Dr. Kunal Saha And Another vs West Bengal State Election ...
2021 Latest Caselaw 2711 Cal

AD. 5.
April 8, 2021.
MNS.

                                   W. P. A. 8877 of 2021
                                  (Via video conference)

                              Dr. Kunal Saha and another
                                          Vs.
                         West Bengal State Election Commission
                                   and others

                        Dr. Kunal Saha

                                       ... petitioner no. 1 in-person.

                        Mr. Dipayan Choudhury,
                        Mr. Suvradal Choudhury,
                        Ms. Priyanka Chowdhury

                               ...for the respondent-authorities.

Dr. Saha, petitioner no. 1, representing

both the petitioners, appears in person virtually

and argues that although reliefs (a) and (b)

prayed for in the writ petition have become

infructuous since elections have already been

held at the relevant Assembly Constituencies,

however, relief (c) ought to be granted to the

petitioners in view of flagrant violation of the order

dated February 13, 2020 passed by the Supreme

Court in Contempt Petition (C) No. 2192 of 2018

in WP(C) No. 536 of 2011.

Dr. Saha points out the guidelines of the

Election Commission of India itself, annexed at

page 21 of the writ petition, in particular Clause 2

thereof, in support of such submission and

argues that the said relief does not come within

the domain of challenge to an election process,

regarding which the courts are debarred from

interfering after commencement of the elections

under Article 329(b) of the Constitution of India.

Dr. Saha also relies on the judgment

rendered by the Supreme Court in Public

Interest Foundation and others Vs. Union of

India and another reported at (2019) 3

Supreme Court Cases 224 in support of his

arguments.

Learned counsel appearing for the

respondent-authorities relies on the ratio laid

down in (1978) 1 Supreme Court Cases 405

(Mohinder Singh Gill's case) and argues that

the scope of judicial review after commencement

of the election is extremely limited and fettered by

Articles 324 and 329(b) of the Constitution of

India.

It is further argued that, as far as the

representations of the petitioners are concerned,

annexed respectively at pages 56 and 73 of the

writ petition, the first of those have already been

dealt with by the Election Commission of India

and the second was made at a stage when the

election process had already commenced,

thereby leaving no scope for the Election

Commission to take any further steps in that

regard.

Upon considering the submission of

parties, it is evident that the substantive challenge

in the present writ petition is against alleged

irregularities committed in connection with the

election process, which has already commenced

sometime back.

As such, in view of the specific bar

envisaged in Articles 329(b) read with 324 of the

Constitution of India, this Court does not have

jurisdiction to decide on the allegations made in

the present writ petition. The remedy of the

petitioners, in my view, lies in filing an election

petition after the conclusion of the election

process before the appropriate authorities.

As such, W. P. A. 8877 of 2021 is

dismissed as not maintainable with liberty to the

petitioners to approach the appropriate forum with

an election petition in accordance with law,

ventilating the same grievances as urged in the

present writ petition. If so approached, the said

forum will not be prejudiced by any of the

observations made in this order and shall decide

such petition independently on its own merits in

accordance with law.

There will be no order as to costs.

Urgent photostat certified copies of this

order, if applied for, be made available to the

parties upon compliance with the requisite

formalities.

(Sabyasachi Bhattacharyya, J.)