Decided on August 25,1983



B. C. RAY. J - (1.) This application is at the instance of petitioner, Abdul Mannan, assailing the validity of the order recalling the declaration of the result of the election under rule 65 by filing the declaration form and also issuing a certificate of election to him stating that he has been duly elected as a member of Joshpur VII Gram Panchayat and praying for appropriate writs commanding the respondents not to give any effect or further effect to the order cancelling the said declaration of results of the election and declaring respondent no. 5 Ali Sheikh Ja-har as elected in his place and stead. There is also a prayer for interim order, restraining the respondents from giving any effect or further effect to the impugned memo, dated 3.6.83 annexed as annexure B to the petition.
(2.) On 29.6.83 after hearing the learned Advocate for the petitioner this Court directed the petitioner to serve copies of the application on all the respondents and an interim order was made restraining the respondents from giving effect to the order annexed as annexure B to the petition in the meantime. Thereafter this matter appeared on 9.8.83 when Mr. S. K. Acharya, Advocate General appeared on behalf of the State respondents and Mr. Jahar Lal De appeared for the private respondents. After hearing the learned Advocate for the petitioner as well as the learned Advocates for the respondents this Court passed a further interim order restraining the respondents i.e. the elected members from holding the first meeting of the Gram Panchayat which was convened on 10.8.83. It was also directed that the respondent no. 7, the Presiding Officer, will produce before this Court all the ballot papers and also the written order made on the application for recounting at the time of hearing of this application and the application was directed to appear on 23.8.83. After this order was made, it was submitted before this Court by Mr. Rabindra Nath Mitra, learned Advocate appearing on behalf of the petitioner, that an appeal was preferred by the State of West Bengal before the Appeal Bench of this Court against the interim order as mentioned hereinbefore made by this Court. I am constrained to say in this connection and which I think it is the duty of this Court to point out that the interim order that was made on 9.8.83 was made in the presence of the learned Advocate for the State as well as for the other private respondents and practically on concession by all the learned Advocates. However, be that as it may, in that appeal, it has been stated by Mr. Mitra, learned Advocate for the petitioner, that a direction has been given that the application be heard as early as possible, not later than Wednesday next i.e. 31.8.83 which is of course a holiday. When this was mentioned this Court in order to do justice in spite of several part heard matters fixed the hearing of this matter today leaving aside the part- heard matters.
(3.) The only submission that has been pleaded in the writ application is that the election of this Gram Panchayat in question was held on 31.5.83 and the counting of votes was completed on 1.6.83 and immediately after the counting was completed the Presiding Officer (respondent no. 7) Shri Abani Kumar Chandra not only filled in the counting sheets in form no. 19, 19A, 20 and 20A but also declared the results finally by filling up the form no. 22 in accordance with the provision of rule 65 of the Panchayat Rules. It has been further stated in the writ petition that a certificate has been handed over to the petitioner after such declaration and this certificate has been annexed as annexure A to the petition. It is pertinent to mention in this connection that it has also been specifically pleaded in paragraph 7 of the petition that in the :said counting Abdus Sattar secured 307 votes and the petitioner secured 301 vortes and were placed in the first and second position respectively whereas Ali Sheikh Jahar (respondent No. 5) secured 299 votes and was placed in the third position. It has been also stated that after the declaration of the result of the Gram Panchayat and while the counting of votes of Panchayat Samity was going on the respondent no. 6 who is the Chairman of Dubrajpur Panchayat Samity appeared at Rampur Polling Station at about 2.30 P. M. on June 1, 1983 and demanded recount of votes of Gram Panchayat. The Presiding Officer did not agree to the said proposal and informed respondent no. 6. that the result has already been finally declared and as such the same cannot reopened. Thereafter it has been alleged that the Presiding Officer and other staff were kept confined at the Block Officer at Dubrajpur till June 3, 1983 and the Presiding Officer was compelled to sign certain documents prepared by respondent no. 6. It has also been pleaded that due to all this pressure the Presiding Officer was compelled to sign the documents prepared by respondent no. 6. The petitioner was served with a memo no. 1956-58 dated June 3. 1983 and Memo No. 1959-61 dated June 3, 1983 by the Returning Officer and Block Development Officer, Dubrajpur, Birbhum, wherein it has been stated that the result declared in favour of Abdul Mannan be treated as cancelled and Ali Sheikh Jahar who is respondent no. 5 is the elected candiate from Joshpur VII Gram Panchayat Constituency. It is this memo which has been annexed as annexure B to the writ petition has been challenged in this writ petition on the ground inter alia, that after the final declaration of the result and filling up of form no. 22 and also the issuance of certificate to the petitioner that he has been duly declared elected as a member of the Gram Panchayat from the aforesaid Constituency the Presiding Officer loses his jurisdiction or in other words he has got no power under the provision of rules 64 and 65 of the Panchayat Election Rules 1974 to make an order for recounting if such an application is made and to recount the votes as has been stated in the aforesaid memo (annexure B to the writ petition). It has therefore been submitted that this order contained in the said memo is liable to be cancelled and set aside and appropriate direction should be made to the authorities concerned not to give effect to the said memo and also to the subsequent statement of the Presiding Officer that the respondent no. 5 has been elected from the said Gram Panchayat instead! of the petitioner as has been declared by issuing the certificate of election to the petitioner.;

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