Calcutta High Court (Appellete Side)

Bhartiya Janata Party vs The State Of West Bengal And Ors on 23 December, 2021

22,   23.12.2021
63,                             MAT 1354 of 2021
        PA( SS)
64,
84,                            IA No: CAN 1 of 2021
85,
&                              IA No: CAN 2 of 2021
86
                               Bhartiya Janata Party
                                        Vs.
                         The State of West Bengal and Ors.
                                       with
                                WPA(P) 299 of 2021
                               IA No: CAN 2 of 2021
                                  Pratap Banerjee
                                        Vs.
                         The State of West Bengal and Ors.
                                       with
                                WPA(P) 271 of 2021
                                   Mousumi Roy
                                        Vs.
                   West Bengal State Election Commission and Ors.
                                       with
                                WPA(P) 356 of 2021
                                  Ambooj Sharma
                                        Vs.
                   West Bengal State Election Commission and Ors.
                                       with
                                WPA(P) 357 of 2021
                                  Debolina Sarkar
                                        Vs.
                   West Bengal State Election Commission and Ors.
                                       with
                                WPA(P) 361 of 2021
                                Faiyaz Ahmad Khan
                                        Vs.
                   West Bengal State Election Commission and Ors.

                             (Through Video Conference)
             2




Present:

Mr. Dhiraj Trivedi,
Mr. Nilanjan Bhattacharya,
Mr. Bilwadal Bhattacharyya,
Mr. Vipul Kundalia,
Mr. Ajay Choubey,
Mr. Kallol Mondal,
Mr. Partha Ghosh,
Mr. Rajdeep Mazumdar,
Mr. Loknath Chatterjee,
Mr. Vikash Singh,
Mr. K. Kashyap,
Mr. Rahul Sharma,
Ms. Sneha Singh,
Mr. Nilanjan Bhattacharjee, Advocates
                ...for the Appellants in MAT 1354 of 2021

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

Ms. Pinky Anand, Sr. Advocate
Mr. P. Karar,
Mr. Akashdeep Mukherjee, Advocates
              ... for the Petitioner in WPA(P) 271 of 2021

Mr. Ankur Sharma,
Ms. Senjuti Mukhopadhyay, Advocates
               ..for the Petitioner in WPA(P) 356 of 2021

Mr. Sabyasachi Chatterjee,
Mr. Sandipan Das,
Mr. Subhrajit Saha, Advocates
               ..for the Petitioner in WPA(P) 357 of 2021

Mr.   Upendra Roy,
Mr.   Shamim Ahmed,
Mr.   Kushal Chatterjee,
Mr.   Surya Prasad Chattopadhyay,
Mr.   Apalak Basu,
Mr.   Saptarshi Kumar Mal,
              3




Mr. Iftekar Munshi,
Mr. Debabrata Roy,
Mr. Asif Sohail Tarafdar,
Ms. Fatima Hassan, Advocates
                ...for the Petitioner in WPA(P) 361 of 2021

Mr. Y.J. Dastoor, Ld. Additional Solicitor General with
Mr. Phiroze Edulji, Advocates
              ...for the Union of India in MAT 1354 of
             2021

Mr.   S.N. Mookherjee, Ld. Advocate General with
Mr.   Anirban Ray, Ld. Government Pleader
Mr.   T.M. Siddiqui,
Mr.   Raja Saha,
Mr.   Avishek Prasad, Advocates
              ...for the State in MAT 1354 of 2021,
              WPA(P) 299 of 2021, WPA(P) 271 of 2021,
              WPA(P) 356 of 2021, WPA(P) 357 of 2021
              and WPA(P) 361 of 2021

Mr.   S.N. Mookherjee, Ld. Advocate General with
Mr.   Anirban Ray, Ld. Government Pleader
Mr.   T.M. Siddiqui,
Mr.   D. Ghosh,
Mr.   Arka Nag, Advocates
                     ...for the State in WPA(P) 299 of 2021
                     and in WPA(P) 356 of 2021

Mr.   S.N. Mookherjee, Ld. Advocate General with
Mr.   Anirban Ray, Ld. Government Pleader
Mr.   T.M. Siddiqui,
Mr.   Arka Nag,
Mr.   N. Chatterjee, Advocates
                     ...for the State in WPA(P) 271 of 2021

Mr.   S.N. Mookherjee, Ld. Advocate General with
Mr.   Anirban Ray, Ld. Government Pleader
Mr.   S. Basu,
Mr.   T.M. Siddiqui,
Mr.   D. Ghosh,
Mr.   N. Chatterjee,
Mr.   Arka Nag,
Mr.   Soumen Mohanty, Advocates
                     ...for the State in MAT 1354 of 2021

Mr.   S.N. Mookherjee, Ld. Advocate General with
Mr.   Anirban Ray, Ld. Government Pleader
Mr.   T.M. Siddiqui,
Mr.   D. Ghosh, Advocates
                  ...for the State in WPA(P) 361 of 2021
            4




Mr. Ratnanko Banerjee, Sr. Advocate,
Ms. Sonal Sinha,
Mr. Shubhankar Nag,
Mr. Kanishk Kejriwal, Advocates
                 ...for the West Bengal State Election
                 Commission in MAT 1354 of 2021

Mr. Jayanta Mitra, Sr. Advocate,
Ms. Sonal Sinha,
Mr. Shubhankar Nag, Advocates
                 ...for the West Bengal State Election
                 Commission in WPA(P) 299 of 2021 and
                 WPA(P) 271 of 2021

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

WPA(P) 299 of 2021 and WPA(P) 271 of 2021

      This Court by order dated 15th of December, 2021

had directed the respondent Nos. 2 and 3 to disclose

minimum phases in which the elections for the

remaining Municipal Corporations/Municipalities in the

State (except Municipal Corporation of Kolkata) will be

held and the tentative time schedule giving early dates

for holding such elections.

Learned Advocate General has placed on record

the communication dated 22nd of December, 2021 sent

by the Additional Secretary, Department of Urban

Development & Municipal Affairs, Government of West

Bengal to the Secretary, West Bengal State Election

Commission conveying the decision and proposing the

dates for holding the Municipal General Election, urban,

local bodies in the following manner:

"a) In the 1st phase proposed date of poll is 22.01.2022 to conduct municipal general

election to Howrah Municipal Corporation, Chandernagore Municipal Corporation, Bidhannagar Municipal Corporation, Assansol Municipal Corporation and Siliguri Municipal Corporation.

b) In the 2nd phase proposed date of poll is 27.02.2022 to conduct municipal general election to remaining 109 municipalities (list enclosed)."

Clarifying the position in respect of Howrah

Municipal Corporation, learned Advocate General had

initially stated that a Bill has already been passed by the

State Legislative Assembly bifurcating the Howrah

Municipal Corporation into Howrah Municipal

Corporation and Bally Municipality and that Bill is

pending for the assent before the Hon'ble Governor but

later on he has informed that Bill has received the assent

of the Hon'ble Governor.

CAN 2 of 2021 has been filed by the petitioner in

WPA (P) 299 of 2021. The prayer 'A' in CAN 2 is in

respect of simultaneous holding of elections to all the

other Municipal Corporations/Municipalities. This

prayer has already been considered in the earlier order

dated 15th December, 2021 and after taking note of

difficulty in this regard and after noting that sufficient

EVMs are available to hold elections of remaining

Municipalities in 2 phases, this Court had directed the

respondents to disclose the time schedule for holding

election in minimum phases. Today the time schedule

has been disclosed, thus the prayer does not survive.

Pressing the prayer 'B' in respect of deployment of

Central Paramilitary Forces in the elections to the other

Municipal Corporations/Municipal bodies and prayer 'C'

in respect of the installation of CCTV cameras and audit

of the footage in the elections to be held, learned Counsel

appearing for the petitioner has referred the various

documents enclosed with the CAN and has submitted

that large scale violence has taken place in the Kolkata

Municipal Corporation Elections. Referring to the

newspaper report of Anandabazar Patrika dated 20th of

December, 2021, she has submitted that the CCTV

cameras which were installed in the polling booths were

either not functioning or facing upward towards the sky

or downwards towards the ground, therefore, installation

of CCTV cameras was mere a formality. She has also

referred to the irregularities which are reported in

annexure 'D'. Placing reliance upon the judgment of the

Hon'ble Supreme Court in the matter of People's Union

for Civil Liberties and Another vs. Union of India and

Another, (2013) 10 SCC 1, it has been submitted that

the provision of None Of The Above (NOTA) option in the

EVM machines was mandatory, but the EVM machines

during the election of Kolkata Municipal Corporation

were not having that option, therefore, election cannot be

sustained.

In the connection WPA (P) 271 of 2021, the learned

Counsel for the petitioner has also raised issue of

violence during the Kolkata Municipal Corporation and

has submitted that during the elections, offices of the

political parties were captured and some of the

candidates receives zero votes which indicates that large

scale irregularities during the elections have taken place,

even the dead voters' vote have been casted and the

votes in the names of NRIs who are outside India have

been casted. He has further submitted that the State

Election Commission is acting as an agent of the State

and is not acting independently and the Election

Commission is not justified in taking the stand that only

52 complaints are received whereas many of the persons

were not allowed to file their complaints.

Learned Advocate General responding to the

prayer for deployment of the paramilitary forces has

placed reliance upon the Division Bench judgment in the

matter of Basabi Raichoudhury vs. State of West

Bengal, reported in (2013) SCC OnLine Cal 15463 and

has submitted that it is for the Election Commission and

the State authorities to take a decision in respect of the

deployment of paramilitary forces and that the decision

for deployment of paramilitary forces in the forthcoming

elections of Municipal Corporations/Municipalities will

be taken after notification of the elections is issued. In

respect of prayer 'C' in CAN 2, he has submitted that the

State has no role in respect of installation of CCTV

cameras.

MAT 1354 of 2021

In this matter, by the order dated 17th of

December, 2021 this Court had issued certain directions

to the respondent Nos. 6, 7 and State Election

Commission directing them to take measures to boost up

confidence in the voters and also reiterating the earlier

order dated 14th of December, 2021 passed in WPA (P)

340 of 2021 for installation of the CCTV cameras in each

polling booth. Considering the prayer for deployment of

paramilitary forces, this Court had held that the decision

in this regard would be taken by the concerned State

authority and the State Election Commission keeping in

view the ground situation. This Court had directed the

respondent Nos. 6, 7 and State Election Commission to

submit the report in respect of the compliance of the

directions contained in the order.

The reports by the respondent Nos. 6, 7 and State

Election Commission have been filed today. Learned

Counsel for the appellant has prayed for time to file

exception to these reports.

Learned Counsel for the appellant has also made

the submission that having regard to the large scale

irregularities in the Kolkata Municipal Corporation

Elections, the CCTV footage of the polling booths should

be preserved and audit of the CCTV footage should be

done by some independent agency which will reveal that

in some polling booths only persons of ruling party were

present and others were driven out, some of the cameras

were facing upwards or downwards and many of the

cameras were not functioning and even the agents of the

candidates were not allowed to vote. A submission has

also been made to preserve the other record of election.

Learned Counsel appearing for the State Election

Commission has referred to the report filed today and

has submitted that all the steps as directed by this Court

have been taken by the Election Commission.

WPA(P) 356 of 2021

By this petition one of the social workers and

political activists has raised a grievance that there was

huge State sponsored violence in broad day light during

the Municipal Elections on 19.12.2021. The polling

agents of a particular party were ousted from polling

booths, bombs were hurled in various parts of the city

therefore, without deployment of the Central Armed

Forces free and fair elections are not possible. It is

further alleged that many voters could not reached their

booths and could not cast their votes. A prayer has been

made to seek an answer from the concerned respondent

in this regard and further prayer is to issue a direction to

the respondent to prepare and submit comprehensive

guidelines for holding forthcoming civil polls peaceful

manner and to get the investigation done in respect of

violence and hurling of bombs on 19.12.2021 by CBI or

any other independent agency and to provide

compensation to the victims of violence during the poll.

WPA (P) 357 of 2021

This is a petition filed by one of the candidates

who was contesting elections from Ward No. 2 of Kolkata

Municipal Corporation on CPI(M) ticket. It is alleged in

the petition that the police authorities were acting as

mute spectators while the candidates of her party and

opposite political parties were thrashed. There is an

allegation of vote rigging in many polling booths, false

voting, cast of lacs of false votes throughout 144 wards.

It is also alleged that her party members had lodged

several complaints against violence and atrocities

inflicted upon them but the State authorities did not

take any steps. In respect of Ward No. 22 it is alleged

that the goons resorted to vandalize the polling booth. In

the petition a prayer has been made to declare the

elections held on 19.12.2021 as void and a mandamus

has been sought seeking a direction to the respondents

to investigate the instance of violence and hurling of

bombs on 19.12.2021. Learned Counsel for the

petitioner has referred to list of dead voters whose votes

have been casted and has also referred to the complaints

enclosed with the petition and has submitted that the

reports of the candidates were not taken by the Election

Commission.

WPA(P) 361 of 2021

This is a petition by a member of Communist Party

of India (Marxist) who was a candidate from Ward No.

75. It is alleged that during the polls on 19.12.2021

booths were captured, voting process were rigged and

manipulated, EVM machines were destroyed and booths

were captured, voters were intimidated and even bombs

were hurled. Incident which took place at polling booth

at Marine House has been narrated stating that the

booth was captured and when the petitioner and the

agents reached there, they were mercilessly assaulted

inside the polling booth premises in the presence of the

police personnel. Learned Counsel for the petitioner has

referred to the complaint annexure 'P4' which was sent

to the Election Commission and returning officer and the

medical report annexure 'P3'. In this petition a prayer

has been made to declare the election as nullity and to

constitute the Special Investigation Team to inquire into

the issue of capturing of polling booths, vote rigging etc.

A further prayer has been made to ensure free and fair

future elections, monitoring of every booth through

CCTV cameras, permitting only polling officers and

accredited polling agents inside the booths during the

polling hours and also similar other directions.

Submission of learned Counsel for the petitioner is

that the violence and irregularities during the poling

were done at the instance of the ruling party. Learned

Counsel for the petitioner has also placed reliance upon

the judgment of the High Court of Madras in the matter

of All India Anna Dravida Munnetra Kazhagam vs.

State Election Commissioner reported in 2007(1) CTC

705 and had submitted that even if the election is over

the writ petition can be maintained in special

circumstances challenging the election.

Learned Advocate General has referred to the

reports filed by respondent Nos. 6, 7 and 8, he has

submitted that the elections are required to be

conducted as per the provisions of the West Bengal

Municipal Elections Act, 1994 and West Bengal

Municipalities (Conduct of Elections) Rules, 1995, he has

submitted that in terms of the said Rules necessary

steps will be taken to preserve the relevant record and

control unit of the voting machines. He has further

submitted that in terms of Article 243-ZG(b) of the

Constitution and Sections 74, 75 and 76 of the Act,

1994, there is an absolute bar in examining the validity

of any election of a Municipality/Municipal Corporation

except by way of a election petition. In support of his

submission, he has placed reliance in the judgment of

State of Goa and Another vs. Fouziya Imtiaz Shaikh

and Another, reported in (2021) 8 SCC 401. He has

also submitted that out of 144 wards only candidates of

2 wards have come forward alleging violence. He has

submitted that FIRs against the alleged violators have

been registered and have been arrested.

We have heard learned Counsel for the parties

and perused the record.

So far, as issue of deployment of paramilitary

forces during the remaining forthcoming

Municipality/Municipal Corporation Elections is

concerned, the parties are permitted to raise it at the

appropriate stage when the elections are notified by

placing on record the relevant material at that time.

The issue as to extent of interference in these writ

petitions in Kolkata Municipal Corporation Elections will

be considered and decided having due regard to the

provisions of Article 243-ZG(b) of the Constitution and

Act of 1994 after the pleadings are complete.

So far as the issue of compliance of earlier

directions of this Court is concerned, the reports have

been filed by respondent Nos. 6, 7 and State Election

Commission in MAT 1354 of 2021. Appellant is

permitted to file exception to the reports.

Having regard to the totality of the facts and

circumstances of the case and considering the

submissions of the Counsel for the parties and also the

plea which has been raised in the fresh petitions being

WPA(P) 356 of 2021, WPA(P) 357 of 2021 and WPA(P)

361 of 2021 and considering the fact that serious

allegations have been made in respect of rigging of

booths, false voting, voting in the name of dead persons,

in the name of absent NRIs, driving out the polling

agents of other parties from the polling booths, violence

with the candidates and polling agents and improper

functioning of the video cameras, to ascertain the

compliance of the directions of this Court and to ensure

fair elections in remaining Municipalities/Municipal

Corporations, etc., we deem it proper to issue following

directions:

(i) The respondent State Election Commission

is directed to preserve CCTV footage of all polling

stations of Kolkata Municipal Corporation

Elections held on 19th December, 2021.

(ii) The State Election Commission is also

directed to preserve the diaries of the presiding

officer and register containing the thumb

impression/signature of voters of all the polling

booths in a sealed cover with immediate effect.

(iii) The State Election Commission is directed

to preserve the control unit of EVM machines in

terms of Rules 61N of the Rules of 1995 without

any delay.

(iv) State Election Commission is also directed

to preserve voting record prepared from the EVM

in terms of Rules 61N until further orders.

(v) For the forthcoming elections of the

remaining Municipal Corporations/Municipal

Councils, local bodies, in order to maintain the

transparency and fairness, we direct that the State

Election Commission shall take steps to install