Calcutta High Court (Appellete Side)
Asma Khatun Middya vs Rasmina Khatun & Ors on 3 August, 2023
03.08.2023
Item No.04
Court No.6.
S. De
M.A.T. 1432 of 2023
With
I.A. No. CAN/1/2023
I.A. No. CAN/2/2023
Asma Khatun Middya.
Vs
Rasmina Khatun & Ors.
Mr. Saptangsu Basu, Ld. Sr. Adv.,
Mr. Sumitava Chakraborty,
...for the appellant.
Mr. Lalit Mohan Mahato,
Mr. Ziaul Haque,
...for the State.
Mr. Sabyasachi Chatterjee,
Mr. Sandipan Das,
Mr. Badrul Karim,
Mr. Subhajit Saha,
Mr. Dipankar Das,
...for the writ petitioners/respondents.
Ms. Sonal Sinha,
Mr. Sujit Gupta,
...for the WBSEC.
By consent of the parties the appeal and the
connected applications are taken up together for
hearing.
In re : I.A. No. CAN 1 of 2023.
This is an application for leave to prefer appeal
against a judgment and order dated July 24, 2023,
whereby WPA 16742 of 2023, filed by the respondent
nos.1 and 2 herein was disposed of by a learned Single
Judge of this Court. The intending appellant was not
made a party to the writ petition.
Mr. Basu, learned senior counsel appearing for
the applicant says that the applicant is the successful
candidate. Without hearing her, no order should have
been passed by the learned Judge.
We are of the view that the applicant may have
something to say about the impugned order. Hence,
leave is granted to prefer appeal against the impugned
order.
I.A. No. CAN 1 of 2023 is, accordingly, disposed
of.
In re : MAT 1432 of 2023 & I.A. No. CAN 2 of
2023.
From the affidavit of service filed in Court today,
it appears that all the respondents have been served.
The Election Commission and the State are
represented. The writ petitioners are also represented.
The writ petitioners approached the learned
Single Judge alleging that the husband of the returned
candidate, i.e. the present appellant, is a member of
the Police Force and he was responsible for
manipulating votes. It was alleged that booth
capturing took place. It was submitted that a
representation has been made before the State
Election Commission but the same has not received
the attention of the Commission.
The learned Judge disposed of the writ
application with the following directions :-
"Without going into the merits of the
allegations of the petitioners, as it
appears that a representation is pending
consideration before the State Election
Commission, accordingly, the instant writ
petition is disposed of by directing State
Election Commission to consider and
dispose of the representation filed by the
petitioners in accordance with law at the
earliest but positively within a period of
ten days from the date of communication
of this order.
A reasoned order shall be passed
and communicated to the petitioners
immediately thereafter.
The CCTV/Video footages and the
ballot papers in respect of the concerned
constituency shall be properly preserved
and be produced before the Court as and
when directed.
Learned advocate for the petitioners
is directed to forward a copy of the
representation dated 12th July, 2023
seeking consideration along with all
supporting documents to the aforesaid
respondent at the time of communicating
the order of the Court."
Being aggrieved, the successful candidate has
come up by way of this appeal.
Mr. Basu, learned senior counsel appearing for
the appellant says that the appellant was a necessary
party to the writ petition. She was not impleaded. In
any event, the writ petition is not maintainable in view
of the constitutional bar in Article 243-O of the
Constitution of India read with the relevant provisions
of the West Bengal Panchayat Election Act, 1979. Mr.
Basu also wanted to refer to decisions of the Hon'ble
Supreme Court in support of his case.
We are not inclined to enter into the merits of
the case. However, we are of the considered view that
the appellant herein is a necessary party to the writ
petition and justifiably may demand an audience
before the writ petition is disposed of.
Accordingly, only on the aforesaid ground, we
set aside the order under appeal and remand the
matter to the learned Single Judge having
determination to hear the writ petition keeping all
points open including the point of maintainability of
the writ petition. We request the learned Single Judge
to dispose of the writ petition by passing a fresh order
after granting an opportunity of hearing to the present
appellant.
Mr. Chatterjee, learned advocate for the writ
petitioners says that his clients shall add the present
appellant as a party respondent in the writ petition.
Since we have not called for affidavits, the
allegations contained in the stay application are
deemed not to be admitted by the respondents.
MAT 1432 of 2023 is disposed of along with the
application being I.A. No. CAN 2 of 2023.
Urgent certified photostat copy of this order, if
applied for, shall be given to the parties as
expeditiously as possible on compliance with all the
necessary formalities.
(Arijit Banerjee, J.)
(Apurba Sinha Ray, J.)
