AMARENDRA NATH SARKAR Vs. RADHA KRISHNA SINHA

JUDGEMENT

(1.) THIS is an appeal against an order of Basu, J. , dated the 6th april, 1967 by which the Rule was made absolute, so far as it related to the appellant, amarendra Nath Sarkar, cancelling his co-option as a member of the bolepur Sriniketan Anchalic Parishad and consequential directions were given. The co-option of another respondent had also been challenged, but neither was it pressed in the court below nor before us, and it is not necessary to deal with the case of the said respondent. The facts in this case are briefly as follows: The respondent No. 1, Dr. Radha krishna Sinha, is a member of the West bengal Legislative Assembly elected from the Bolepur constituency and as such he is an ex officio member of the bolepur Sriniketan Anchalic Parishad. On or about the 10th September, 1964 the said Amarendra Nath Sarkar was co-opted as a member of the said Anchalic Parishad under paragraph (e) of section 52 (1) of the West Bengal Zilla parishads Act, 1963 (hereinafter refered, to as the "said Act" ). On or about the 7th October, 1964 he was duly elected as the President of the said Anchalic Parishad. As such, he became an ex-officio member of the Birbhum Zilla parishad. He has been subsequently elected as the Vice-President of the said zilla Parishad. I have already stated that the co-option took place on the 10th september, 1964 and objection thereto was filed before the co-option was made, on the ground that the said Amarendra nath Sarkar was not a resident within the area of the said Parishad, but was a resident in the town of Bolepur. The co-option took place on the 10th September, 1964 and this was challenged on two grounds; the first being that the said Amarendra Nath Sarkar had not the requisite residential qualification and secondly that the co-option was not made in accordance with law. A demand for justice was made on the 19th september, 1964 and an application was made to this Court by the respondent no. 1 and a Rule was issued on 28th of september, 1964 upon the opposite parties to show cause why the co-option should not be set aside and for other reliefs. It is this Rule which was heard by Basu, J. , and it succeeded so far as the said Amarendra Nath Sarkar is concerned, who has now appealed against the same. It may be mentioned here that the period of membership will in any event expire in September 1968. The learned Judge in the Court below has held against the appellant on both the points. Upon the materials before him, the learned Judge has decided that in fact the appellant did not have the requisite residential qualification. The learned Judge has also held that the co-option of the appellant was not made in accordance with law. I shall deal with the second point first. The relevant provision as to co-option appears in section 52 (1) (e) of the said Act which is contained in Chapter VIII which deals with the constitution of the Anchalic parishad. The relevant part thereof runs as follows :

(2.) THE relevant rule is Rule 80 of the West Bengal Zilla Parishad (Election, Constitution and Administration)Rules, 1964 (hereinafter referred to as the "said Rules" ). The relevant part thereof is set out below :

(3.) THAT the provisions of sub-rules (1) and (2) were complied With is not disputed. What happened in the meeting convened for the purpose of co-option is contained in the minutes kept by the presiding officer a copy whereof is Annexure "g" to the petition in the Court below and set out at pages 21 and 22 of the paper book. It appears therefrom that copies of Form mo. 26 were supplied to members who were willing to propose or second the names of persons to be co-opted. What happened thereafter is very peculiar find will appear from a copy of the said minutes set out below:-"3. Names of the following persons were proposed and seconded in form No. 26 (enclosed herewith marked "a") for casting the first vote. 1. Sri Amarendra Nath Sarkar. 2. Sri Tarak Ch. Dhar.