SURAT MACHHUAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The Court: The above appeal has been preferred against judgment and order of the learned Single Judge dated 25th June, 2008 by which without calling for any affidavit at the admission stage after observing the legal proposition the learned Single Judge has disposed of the application without granting any relief as prayed for. The fact for which filing of the writ petition had given rise is stated hereunder: The petitioner/appellant being the member of the Schedule Caste community contested Panchayat Election in 2008 held for reconstitution of the Gram Panchayat of the segment of Baghmundi (XIII) in the District of Purulia. By above notification the Office of the Pradhan of the said segment has been reserved for Schedule Caste category. The said Gram Panchayat comprises of 13 members.

(2.) It is stated that after election was held and petitioner having been declared to be successful candidate in the election attempt was made for reconstitution of the Gram Panchayat with selection of the Pradhan. As the petitioner being sole elected candidate from Scheduled Caste Community is entitled to occupy the said office of Pradhan by operation of law automatically and there could not be any hindrance to it. But the Principal Secretary Department of Panchayat and Rural Development issued a memorandum dated 10th June 2008 by which scope and purport of section 20 of the West Bengal Panchayat Elections Act, 2003 (hereinafter refereed to as the said Act) and the procedure for selection of Pradhan is sought to be clarified. The said memorandum was under challenge in the writ petition on the ground amongst others the said secretary has no jurisdiction or authority to issue such clarification laying down procedure for application of section 20. Besides the same being not only ultra vires the Panchayat Act and all the rules framed thereunder and also provision of Constitution of India. According to the writ petitioner there was no need for clarification for applicability of section 20 of the said Act. It is said that section 20 of the said Act specifically provides in case of non-availability of the Scheduled Caste candidate for occupying the office of Pradhan in the reserved area with the method of co-option. The learned Trial Judge accepted the submission that the said memorandum dated 10th June, 2008 issued by the Government of West Bengal through its concerned Principal Secretary cannot possibly override the statutory provision or the rules framed thereunder. It was also opined by the learned Trial Judge that the said memorandum has not overridden statutory provision or Rules framed thereunder. After observing this the learned Trial Judge did not pass any order in the writ petition as prayed for. It is argued before us in this appeal that the learned Trial Judge failed to exercise it powers by not.granting relief in spite of having accepted the case made out by the applicant.

(3.) It appears at the admission stage on 7th July, 2009 the Division Bench of this Court after discussing the law in great details and after having prima facie satisfied about illegality in the said memorandum passed an order staying, operation thereof till the hearing of the appeal. By the said interim order the writ petition was allowed to hold the office of Pradhan.