiving remuneration either on the contractual basis or otherwise should not be allowed to involve himself in the municipal affairs. The whole intention is to keep the Municipal body away of the influence of the officials of the State Government or of any other persons connected with the State Government otherwise than under the Act.

Next question remains as to whether the holding of office of the Additional Public Prosecutor by the Respondent No. 5 can be declared to be in service of the State Government or not. From the order of appointment it appears to me that the Respondent No. 5 was asked to act as an Additional Public Prosecutor at Alipurduar Court or this appointment has been made u/s 24 Sub-Section 3 of the Code of Criminal Procedure, 1973. Section 24 Sub-Section 3 reads as follows:

Section 24. ...

(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutor for the said District.

Upon plain reading of Section 24 as a whole it will appear that the office of the Public Prosecutor including Additional one is a statutory one and this appointment is absolutely essential in the criminal justice delivery system. In our system of the law the criminal trial cannot be held unless the same is conducted on behalf of the prosecution by the Public Prosecutor. Even the de facto complainant cannot proceed with the trial unless it is initiated and ultimately has to be initiated by the Public Prosecutor. Therefore, no doubt it is an office and a statutory one. The Respondent No. 5 has been asked to hold this office without having any mention as to term or tenure. In my view a person manning public or statutory office irrespective of the terms and conditions or tenure can be said to be holding of the office and is in service of such office.

In case of Rabindra Naik v. Collector Mayurvanj Supra reported in cited by Mr. Panda the Supreme Court while dealing with a case of Panchayat Election has held that the office of the Assistant Public Prosecutor is under the State Government and it is an office of profit and the person holding such office is not eligible to become a Member/Chairman of a Samity under the concerned Panchayat Samity Act. While deciding the case the Apex Court observed in para. 17, which in my view is very apposite to this case that ''permanency is attached to the office and not to the term for which person holds it''. Persons who fill the office come and go in succession. One may succeed the other after a long gap or in each succession how long remains in office is irrelevant to decide whether he holds it as office of profit. Factually the person concerned was holding the aforesaid post temporarily and even without any fees or remuneration.

In my view the office of the Additional Public Prosecutor is controlled and regulated by the Government as appointment is made by it and termination will also be made by it. He is subjected to act under the rules and Regulations relating to this engagement. It is not a relationship of ordinary individual litigant and his lawyer. Undoubtedly the holder of this office discharges the public function. As such, I without any hesitation hold that the Respondent No. 5 is in the service of the State Government as he holds office of Additional Public Prosecutor.

Now it is contended that term retaining fee cannot be equated with the salary and/or remuneration. I am unable to accept this submission. The description and/or term and/or mode of payment are immaterial. The whole question is what does he receive in lieu of the service in the above office as consideration. In other words, the element of quid pro quo exists or not. The use of the words ''retaining fee'' is misnomer. The real object is to pay for the service rendered while holding the office of Additional Public Prosecutor. Therefore, I am unable to accept submission of Mr. Roy and for that mater Mr. Chakraborty that because of use of the word retaining fee the character of the appointment or status of the office is changed. The decisions cited in this connection by Mr. Chakraborty and Mr. Roy are absolutely inappropriate in this case.

Accordingly, I hold that the Respondent No. 5 also receives remuneration for such service.

The interpretation given by the Returning Officer, Respondent No. 5 is absolutely erroneous. He did not try to decide whether the post held by him amounts to service of State Government or not. He has decided the issue as to whether payment of retaining fee is remuneration or not. Moreover, his interpretation is totally erroneous on the facts and circumstances of this case. It is absurd to characterize the payment of retaining fee is something other than payment of remuneration. Moreover, I find in terms of the service, the Respondent No. 5 is entitled to Rs. 250/- per case subject to ceiling limit, in addition to payment of monthly remuneration, taking together as a whole with regard to the method of payment. I hold that interpretation and decision of the Election Officer is unsupported by the law. Therefore, I hold that Respondent No. 5 was disqualified and having no eligibility to stand for election. Therefore, it is clear that his election subsequently is null and void. In that view of the matter I direct the Respondent concerned the State Election Commission to call for fresh election in that particular ward at an early date in accordance with law after making declaration in terms of Section 37 of the said Act.

Let xerox certified copy of this judgment and order be made available to the learned lawyers for the parties on urgent basis preferably within seven days from the date of making such application.