All India Trinamool Congress And ... vs The State Of Tripura And Others
2021 Latest Caselaw 1148 Tri

                                   Page 1 of 11




                         HIGH COURT OF TRIPURA
                           _A_G_A_R_T_A_L_A_
                            WP(C) No.836 of 2021
All India Trinamool Congress and another
                                                       ......Petitioner(s)

                                   VERSUS

The State of Tripura and others
                                                      ......Respondent(s)

For Petitioner(s)         :   Mr. Somik Deb, Sr. Advocate,
                              Mr. Sankar Lodh, Advocate,
                              Mr. Agnish Basu, Advocate,
                              Mr. Krishnendu Debnath,
                              Mr. Abir Baran, Advocate.
For Respondent(s)         :   Mr. S.S Dey, Advocate General,
                              Mr. D. Bhattacharya, G.A.,
                              Mr. P. Saha, Advocate,
                              Mr. S. Saha, Advocate,
                              Mr. Anujit Dey, Advocate.

   HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY
      HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

                               _O_ R_ D_ E_ R_
24/11/2021
(Indrajit Mahanty, CJ)

Heard Shri Somik Deb, learned senior counsel appearing for

the petitioners All India Trinamool Congress and another as well as Shri

S.S. Dey, learned Advocate General appearing on behalf of the State and

Shri D. Bhattacharya, learned Government Advocate appearing on behalf

of the State Election Commission.

This present writ petition came to be filed by the petitioners

All India Trinamool Congress and another seeking following reliefs :

(i) Issue Rule, calling upon the respondents and each one of

them, to show cause as to why a Writ of Certiorari and/or in

the nature thereof, for transmitting the records, lying with

them, for rendering substantive and conscionable justice to

the petitioners;

(ii) Issue Rule, calling upon the respondents and each one of

them, to show cause as to why a Writ of Mandamus and/or in

the nature thereof, for mandating/directing the respondents,

to make assessment of the booths/constituencies, for

conducting the Tripura Municipal Polls, scheduled on

25.11.2021 in a free and fair manner & categorize them

accordingly as „Sensitive & Highly Sensitive‟;

(iii) Issue Rule, calling upon the respondents and each one of

them, to show cause as to why a Writ of Mandamus and/or in

the nature thereof, for mandating/directing the respondents,

to forthwith install „Voter Verifiable Paper Audit Trail,

machines along with „Election Voting Machine‟ and also to

install Close Circuit Television Cameras in all the Polling

Booths/stations the polls scheduled to be held on 25.11.2021

for the ensuing Tripura Municipal Polls;

(iv) Call for the records appertaining to this petition;

(v) After hearing the parties, to please to make the Rule

Absolute in terms of ii & iii above;

(vi) Any other Relief(s) as to this Hon‟ble High Court may

deem fit and proper;

Learned senior counsel appearing for the petitioners

submitted that he has limited his submission for two specific reliefs.

(i) Directions to the State Election Commission to install

VVPAT machines for conducting of the present Municipal

election.

(ii) Directions to the State Election Commission to install

CCTV cameras in all polling booths, counting stations at the

Municipal Constituencies.

Pursuant to such submission advanced yesterday before this

Court the State Election Commission was called upon to file a counter

affidavit. Accordingly, an affidavit came to be filed by the State Election

Commission inter alia bringing on record the fact that the State Election

Commission had called for a meeting of all political parties and such

meeting was held on 21st October, 2021. It is asserted in the said affidavit

that the process of election earlier declared by the State Election

Commission was discussed and although representatives of the petitioner-

political party were also present at that meeting and had signed their

attendance at such meeting, no such objection has been raised in the

present petition nor any objection to such effect being made.

Learned Advocate General on the other hand appearing for

the State of Tripura submitted that the Municipal elections being held in

the State of Tripura are being conducted under the Tripura Municipal Act,

1994 under the aegis of the State Election Commission and the process of

election had already been declared by the State Election Commission vide

its notification dated 21st October, 2021 wherein it has been specifically

declared that Electronic Voting Machine (EVM) will be used in the

Municipal election of 2021.

In the affidavit of the State Election Commission it appears

that the State Election Commission had placed orders before the Election

Commission of India loaning altogether 1850 numbers of EVMs of ECIL

- Make (M2 Model BUs and corresponding M2 Model CUs) in favour of

the State Election Commission which are presently being used for the

purpose of conducting the Municipal elections. Accordingly, he submits

that the prayer of the petitioners insofar as VVPAT is concerned ought to

be rejected since the M2 Model BUs and CUs are not compatible with

VVPAT and therefore it is neither possible nor feasible on the part of the

State Election Commission to procure and install VVPATs as of date for

conduct of polling on 25.11.2021.

Shri Somik Deb learned senior counsel appearing for the

petitioners submitted that he is no longer pressing his prayer for

conducting election using VVPATs and is limiting his prayer to the issue

for directions to the State Election Commission to install CCTV cameras

as noted hereinabove.

In this respect, a further affidavit has been filed by the

petitioners highlighting the fact that by a notification of the Election

Commission of India dated 21.03.2014 for the conduct of General

elections to Lok Sabha and Legislative Assemblies specific directions

have been issued for setting up video cameras, still cameras and web

casting of critical polling stations and prayed for such directions to be

issued.

Apart from the above, the preliminary objections raised by

the learned Advocate General regarding maintainability of the present

writ petition on account of the scope of Article 243-ZG(b) to drew the

attention of the Court to a judgment of the Apex Court in case of State of

Goa and another versus Fouziya Imtiaz Shaikh and another reported in

(2021) 8 SCC 401. For the present purposes, paragraph 68 and all the

relevant sub-paragraphs thereof are reproduced herein below.

"68. A conspectus of the aforesaid judgments in the context of municipal elections would yield the following results :

68.1. Under Article 243-ZG(b), no election to any municipality can be called in question except by an election petition presented to a Tribunal as is provided by or under any law made by the Legislature of a State. This would mean that from the date of notification of the election till the date of the declaration of result a judicial hands-off is mandated by the non-obstante clause contained in Article 243-ZG debarring the writ court under Articles 226 and 227 from interfering once the election process has begun until it is over. The constitutional bar operates only during this period. It is therefore a matter of discretion exercisable by a writ court as to whether an interference is called for when the electoral process is "imminent" i.e, the notification for elections is yet to be announced.

68.2 If, however, the assistance of a writ court is required in subserving the progress of the election and facilitating its completion, the writ court may issue orders provided that the election process, once begun, cannot be postponed or protracted in any manner.

68.3. The non-obstante clause contained in Article 243-ZG does not operate as a bar after the election tribunal decides an election dispute before it. Thus, the jurisdiction of the High Courts under Articles 226 and 227 and that of the Supreme Court under Article 136 of the Constitution of India is not affected as the non-obstante clause in Article 243-ZG operates only during the process of election.

68.4 Under Article 243-ZA(1), the SEC is in overall charge of the superintendence, direction and control of the preparation of electoral rolls, and the conduct of all municipal elections. If there is a constitutional or statutory infraction by any authority including the State Government either before or during the election process, the SEC by virtue of its power under Article 243-ZA(1) can set right such infraction. For this purpose, it can direct the State Government or other authority to follow the Constitution or legislative enactment or direct such authority to correct an order which infracts the constitutional or statutory mandate. For this purpose, it can also approach a writ court to issue necessary directions in this behalf. It is entirely upto the SEC to set the election process in motion or, in cases where a constitutional or statutory provision is not followed or infracted, to postpone the election process until such illegal action is remedied. This the SEC will do taking into account the constitutional mandate of holding elections before the term of a municipality or municipal council is over. In extraordinary cases, the SEC may conduct elections after such term is over, only for good reason.

68.5. Judicial review of a State Election Commission‟s order is available on grounds of review of administrative orders. Here again, the writ court must adopt a hands-off policy while the election process is on and interfere either before the process commences or after such process is completed unless interfering with such order subserves and facilitates the progress of the election.

While relying on the above, he essentially highlighted the

fact in paragraph 68.2 as noted hereinabove. He insists that the petitioner

can approach the writ court for the purpose of subserving the progress of

the election and facilitating its completion, the writ court may issue

orders provided that the electoral process once begun cannot be

postponed or protracted in any manner. In other words, it is submitted on

behalf of the petitioners that in spite of the bar under Article 243-ZG(b) in

the circumstances noted in paragraph 68.2 of the said judgment, the

petitioner is not seeking any stay of the proceedings of election but is

seeking a direction which will subserve the progress of the election and

facilitate its completion in a fair and transparent manner. In the light of

the submission as summarized hereinabove, it is most important for this

Court to take into consideration the fact that the petitioner i.e. All India

Trinamool Congress has approached the Hon‟ble Supreme Court of India

in Writ Petition(Criminal) No.455 of 2021 and vide order dated

11.11.2021 the Hon‟ble Supreme Court in paragraph 1 of the said order

has recorded as under :

"1.The jurisdiction of this Court under Article 32 of the Constitution has been invoked in the backdrop to the elections which are to take place to a Municipal Corporation, thirteen Municipal Councils and six Nagar

Panchayats in the State of Tripura on 25 November, 2021. The election process commenced on 22 October, 2021."

It would also be relevant to note herein that the said petition

made by the petitioners before the Hon‟ble Apex Court under Article 32

of the Constitution is still pending consideration. It is further brought to

the Court notice that the petitioners had also moved a contempt petition

before the Hon‟ble Supreme Court of India which was numbered as

Contempt Petition (C) No.884 of 2021 and the Hon‟ble Supreme Court in

its order dated 23.11.2021 after considering the submissions made by the

petitioners and the respondents issue various directions and in particular

directed the State to file a compliance affidavit before the Hon‟ble

Supreme Court elaborating the steps which have been taken to (a)

preserve law and order; (b) to ensure security for social workers, voters

and contesting candidates; (c) protect the electoral process leading up to

the counting of votes and the declaration of the results. Para 10 of the said

order reads as follows :

"10.When a compliance affidavit is filed before this Court, it shall contain a detailed elaboration of the steps which have been taken to (a) preserve law and order; (b) to ensure security for social workers, voters and contesting candidates; (c) protect the electoral process leading up to the counting of votes and the declaration of the results; and (d) deal with criminal offenders in accordance with law."

In the light of the facts as enumerated hereinabove a peculiar

situation arises in the present case. The petitioner has approached the

Hon‟ble Supreme Court under Article 32 of the Constitution in the

backdrop of the elections which are to take place through Municipal

Corporation, certain municipal councils and six nagar panchayats in the

State of Tripura on 25.11.2021 and it also took note of the fact that the

election process has commenced on 22.10.2021. Admittedly, the matter

remains pending consideration before the Hon‟ble Apex Court. Since

such a matter under Article 32 of the Constitution is pending before the

Apex Court an important issue arises is as to whether a party who has

approached the Hon‟ble Supreme Court under Article 32 of the

Constitution and while such a matter is pending consideration before the

Apex Court, the question is whether the High Court can exercise its

jurisdiction under Article 226 relatable to the conduct of the selfsame

election i.e. the Municipal election which is scheduled to be held on

25.11.2021. This Court is of the considered view that there is every

possibility of a conflict of exercise of jurisdiction and therefore as advised

by the Hon‟ble Supreme Court from time to time, writ jurisdiction in such

circumstances should be guardedly approached. In other words, merely

because the petitioners claim that they have made distinct and separate

prayers than the prayers made in their application under Article 32 before

the Hon‟ble Apex Court or the High Court to proceed to hear the matter

on its own merits, in our considered view, as noted hereinabove, this

Court is of the clear opinion that the Hon‟ble Supreme Court is in session

of the matter and both the orders passed by the Hon‟ble Supreme Court

while issuing notice in the matter under Article 32 as well as in the

contempt petition has issued specific directions to ensure far and

transparent elections and further the State is under directions of the

Hon‟ble Apex Court to file compliance before it.

While it is settled law that jurisdiction under Articles 32 and

226 of the Constitution are concurrent and it is open for the person

aggrieved to seek adjudication under either of the provisions, yet a party

having chosen one option i.e. Article 32 of the Constitution cannot

simultaneously seek to file another petition under Article 226 and seek to

pursue this petition merely on the ground that different prayers have been

made. Therefore, since the petitioner has exercised the option to approach

the Hon‟ble Supreme Court under Article 32, this Court refrains from

exercising its jurisdiction under Article 226 especially since the matter

remains pending consideration before the Apex Court.

Shri Deb, learned senior counsel for the petitioners

submitted that when the matter was taken up before the Hon‟ble Apex

Court yesterday i.e. on 23.11.2021 counsel appearing for the petitioners

before the Apex Court is stated to have submitted before the Hon‟ble

Apex Court that the present writ petition was pending before this Court

and relatable to the specific prayers for conducting election using

VVPAT machines as well as for CCTV cameras. Without questioning the

statement made by the learned counsel for the petitioners in any manner

yet on perusal of the order passed on 23.11.2021 by the Hon‟ble Apex

Court in the contempt proceedings initiated by the petitioners, no liberty

has been granted by the Hon‟ble Apex Court even if such statement was

made. Consequently, we are of the considered view that this Court cannot

proceed on the hypothesis that such a liberty has been granted and

therefore we desist from exercising jurisdiction over the matter.

Accordingly, the writ petition stands dismissed. Pending

application(s), if any, also stands disposed of.

(S.G. CHATTOPADHYAY), J                         (INDRAJIT MAHANTY), CJ




Dipesh