Calcutta High Court (Appellete Side)

Pratap Banerjee vs State Of West Bengal And Others on 15 December, 2021

             IN THE HIGH COURT AT CALCUTTA
            CONSTITUTIONAL WRIT JURISDICTION
                       (Appellate Side)


                                           Reserved on:     10.12.2021
                                         Pronounced on:     15.12.2021

                                                WPA (P) 299 of 2021

                                         (Through Video Conference)


Pratap Banerjee
                                                           ...Petitioner

                                  -Vs-
State of West Bengal and Others
                                                        ...Respondents

AND

WPA (P) 271 of 2021

(Through Video Conference)

Mousumi Roy ...Petitioner

-Vs-

West Bengal State Election Commission and Others ...Respondents

Present:-

Ms. Pinky Anand, Senior Advocate Mr. Joydip Kar, Senior Advocate Mr. Billwadal Bhattacharyya, Mr. Rajdeep Majumdar, Mr. Dhiraj Trivedi, Mr. Debanik Banerjee, Mr. Lokenath Chatterjee, Mr. Sayak Chakraborti, Mr. Moyukh Mukherjee, Mr. Anish Kumar Mukherjee, Mr. Amrit Sinha, Advocates ..for the Petitioner in WPA(P) 299 of 2021 2 WPA (P) 299 of 2021

Mr. Sabyasachi Chatterjee, Mr. Imtiaz Ahmed, Mr. Sandipan Das, Mr. Pintu Karar, Mr. Akashdeep Mukherjee, Ms. Debolina Sarkar, Mr. Ankur Sharma, Ms. Sreejita Biswas, Ms. Senjuti Mukherjee, Advocates ..for the Petitioner in WPA(P) 271 of 2021

Mr. S.N. Mookherjee, learned Advocate General Mr. A. Ray, learned Govt. Pleader Mr. Md. T.M. Siddiqui, Mr. D. Ghosh, Advocates ..for the State in WPA(P) 299 of 2021

Mr. S.N. Mookherjee, learned Advocate General, Mr. A. Ray, learned Govt. Pleader Mr. Md. T.M. Siddiqui, Mr. N. Chatterjee, Advocates ..for the State in WPA(P) 271 of 2021

Mr. Anuran Samanta, Advocate ..for ECI in WPA(P) 271 of 2021

Mr. Jayanta Mitra, Senior Advocate Mr. Abratosh Majumdar, Senior Advocate Mr. Subhankar Nag, Ms. Sonal Sinha, Advocates ..for the West Bengal State Election Commission

Coram: THE HON'BLE JUSTICE PRAKASH SHRIVASTAVA, CHIEF JUSTICE THE HON'BLE JUSTICE RAJARSHI BHARADWAJ, JUDGE

Prakash Shrivastava, CJ:

1. This Court by order dated 1st December, 2021 had issued

following directions:

"i. The State as well as the State Election Commission, on or before the next date of hearing, give the plan disclosing the tentative time schedule for conducting the election of all the Municipal 3 WPA (P) 299 of 2021

Corporations/Municipalities in the State in the phase manner.

ii. The State Election Commission is also directed to explore the possibility and feasibility of doing counting of votes of the Municipal Corporations/Municipal Elections after the polling is completed in all the Municipalities of the Municipal Corporation in the State.

iii. The State Election Commission is expected not to declare the election of the Municipal bodies in the State in such a manner which will give benefit to one particular party."

2. Submission of the learned Counsel for the petitioner is that

the above directions have not been complied with and no clear time

schedule to hold elections of all Municipal

Corporations/Municipalities in the State has been disclosed. She has

further submitted that no possibility and feasibility of holding the

simultaneous elections of all the Municipalities/Municipal

Corporations has been explored by the respondent Nos. 2 and 3.

Referring to the notification dated 18.03.2015 filed by the petitioner

along with the affidavit dated 8th December, 2021, she has submitted

that in April, 2015 simultaneous elections of 91

Municipalities/Municipal Corporations/notified area were held,

therefore, the same can be held now also. She has further submitted

that the elections for Kolkata Municipal Corporation are going to be

held by using EVMs which are not VVPAT EVMs. Placing reliance

upon the judgment in the matter of Subramanian Swamy vs.

Election Commission of India, (2013) 10 SCC 500; N.

Chandrababu Naidu and Others vs. Union of India and Another,

(2019) 15 SCC 377 and Reshma Vithalbhai Patel vs. Union of 4 WPA (P) 299 of 2021

India, (2018) 18 SCC 675, she has submitted that the use of VVPATs

EVMs is mandatory, therefore, without it the Kolkata Municipal

Corporation Elections cannot be allowed to be held. She has also

submitted that in respect of Kolkata Municipal Corporation Elections,

there is a procedural error in respect of the non-compliance of Section

38 of West Bengal Municipal Elections Act, 1994 inasmuch as no

public notice in terms of the said Section has been given. She has

submitted that this Court should issue a direction to postpone the

elections of the Kolkata Municipal Corporation or stay it and in this

regard she has placed reliance upon the judgment of the Supreme

Court reported in Digvijay Mote vs. Union of India and Others,

(1993) 4 SCC 175.

3. Learned Counsel appearing for the respondent No. 3

Municipal Corporation has submitted that petitioner cannot be

permitted to expand the scope of the writ petitioner by raising the new

issue of use of VVPATs which was not raised in the writ petition. He

has further submitted that in view of constitutional bar, the election of

the Kolkata Municipal Corporation cannot be stayed and earlier such a

prayer has already been rejected. He has submitted that the

consultative process with the State Government is going on and has

referred to the communication of the State Government dated 4th

December, 2021 proposing to hold the Municipal Elections in the

State in 6 to 8 phases by May 2022 and declaring the time schedule on

the basis of the circumstances disclosed in the affidavit dated 6th of

December, 2021. He has also submitted that the sufficient number of

EVMs are not available and the request to provide more EVMs has

been turned down by the Election Commission of India and by the 5 WPA (P) 299 of 2021

other States. He also submitted that VVPATs are to be used in the

Parliamentary and Legislative Elections and not in the local body

elections and has submitted that the cases relied upon by the Counsel

for the petitioner are distinguishable. He has also submitted that

Section 8 of the West Bengal State Election Commission Act, 1994

and Section 36 of the West Bengal Municipal Elections Act, 1994

contain the provision in respect of multiple dates of elections of local

bodies.

4. Learned Advocate General appearing for the State has also

submitted that the consultation with the State Election Commission is

in progress to prepare a time schedule for holding the elections of

local bodies/Municipalities/Municipal Corporations/notified areas all

over the State of West Bengal and these elections will be held within

the outer limit of May, 2022. Opposing the prayer for stay of Kolkata

Municipal Corporation Elections, he has submitted that the VVPATs

are not available and the same are also not mandatory for local bodies

elections. He has also submitted that in no Municipal Elections

VVPATs (M3) have been used so far and Election Commission of

India also only lands M2 EVM. He has submitted that Election

Commission and other States have refused to provide for the

additional EVMs. He has also submitted that the form 1 was duly

issued in terms of Section 38 of the Act, therefore, nominations have

been filled up by the candidates for Kolkata Municipal Elections and

that time schedule to hold the election in other municipalities will be

declared after 19th of December, i.e. after holding the elections of

Kolkata Municipal Corporation.

6 WPA (P) 299 of 2021

5. Learned Counsel for the petitioner appearing in connected

writ petition has referred to the chart filed as annexure P1 and has

submitted that in some places elections are due for last 3 years. He has

submitted that the elections of local bodies are deliberately delayed

because the State has appointed its own persons of choice as

administrators in these local bodies.

6. Having heard the learned Counsel for the parties and on the

perusal of the records, we have noticed that the first issue raised by the

petitioner is in respect of non-disclosure of time schedule for holding

the elections of other municipal councils.

7. By a detailed order dated 01.12.2021 the above quoted

directions were issued by this Court. Though there was a clear

direction of this Court to the State as well as the State Election

Commission to give the plan disclosing the tentative time schedule for

conducting the elections of all the Municipal

Corporations/Municipalities in the State in the phase manner on or

before the next date of hearing i.e. 6th of December, 2021, but so far

no such time schedule has been disclosed.

8. The annexure P1 filed along with the WPA (P) 271 of 2021

reveals that in Mekhliganj, Haldibari, Alipurduar, Dalkhola, Habra,

Panihati, Medinipur, Jhargram, Burdwan, Guskara and Dubrajpur

Municipalities election had become due in September, 2018, thereafter

more than 3 years have passed but the elections have not been held till

now.

9. It is worth noting that the elections in these Municipalities

fell due much before the onset of Covid 19 Pandemic, therefore, the

State and Election Commission are not justified in taking shelter of 7 WPA (P) 299 of 2021

Covid Pandemic for not holding the elections in these Municipalities

within time.

10. Clause (3) of Article 243-U of the Constitution in clear

terms provides that:

"(3) An election to constitute a Municipality shall be completed,-

(a) before the expiry of its duration specified in clause (1);

(b) before the expiration of a period of six months from the date of its dissolution:"

11. The Constitution bench of the Hon'ble Supreme Court in

the case of Kishansing Tomar vs. Municipal Corporation of the

City of Ahmedabad and Others, reported in (2006) 8 SCC 352 has

clearly held that under Article 243-U the constitutional mandate is to

complete the election to constitute a Municipality before the expiry of

5 years period stipulated in clause (1) of Article 243-U and in case of

dissolution, to constitute new Municipality before the expiration of 6

months. It has further been held that the period of 5 years fixed under

Article 243-U to constitute the Municipality is mandatory in nature

and has to be followed in all respect. The constitutional provision as

well as the Constitution bench judgment of Hon'ble Supreme Court

are binding upon the respondent No. 2 and 3, therefore, they are

expected to follow the same in letter and spirit.

12. Instead of disclosing the time schedule for holding the

elections in the Municipalities/Municipal Corporations in the State, a

vague plea has been raised in para 6 of the affidavit dated 6th of

December, 2021 by the respondent No. 3 and para 4 of the affidavit

dated 6th of December by the respondent No. 2 that depending upon 8 WPA (P) 299 of 2021

the various factors like Covid situation, school examination, festivals

such as Makar Sankranti, Ganga Sagar Mela, introduction of Omicron

etc., the time schedule will be decided. Once the decision has been

taken by the respondent Nos. 2 and 3 to hold the elections for Kolkata

Municipal Corporation on 19th of December, 2021 prevailing the same

factors then elections of other Municipalities should not be

unnecessarily deferred. In this regard, the plea of the petitioners that

the respondent Nos. 2 and 3 are unnecessarily delaying the other

Municipal/Municipal Corporations elections in the State cannot be

ignored. The direction of this Court in the order dated 01.12.2021 to

declare the time schedule is clear, therefore, respondent Nos. 2 and 3

are again directed to comply with the same.

13. Another issue raised by the petitioner is in respect of

simultaneous holding of elections of all the Municipal

Corporations/Municipal bodies. The plea of the respondent Nos. 2 and

3 is that sufficient number of EVMs are not available and in view of

the Covid Pandemic certain precautionary measures are required to be

taken, hence simultaneous elections are not possible and elections will

be held in 6-8 phases.

14. Having examined the records, it is noticed that the

respondent No. 3 in the affidavit dated 6th of December, 2021 has

stated on oath that about 15687 EVMs are available for use. In the

Kolkata Municipal Corporation Elections going to be held on 19th

December, 2021, 7210 EVMs would be used. Hence, the respondent

No. 3 is left with 8477 EVMs for use in Elections to other

Municipalities/Municipal Corporations. In the affidavit dated 9th of

December, 2021, respondent No. 3 has stated that in 111 9 WPA (P) 299 of 2021

Municipalities of the State, there are about total 15354 polling stations

for which there will be requirement of 21849 EVMs. The

correspondence with the Election Commission of India and the other

States has been placed on record by the respondent No. 3 in support of

the plea that the Election Commission of India and other States except

the State of Arunachal Pradesh, are not ready to loan the EVMs to the

State of West Bengal. Even if such a plea is correct then also

sufficient EVMs are available to hold elections of remaining

Municipalities in 2 phases.

15. The plea of the respondent Nos. 2 and 3 proposing to hold

the elections in 6 to 8 phases is not supported by any cogent material.

The notification dated 18.03.2015 for holding elections of 91

Municipalities/Municipal Corporations on one date has already been

placed on record which cannot be ignored. Hence, the respondent Nos.

2 and 3 are expected to disclose the time schedule containing earliest

dates for holding these elections expeditiously so that democratic

process of holding elections can be completed without any further

delay.

16. An issue has also been raised by the petitioner for holding

the simultaneous elections in all the Municipal Corporations but now

the elections for the Municipal Corporation of Kolkata have already

been declared for 19th of December. Learned Counsel for the

respondent has drawn the attention of this Court to Section 8 of the

West Bengal State Election Commission Act, 1994 which provides for

"date or dates which can be notified for the poll", similarly he has

referred to Section 36(3) of the West Bengal Municipal Elections Act,

1994 which again provides for notifying "date or dates calling upon 10 WPA (P) 299 of 2021

the Municipalities to elect its members". Since with the declaration of

the elections for the Municipal Corporation of Kolkata, the

circumstances have changed, therefore, prayer for holding the

simultaneous elections of all the Municipalities/Municipal

Corporations in entire State does not survive.

17. Learned Counsel for the petitioner has also made a prayer

for stay of election of Kolkata Municipal Corporation by submitting

that the respondent No. 3 is not using VVPATs in this election which

is mandatory for fair and transparent election and which is also

required as per the judgment of the Supreme Court relied upon by her

and further that the notice in terms of Section 38 of the Municipal

Elections Act has not been issued, therefore, the elections of Kolkata

Municipal Corporation should be stayed.

18. The notification dated 25.11.2021 has already been issued

for holding the elections of Kolkata Municipal Corporation on 19th of

November, 2019. Article 243-ZG (b) of the Constitution clearly put a

bar in interfering in electoral matter by providing that:

"243-ZG. Bar to interference by courts in electoral matters.-

Notwithstanding anything in this Constitution,-

(a) x x x x x

(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."

19. So far as the issue of use of VVPATs in the election of local

bodies is concerned, the stand of the respondent Nos. 2 and 3 that 11 WPA (P) 299 of 2021

VVPATs are used in the Parliamentary or State Legislative Members

Elections and that no State is using VVPATs in the local bodies

elections, has remained unrebuted. Hon'ble Supreme Court in the

matter of Subramanian Swamy (supra) considering the issue of use

of Voter Verifiable Paper Audit Trail (VVPATs) along with

Electronic Voting Machine (EVMs) has expressed that paper trail is

an indispensible requirement for free and fair elections and that the

confidence of the voters in the EVMs can be achieved only with the

introduction of paper trail. In that judgment Hon'ble Supreme Court

had permitted the Election Commission of India to introduce the

VVPATs in gradual stages or geographical wise in the ensuing

General Elections. In the matter of Reshma Vithalbhai Patel

(supra), the Hon'ble Supreme Court had taken into the fact that the

Government of India had sanctioned funds for purchase of VVPATs

and had expressed that it leaves no room for any doubt that all future

elections will be held by using VVPATs. The said observation was

also in a matter relating to Parliamentary and State Assembly

Elections. In the case of N. Chandrababu Naidu and Others

(supra), the Hon'ble Supreme Court had held that:

"9. At the very outset the Court would like to observe that neither the satisfaction of the Election Commission nor the system in vogue today, as stated above, is being doubted by the Court insofar as fairness and integrity is concerned. It is possible and we are certain that the system ensures accurate electoral results. But that is not all. If the number of machines which are subjected to verification of paper trail can be increased to a reasonable number, it would lead to greater satisfaction amongst not only the political parties but the entire electorate of the country. This is what the 12 WPA (P) 299 of 2021

Court should endeavour and the exercise, therefore, should be to find a viable number of machines that should be subjected to the verification of VVPAT paper trails keeping in mind the infrastructure and the manpower difficulties pointed out by the Deputy Election Commissioner. In this regard, the proximity to the election schedule announced by the ECI must be kept in mind."

20. The Hon'ble Supreme Court had clearly observes that the

existing system is not doubted by the Court so far as fairness and

integrity is concerned but had observed about increasing the machines

which are subjected to verification of paper trail to reasonable number.

These judgments are not relating to the local bodies elections and in

none of these judgments it has been held that the elections should not

be held if the VVPATs are not used.

21. So far as the allegation of non-compliance of Section 38 of

the West Bengal Municipal Elections Act, 1994 is concerned, it has

been categorically stated by the Advocate General that the notification

prescribed therein was duly issued.

22. The Counsel for the petitioner has placed reliance upon the

judgment of the Hon'ble Supreme Court in the matter of Digvijay

Mote (supra) and had submitted that the State Election Commission

has the power to postpone elections. We are of the opinion in the facts

of the present case no such direction is required.