Calcutta High Court (Appellete Side)

Kajal Ghosh vs The State Of West Bengal & Ors on 18 November, 2021

18.11.2021
 Sl. No.6
  srm
                                W.P.A. No. 18207 of 2021

                                      Kajal Ghosh
                                          Vs.
                            The State of West Bengal & Ors.


                      Mr. Biswaroop Bhattacharya,
                      Ms. Payel Shome,
                      Mr. S. Bhattacharya
                                                         ...for the Petitioner.

                      Ms. Sonal Sinha
                                        ...for the State Election Commission.

                      Mr. Alok Kumar Ghosh,
                      Mr. Rudranil De
                                        ...for the Respondent Nos.2 & 3.

Affidavit of service is taken on record.

The writ petition has been filed challenging the

reservation of Ward No.58 of the Kolkata Municipal

Corporation for the upcoming municipal election to be held in

the year 2021 Form B has been issued by the prescribed

authority. The said ward has been reserved for scheduled

castes candidates. The petitioner is aggrieved as the prescribed

authority did not accept such contention, which was raised by

one Dipak Thakur, and Ward No.58 continued to be reserved

for Scheduled Castes candidates. Aggrieved by the

aforementioned order, the writ petition has been filed.

Ms. Sinha, learned Advocate appearing on behalf of the

West Bengal State Election Commission, submits that the writ

petition is not maintainable. The allegations in the writ petition

amount to an election dispute and the law prescribes a proper

procedure by which such election dispute is to be resolved.

Reliance is placed on a decision of this Court in the matter of

Maison and Ors. Vs. The State of West Bengal & Ors. reported

in 2009(1) CLJ(CAL)33.

Mr. Ghosh, learned Advocate appearing on behalf of the

Kolkata Municipal Corporation, adopts the contention of the

State Election Commission.

Mr. Bhattacharya, learned Advocate appearing on

behalf of the petitioner, refutes such contention of the State

Election Commission and draws the attention of the court to a

decision of the Hon'ble Apex Court in the matter of State of

Goa & Anr. Vs. Fouziya Imtiaz Shaikh & Anr. reported in

(2021) 8 SCC 401. The relevant portions of the said judgement

are quoted below:

"68. A conspectus of the aforesaid judgments in the context of municipal elections would yield the following results:

68.1. Under Article 243-ZG(b), no election to any municipality can be called in question except by an election petition presented to a Tribunal as is provided by or under any law made by the legislature of a State. This would mean that from the date of notification of the election till the date of the declaration of result a judicial hands-off is mandated by the non obstante clause contained in Article 243-

ZG debarring the writ court under Articles 226 and 227 from interfering once the election process has begun until it is over. The constitutional bar operates only during this period. It is therefore a matter of

discretion exercisable by a writ court as to whether an interference is called for when the electoral process is "imminent" i.e the notification for elections is yet to be announced.

68.2. If, however, the assistance of a writ court is required in subserving the progress of the election and facilitating its completion, the writ court may issue orders provided that the election process, once begun, cannot be postponed or protracted in any manner.

68.3. The non obstante clause contained in Article 243-ZG does not operate as a bar after the Election Tribunal decides an election dispute before it. Thus, the jurisdiction of the High Courts under Articles 226 and 227 and that of the Supreme Court under Article 136 of the Constitution of India is not affected as the non obstante clause in Article 243-ZG operates only during the process of election.

68.4. Under Article 243-ZA(1), the SEC is in overall charge of the superintendence, direction and control of the preparation of electoral rolls, and the conduct of all municipal elections. If there is a constitutional or statutory infraction by any authority including the State Government either before or during the election process, the SEC by virtue of its power under Article 243-ZA(1) can set right such infraction. For this purpose, it can direct the State Government or other authority to follow the Constitution or legislative enactment or direct such authority to correct an order which infracts the constitutional or statutory mandate. For this purpose, it can also approach a writ court to issue necessary directions in this behalf. It is entirely up to the SEC to set the election process in motion or, in cases where a constitutional or statutory provision is not followed or infracted, to postpone the election process until such illegal action is remedied. This the SEC will do taking into account the constitutional mandate of holding elections before the term of a municipality or Municipal Council is over. In extraordinary cases, the SEC may conduct elections after such term is over, only for good reason.

68.5. Judicial review of a State Election Commission's order is available on grounds of review of administrative orders. Here again, the writ court must adopt a hands-off policy while the election process is on and interfere either before the process

commences or after such process is completed unless interfering with such order subserves and facilitates the progress of the election.

68.6. Article 243-ZA(2) makes it clear that the law made by the legislature of a State, making provision with respect to matters relating to or in connection with elections to municipalities, is subject to the provisions of the Constitution, and in particular Article 243-T, which deals with reservation of seats. 68.7. The bar contained in Article 243-ZG(a) mandates that there be a judicial hands-off of the writ court or any court in questioning the validity of any law relating to delimitation of constituency or allotment of seats to such constituency made or purporting to be made under Article 243-ZA. This is by virtue of the non obstante clause contained in Article 243-ZG. The statutory provisions dealing with delimitation and allotment of seats cannot therefore be questioned in any court. However, orders made under such statutory provisions can be questioned in courts provided the statute concerned does not give such orders the status of a statutory provision. 68.8. Any challenge to orders relating to delimitation or allotment of seats including preparation of electoral rolls, not being part of the election process as delineated above, can also be challenged in the manner provided by the statutory provisions dealing with delimitation of constituencies and allotment of seats to such constituencies.

68.9. The constitutional bar of Article 243-ZG(a) applies only to courts and not the State Election Commission, which is to supervise, direct and control preparation of electoral rolls and conduct elections to municipalities.

68.10. The result of this position is that it is the duty of the SEC to countermand illegal orders made by any authority including the State Government which delimit constituencies or allot seats to such constituencies, as is provided in Proposition 68.4 above. This may be done by the SEC either before or during the electoral process, bearing in mind its constitutional duty as delineated in the said proposition."

There is no quarrel with the proposition of law laid

down by this court. However, considering the decision of the

Hon'ble Apex Court, as quoted above, the State Election

Commission is the ultimate authority to decide any objection

of illegality, irregularity or statutory infraction with regard to

the action of an authority relating to an election process. This

Court is not to venture into a judicial review of the decision of

the District Magistrate.

If any objection is raised by the petitioner before the

State Election Commission within seven days from date, the

same shall be disposed of expeditiously and in accordance

with law in view of the fact that the election may take place