Calcutta High Court (Appellete Side)
Abdul Kafil vs State Of West Bengal & Ors on 11 April, 2023
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
Hon'ble Justice Shampa Sarkar
WPA 2047 of 2023
Abdul Kafil
vs.
State of West Bengal & Ors.
With
WPA 27716 of 2022
Shafiqul Islam
vs.
State Of West Bengal and Ors.
For the Petitioner : Mr. Shamim Ahammed,
Mr. Arka Maiti,
Ms. Ambiya Khatun.
For the State (in WPA 2047 of 2023) : Mr. Md. Galib,
Mr. Kapil Guha.
For the State (in WPA 27716 of 2022) : Mr. Srijan Nayak,
Mrs. Rituparna Maitra.
Hearing concluded on: 28.02.2023
Judgment on: 11.04.2023
Shampa Sarkar, J.:-
1. Although, there were some factual differences in the two writ
petitions, but as a common challenge had been thrown to the manner in
which the District Panchayat Election Officer had proceeded with the
discharge of his functions under rule 22 of the West Bengal Panchayat
Election Rules, 2006 (for short Election Rules) and had issued the final
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notification in Form A1 of the Election Rules, the petitions were heard
together.
2. All factual and legal aspects raised by the petitioners in the two writ
petitions have been dealt with in this judgment and disposed of analogously.
3. WPA 27716 of 2022 was filed by a resident and a voter of the
Domohana-XXII constituency, under the Domohana Gram Panchayat. He
was aggrieved by the merger of two polling stations into one constituency.
Challenging the draft notification dated October 19, 2022, the petitioner
filed an objection before the District Panchayat Election Officer. A specific
objection was raised to the effect that while in all other constituencies, one
seat per 700 to 800 voters had been allowed in the said gram panchayat,
but in case of Domohana-XXII, 94 Magnavita FPS having 816 voters and 95
Magnavita having 768 voters were clubbed together and one seat was
allotted for 1584 voters. Such indiscriminate and arbitrary clubbing of the
two polling stations into one, was contrary to the West Bengal Panchayat
Act, 1973 (for short Panchayat Act) read with West Bengal Panchayat
Elections Act, 2003 (for short the Elections Act) and the rules framed
thereunder. A comparison was drawn between Dakshin Kochra FPS and
Madhya Kochra SSK which were delimited into two separate constituencies,
i.e., Domohana-XI and Domohana-XII. Similarly, 89 Dangi FPS Room No.1
and 90 Dangi FPS Room No.2 were delimited to Domohana-XVIII and
Domohona-XIX which had 829 and 726 voters, respectively.
4. According to the petitioner, 94 and 95 Magnavita should be delimited
into two separate constituencies, so that each could be represented by one
elected representative.
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5. The petitioners were called for a hearing, but it is alleged that the
authority published the final notification on November 25, 2022 without
dealing with the objections raised by the petitioner. Hence, the writ petition
was filed for a direction upon the authority to alter the delimitation of
Domohana-XXII Gram Panchayat, upon setting aside the final notification
dated November 25, 2022. A further direction upon the prescribed authority
to delimit Domohana-XXII constituency by separating Magnavita 94 and 95
into distinct constituencies, was sought.
6. WPA 2047 of 2023 was filed by a voter of Domohana-XXII
constituency inter alia, alleging that although some of the voters had raised
an objection with regard to the delimitation of the constituency and
arbitrary clubbing of Magnavita 94 and 95 into a single constituency, the
District Panchayat Election Officer issued the final notification without
paying any heed to the demand of the people.
7. A prayer had been made to issue a mandamus upon the state
government to divide Domohana Gram Panchayat into two gram panchayats
in terms of Section 3(3)(c) of the Panchayat Act. Further prayers, similar to
the one made in WPA 27716 of 2022, that is, mandamus upon the
prescribed authority to delimit Domohana-XXII into two separate
constituencies upon setting aside the final notification dated November 25,
2022, was also made.
8. Mr. Shamim Ahammed, learned Advocate appearing on behalf of the
petitioner in both the writ petitions submitted that there were several stages
in the entire process of delimitation and the prescribed authority ought to
have acted within the four corners of the statute and the rules framed
thereunder. Reference was made to Section 3(1) of the Panchayat Act by
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which the state government had been empowered to declare by a
notification, any mauza or part of a mauza or group of
contiguous mauzas or parts thereof, as 'gram'. The specific name of the
gram including the local limits of such gram were to be specified in the
notification.
9. Learned Advocate submitted that the state government was
empowered to divide the area of a gram, so as to constitute two or more
grams. Each of such gram would have its own gram panchayat. As the
voting population of Domohana Gram Panchayat was relatively high and
seats/members in the gram panchayat was to be limited to maximum of 30
in terms of Section 4(2) of the Panchayat Act, the only option left for the
respondents was to divide Domohana Gram Panchayat into two separate
grams in order to constitute two different gram panchayats. The exercise of
delimitation under Section 12(ii) of the Elections Act was fallacious and
contrary to the purpose of the said Act. The voters were entitled to have
equal representation in the gram panchayat from their respective
constituencies and the seats were to be distributed evenly for each
constitutency. Clubbing or merger of 94 Magnavita and 95 Magnavita was
violative of Section 12(ii) of the Elections Act and rule 22 of the Election
Rules. Allegation was that the state respondents in failing to create two
separate grams by dividing Domohana Gram Panchayat in terms of Section
3(3)(c) of the Panchayat Act, had denied the voters their democratic right to
send up their elected member to the gram panchayat. Such unequal
distribution of the seats qua the voting population was contrary to the
constitutional mandate.
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10. Learned Advocate referred to Article 243-C of the Constitution which
mandated that the ratio between the population of the territorial area of the
gram panchayat at any level and the number of seats in such panchayat to
be filled up by election, so far as practicable, should remain the same. The
Elections Act was promulgated to provide the method of holding election and
laid down the steps that should be taken by the prescribed authority for the
purpose of holding panchayat elections in the State of West Bengal. The
Elections Act also provided for all other election related issues including
settlement of disputes and redressal of grievances of the voters. The Election
Rules elaborately provided the mechanism for the entire process of election.
From the stage of preparation of electoral roles, delimitation of
constituencies, reservation of seats, filing of nominations, method of voting
by EVM machines, counting of votes and other miscellaneous matters had
been prescribed by the rules. According to learned Advocate, all the above-
mentioned provisions were in consonance with the constitutional mandate
under Article 243-C of the Constitution of India.
11. Learned Advocate referred to Section 12(ii) of the Elections Act and
submitted that fixing the seats in the ratio of one member for every 900
voters and one additional member for every fraction thereof, was the legal
requirement. Deviation from such calculation did not subscribe to the
statutory provision. One seat/member for 1584 voters, in case of Domohana
- XXII was contrary to the statute and also the provisions of Article 243-C of
the Constitution of India. The Constitution provided that each panchayat
area should be divided into territorial constituencies, in such a manner that
the ratio between the population of each constituency and the number of
seats allotted to it, would so far as practicable, be the same throughout the
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panchayat area. By referring to the chart annexed to the writ petition,
learned Advocate demonstrated that 94 Magnavita and 95 Magnavita were
clubbed together as a single constituency having approximately 1584 voters.
Whereas, 81 Dakshin Kochra FPS and 82 Madhya Kochra SSK had 841 and
749 voters respectively, but separate constituencies by way of delimitation
as Domohana-XI and Domohana-XII, had been created.
12. Similar reference was also made to some other constituencies which
had been created within Domohana Gram Panchayat. According to learned
Advocate, the laws dealing with constitution of gram panchayats and
elections of the said gram panchayats, did not permit merger of polling
stations to form a single constituency, without maintaining the statutory
requirement of one seat per 900 voters. There was apparent discrimination
in the exercise of the work of delimitation. Constituencies having more than
1500 voters were allotted a single seat and large number of voters were
represented by a single member. In other cases, constituencies having
voting population ranging from 700 to 1200, were also being represented by
one member. Such arbitrary creation of constituencies not only resulted in
denial of democratic rights of the voters to elect their member to the gram
panchayat in the ratio of one man : one vote, but also deprived the voters of
having equal representation in the gram panchayat. Further contention was
that an elected member would not be able to give his optimum service to
such a large number of voters within such a large constituency.
Constituencies having around 700 to 800 voters would be better served and
looked after by their elected representative. Execution of projects,
implementation of schemes and infrastructural developments would be more
effective and smooth in a smaller constituency. It would be more convenient
7
for the elected members to manage control and administer a constituency
with less number of voters.
13. While concluding his argument, Mr. Ahammed submitted that the
only option in this case was creation of a separate gram by the state
government by dividing Domohana. The number of voters in the existing
'gram' exceeded 34000 and allocation of 30 seats to such a largely populated
gram panchayat, was not possible. The seat-versus-voters ratio was
imbalanced and contrary to the statutory and constitutional mandate. The
maximum limit of 30 seats in a gram panchayat, could not be applied in
case of large villages. The statutory provision of one member per 900 voters
could not be adhered to, due to increase in the voting population over the
years. Section 13 of the Elections Act was also referred in order to press the
point that as a maximum of two seats could be allotted to a single
constituency, at least two seats/members should have been allotted to
Domohona XXII, in the alternative.
14. On the point of maintainability, reference was made to the decision in
Anugrah Narain Singh and anr. vs. State of U.P. and ors. reported in
(1996) 6 SCC 303. Mr. Ahammed submitted that after publication of the
election notification, challenge could not be made to the election process by
filing a writ petition. Until then, the writ court could exercise the power of
judicial review to ascertain whether the allocation of seats were in
accordance with the provisions of the Panchayat Act, the Elections Act and
the Election Rules. When the election was imminent or well under way, the
bar would operate and the Court should not stop an election on the plea of
one or two individuals. Learned Advocate further contended that as the
Delimitation Commission Act was not under challenge in the writ petitions,
8
the constitutional embargo in Article 243-O, would not be applicable in this
case. The notification dated November 25, 2022 did not have the force of
law, but the same was an executive action and the writ court ought to
interfere with the same and determine whether the allocation of seats were
in conformity with the provisions of the Elections Act and Election Rules.
15. Referring to the decision in Dravida Munnetra Kazhagam (DMK) vs.
Secretary Governor's Secretariat and ors. reported in (2020) 6 SCC 548,
Mr. Ahammed submitted that the Hon'ble Apex Court had observed that as
far as practicable, the state should maintain a ratio between the population
and the number of seats allotted to a territorial area. The exercise of
delimitation for constitution of local bodies should be properly undertaken
and the proportionality should be maintained in the manner prescribed by
law. Inaction or failure on the part of the prescribed authority would itself,
be contrary to Article 243 read with Article 243-C(2) of the Constitution.
Relying on the decision of the Bombay High Court in Kamalakar Bapurao
Kulkarni and ors. vs. Yeola Municipal Council Yeola and ors. reported
in 1984 SCC OnLine Bom 116, Mr. Ahammed submitted that if an
executive action of an authority under a particular statute passed by the
legislature was brought in question before the writ Court, it was perfectly
legitimate for the Court to exercise jurisdiction under Article 226 of the
Constitution and set aside the order impugned by giving appropriate
reasons. Reliance was also placed on Adi Saiva Sivachariyargal Nala
Sangam and ors. vs. Government of Tamil Nadu and anr. reported in
(2016) 2 SCC 725, in support of the contention that even on a well-founded
apprehension, a writ petition would be maintainable. The petitioner was not
required to wait till the actual prejudice occurred, in order to move the
9
Court. In this case, unequal distribution of seats amongst voters without
maintaining the proportionality mandated under the constitution gave rise
to a reasonable apprehension that the voters of Domohana XXII would be
deprived of getting the optimum benefit from the service of their elected
member who would not be able to cater to the needs of such a large
population.
16. Mr. Srijan Nayak and Mr. Galib, learned Advocates appeared on behalf
of the prescribed authority and opposed the respective writ petitions. The
affidavit-in-opposition filed in WPA 27716 of 2022 was adopted by Mr. Galib
in WPA 2047 of 2023.
17. The contention of Mr. Galib was that mandamus could not be issued
in the absence of any pleading as to how the petitioner's fundamental right
or legal right had been infringed. The averments in the writ petition were
vague. Baseless and omnibus criticism of the final notification would not
give rise to a cause of action.
18. Mr. Galib referred to the writ rules of the High Court and submitted
that the petitioner also failed to demand justice prior to institution of the
proceedings before the Court. Learned Advocate urged that the writ petition
No. WPA 2047 of 2023, should be dismissed as not maintainable.
19. Learned Advocate referred to the decision in Dalmia Cement (Bharat)
Limited vs. State of Tamil Nadu and anr. reported in (2014) 2 SCC 279,
and submitted that inadequacy of pleadings and absence of relevant
particulars would lead to dismissal of the writ petitions. Referring to the
decisions in Mani Subrat Jain and ors. vs. State of Haryana and ors.
reported in (1977) 1 SCC 486, Boddula Krishnaiah and anr. vs. State
Election Commissioner, A.P. and ors. reported in (1996) 3 SCC 416,
10
Maganbhai Ishwarbhai Patel Etc. vs. Union of India and anr. reported
in (1970) 3 SCC 400 and Census Commissioner and ors. vs. R.
Krishnamurthy reported in (2015) 2 SCC 796, Mr. Galib reiterated that
mandamus could not be issued unless the petitioner proved that he had a
legally enforceable right and had suffered a serious prejudice at the hands of
the prescribed authority. Mr. Galib referred to Boddula Krishnaiah (supra)
and submitted that except on the limited ground that delimitation had been
effected and finally notified without either inviting objections to the draft
notification or without hearing the parties who raised objections to the draft
notification, a writ petition should not be entertained.
20. Countering Mr. Ahammed's contention that Domohana Gram should
have been bifurcated into two 'grams' so that two gram panchayats could be
created to ensure equal representation from all the constituencies, Mr. Galib
submitted that creation of two "gram" under Section 3(3)(c) was a policy
decision and mandamus could not be issued directing the state to create
separate villages.
21. Next, Mr. Galib contended that delimitation was an integral part of the
election process and Article 243-O was a complete bar. The issue of merger
of polling stations 94 and 95 Magnavita, to form Domohana-XXII
constituency, was a part of the election process and the court should
exercise judicial restraint. Learned Advocate submitted that the total
number of voters in Domohana Gram Panchayat was 34627, which divided
by 900 gave the number of members as 38.47. Fraction of 0.47 was taken as
an 'additional one' by applying the formula under Section 12(ii) of the
Elections Act. Thus 39 seats were to be allotted to the constituencies under
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the Domohana Gram Panchayat. Section 4(2) of the Panchayat Act provided
that the maximum seats should be 30. Delimitation of constituencies was to
be done on the basis of rule 22(1) of the Election Rules. Rule 22(1)(a)
provided that the prescribed authority was to divide the area of a gram into
constituencies each with contiguous area on the basis of the number of
seats determined under Section 12(ii) of the Elections Act. The number of
members/seats determined under Section 12(ii) was 38.47. The same was
required to be reduced to 30 and allotted to constituencies upon division of
the entire gram into constituencies by taking into consideration recognizable
units like paras, localities, neighbour-hoods, bustees or colonies. The
prescribed authority was to assign consecutive serial numbers to all such
constituencies of the gram panchayat following the sequence of the numbers
assigned to the Legislative Assembly's polling stations comprising such
constituencies. Domohana Gram Pnachayat had 37 polling stations under
Assembly Constituency No. 32, that is, from polling station No.67 to 103. In
terms of Section 4(2) of the Panchayat Act, Section 12(ii) of the Elections Act
and Rules 22(1)(a), 22(1)(b) and 22(1)(c) of the Election Rules of 2006 read
with the State Election Commission's order dated July 25, 2022, some of the
polling stations were required to be merged so that 39 seats could be
reduced to 30 and adjusted against 37 polling stations, by creating
constituencies. Upon considering the number of voters, the geographical
location with contiguous areas and the location of the polling booths, the
merger were done. The polling booths in the same premises were merged to
create a single constituency.
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22. It was urged that Domohana-1 constituency was created by merging
polling stations No.32/67 and 32/68 and the basis for the merger was that
both the polling booths were situated within the same school premises in
two separate rooms. The total number of voters was 1520. A similar merger
was made in case of polling stations 32/74 and 32/75 to create Domohana-
VI constituency and the polling station for both were Haldibari MSK Room
No.1 and Room No.2. Such procedure was also followed for assembly polling
stations No.32/79 and 32/80 which were merged to form Domohana-X and
the booths were situated at the same premises, namely, Uttar Kochra FP
School Room No.1 and Room No.2. Similarly, polling stations 32/94 and
32/95 were merged to create Domohana-XXII constituency. The polling
station was in the same premises, namely, Magnavita FPS Room No.1 and
Room No. 2. There had been no discrimination or arbitrariness in the
process. The prescribed authority had acted within the four corners of the
statute and the merger was the only reasonable way to reduce 39 seats to
30 seats and to distribute the 30 seats amongst 37 Assembly polling
stations.
23. The court proceeds to decide the issues raised by the parties. A three
Judges Bench of the Hon'ble Apex Court in State of Goa v. Fouziya Imtiaz
Shaikh, reported in (2021) 8 SCC 401, held as follows:-
"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
13
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.
68.5. 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.
68.7. 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."
24. The Hon'ble Apex Court held that from the date of notification of
election till the date of declaration of result, a judicial hands-off was
mandated by the non obstante clause contained in the Constitution of India.
The law debarred the writ court from interfering once the election process
had begun and until the same was over. Moreover, validity of the law
relating to delimitation and allotment of seats could not be called in
question in any court. It was therefore, a matter of discretion of a writ court
whether to exercise the power of judicial review at a stage when the election
was imminent, but the notification for elections was yet to be published.
25. In case of elections to gram panchayats also, a similar non obstante
clause has been made under Article 243-O of the Constitution of India. A
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bar on the interference by the writ court in respect of electoral matters
and/or on the question of validity of any law relating to delimitation of the
constituencies or allotment of seats to constituencies made or purported to
be made under Article 243-K, has been imposed. No election to any
panchayat could be called in question, except by an election petition
presented to such authority and in such manner as is provided for by or
under any law made by the legislature of a State. In this case, the State of
West Bengal has promulgated the Elections Act.
26. Here, the final notification under Form A1 issued under Rule 23(4) of
the Election Rules had been called in question before a writ court, at a
juncture, when the notification for the Panchayat Elections, 2023 had not
been published. The writ court is not debarred completely from exercising its
power of judicial review as the notification for the 2023 panchayat election
has not been published. The writ court has a discretion whether or not to
entertain the writ petition. Such discretion is to be exercised sparingly and
only under exceptional circumstances. Any and every challenge to an
election process including the question of delimitation, cannot be
entertained by a writ court. The discretion has to be exercised judiciously
and with restraint. The publication of the notification under From A-1 dated
November 25, 2022 was an executive action. Such action can only be tested
on the grounds of illegality, irrationality and procedural impropriety.
27. In the matter of Mohinder Singh gill and anr. vs. Chief Election
Commissioner and ors. reported in AIR 1978 SC 851, the Hon'ble Apex
Court held as follows:-
"25. **** There is a non obstante clause in Article 329 and, therefore,
Article 226 stands pushed out where the dispute takes the form of
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calling in question an election, except in special situations pointed at
but left unexplored in Ponnuswami."
28. Although the petitioner in WPA 2047 of 2023 had not filed his
objection to the draft notification, the petitioners and other villagers in WPA
27716 of 2022, had availed of their statutory remedy by filing their
objection. They appeared at the hearing before the prescribed authority,
prior to the publication of the final notification in Form A1.
29. This Court now ventures to determine whether exceptional
circumstances had been made out by the petitioners which would warrant
interference by the Court in exercise of power of judicial review, especially
when the panchayat election is imminent, although the election notification
had not been published. There is also a statutory remedy available under
the Elections Act. Delimitation is one of the steps in the process of
conducting an election.
30. The relevant provisions of the laws applicable to such process and
relevant for this case, are quoted below:-
Section 4(2) of the West Bengal Panchayat Act states as follows:-
"Section 4. Gram Panchayat and its constitution.-
........
(2) Persons whose names are included in the electoral roll
prepared in accordance with such rules as may be made
by the State Government in this behalf and in force on
such date as the State Election Commissioner may declare
for the purpose of an election pertaining to the area
comprised in the Gram, shall elect by secret ballot at such
time and in such manner as may be prescribed, from
among themselves such number of members not being
less than five or more than thirty as the prescribed
authority may, having regard to the number of voters in
hill areas and other areas and in accordance with such
rules as may be made in this behalf by the State
Government, determine:
Section 12(ii) of The West Bengal Panchayat Elections Act,
2003 reads as follows:-
"12 (ii) in the case of other areas, one member for every
nine hundred voters and one additional member for every
fraction thereof."
Rule 22(1)(a), Rule 22(1)(b) and Rule 22(1)(c) of The West
Bengal Panchayat Elections Rules, 2006 provide as follows:-
"Delimitation of constituencies and reservation of
seats.
22(1) Subject to any general or special direction issued by
the Commission in this behalf, the prescribed authority,
by an order, shall,-
(a) divide, in recognisable units like paras, localities,
neighbour-hoods, bustees or colonies, the area of a Gram
into constituencies, each with contiguous area, on the
basis of the number of members determined under section
12,
(b) assign consecutive serial number to all such
constituencies of a Gram following the sequence of the
numbers assigned to the Legislative Assembly polling
stations comprising such constituencies,
(c) allocate to each constituency such number of seats,
not exceeding two, as may conform to the number
determined under section 12;"
31. The work of delimitation of seats in the Domohana Gram Panchayat
was done on the basis of the order of the West Bengal State Election
Commission dated July 25, 2022. Determination of the number of members
to be elected to Domohona Gram Panchayat was made. The formula laid
down in Section 12(ii) of the Elections Act was followed. The calculation of
one member for every 900 voters and one additional member for every
faction thereof, was done. Such calculation was subject to the provisions of
Section 4(2) of the Panchayat Act i.e. the number of members/seats for a
gram panchayat should not be less than five or more than 30. In Domohana
Gram Panchayat under 32-Karandighi Assembly Constituency, there were
37 polling stations i.e., 67 to 103. There were 34627 voters as on the
qualifying date, i.e., January 1, 2022. The number of members (seat) to be
elected from Domohana Gram Panchayat were 34627/900 = 38.47 i.e. 39.
The said number of members/seats had to be reduced to 30 from 39 and
assigned to 37 polling stations under 32 Karandighi as per the provisions of
Section 4(2) of the Panchayat Act read with Section 12(ii) of the Elections Act
and Rules 22(1)(a) and 22(1)(b) of the Election Rules. Seats under
Domohana Gram Panchayat were to be fixed at 30 and distributed amongst
37 Assembly polling stations. For such allocation of seats, mergers of some
of the polling stations were inevitable. The mergers were effected by clubbing
together those polling stations which were contiguous or by clubbing those
polling booths which were situated within the same premises. Not only
geographical proximity of the voters, but also contiguity of the area and
convenience of the voters, were taken care of. Magnavita 94 and 95 had
been clubbed together in order to create Domohana-XXII Gram Panchayat.
Domohana-I, Domohana-III, Domohana-VI, Domohana-X, Domohana-XVI
and Domohana-XX were similar constituencies created by clubbing two
polling stations on the same parameters as Domohana-XXII. The number of
voters ranged from 1496 to 1584 in those constituencies. It is not a fact that
only Domohona XXII had been singled out by merging 94 and 95 Magnavita.
Similar exercise was undertaken in respect of other polling stations as well.
32. The chart hereinbelow depicts the mergers:-
Assembly
Sl No./Asse Polling Constitu
mbly Station wise Polling Station Name & No. of GP ency
Allocation of seats
No Polling electors as Name Constituency wise
Station on 1.1.2022 Elector
No.
Bhulki FP
1 32/67 776 Domohana/I 1520
School (Room Domohana/1-2
No-1)
Bhulki FP
32/68 744
School (Room
No-2)
2 21/69 1329 Bhulki FP S Domohana/II 1329 Domohana/II-2
(Rook No-3)
Bhulki
32/70 837 Madhyapra
FPS (Room
No.-1) Domohana/III 1509
Domohana/III-3
3 Bhulki
32/71 672 Madhyapra
FPS (Room
No.-2)
4 32/72 623 Satveti FPS Domohana/IV 623
Domohana/IV-4
(Room No.-1)
5 32/73 943 Satveti FPS Domohana/V 943
Domohana/V-5
(Room No.-2)
32/74 763 Haldibari MSK
(Room No.1) Domohana/VI 1529
Domohana/VI-6
6 32/75 766 Haldibari MSK
(Room No.2)
7 32/76 1125 Jogiar SSK Domohana/VII 1125
Domohana/VII-7
Chengatuli
8 32/77 1448 Domohana/VIII 1448
Gopalapur F.P. Domohana/VII-8
School
Gopalapur
9 32/78 1239 Domohana/IX 1239
Madhyamik Domohana/IX-9
Siksha Kendra
Uttar Kochra
32/79 753
FP School
Domohana/X-10
Uttar Kochra
32/80 743
FP School
(Room No.-2)
11 32/81 824 Kochra FP Domohana/XI 824
Domohana/XI-11
School
12 32/82 784 Padhya Kochra Domohana/XII 748
Domohana/XII-12
SSK
13 32/83 1259 Madargachi Domohana/XIII 1259
Domohana/XIII-13
High School
Paschim
14 32/84 1462 Domohana/XIV 1462
Chownagra Domohana/XIV-14
PFS
15 32/85 1417 Chownagra FP Domohana/XV 1417
Domohana/XV-15
School
16 32/86 789 Bikour FPS Domohana/XVI 789
Domohana/XVI-16
(Room No-1)
32/87 822 Bikour FPS
(Room No-2) Domohana/XVII 1530
Domohana/XVII-17
17 32/88 708 Bikour FPS
(Room No-3)
18 32/89 833 Dangi FPS Domohana/XVIII 833 Domohana/XVIII-18
(Room No-1)
19 32/90 741 Dangi FPS Domohana/XIX 741 Domohana/XIX-19
(Room No-2)
Monipara-
32/91 859 Kachna FP Domohana/XX 1533 Domohana/XX-20
20 School (Room
No-1)
Monipara-
32/92 674 Kachna FP
School (Room
No-2)
21 32/93 1068 Telengadangi Domohana/XXI 1068 Domohana/XXI-21
FP School
32/94 816 Magnavit FPS
22 (Room No.1) Domohana/XXII 1584 Domohana/XXII-22
32/95 768 Magnavit FPS
(Room No.2)
23 32/96 1448 Purba Fatepur Domohana/XXIII 1448 Domohana/XXIII-23
SSK
Fatepur-
24 32/97 866 Domohana/XXIV 866 Domohana/XXIV-24
Singardaha FP
School
25 32/98 775 Singardaha Domohana/XXV 775 Domohana/XXV-25
SSK
Kantirpa N.K.
26 32/99 1167 Domohana/XXVI 1167 Domohana/XXVI-26
Senior
Madrasha
27 32/100 634 Domohana/XXVII 634 Domohana/XXVII-27
Piazgaon FPS
Barhansh Domohana/XXVII Domohana/XXVIII-
Centre
29 32/102 1418 Barhansh FP Domohana/XXIX 1418 Domohana/XXIX-29
School
32/103 908 Chandragaon Domohana/XXX 908 Domohana/XXX-30
FPS
33. It is the specific contention of the respondents that some polling
stations which had less voters were not merged due to their geographical
location and/or lack of contiguity with any area, 'basti' or 'para'.
34. Thus, the Court does not find any arbitrariness or illegality in the
method by which the prescribed authority has discharged his duty under
the provisions of Section 12(ii) of the Elections Act read with Rules 22(1)(a),
22(1)(b) and 22(1)(c) of the Election Rules, 2006. The Court also finds that
Section 12(ii) is an enabling provision which carves out a formula to be
followed by the authorities to arrive at the number of members per gram
panchayat. When such formula was applied to determine the number of
members for Domohana Gram Panchayat, the number arrived at was
beyond the maximum limit of 30 i.e. 38.47= 39. In order to bring down 39
members to 30 as per Section 4(2) of the Panchayat Act and to distribute 30
seats/members amongst 37 polling stations of the Assembly Constituency
namely 32 Karandighi in terms of Rule 22(1)(b) of the Elections Rules 2006,
merger of the polling stations on the basis of geographical proximity,
contiguity and location of the polling booths, was neither arbitary nor
contrary to law. The writ court should be slow to interfere in this case,
especially when the legislature had carved out a separate mechanism for
determination of all disputes relating to the election process, that is, by
filing an election petition. Moreover such issues are also within the domain
of the West Bengal State Election Commission.
35. The third last proviso to Section 4(2) of the Panchayat Act states that
the State Election Commission may at any time for reasons to be recorded in
writing direct the prescribed authority to make fresh determination of the
number of members of a gram panchayat or fresh reservation on rotation, of
the number of seats in such gram panchayat. The third last proviso to
Section 4(2) of the Panchayat Act reads as follows:-
"Provided also that the Slate Election Commissioner may, at any
time, for reasons to be recorded in writing, by order, direct the
prescribed authority to make fresh determination of the number of
members of a Gram Panchayat or fresh reservation on rotation of
the number of seats of such Gram Panchayat and, on such order
being issued by the State Election Commissioner, the
determination of the number of members or the number of seals to
be reserved or the sequence of rotation of reservation of seats or
any combination of them as may be specified in such order shall
not be varied for the next two successive general elections"
36. In the decision of State of Goa (supra), the Hon'ble Apex Court
recognized the power of the State Election Commission. The relevant portion
is quoted below:-
"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.
......
......
68.10. 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."
37. The writ petitioners had failed to avail of the statutory opportunity of
approaching the State Election Commission with their grievance of unequal
representation and alleged violation of the mandate of proportional
distribution of seats amongst the constituencies within Domohana Gram
Panchayat. With regard to the argument that the only way out in this case
would be to bifurcate Domohana Gram Panchayat by creating two separate
gram panchayats, instead of merging the polling stations to form single
constituencies, this Court is of the view that the decision to create a gram
under Section 3(3)(c) of the Panchayat Act, 1973 is a policy decision of the
state. It does not appear that either the petitioners or any other aggrieved
voter for that matter, had ever approached the state government with such
prayer. At this stage, when the final notification in Form A1 has been
published and election is imminent, an exercise to divide the gram, cannot
be undertaken. As per the Constitution, a village would mean a village
specified by the Governor by public notification, to be a village for the
purpose of Part-IX and also includes a group of villages so specified. The
action of creation of a gram (village) would involve thorough enquiry and a
decision. The process of bifurcation required a public notification in the
name of the Governor in the official gazette. At this stage, when the
delimitation of seats had been finally published, the prayer of the petitioner
in WPA 2047 of 2023 for a mandamus upon the state respondents to
bifurcate Domohana Gram Panchayat and create two separate 'grams',
cannot be permitted. Apart from the said petitioner, no one has raised such
question. None approached the state authorities with such prayer, at any
stage. The villagers could have approached the state authority in accordance
with law and demonstrated the reasons as to why bifurcation of the gram
would be necessary to maintain the ratio between the population of the
constituency to the number of seats allotted.
38. Section 3(3) of Panchayat Act is quoted below:-
"(3) The State Government may, after making such enquiry as it
may think fit and after consulting the views of the Gram
Panchayat or Panchayats concerned, by notification--
(a) exclude from any Gram any area comprised therein; or
(b) include in any Gram any area contiguous to such Gram or
separated by an area to which this Act does not extend or in which
the remaining sections of this Act referred to in sub-section (3) of
section 1 have not come into force; or
(c) divide the area of a Gram so as to constitute two or more
Grams', or
(d) unite the area of two or more Grams so as to constitute a single
Gram."
Such exercise of dividing the area of a gram is a long drawn process. Such
decision has to be taken by the state upon making an enquiry and after
consulting the views of the gram panchayat or the panchayat concerned. If
two or more grams are created, by dividing one 'gram', notifications with the
names and local limits of the grams are to be published.
39. On the basis of such belated claim and omnibus allegations, no order
can be passed. The prescribed authority has demonstrated the basis and the
the reason behind the delimitation of Domohana Gram Panchayat and
creation of Domohana-XXII. The Constitution mandates that the ratio of
population versus the seat should be maintained 'as far as practicable'. The
Elections Act and the Election Rules read with the Panchayat Act provides
the method of creation of seats, delimitation of constituencies and allocation
of seats. The District Panchayat Election Officer was bound to conform to all
the statutory provisions and create constituencies by merging some polling
stations. Domohona-XXII is not the only constituency so merged. Thus, on
the plea of one or two individuals, such elaborate exercise cannot be set
aside. The apprehension that a single member would not be able to serve
such a large constituency, is neither based on past experience nor are there
sufficient pleadings to that effect. The apprehension is not well founded.
40. In the matter of N.P. Ponnuswami v. Returning Officer, Namakkal
Constituency and Ors., reported in AIR 1952 SC 64, the Hon'ble Apex
Court held as follows:-
"(1) Having regard to the important functions which the legislatures
have to perform in democratic countries, it has always been
recognized to be a matter of first importance that elections should
be concluded as early as possible according to time schedule and all
controversial matters and all disputes arising out of elections
should be postponed till after the elections are over, so that the
election proceedings may not be unduly retarded or protracted.
(2) In conformity with this principle, the scheme the election law in
this country as well as in England is that no significance should be
attached to anything which does not affect the 'election'; and if any
irregularities are committed while it is in progress and they belong
to the category or class which, under the law by which elections are
governed, would have the effect of vitiating the 'election' and enable
the person affected to call it in question, they should be brought up
before a Special Tribunal by means of an election petition and not
be made the subject of a dispute before any court while the election
is in progress."
41. In the matter of Manda Jaganath vs. K.S. Rathnam reported in
(2004) 7 SCC 492 the Hon'ble Apex Court held as follows:-
"19. In Election Commission of India v. Shivaji [(1988) 1 SCC 277]
this Court while considering a challenge to the election notification
which included certain Zila Parishads within a notified
constituency, held following the judgment in Ponnuswami [AIR
1952 SC 64] that even if there was any ground relating to the non-
compliance with the provisions of the Act and the Constitution on
which the validity of any election process could be questioned, the
person interested in questioning the election has to wait till the
election is over and institute a petition in accordance with Section
81 of the Act calling in question the election of the successful
candidate."
42. The facts in the decision of Dravida (Supra), are distinguishable. In
that case, nine districts in the State Tamil Nadu had been increased, but the
delimitation commission sent its final recommendation to the state
government on August 31, 2018 on the basis of the 2011 census, without
undertaking the delimitation exercise for constitution of local bodies at all
levels, after the additional nine districts had been created. The Apex Court
allowed the election in respect of 31 districts but restrained the respondents
therein, from holding the elections in respect of the nine newly created
districts. A further direction was given to delimit the nine districts and
thereafter hold the panchayat elections in respect of those districts. Such is
not the case here.
43. The decision of Kamalakar Bapurao Kulkarni (supra) is not factually
applicable. Wards were created by bringing in muslim voters from Chaval
Galli in an unnatural manner, by pushing the boundaries of the ward into
private properties both in the direction of Chaval Galli and also to the East.
In this case, such allegations have not been made.
44. The instant writ petition is silent as to how the impugned delimitation
had either given political mileage to the ruling party or was intended to
deprive the voters of 94 and 95 Magnavita. In any event, at this belated
stage, prayers in the writ petitions cannot be entertained.
45. The District Panchayat Election Officer, as the prescribed authority, is
bound by the Act and Rules. The said authority cannot take any
independent decision with regard to bifurcation of the gram, thereby leading
to creation of two separate grams and two gram panchayats.
46. The voters were always at liberty to approach the state government at
the appropriate stage, but such opportunity was never availed of. No one
approached the State Election Commission, either. The process of
delimitation started on and from July 2022 and the Court does not find any
reason to exercise the power of judicial review at this stage. The other
remedies under the relevant statute, are always available in accordance with
law.
47. The writ petitions are dismissed.
48. Parties are directed to act on the server copy of this judgment.
(Shampa Sarkar, J.)
