Calcutta High Court (Appellete Side)
Jasminara Khatun vs The Secretary Of West Bengal ... on 4 August, 2023
04.08.2023
Item No.03
Court No.6.
S. De
M.A.T. 1372 of 2023
With
I.A. No. CAN/1/2023
Jasminara Khatun.
Vs
The Secretary of West Bengal Election Commission
& Ors.
Mr. Sarthak Burman,
...for the appellant.
Mr. Anuran Samanta,
...for the respondent no.3.
Mr. Lalit Mohan Mahato,
Mr. Ziaul Haque,
...for the State.
Ms. Sonal Sinha,
Mr. Tarun Kr. Chatterjee,
Mr. Sujit Gupta,
Mr. Sayan Datta,
Mr. Soumen Chatterjee
...for the WBSEC.
This appeal is directed against a judgment and
order dated July 18, 2023, whereby the appellant's
writ petition being WPA 16792 of 2023 was dismissed
by a learned Single Judge of our Court.
The appellant approached the learned Single
Judge alleging certain irregularities committed by the
Presiding Officer. The appellant was a candidate in
the recently conducted Panchayat Elections from
Ellahabad Gram Panchayat. She lost the election.
Learned advocate for the appellant drew our
attention to Form No.18 (page 41 of the stay
application) and submitted that 1,220 ballot papers
were received. 276 ballot papers were unused.
Therefore, 944 ballot papers were used. However, no
ballot paper was cancelled. This is a gross
irregularity. Learned Single Judge dismissed the writ
petition with the following observations :-
"From the submission made on
behalf of the petitioner, the Court
cannot be convinced that the 125
ballot papers which were found
to be not signed by the Presiding
Officer was actually issued by
the Presiding Officer at the time
of the election. The same can be
ascertained on taking evidence
only if an election petition is
filed.
In view of the above, no relief
can be granted in the instant
case."
We have heard learned counsel for the appellant.
We have not called upon the respondents to make
submission.
Having considered the submissions made on
behalf of the appellant, we are of the considered
opinion that the present writ petition is not
maintainable and has been rightly dismissed by the
learned Single Judge. This is because Article 243-O(b)
of the Constitution of India provides that - "no election
to any Panchayat shall 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." (emphasis is ours)
The West Bengal State Legislature has enacted the
West Bengal Panchayat Elections Act, 2023
(hereinafter referred to as the 'said Act'). Section 79 of
the said Act provides for resolution of election disputes
by filing election petition before the prescribed forum.
The grounds on which an election can be declared to
be void are enumerated in Sections 93 and 94 of the
said Act.
In view of the above, we are of the opinion that
there is a Constitutional bar to the maintainability of
any proceeding other than an election petition for
challenging an election dispute. Hence, without going
into the merits of the grievance of the appellant/writ
petitioner, we dismiss the appeal being MAT 1372 of
2023 and the connected application being I.A. No.
CAN/1/2023, leaving it open for the appellant to
approach the appropriate forum, in accordance with
law. If the appellant approaches the appropriate
forum within the prescribed time period, that forum is
requested to dispose of the grievance of the appellant
at the earliest without being influenced by any
observation made in this order or in the order of the
learned Single Judge which is impugned before us.
Since we have not called for affidavits, the
allegations contained in the stay application are
deemed not to be admitted by the respondents.
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.)
