Rajesh Mondal vs Tijendranath Mahato & Ors
2023 Latest Caselaw 7134 Cal

   D/L
Item No. 21
16.10.2023
  KOLE
                                 MAT 2074 of 2023
                                      With
                                IA No. CAN 1 of 2023

                                Rajesh Mondal
                                    -Vs.-
                          Tijendranath Mahato & Ors.

              Mr. Kalyan Kumar Bandopadhyay, Sr. Adv.
              Mr. Suman Sengupta,
              Mr. Rahul Kumar Singh,
                                                   ... for the appellant.

              Mr. Pratik Dhar, Sr. Adv.
              Mr. Koustav Bagchi,
              Ms. Priti Kar,
              Ms. C. Roy,
              Mr. D. Ghosh,
                                 ... for the respondent no. 1/writ petitioner.

Mr. Joydip Kar, Sr. Adv., Mr. Sonal Sinha, Mr. Avishek Prasad, ... for the respondent nos. 6 and 7.

A judgment and order dated October 11, 2023,

whereby the writ petition of the respondent no. 1 herein,

being WPA 16670 of 2023, was disposed of by a learned

Single Judge of this Court, is the subject matter of challenge

in this appeal, at the instance of the respondent no. 6 in the

writ petition.

The writ petitioner (hereinafter referred to as

Tijendranath) and the present appellant (hereinafter

referred to as Rajesh), were both candidates in the

Panchayat General Elections, 2023, contesting for a

Panchayat Samity seat. It appears that after counting of the

votes, it was announced that Tijendranath won by six votes.

It further appears that a recounting was held on a demand

being made by Rajesh. Upon such recounting, it appears

that Tijendranath was declared to have lost to Rajesh by 105

votes. Rajesh was declared to be elected. Tijendranath,

accordingly, approached the learned Single Judge with the

present writ petition, praying for, inter alia, the following

reliefs:-

"(b) A Writ in the nature of Mandamus commanding the Respondents their men, agents, subordinates and each of them to forthwith direct the Respondent no. 2 herein to forthwith conduct an independent enquiry pursuant to the allegations levelled;

(c) A Writ in the nature of Mandamus commanding the Respondents their men, agents, subordinates and each of them to forthwith direct the respondent no. 2 herein to forthwith call for the CCTV and/or videography footages of the Counting center and counting table pursuant to the counting of the Panchayat Samiti seat No. 11 Maru Mosina Anchal, Block - Jhalda - I;

(d) A Writ in the nature of Mandamus commanding the Respondents their men, agents, subordinates and each of them to forthwith direct the respondent no. 5 herein to furnish a detailed report on the veracity of the allegations as would be evident from Annexure "P-2";

(e) A Writ in the nature of Certiorari directing the Respondents, their men, agents, subordinates and each one of them to forthwith transmit, certify and produce all the relevant papers, documents and records before this Hon'ble Court in original pertaining to this case so that after perusing the same a conscionable justice may be done to your petitioner;"

After a lengthy hearing, the learned Single Judge, by

the judgment and order assailed in this appeal disposed of

the writ petition by setting aside the recounting process.

Being aggrieved, Rajesh has come up before us by way of this

appeal.

At the very outset, Mr. Bandopadhyay, learned Senior

Advocate, representing Rajesh submitted that the writ

petition is not maintainable. There is a constitutional bar to

the maintainability of a writ petition challenging the validity

of an election. He further submitted that disputed facts are

involved in this case which the writ court cannot

conveniently decide. Further, there is an alternative

efficacious remedy in the form of filing of election petition

under the West Bengal Election Act, 2003 read with the

Rules of 2006 framed thereunder. He further submitted that

there is nothing wrong with the Panchayat Returning Officer

(PRO) holding the recounting process and in the facts and

circumstances of the case, given that after the initial

counting it was found that Rajesh had lost by a very narrow

margin of six votes, but it was entirely proper and reasonable

for the PRO to undertake a recounting process. It was

finally submitted that there was no prayer in the writ

petition for setting aside the recounting process and the

impugned order is beyond the scope of the writ petition.

Mr. Kar, Learned Senior Advocate, representing the

State Election Commission submitted that the recounting

process was held properly following the applicable rules. It

was held before the result was declared. He also contended

that the writ petition is not maintainable.

Mr. Dhar, Learned Senior Advocate, representing

Tijendranath, the writ petitioner, submitted that in the

instant case, no disputed facts are involved. No enquiry into

any such fact may be necessary. He referred to the counting

guidelines and submitted that no demand for recounting can

be made after the Result Sheet is complete and signed by the

Counting Officer or the Returning Officer as the case may be.

He then referred to Rule 91 of the West Bengal Panchayat

(Election) Rules, 2006 and in particular sub-Rules 1, 2 and 3

thereof, which read as follows:-

"R. 91. Recount of votes polled._ (1) After the completion of the counting, the Presiding Officer shall record in the counting sheets in Forms 19, 19A and 20 the total number of votes polled by each candidates, and announce the same.

(2) After such announcement has been made, the Presiding Officer shall give a little pause when a candidate or in his absence, his election agent or his counting agent may apply in writing to the Presiding Officer for a recount of the votes either wholly or in part stating the grounds on which he demands such recount.

(3) If there is no demand for recount from anybody present during the aforesaid pause, the Presiding Officer shall sign the completed counting sheets in Forms 19, 19A and 20, as the case may be, and no demand for recount shall be entertained thereafter."

Referring to the aforesaid Rules, Mr. Dhar submitted

that the demand for recounting was not made within the

time period prescribed in the Rules. Hence, no recounting

exercise could have been undertaken by the PRO.

We have anxiously considered the rival contentions of

the parties. We are at an ad interim stage. We are of the

view that the appeal needs to be heard out.

Article 143-O of the constitution of India, as we read

it, prima facie appears to be bar to the maintainability of a

writ petition challenging an election process. There are

judgments gallore on this point. Some of the judgments do

say that if a writ petition does not tend to stall the election

process but is filed to advance the cause of a free and fair

election, the same may not be barred. The other decisions

are to the effect that there shall be no interference with the

election process by the writ court. The only manner in which

an election can be called in question is by way of an election

petition before the appropriate forum after completion of the

election process.

We are, prima facie, of the view that the appellant has

an arguable point that the writ petition may not be

maintainable. We are also of the view that the balance of

convenience requires that no further effect be given to the

learned Single Judge's order till we decide the appeal. We

are told that after Rajesh was declared to be the successful

candidate on the basis of recounting, he has assumed office,

upon taking oath, as a member of the concerned Panchayat

Samity. We clarify that such assumption of office by Rajesh

shall abide by the decision in the appeal and in the event the

appeal fails, legal consequences will follow.

The writ petition was disposed of by the learned

Single Judge without calling for affidavits. The contention of

Rajesh is to be found in the stay petition that is filed in this

appeal. It is only appropriate that an opportunity should be

granted to the respondents in the appeal to deal with the

averments made in the stay petition. Let affidavits in

opposition to the stay petition be filed by 06.11.2023. Copies

of such affidavits shall be made available to learned Advocate

on record for the appellant by that date. Reply thereto, if

any, be filed by 20.11.2023 with copies to learned Advocates

for the respondents.

Requisite number of paper books be filed by the

appellant, containing all papers that were available before

the learned Single Judge including the reports filed by

officers in the administration and also the stay petition filed

in this appeal and the affidavits to be filed in connection

therewith. All formalities are dispensed with. Since all the

respondents are represented, notice of appeal is deemed to

have been waived. The affidavits in connection with the stay

petition will, therefore, be completed by 20.11.2023. The

paper books be filed by 04.12.2023.

We clarify that all observations made in this order are

prima facie and made only for the purpose of considering

the issue of interim order.

List the matter once again on 04.12.2023 under the

heading 'Specially Fixed Matters'.

The stay application being IA CAN 1 of 2023 is,

accordingly, disposed of.

Urgent photostat certified copy of this order be

supplied to the parties, if applied for, as early as possible.

(Arijit Banerjee, J.)

(Apurba Sinha Ray, J.)