Calcutta High Court (Appellete Side)
Habibur Rahaman vs The State Of West Bengal & Ors on 12 July, 2021
sn 12.7.21 W.P.A. 10020 of 2021
(Through Video Conference)
HABIBUR RAHAMAN
VS.
THE STATE OF WEST BENGAL & ORS.
Ms. Sohini Chakraborty
Mr. Arijit Sarkar
Mr. Sagnik Chatterjee
...for the petitioner
Mr. T.M. Siddique
..for the State
Ms. Sonal Sinha
..for the Election Commission
Let the supplementary affidavit filed in Court
today be taken on record.
This writ petition has been filed challenging
publication of 'Form-B' in connection with reservation of
seats in Jangipur Municipality, for Schedule Caste
Candidates. It is the contention of the petitioner that as
per Rule 3(2)(b) read with Note 2 of the First Schedule of
the West Bengal Municipal Elections (Reservation of Seats)
Rules, 1994, the reservation of Ward nos. 8,13 and 16 for
schedule caste candidates was not in accordance with law.
The petitioner raised an objection with regard to the
reservation of seat in Ward no. 13. A hearing was held and
the petitioner was heard on the objection. Thereafter, the
prescribed authority published Form B keeping the
reservation for the Ward No. 13 for Scheduled Caste
candidate.
Aggrieved, the petitioner moved this writ
petition. The petitioner contends that although the
prescribed authority heard the petitioner's objection, but
he did not communicate any order to the petitioner. It is
submitted that for the second term election, as in this
case, serial nos. 2,5&8 in the table prepared under Rule
3(2)(b) of the First Schedule of the said rules of 1994,
should be reserved for schedule caste candidates.
Ms. Sinha, learned Advocate appearing for the
State Election Commission raised the point of
maintainability. A judgment passed by another Co-
ordinate Bench of this Court in the matter of Sk. Maison
& Ors. Vs. The State of West Bengal & Ors. reported in
2009 (1) CLJ (Cal) 33, is being relied upon. The relevant
portions of the above judgement is quoted below:-
"8. In Shivaji (supra), the Apex Court was
considering a dispute regarding election to a
Legislative Council. The governing statute was the
representation of the People Act, 1951. While
reiterating the meaning given to the word 'election'
in Ponnuswami(supra), on assumption of
jurisdiction by the High Court in exercise of writ
powers, it proceeded to observe as follows:--
"6. The disputes regarding the elections have to
be settled in accordance with the provisions
contained in Part-VI of the Act. Section 80 of the Act
states that no election shall be called in question
except by an election petition presented in
accordance with the provisions of Part-VI of the Act.
The expression 'election' is defined by Section 2(d) of
the Act as an election to fill a seat or seats in either
House of Parliament or in the House or either House
of the legislature of a State other than the State of
Jammu and Kashmir. Thus a dispute regarding
election to the Legislative Council of a State can be
raised only under the provisions contained in Part-
VI of the Act. Section 80-A of the Act provides that
the Court having jurisdiction to try an election
petition shall be the High Court. An election petition
has to be presented in accordance with Section 81
of the Act. In view of the nonobstante clause
contained in Article 329 of the Constitution the
power of the High Court to entertain a petition
questioning an election on whatever grounds under
Article 226 of the Constitution is taken away."
9.It would now be worthwhile to notice the
scheme of the Act. It has been enacted to
consolidate and amend the laws relating to the
holding of elections to the Municipalities in West
Bengal. Election has been defined in Section 2(e) to
mean 'election to fill a seat or seats in a
Municipality'. Section 3 empowers the West Bengal
State Election Commission to delimit areas into
wards for the purpose of election of members of a
Municipality. Chapter-Ill of the Act deals with
electoral rolls for Municipality. Elections are
covered by Chapter-V of the Act. Section 29 thereof,
in so far as is relevant for a decision on the
preliminary objection, reads as follows:--
"29. (1) Seats shall be reserved for the
Scheduled Castes and the Scheduled Tribes in every
Municipality in such manner as may be prescribed
and the number of seats so reserved shall bear as
nearly as may be, the same proporiion to the total
number of seats to be filled by direct election to the
Municipality as the population of the Scheduled
Castes in the Municipal area or of the Scheduled
Tribes in the Municipal area, as the case may be,
bears to the total population of that Municipal area,
and such seats may be allotted population of that
Municipal area, and such seats may be allotted by
rotation to different constituencies of that
Municipality by the Commission in such manner as
may be prescribed.
(2) Not less than one-third of the total
number of seats reserved under sub-section (1) shall
be reserved for women belonging to the Scheduled
Castes, or as the case may be, the Scheduled Tribes.
(3) Not less than one-third of the total
number of seats, including the seats reserved for
women belonging to the Scheduled Castes and the
Scheduled Tribes under sub-section (2), to be filled
by direct election to a Municipality, shall be
reserved for women, and such seats may be allotted
by rotation to different constituencies of the
Municipality by the Commission in such manner as
may be prescribed.
(4) ...........................................................
13.From a conspectus of judicial decisions, it
appears to be clear that the word 'election' when
construed narrowly, would mean the final selection
of a candidate on contest if there be a poll, or a
particular candidate being returned unopposed
when there is no poll. However, construed in a wider
sense, the word election would connote the entire
process consisting of several stages by which a
candidate is returned as an elected member,
whether or not it is necessary to hold a poll. The
word 'election' in Article 329(b) of the Constitution
has been construed in the wider sense by the Apex
Court. Article 243ZG is similarly worded, starting
with a non-obstante clause. There is no reason to
construe the word 'election' therein differently.
14.In the context of the Act, this Court is minded
to hold that the process of election for constituting
the Board of a Municipality, if it is a new
Municipality, would commence with determination
of wards upon division of the Municipal area. In the
case of an existing Municipality the wards of which
have been determined in accordance with Section 3
of the Act, the process through which a candidate is
elected would essentially include preparation of
electoral rolls for the constituencies comprised
within the Municipality, reservation of seats for the
specified sections, issuance of election notification,
presentation of nomination papers, scrutiny
thereof, the poll, and declaration of result. Having
regard to the Apex Court's concurrence in
Ponnuswami (supra) with the passage in Halsbury's
Laws of England on 'Commencement of the
Election', the stage from which the process of
election begins must depend upon the statute
governing it. The Act itself provides reservation of
seats to be made in connection with election to a
Municipality, which has an important bearing on
the the process, in the manner prescribed prior to
issuance of election notification announcing the
election programme. This is so because the people
including the voters' concerned and the prospective
candidates must know which of the constituencies
are reserved and which are not so as to enable them
decide their next course of action. Reservation of
seats therefore is an integral part of the election
process and hence any action taken by the
competent authority in erroneously reserving seats
contrary to the roster appended to the Rules or not
reserving a seat which ought to be reserved in
accordance with such roster, as claimed by the
petitioners, are not to be allowed to be called in
question at an intermediary stage or else election
for constituting the Board of a Municipality, which
is a time-bound programme, would be disturbed.
However, having regard to provisions contained in
Section 75 of the Act, a person aggrieved would not
be without a remedy. The action of the Election
Officer impugned herein can well be the subject-
matter of decision in an election petition presented
in accordance with law.
15.The decision in Manda Jaganath(supra) has
been looked into by this Court. Contents of
Paragraph-14 thereof support the stand taken by
Mr. Sanyal that any act prior to publication of the
election notification would not be embraced by the
word 'election'. However, as held earlier,
reservation of seats being an important step in the
process of holding of election to a Municipality
under the Act and being part of the entire process
culminating in a candidate being declared elected,
the view taken by the Apex Court in Paragraph-14
of Manda Jaganath(supra) may not apply here. In
any event, the view expressed in Paragraph-14 of
Manda Jaganath(supra) seems to be inconsistent
with the view taken in Paragraph-7 of the decision
in Ponnuswami(supra) and the other decisions of
the Apex Court following it and, therefore, this
Court being bound by both the decisions would
prefer to be guided by the law laid down in
Ponnuswami(supra) not because of the numerical
supremacy of Judges constituting the Bench but, to
this Court, it appears to be better in point of law."
A similar view was taken by another co-ordinate
Bench of this Court in the matter of Sri Manas Maiti Vs.
State of West Bengal & Ors. (In re: W.P. No. 7133 of
2013). In both the above cases, reservation of a
constituency was under challenge prior to issuance of the
election notification. Their Lordships held that the remedy
of the petitioners would be under Section 75 of the West
Bengal Municipal Election Act, 1994 and Section 79 of the
West Bengal Panchayat Act, 1973, as the case may be.
The Election Commission relies upon a
judgment of the Hon'ble Supreme Court in the case of
State of Uttar Pradesh & ors. v. P.S.S. Samity reported
in 1995 (Supp) 2 SCC 305 at paragraph 45. The Hon'ble
Supreme Court has held in as follows:
"45.What is more objectionable in the approach of
the High Court is that although clause (a) of Article
243-0 of the Constitution enacts a bar on the
interference by the courts in electoral matters
including the questioning of the validity of any law
relating to the delimitation of the constituencies or
the allotment of seats to such constituencies made
or purported to be made under Article 243-K and the
election to any panchayat, the High Court has gone
into the question of the validity of the delimitation of
the constituencies and also the allotment of seats to
them. We may, in this connection, refer to a decision
of this Court in Meghraj Kothari v. Delimitation
Commission & Ors. [(1967) 1 SCR 400]. In that case,
a notification of the Delimitation Commission
whereby a city which had been a general
constituency was notified as reserved for the
Scheduled Castes. This was challenged on the
ground that the petitioner had a right to be a
candidate for Parliament from the said constituency
which had been taken away. This Court held that the
impugned notification was a law relating to the
delimitation of the constituencies or the allotment of
seats to such constituencies made under Article
327 of the Constitution, and that an examination
of sections 8 and 9 of the Delimitation Commission
Act showed that the matters therein dealt with were
not subject to the scrutiny of any court of law. There
was a very good reason for such a provision because
if the orders made under sections 8 and 9 were not
to be treated as final, the result would be that any
voter, if he so wished, could hold up an election
indefinitely by questioning the delimitation of the
constituencies from court to court. Although an
order under Section 8 or 9 of the Delimitation
Commission Act and published under Section 10 [1]
of that Act is not part of an Act of Parliament, its
effect is the same. Section 10 [4] of that Act puts
such an order in the same position as a law made by
the Parliament itself which could only be made by it
under Article 327. If we read Articles 243-C, 243-K
and 243-0 in place of Article 327 and sections 2 [kk],
11-F and 12-BB of the Act in place of Sections
8 and 9 of the Delimitation Act, 1950, it will be
obvious that neither the delimitation of the
panchayat area nor of the constituencies in the said
areas and the allotments of seats to the
constituencies could have been challenged nor the
Court could have entertained such challenge except
on the ground that before the delimitation, no
objections were invited and no hearing was given.
Even this challenge could not have been entertained
after the notification for holding the elections was
issued. The High Court not only entertained the
challenge but has also gone into the merits of the
alleged grievances although the challenge was made
after the notification for the election was issued on
31st August, 1994."
Considering the above decisions of the Hon'ble
Supreme Court as also the lead case on the matter i.e. N.P
Ponnuswami vs. The Returning Officer & Ors. reported
in AIR 1952 SC 64, this Court is of the view that the
remedy of the petitioner would lie after the election process
is completed before the District Judge of the district
wherein the election has been held under the provisions of
the West Bengal Municipal Elections Act, 1994.
Under such circumstances, in view of the order
passed by co-ordinate Benches of this Court and the law
discussed by the said learned Judges, I do not hold a
different view and agree with the reasoning of Their
Lordships. Upon consideration of the law discussed, I am
not inclined to exercise any discretion. Interference at this
stage when election is imminent is unwarranted. In the
decision of State of Goa v. Fouziya Imtiaz Shaikh
reported in 2021 SCC Online SC 211, it was once again
reiterated that interference by way of judicial review is
discretionary. However, rejection of the application on the
ground of maintainability, shall not be construed as an
order on merits. The merits of the claim of the petitioner
shall be adjudicated when the petitioner approaches the
appropriate forum. The petitioner is at liberty to approach
the appropriate forum in accordance with law.
This writ petition is dismissed.
There will be however no order as to costs.
All parties are directed to act on the server copy
of this order.
(Shampa Sarkar, J.)
