Calcutta High Court (Appellete Side)
Urgen Lama vs State Of West Bengal & Ors on 12 September, 2024
Author: Hiranmay Bhattacharyya
Bench: Hiranmay Bhattacharyya
12.09.2024
Item No.09
PG/KS
Ct. No.1
W.P.A.(P) 361 of 2024
Urgen Lama
Versus
State of West Bengal & Ors.
Mr. Anand Bhandari
Mr. Panthu Rai
Ms. Shalini Saha ..............for the petitioner
Mr. Saptanshu Basu
Ms. Sonal Sinha ...............for the State Election
Commission
1. This writ petition, styled as a public interest litigation,
flags a very important issue i.e. non-conduct of election
relating to the three Municipalities in the State of West
Bengal. The petitioner is a resident of Kurseong and the
last election for the Municipalities in Kurseaong,
Kalimpong and the notified area of Mirik was held on
May 14, 2017. The period of five years expired in April,
2022.
2. The petitioner would state that the process of holding
elections were initiated in 2022 but were abruptly
stopped for the reasons best known to the respondents.
In this regard copies of memoranda dated March 31,
2022, April 28, 2022 and April 16, 2022 were referred
to by the learned advocate for the petitioner.
3. The grievance expressed by the petitioner is fully
justified and there can be no quarrel to the legal
position that elections have to be conducted as per the
Constitutional mandate.
4. The answering respondents would be the
State/respondents, who is not represented today. The
West Bengal State Election Commission has been
represented by the learned senior advocate.
5. At this juncture, it will be beneficial to refer to the
decision of the Hon'ble Supreme Court in Kishan Singh
Tomar v. Municipal Corporation of the City of
Ahmedabad & Ors. : Case No. Appeal (Civil) 5756 of
2005 dated October 19, 2006. The said appeal before
the Hon'ble Supreme Court was directed against the
judgment of the Division Bench of the High Court of
Gujarat. The appellant therein filed a writ of Mandamus
to direct the respondents in the writ petition viz. the
Municipal Corporation of the City of Ahmedabad and
the Gujarat State Election Commission to take steps
necessary for the purpose of holding elections for
constituting the Municipal Corporation of the City of
Ahmedabad before the expiry of the duration of the
Municipal Corporation constituted pursuant to the
elections held in October, 2000. The Hon'ble Supreme
Court while dealing with the said appeal, took note of
Article 243U of the Constitution of India, which deals
with duration of the Municipalities etc. Sub-Article (3)
of Article 243U has two sub-clauses (a) and (b). It states
that an election to constitute a Municipality shall be
completed,-----(a) before the expiry of its duration
specified in clause (1) of Article 243U, which is five
years; and (b) before the expiration of a period of six
months from the date of dissolution.
6. After referring to the other Constitutional provisions,
the Hon'ble Supreme Court held as follows:
".........In our opinion, the entire provision in
the Constitution was inserted to see that there
should not be any delay in the constitution of the
new Municipality every five years and in order to
avoid the mischief of delaying the process of
election and allowing the nominated bodies to
continue, the provisions have been suitably added
to the Constitution. In this direction, it is necessary
for all the State governments to recognize the
significance of the State Election Commission,
which is a constitutional body and it shall abide
by the directions of the Commission in the same
manner in which it follows the directions of the
Election Commission of India during the elections
for the Parliament and State Legislatures. In fact,
in the domain of elections to the Panchayats and
the Municipal bodies under the Part IX and Part
IXA for the conduct of the elections to these bodies
they enjoy the same status as the Election
Commission of India."
7. The Hon'ble Supreme Court has pointed out, it is
necessary for all the State Governments, which
includes the State of West Bengal to recognise the
significance of the State Election Commission, which is
a Constitutional body and it shall abide by the
directions of the Commission in the same manner in
which it follows the directions of the Election
Commission of India during the elections for the
Parliament and State Legislatures.
8. Further, it was pointed out that the entire provision in
the Constitution was inserted to see that there should
not be any delay in the constitution of the new
Municipality for every five years and in order to avoid
the mischief of delaying the process of election and
allowing the nominated bodies to continue, the
provisions have been suitably added to the
Constitution.
9. Despite the Constitutional mandate and the
observations of the Hon'ble Supreme Court in the
aforementioned decision, we find that the State of West
Bengal has not taken any action to hold elections and
form new Board of Councillors for Kurseong, Kalimpong
Municipalities and Mirik notified area. In this regard,
the petitioner has submitted a representation. Though
the representation is a brief representation, it contains
all the necessary inputs for the authorities to act.
10. Therefore, at this juncture, instead of issuing any
positive direction, we direct the 1st respondent viz. the
Principal Secretary, Department of Urban Development
and Municipal Affairs, State of West Bengal to consider
the representation dated June 28, 2024 submitted by
the petitioner through Speed Post and received by the
authorities on July 1, 2024 and take proper and legal
decision bearing in mind the Constitutional mandate
and the decision of the Hon'ble Supreme Court, referred
to above.
11. We hope and trust that appropriate decision will be
taken by the State of West Bengal in consultation with
the State Election Commission, as the Hon'ble Supreme
Court has pointed out the importance of holding
elections before expiry of the term of office of the elected
bodies and in this case, the term of office of the elected
body expired in April 2022 and it is high time the State
notifies the election to be conducted.
12. The above direction shall be complied with by the 1st
respondent within six weeks from the date of receipt of
server copy of this order and the authority, while
considering the representation, should also take note of
the mandate under section 12 of the West Bengal
Municipal Act, 1993.
13. With the aforesaid directions, the writ petition is
disposed of.
14. No costs.
15. Urgent photostat certified copy of this order, if
applied for, be furnished to the parties expeditiously
upon compliance of all legal formalities.
(T.S SIVAGNANAM)
CHIEF JUSTICE
(HIRANMAY BHATTACHARYYA, J.)
