Calcutta High Court (Appellete Side)
Taybur Rahaman vs Rasmina Khatun & Ors on 3 August, 2023
03.08.2023
Item No.05
Court No.6.
S. De
M.A.T. 1429 of 2023
With
I.A. No. CAN/1/2023
I.A. No. CAN/2/2023
Taybur Rahaman.
Vs
Rasmina Khatun & Ors.
Mr. Subhrangsu Panda,
Ms. Ina Bhattacharyya,
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.
The applicant says that he is the husband of the
successful candidate. The allegations in the
representation which the learned Single Judge has
directed the authorities to consider, are all against
him. He should have been made a party to the writ
petition and should have been heard before the writ
petition was disposed of.
Having heard learned counsel for the parties, we
are of the view that the applicant has locus standi to
maintain the proposed appeal. Accordingly, the
application is allowed.
I.A. No. CAN 1 of 2023 is, accordingly, disposed
of.
In re : MAT 1429 of 2023 & I.A. No. CAN 2 of
2023.
The writ petitioners approached the learned
Single Judge alleging that the appellant, a member of
the Police Force as well posted as a bodyguard of a
local MLA, was responsible for manipulating votes.
Several allegations were made against the appellant
including booth capturing. It was submitted that a
representation had been made before the State
Election Commission but the same had not received
the attention of the Commission.
The learned Judge disposed of the writ petition
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 present appellant has come
up before us.
It is submitted on behalf of the appellant that
since the allegations are directed against him, he
should have been impleaded as a party to the writ
petition. He should have been heard before the writ
petition was disposed of, albeit directing consideration
of the representation of the writ petitioners.
We are inclined to agree with the appellant.
Since the allegations and complaints made by the writ
petitioners are against the present appellant, we are of
the opinion that the appellant should be granted an
opportunity of hearing before any order is passed on
the writ application.
On the above ground alone and not entering into
the merits of the case at all, we set aside the order
under appeal and remand the mater to the learned
Judge having determination to hear the writ petition.
We add the appellant as a party respondent to the writ
petition. Learned advocate on record for the writ
petitioners shall carry out necessary amendment to
the cause title of the writ petition. We request the
learned Single Judge to decide the writ petition afresh
after granting an opportunity of hearing to this
appellant. We keep all points open including the point
of maintainability of 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 1429 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.)
