Manick Mukherjee & Anr vs The West Bengal State Election ...
2022 Latest Caselaw 307 Cal

S/L 20
04.02.2022
Court. No. 19
GB
                                 CAN 1 of 2021
                                      In
                                WPA 3786 of 2020

                           Manick Mukherjee & Anr.
                                       Vs.
                The West Bengal State Election Commission & Anr.

                Mr. Aniruddha Chatterjee,
                Mr. Rahul Karmakar,
                Mr. Arnab Sardar.
                                                      ... for the Petitioners.
                Mr. Ratnanka Banerjee,
                Mr. Jishnu Saha,
                Ms. Sonal Sinha,
                Mr. Avishek Prashad.
                                              ... for the Respondent No.1.

In Re: CAN 1 of 2021

This is an application for an interim order, praying for

stay of operation of the order dated February 10, 2020. By

the order dated February 10, 2020, the West Bengal State

Election Commission had declared the schedule thereby

reserving the seats for women in Ward No.10 under Kandi

Municipality.

The petitioner had challenged this notification before

this Court on February 25, 2020. Parties were directed to

exchange affidavits. It is submitted that the affidavits are

complete.

This application has been filed for interim order

which had not been granted on the previous occasion by a

learned coordinate Judge.

It is submitted by Mr. Chatterjee, learned advocate for

the petitioners/applicants that on a verbal undertaking given

by Ms. Sonal Sinha, learned advocate for the West Bengal

State Election Commission before the learned coordinate

Judge that as the election had not been notified, there was

no necessity for passing of an interim order, the interim

order prayed was not granted by Her Lordship.

It is submitted that the application should be taken up

urgently as the elections have already been notified and the

incorrect reservations according to the petitioners would

cause irreparable loss and injury to the petitioners.

Mr. Banerjee, learned senior advocate appearing on

behalf of the Commission submits that once the election had

been notified, this Court could not interfere with the process.

It is further submitted that the disputes with regard to the

reservation of seats were also election disputes and as such,

the High Court under Article 226 of the Constitution of India

could not interfere with the process until and unless the

elections were over.

Heard the parties. In view of the decision of this Court

in the matter of Maison & Ors. versus The State of

West Bengla & Ors. reported in 2009(1) CLJ (CAL) 33

disputes with regard to the reservation of seats have been

held to be election disputes. In the decision of the Hon'ble

Apex Court in the matter of State of Goa versus Fouziya

Imtiaz Shaikh, reported in (2021) 8 SCC 401, the High

Court's jurisdiction to interfere in issues touching on the

question of elections have been explained and it has been

held as follows:

"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."

Thus, at this stage, this Court cannot pass any order

on the basis of the CAN 1 of 2021. Although, Mr. Banerjee

submits that neither from the records nor from the

application, the contentions of Mr. Chatterjee with regard to

the undertaking given by the Commission can be

ascertained, this Court is not in a position to adjudicate such

issue as this court was not in seisin of the matter when such

verbal undertaking, if at all was given.

The parties are at liberty to pursue their remedy.

(Shampa Sarkar, J.)