Calcutta High Court (Appellete Side)
Kalimuddin Saikh @ Sk. Kalimuddin vs The State Of West Bengal & Ors on 19 June, 2023
SL 02
19.06.2023
d.p.
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
W.P.A 14477 of 2023
Kalimuddin Saikh @ Sk. Kalimuddin
-versus
The State of West Bengal & Ors.
Mr. Biswaroop Bhattacharyya,
Mr. Golam Mohinddin.
...For the Petitioner.
Mr. Samrat Sen,
Mr. Sirsanya Bandopadhyay,
Mr. Arka Kumar Nag.
...For the State.
Ms. Sonal Sinha,
Mr. Asish Dutta,
Mr. S. Samanta,
Mr. Sayan Datta,
Mr. Soumen Chatterjee.
...For Election Commission.
The present writ petition has been filed by one
Kalimuddin Saikh @ Sk. Kalimuddin claiming himself
to be the All India President of Indian National
Socialistic Action Forces (INSAF), Amua, Sainthia,
Birbhum.
The petitioner also claims himself to be the leader
of the prospective candidates of the aforesaid party
intending to contest the upcoming election of the Gram
Panchayats and Panchayat Samities of West Bengal.
The allegation of the petitioner is that the worker
and supporters of the party desirous of filing their
2
nominations for the Panchayat Election reached the
office of Sainthia Block Development Office at 2 P.M. on
15th June, 2023.
All the intended candidates wanted to file the
nomination as candidate for the post of Gram
Panchayat, Panchayat Samity and the Zilla Parishad.
Allegation is that hooligans supported by the
ruling party members forcibly restrained them and
ousted them from the office of the premises and also
brutally assaulted them.
The petitioner alleges that despite reaching the
office on time the dealing officers refused to receive
their nominations and tired to discourage them from
filing their nominations. At around 3 P.M. a large group
of people led by the leader of the ruling political party
and the anti-social elements associated with the ruling
political party entered the room where the candidates of
the petitioner were filing their nominations and the said
candidates were abused using filthy language and
threatened of murder.
The election officials on duty failed to come to the
rescue of the candidates of the petitioner.
It has been submitted that the fundamental right
to contest the election has been taken away forcibly in
view of the action of the ruling party members.
Reliance has been placed on the order passed by
this Court on 16th June, 2023 in WPA 14333 of 2023
(Dr. Archana Majumdar -vs- The State of West Bengal
& Ors.) wherein the Court permitted filling of
3
nominations after the last date for filing the nomination
was over.
It has been submitted that the Court ought to
come to the rescue of the petitioner's candidates and
permit them to contest the same, more so because the
last date for withdrawal of the candidature is yet to be
over.
The State respondents oppose the said
application.
It has been pointed out that paragraph nos. 10,
11 and 12 which are the bedrock of filing the present
writ petition has not been affirmed either true to
knowledge or upon information derived from the
records.
It has been submitted that the petitioner has
intentionally and deliberately not affirmed the said
paragraph as the petitioner does not intend to take the
responsibility of the averments made therein.
The locus standi of the petitioner in filing the writ
petition has also been questioned.
It has been submitted that the petitioner himself
is not an intending candidate. He claims to be the
representative of INSAF.
It has been contended that the writ petition has
not been filed in the form of a Public Interest Litigation
and, accordingly, the writ petition filed by the petitioner
in his individual capacity is liable to be dismissed with
exemplary costs.
Learned advocate appearing for the Election
Commission submits, upon instructions that, the
political party whom the petitioner represents is not a
recognized one. The last date for filing the nomination
is long over that is 15th June, 2023. The date for
scrutiny of the nomination is also over, i.e. 17th June,
2023.
At this stage allowing the prayer of the petitioner
will disturb the entire election schedule.
The respondents pray for dismissal of the writ
petition.
In reply to the submission made by the learned
advocate appearing for the Commission that the
political party of the petitioner is not a recognized one
learned advocate appearing for the petitioner refers to
the communication dated 8th June, 2023 made by the
District Panchayat Election Officer and District
Magistrate, Birbhum addressed to the political party
wherein the President/Secretary of the political party
was requested to attend the meeting to be held on 9th
June, 2023 in connection with the Panchayat General
Election, 2023.
I have heard the submissions made on behalf of
all the parties.
The notification dated 9th June, 2023 published
by the West Bengal State Election Commission sets out
the dates for the various stages of the election.
15th June, 2023 was the last date for filing the
nomination, 17th June, 2023 was the date for scrutiny
of nominations, 20th June, 2023 is the last date for
withdrawal of candidature and 8th July, 2023 is the
date of the election.
It appears from the said timeline that the last
date for filing the nomination and the date for scrutiny
of nominations are over. Tomorrow is the last date for
withdrawal of the candidature.
At this stage, whether it will be permissible to
extend the time for filing the nomination is required to
be answered.
It appears that a Public Interest Litigation being
WPA (P) 250 of 2023 (Sri Dipankar Rit -vs- State of
West Bengal & Ors.) along with two other Public
Interest Litigations were heard and disposed of by the
Hon'ble Division Bench taking up PIL matters presided
over by the Hon'ble Chief Justice and judgment was
delivered on 13th June, 2023 wherein the Court was of
the opinion that if there is any reasonable
apprehension of prevention of or obstructions to
making of nomination and/or there has been any
alleged obstruction, the aggrieved party has to take
recourse to provision laid down under sub-Section 2 of
Section 46 of the Panchayat Elections Act, 2003.
The Court specifically recorded that writ of
Mandamus cannot be issued to compel statutory
authority to act de hors the provisions of the relevant
statute. The Court refrained from passing any direction
upon the State Election Commission directing
acceptance of nomination papers either by the
Commission or permit filing of nominations before the
concerned District Magistrate as prayed for by the writ
petitioner.
The Court recorded that the Act empowers the
Commission to extend the last date for filing
nominations for a day under the contingencies
mentioned in the Act itself and the aggrieved person
ought to take action in accordance with the said
provision.
In the present case, allegation is that on 15th
June, 2023 the workers and supporters of the party
desirous of filing their nominations reached the office of
the BDO at 2 P.M.
It is noticed that 15th June, 2023 was the last
date for filing the nominations. The notification was
published by the State Election Commission on 9th
June, 2023.
Had the members of the petitioner's party been so
interested to contest the Panchayat Election, they ought
to have taken steps immediately upon publication of
the notification.
Assuming that they reached the BDO's office on
15th June, 2023 and were restrained from filing their
nominations, the said members ought to have
approached the Court in proper time.
Today on 19th June, 2023, after the date of filing
nomination is over and the date of scrutiny of
nominations is also over it may not be proper for the
writ court to issue a writ of Mandamus commanding
the respondent authority to accept nomination or to
permit the intending candidates to file their
nominations.
Similar prayer appears to have not been accepted
by the Hon'ble PIL Bench.
In this connection as reference has been made to
the order dated 16th June, 2023 passed by this Court in
the matter of Dr. Archana Majumdar (supra), be it
recorded that the said order was passed as the
petitioner in the said writ petition approached the
Court immediately after the date of filing the
nomination was over i.e. on the 16th June, 2023 and as
there was a submission recorded on the part of the
Election Commission that a day could have been
extended for filing the nomination, accordingly, the
candidates were permitted to file their nominations only
by the 16th June, 2023 and not thereafter.
In view of the above, there is hardly any scope to
exercise jurisdiction in the matter.
Learned advocate appearing for the petitioner
refers to a communication allegedly forwarded through
electronic mail to the State Election Commission on
16th June, 2023 at 12.35 P.M. forwarding documents in
support of the submission that candidates were
restrained and obstructed from filing the nominations
within the prescribed time period.
Learned advocate appearing for the petitioner
submits that the same may be taken as compliance in
accordance with the provisions of Section 46(2) of the
Act, 2003.
Reference has also been made to paragraph 39 of
the judgment passed in the matter of Sri Dipankar Rit
(supra) wherein the Court expressed the view that an
aggrieved person may take recourse to Section 46(2) of
the Act.
The State Election Commission may take a
decision in response to the electronic mail allegedly
forwarded by the petitioner on 16th June, 2023 at 12.35
P.M.
Decision shall be taken by the Election
Commission at the earliest but positively by 5 P.M.
today.
The writ petition stands disposed of.
Urgent certified photocopy of this order, if applied
for, be supplied to the parties expeditiously on
compliance of usual legal formalities.
( Amrita Sinha, J.)
