Calcutta High Court (Appellete Side)

Mousumi Roy vs West Bengal State Election ... on 10 February, 2022

1   10.02.2022
&
     PA( RB/SS)
2                               WPA(P) 271 of 2021
                                IA NO: CAN/2/2022
                                   Mousumi Roy
                                         Vs.
                    West Bengal State Election Commission & Ors.
                                        With
                                WPA(P) 299 of 2021
                  IA NO: CAN/2/2021, CAN/4/2022, CAN/5/2022,
                                    CAN/6/2022
                                  Pratap Banerjee
                                         Vs.
                          The State of West Bengal & Ors.
                            (Through Video Conference)

                     Mr.   Sabyasachi Chatterjee,
                     Mr.   Akashdeep Mukherjee,
                     Mr.   Pintu Karar,
                     Mr.   Sayan Banerjee, Advocates
                            ... for the petitioner in WPA(P) 271 of 2021

                     Ms. Pinky Anand, Ld. Sr. Adv.
                     Mr. Rajdeep Majumder,
                     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,
                     Mr. Surajit Saha, Advocates
                          ... for the petitioner in WPA(P) 299 of 2021

                     Mr.   S.N. Mookherjee, Ld. AG
                     Mr.   Samrat Sen, Ld. AAG
                     Mr.   Anirban Ray, Ld. GP
                     Mr.   T.M. Siddiqui,
                     Mr.   Dabishis Ghosh,
                     Mr.   Nilotpal Chatterjee, Advocates
                            ... for the State in WPA(P) 271 of 2021 and
                            WPA(P) 299 of 2021

                     Mr. Y. J. Dastoor, Ld. ASG
                     Mr. Vipul Kundalia, Advocates
                          ... for Union of India in WPA(P) 271 of 2021
                          and WPA(P) 299 of 2021

                     Mr. Anuran Samanta, Advocate
                          ... for E.C.I in WPA(P) 271 of 2021
                2




         Mr. Jayanta Kr. Mitra, Ld. Sr. Adv.
         Mr. Jishnu Saha, Ld. Sr. Adv.
         Ms. Sonal Sinha,
         Mr. Subhankar Nag, Advocates
              ... for the State Election Commission in
              WPA(P) 271 of 2021 and WPA(P) 299 of 2021

         Mr. Srijib Chakraborty,
         Mr. Suryaneel Das,
         Mr. Aditya Mondal, Advocates
              ... for the applicant in CAN 5 of 2022


1.      In both these writ petitions, the issue raised is

about     holding   the   elections   of   the   municipal

corporations/municipal council and other local bodies in

the State of West Bengal.


2.      CAN 2 of 2022 has been filed in WPA(P) 271 of

2021 challenging the order/notification of the State

Election Commission dated 15.01.2022 and 07.02.2022

and seeking a direction to ensure free and fair elections

and also to hold simultaneous counting of votes of all

remaining Municipal Corporations/Municipalities.


3.      CAN 4 of 2022 has been filed in WPA(P) No. 299 of

2021 by the writ petitioner questioning the order dated

25th January, 2022 issued by the State Election

Commission and seeking modification of the notification

dated 22nd December, 2021 whereby second phase of

elections are scheduled to be held on 27th February,

2022. The decision of the respondent Nos. 3 and 4 in

respect of the election agents has also been challenged

in this CAN.

4. CAN 5 of 2022 and CAN 6 of 2022 have been filed

with a prayer to direct the State Election Commission to

take steps for deployment of Central Para-Military Forces

during the Bidhannagar Corporation Election scheduled

to be held on 12th February, 2022.

5. The Municipal General Elections to the Siliguri

Municipal Corporation, Chandernagore Municipal

Corporation, Bidhannagar Municipal Corporation and

Asansol Municipal Corporation have been notified by the

Election Commission on 15th January, 2022 by

appointing 12th February, 2022 as the polling date.

6. The applicants in these CANs are expecting that

free and fair elections may not take place on account of

the apprehended violence during the election and they

are also questioning certain orders issued by the State

Election Commission.

7. Submission of the applicant in CAN 2 of 2022 is

that the State Election Commission has issued illegal

order dated 29.11.2021 providing that election agent

must be an elector of the polling areas for which polling

station is set up and order dated 07th February, 2021

making provision for polling agent in respect of polling

premises where more than one polling station are

situated. He submits that no such provision has been

made under Sections 47, 48, 50 and 57 of the West

Bengal Municipal Elections Act, 1994 or Rule 14 read

with Form 11 of the West Bengal Municipalities

(Conduct of Election) Rules, 1995 and that the order is

also contrary to Clause 9.1 of the Handbook issued by

the Election Commission of Indian about polling agents.

He has also submitted that simultaneous counting of

votes of all the Municipal Corporations should be done

on a fixed date after completion of second phase of

polling in other Municipal Corporations/Councils.

8. Learned Counsel for the applicant in CAN 4 of

2022 has also made a prayer for simultaneous counting

of votes after completion of polling in the other

Municipal Corporations/Councils in second phase on

27th February, 2022. An alternate prayer has been made

that the date of polling in the second phase be

postponed because first and second phase of polling on

14th February, 2022 and 27th February, 2022 are very

close. Learned Counsel has also questioned the order

issued by the State Election Commission in respect of

polling agent.

9. In CAN 5 of 2022 and CAN 6 of 2022, learned

Counsel for the applicants have submitted that

considering the violence during the Kolkata Municipal

Corporation Elections and also considering the earlier

experience in the elections of Bidhannagar Minicipal

Corporation, for free, fair and peaceful elections, it is

necessary to deploy Central Paramilitary Forces in the

forthcoming Bidhannagar Municipal Corporation

Elections. They have submitted that the previous

experience is that whenever CRPF is not deployed in

Bidhannagar during elections, violence takes place. They

have also referred to the earlier order of this Court dated

23rd December, 2021 whereby liberty was granted to file

fresh IA with the prayer about deployment of

paramilitary forces at the appropriate stage. Reliance

has also been placed upon the order of the Hon'ble

Supreme Court dated 23rd November, 2021 in the matter

of All India Trinamool Congress and Anr. vs. Manik

Das and Ors. in Conmt. Pet. (C) No. 884 of 2021. It

has been submitted that deployment of paramilitary

forces will not prejudice anyone but will ensure peace

during election.

10. Learned Counsel for the Election Commission has

submitted that all the preparations for the forthcoming

Municipal Corporation Elections have been made. He

has produced the note signed by the Commissioner,

State Election Commission and has pointed out that the

meeting of the State Election Commission with the Chief

Secretary and other high administrative officials of the

State along with Director General & Inspector General of

Police and ADG (L&O) has taken place and a detailed

strategy has been chalked out to avoid unnecessary

violence. He has placed reliance upon Hon'ble Division

Bench order of this Court 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 State Election Commission to consider the law

and order situation and other circumstances for the

purpose of taking a decision to deploy Central

paramilitary forces. He has also placed reliance upon the

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

State of Goa and Another vs. Fouziya Imtiaz Shaikh

and Another reported in (2021) 8 SCC 401 and has

submitted that judicial hands of approach is to be

adopted in such matter once the election process

commences. He has made a categorical statement before

this Court that the Commissioner, State Election

Commission is taking the personal responsibility to

ensure that no violence will take place in forthcoming

Municipal Corporation Elections and the elections will be

held in free, fearless and peaceful atmosphere. He has

also submitted that the order relating to polling agents

has been issued exercising the power under Article 243-

ZA of the Constitution to ensure that only local polling

agents are appointed and no outsider comes to create

any disturbances in the polling booth and also to ensure

that the voters are properly identified. He has submitted

that no provision of the Act or Rules has been violated.

Opposing the prayer for simultaneous counting, he has

submitted that it is not mandated in any Act or in the

Constitution to hold simultaneous counting and

practically also, it is not possible because after the first

phase, EVMs will have to be detained till the second

phase is over.

11. Learned Advocate General has also submitted that

the order of the State Election Commission about polling

agents does not run counter to the provision of the Act

or the Rule and the Handbook issued by the Election

Commission of India is in the nature of guideline and

that the order of the State Election Commission itself

gives reason for appointing local polling agents. He has

referred to the earlier orders dated 03rd May, 2012 and

17th March, 2015 passed by the State Election

Commission which are enclosed as Annexure - E along

with CAN 4 of 2022 and has submitted that the similar

orders were also issued earlier. He has also submitted

that each Municipal Corporations/Councils is a separate

independent body, therefore, the issue in this regard

cannot be compared with the simultaneous counting of

vote in the Legislative Assembly Election and that the

notification disclosing date of counting has already been

issued and counting is a part of the election process,

therefore, it cannot be interfered with by the Court and

the similar prayer for deployment of paramilitary forces

and has already been rejected. He has submitted that in

respect of the incidents of violence disclosed in CAN 6 of

2022, due steps were taken by the police. A detailed

chart relating to area domination and route march

activity by SPF from 28th January, 2022 to 08th

February, 2022 has been produced. He has referred to

the communication dated 08th February, 2022 sent by

Chief Secretary, Government of West Bengal to the State

Election Commission stating that more than sufficient

police force is available with the West Bengal Police and

Kolkata Police to conduct the election in peaceful

manner.

12. Learned Additional Solicitor General has

submitted that paramilitary forces can be sent within 24

hours if required and there is no objection in this regard.

13. Having heard the learned Counsel for the parties

and on perusal of the record, it is noticed that the first

issue which has been raised in this matter is about

deployment of paramilitary forces in Bidhannagar

Municipal Corporation election. The focus has been

placed on Bidhannagar, out of the four Municipal

Corporations where elections are to be held, by

submitting that in the previous elections, whenever the

CRPF was not deployed, large scale violence in

Bidhannagar had taken place.

14. The issue relating to deployment of paramilitary

forces had come up before this Court during the Kolkata

Municipal Corporation elections when this Court taking

note of the Division Bench judgment in the matter of

Basabi Raichoudhury (Supra) in the order dated 17th

December, 2021 passed in MAT 1354 of 2021 had held

as under:

"The deployment of Central Paramilitary Forces during the elections has been opposed by learned Advocate General placing reliance upon the Division Bench judgment of this Court in the matter of Basabi Raichoudhury (supra) wherein it has been held that:

"After hearing the learned Counsel for the petitioner at length, we are of the considered opinion that the petition is premature. Apart from that, we find that in the matter of holding election, law and order situation has to be considered by the State Election Commission and there are various factors for requisition of the Central Paramilitary Forces, such as, law and order situation and paucity of State Forces etc. Such a matter has to be considered by the State Election Commission and the State Government and, in case of any dispute between them, the State Election Commission had approached this Court earlier. In judicial review, the Court cannot

decide whether Central Paramilitary forces are necessary in any of the election. These are the decisions to be taken by the constitutional bodies like the State Election Commission, the State Government, etc. Ordinarily, it is not for the Court to interfere with such matter. It is the duty of the Election Commission to ensure that free and fair election is held and for that, necessary step to be taken by them.

Considering the prayer made in the writ petition, we find that the same is not only premature but on merits this writ petition is misconceived also."

So far, no instance of violence has been pointed out nor along with the writ petition, any such material has been enclosed which furnishes a ground for deployment of the Central Paramilitary Forces in the forthcoming Kolkata Municipal Corporation Elections. Therefore, at this stage, we do not find sufficient material to accept the prayer. However, we take note of the submission of the learned Additional Solicitor General that within six hours, the Central Paramilitary Forces can be sent to avoid any untoward incident. Hence, we direct the Election Commission to take an appropriate decision having due regard to the ground situation in consultation with the State authorities for deployment of Central Paramilitary Forces, in case, if the need so arises, to ensure free and fearless elections.

So far as the judgment of the Hon'ble Supreme Court relied upon by the learned

Counsel for the parties in the case of deployment of Paramilitary Forces in the Municipal Election in the State of Tripura, the fact situation noted therein was different and even otherwise, the Hon'ble Supreme Court by order dated 23rd November, 2021 had directed the DGP and IGP (Law and Order, Tripura) to hold a meeting with the State Election Commission for the purpose of assessing requirement of sufficient strength of Paramilitary Forces and further directed that after making an assessment of the situation, if so required, requisition should be submitted to the CRPF or to the Ministry of Home Affairs. Hence, a decision in this regard is required to be taken by the concerned State authorities and the State Election Commission, keeping in view the ground situation."

15. It is essentially for the State Election Commission,

which has been vested with the responsibility to ensure

free, fair and fearless elections, to assess the ground

situation and to take a decision in respect of deployment

of paramilitary forces if the circumstances so demand.

Instances have been pointed out to this Court about the

violence during election and post-poll violence on the

earlier occasions during elections in Bidhannagar.

Hence, the Election Commission along with the State

Authorities is required to do reappraisal of the ground

situation prevailing in Bidhannagar and take a decision

to deploy the paramilitary forces if required.

16. Therefore, we hereby direct that the

Commissioner, State Election Commission will hold the

joint meeting with the Chief Secretary and Home

Secretary of the State and the Director General and

Inspector General of Police within 12 hours and will do

the reappraisal of the ground situation in Bidhannagar

Municipal Corporation area and ascertain if deployment

of paramilitary forces is necessary for ensuring the

peaceful conduct of election of Bidhannagar Municipal

Corporation and if require, he will submit and

requisition to the Union Ministry of Home Affairs or the

competent authority for deployment of paramilitary

forces and any request in this regard will be duly

considered having regard to the ground situation and in

the interest of ensuring peace, security and orderly

conduct of the forthcoming Bidhannagar Municipal

Corporation Election without any delay. In case, if the

Commissioner, State Election Commission forms an

opinion that deployment of the paramilitary forces

during Bidhannagar Municipal Corporation election is

not necessary, then he will be personally liable to ensure

that no violence takes place and free, fearless and

peaceful elections are held in Bidhannagar.

17. The next issue is a about the legality of the orders

of the Election Commission dated 29th November, 2021

and 07th February, 2022. The order dated 29th

November, 2021 provides that polling agent must be an

elector of the polling area wherein polling station is set

up. The subsequent order dated 07th February, 2022

provides that for polling premises where more than one

polling station are situated, the polling agent must be an

elector of any polling station area located within that

premises. These orders give reason for imposing such a

restriction i.e. to ensure peaceful poll and these orders

reveal that such a condition has been imposed from the

security point of view to prevent any person who is not

an elector of the polling station area concerned to

function as a Polling Agent or Relief Agent. These orders

have been issued by the Election Commission exercising

jurisdiction under Article 243-ZA of the Constitution

which vest the State Election Commission with the

requisite powers to take necessary steps for conducting

the election. The orders dated 29th November, 2021 and

07th February, 2022 do not run counter to any of the

provisions of the West Bengal Municipal Elections Act,

1994 or the West Bengal Municipalities (Conduct and

Elections) Rules, 1995. The Handbook for Polling Agents,

2014 relied upon by the Counsel for the applicants is in

the nature of guideline and it is not in respect of local

body elections and even otherwise the orders of the State

Election Commission are not in material conflict with

those guidelines.

18. So far as the issue of simultaneous holding of

counting and declaration of results of all the Municipal

Corporations is concerned, the notification dated 03rd

February, 2022 has already been issued by the State

Election Commission notifying the date of polling of

remaining Municipal Corporations/Councils as 27th

February, 2022 and further notifying that the election

process will be completed before 08th March, 2022.

Hon'ble Supreme Court in the matter of Fouziya Imtiaz

Shaikh (Supra) has already held that from the date of

notification of election till the date of declaration of

result, a judicial hands-off is mandated by the non

obstante clause contained in Article 243-ZG. Hon'ble

Supreme Court in the case of Fouziya Imtiaz Shaikh

(Supra) has held that:

"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."

19. Hence, it is for the Election Commission to

consider the prayer for simultaneous counting in all the

Municipal Corporations or for the declaration of results

of all the Municipal Corporations at the same time.

While taking such a decision, the Election Commission

is expected to keep in mind the plea that declaration of

result of one Municipal Corporation may affect the

elections scheduled soon thereafter in other Municipal

Corporations/Municipalities.

20. Hence, we grant liberty to the applicants to file

appropriate representation before the State Election

Commission with all the supporting materials in respect