Calcutta High Court (Appellete Side)
Munsi Nazbul Karim vs The West Bengal State Election ... on 25 July, 2023
01. 25.07.2023
Court No.6
Tanmoy Ghosh
MAT 1339 of 2023
Munsi Nazbul Karim
-Versus-
The West Bengal State Election Commission & Ors.
With
IA No: CAN/1/2023
Mr. Anjan Bhattacharya, Adv.,
Ms. Anita Shaw, Adv.,
Ms. Salma Sultana, Adv.
...for the appellant.
Mr. Sonal Sinha, Adv.,
Mr. Tarun Kr. Chatterjee, Adv.,
Mr. Sujit Gupta, Adv.,
Mr. Sayan Datta, Adv.,
Mr. Soumen Chatterjee, Adv.
...for the West Bengal
State Election Commission.
Mr. Amal Kr. Sen, Ld. AGP.,
Mr. Jaladhi Das, Adv.
...for the State.
Affidavit of service filed in Court today be kept with
the records.
By consent of the parties, the appeal and the
connected application are taken up together for hearing.
This appeal is directed against a judgment and
order dated July 18, 2023, whereby the appellant's writ
petition being WPA 16771 of 2023 was disposed of.
The appellant contested the Panchayat General
Elections, 2023, held in the State of West Bengal, as a
candidate. He lost the Election.
The appellant approached the learned Single Judge
with the grievance, inter alia, that because of certain
irregular acts that the Presiding Officer committed,
about 500 votes had to be declared to be invalid. This
adversely affected the appellant since he lost only by a
margin of 343 votes. The further grievance of the
appellant was that the Ballot Box was not opened by the
Presiding Officer in the presence of the appellant or his
election agents/counting agents, as is mandated by Rule
87 of the West Bengal Panchayat Election Rules, 2006
(hereinafter referred to as 'the 2006 Rules'). Learned
Advocate for the appellant further submitted that Rule
88(3) of the 2006 Rules has also been flouted in the
present case. That sub-rule is to the effect that - "before
rejecting any ballot paper under sub-rule (2), the Presiding
Officer shall allow the candidate or his election agent, and
each counting agent present a reasonable opportunity to
inspect the ballot paper but shall not allow him to handle
it or any other ballot paper." Learned Advocate submitted
that this provision also was not followed.
The learned Single Judge, after hearing the
appellant's learned Counsel, was of the view that the
writ petitioner's grievance constitutes an election dispute
and, therefore, the remedy of the writ petitioner was to
file an election petition. The writ petition was disposed of
with the liberty to file election petition before the
appropriate forum.
Being aggrieved, the writ petitioner is before us by
way of this appeal.
We have heard Mr. Anjan Bhattacharya, learned
Advocate appearing for the appellant at some length.
Learned Counsel reiterated the submission that he had
made before the learned Single Judge which we have
recorded above.
Learned Advocate for the Election Commission
made a very short submission to the effect that the
proper remedy of the appellant is by way of an election
petition.
Having considered the submissions made on behalf
of the parties, we have no doubt in our mind that the
present writ petition is not maintainable and had been
rightly not entertained by the learned Single Judge. This
we say 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, 2003 (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
forum mentioned in that Section. The grounds on which
an election can be declared to be void are mentioned in
Sections 93 and 94 of the said Act.
In view of the above, we are of the considered
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 1339 of 2023 and the connected application being
IA No: CAN/1/2023, leaving it open for the appellant to
approach the appropriate forum, in accordance with law.
If the appellant does so within the prescribed time
period, the forum is requested to dispose of the
grievance of the appellant at the earliest without being
influenced by any observation in this order or in the
order of the learned Single Judge, impugned before us.
Parties shall act on the server copy of this order,
duly downloaded from the official website of the Court.
(Arijit Banerjee, J.)
(Apurba Sinha Ray, J.)
