Calcutta High Court (Appellete Side)

Arindam Das vs The West Bengal State Election ... on 17 February, 2022

17.2.2022
 Ct. No.19
Sl.no.7
sn


                                 W.P.A. No. 2736 of 2022

                                       Arindam Das
                                            Vs.
                       The West Bengal State Election Commision

                          Mr. Saptanshu Basu..Sr.Adv.
                          Mr. Rizu Ghoshal
                          Mr. Dhilon Sengupta
                          Mr. Anirban Ghosh
                                           ....for the petitioner
                          Mr. T.M.Siddique
                          Mr. Nilotpal Chatterjee
                                           ..for the State
                          Ms. Sonal Sinha
                                               ..for the Election Commission
                          Mr. Aryak Dutt
                          Ms. Rumeli Sarkar
                                    ..for the added respondent.

The petitioner wanted to contest from Ward No. 18 of

Berhampore municipality. The candidature of the petitioner

was cancelled on the ground that Section 30(f) would be a

bar in view of the petitioner having a subsisting contract

with the said municipality.

Mr. Basu, learned Senior advocate appearing on behalf

of the petitioner submits that the ground for rejection was

contrary to the decisions of the Hon'ble Apex Court, in the

matters of S. Munishamappa Vs. Venkatarayappa & Ors.

(reported in (1981) 3 SCC 260 and Asling(Smt)Alias

Lhingjanong Vs. L.S. John & Ors. (reported in (1984) 1 SCC

205.

The second limb of the submissions of Mr. Basu is that

Sections 75 and 76 of the West Bengal Municipal Act,

1994(hereinafter referred to as the said Act) did not grant

adequate and complete relief to the candidates whose

names were rejected at the time of scrutiny. Mr. Basu, prays

that directions be given to the Commission to exercise

powers under Section 84 of the said Act, accept the

petitioner's nomination and pass necessary orders. It is

submitted that the commission has the power to extend the

time for filing the nomination by making necessary

amendments in the notification issued under Section 37 of

the said Act.

The first point raised by Mr. Basu, whether the

decision in Munishamappa (Supra) would apply in this case,

has to be gone into further, upon granting an opportunity to

the respondents to contest by filing affidavits.

The Hon'ble Apex Court held in both the cases relied

upon by Mr. Basu that if there is a reputation of a contract

or even if the contractor terminates the contract illegally,

thereby committing a breach, the contract could not be said

to be subsisting and the said contractor could not be barred

or disqualified from contesting the election on the ground of

subsistence of a contract with the government or an

authority.

In the facts and circumstance of this case, it appears

that at least 16 work orders were issued to the petitioner by

the Berhampur municipality from 2010 to 2018 onwards.

The said works admittedly were not completed by the

petitioner and thereafter on December 7, 2018 the petitioner

wrote to the Chairman, Behrampore municipality, to cancel

the work order, pay his bills and refund the security

deposit. Thus, according to Mr. Basu, the contract between

the petitioner and the municipality could not be said to be

subsisting and the disqualification under Section 30(f) of the

said Act was illegal, arbitrary and contrary to the legal

proposition laid down by the Hon'ble Apex Court in the

decisions cited hereinabove.

Prima facie, in the matter of Aslhing (Supra) although

the Hon'ble Apex Court did not pass any direction to allow

the petitioner before the Hon'ble Apex Court to participate in

the election, the Hon'ble Apex Court held that even in case

of breach, contract could not be said to be subsisting and

acceptance of the letter of the repudiation would not be

necessary in order to show that the contractual relationship

had ended. However, one distinguishing feature in the said

judgment referred to that is the contractor had also resigned

from the list of contractors under the PWD, Manipur,

whereas, in the order of cancellation of the nomination of

the petitioner, it appears that the petitioner M/s. Sankar

Enterprise was enlisted as a contractor and the certificate of

enlistment had been granted to the petitioner at the

registered address and there were also some ongoing

projects of 2013 and 2018. It appears that the petitioner did

not get his name delisted from the list of the Behrampore

municipality. This in the prima facie view of the Court, is a

distinguishing factor.

In view of the legal question raised, the writ petition is

admitted, keeping the point of maintainability open.

Whether the provisions of Section 9-A of the Representation

of People Act, 1951 read with Section 30(f) of the said Act

would operate as a bar, will be decided at the final hearing.

There is no scope for passing any interim order at this

stage. The interim order, as prayed for, to allow the

petitioner to participate in the election by acceptance of his

nomination cannot be allowed at a stage, when the list of

contesting candidates have already been published and the

election is in motion.

In the decision of Ritzu Ghosal v. West Bengal State

Election Commission, reported in 2018 SCC OnLine Cal

1747, the Hon'ble Division Bench of this court held as

follows:

"26. Any illegality, whether palpable or otherwise, on the part of the State Election Commission, can be interfered by the Court sitting in its Constitutional writ jurisdiction or in an appeal therefrom especially when such illegality manifests itself in an action which is arbitrary or wrongful or is mala fide in nature. There is no scope for avoiding such action from being brought under the scanner of the writ court or before its appellate forum, both exercising equitable and discretionary jurisdiction. At the same time, we are not unmindful about the limited scope of such interference especially when the election process has been set to motion.

27. Interference with the election process, once it has been set to motion is avoided having regard to the important functions which the legislatures have to perform in democratic countries since such functions have always been recognised to be matter of first importance. It is as such felt that elections

should be concluded as early as possible as per the time schedule. This, however, does not mean that the Election Commission can act in any manner and its action cannot be questioned till the election is over on the plea that the election process has already commenced. There will be travesty of justice if such a course is followed. In an appropriate case, the Court can always intervene judging the quality of the action on the part of the Election Commission."

Section 84 of the said Act provides that the

Commission may extend time for making necessary

amendments in the notification. In this case, rejection of

the nomination on a particular ground of a particular

candidate cannot be an exceptional situation and the

writ court at an interim stage cannot exercise discretion

and direct the Commission to change the dates of the

notification for one such candidate.

In the matter of State of Goa v. Fouziya Imtiaz

Shaikh, (2021) 8 SCC 401, the Hon'ble Apex Court held as

follows:-

"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."

Section 84 of the said Act can be invoked during

exceptional situations in order to uphold public order

and health. It may be invoked to correct statutory

violations by officials which would otherwise vitiate the

election process. Errors apparent on the face of record or

intentional and mala vide actions of an executive

contrary to law may be corrected by the commission and

if necessary such power can be involved. Such a

situation is not prima facie obvious in the dispute raised

herein.

When the election has progressed considerably, no

further interim directions can be passed in view of the

decision of the Apex Court in State of Goa v. Fouziya

Imtiaz Shaikh, (2021) 8 SCC 401, the Hon'ble Apex

Court held as follows:-

"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."

Let affidavit-in-opposition be filed within a period

of four weeks; reply thereto, if any, be filed within a

period of two weeks. The factual position as to what were

the subsisting contracts as per the respondents must be

stated.

Liberty is given to the parties to mention the

matter before the appropriate Bench after expiry of the

aforementioned period.

The point of maintainability of this writ petition is

kept open. Whether the constitutional bar under Article

243ZG(b) would operate in this case or whether the writ

court will exercise jurisdiction, are matters to be decided