Calcutta High Court (Appellete Side)
& Research Development And Others vs The State Of West Bengal And Others on 12 March, 2021
AD. 33
March 12, 2021.
MNS.
W. P. A. 6935 of 2021
(Via video conference)
Uluberia Rural Society for Care of Health
& Research Development and others
Vs.
The State of West Bengal and others
Mr. Sanjay Kumar Baid
... for the petitioners.
Mr. Dipayan Chaudhury,
Mr. Suvrodal Choudhury,
Mr. Souma Bhattacharya,
Mrs. Priyanka Chowdhury
...for the Election Commission of India.
Ms. Sonal Sinha
...for the WBSEC.
The present challenge has been preferred
by an educational institution against the
requisition of the school campus for being used
as a polling station or Dispersal/Reception
Centre(s) for the storage of Electronic Voting
Machines/Voters Verifiable Paper Audit Trail after
a poll has been taken or for counting of votes
{Counting Centre(s)}. Such notice was issued on
March 3, 2021 directing possession and control
over the premises to be handed over to the
authorized representative of the District
Magistrate and District Election Officer, Howrah
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on the very next date, that is, March 4, 2021.
Immediately thereafter, that is, on March 6, 2021,
the petitioners filed the present writ petition
challenging such requisition.
Learned counsel appearing for the
petitioners submits that the requisition would
pose serious health hazards, due to the resultant
contamination of the college premises and
sanitization issues in view of the COVID 19
pandemic, for the students and staff who have to
visit the premises for various purposes such as
using library and laboratory facilities, applying for
scholarship forms, attestation for student
concession, University and State Council
Registration Examination forms submission and
other administrative functions.
It is submitted that it would be impossible
to continue such functions in the event the
respondent-authorities take control and
possession of the school building.
It is further submitted that the respondent- authorities have started constructing strong rooms and other structures within the school premises, taking advantage of the impugned notice dated March 3, 2021.
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It is further submitted by learned counsel for the petitioners that as per the Instruction Serial no. 121 dated August 19, 2014 issued by the Election Commission of India, as contained in the Compendium of Instructions (Volume-I) of the Commission, the Election Commission directed that schools/educational institutions not to be used as EVMs warehouse and stationing and camping of police/security personnel for guarding the EVMs. However, in case of exigency, if EVMs are stored at any educational institution for counting of votes during elections, the premises of the educational institutions should be vacated immediately after completion of election process and in no case the premises of the educational institutions be used as EVMs warehouse. Further, by Instruction Serial no. 90 dated July 28, 2010, also issued by the Election Commission, as contained in the compendium of instructions (Volume-IV) issued by the Commission, the Commission took note of the fact that the District authorities requisitioned the premises of schools/college buildings for the purpose of setting up of polling station/counting centres and strong rooms for storage of EVMs and do not properly compensate for the damages to the 4 school authorities or do not keep in view the larger societal duties in view. Further, personnel on duty, it was observed, do not take attention to keep the premises clean, which may have an adverse impact on students or educational institutions. Accordingly, the Commission considered the matter and directed that the State/District authorities, before requisitioning schools/college buildings or any other building for the purpose of setting up of polling/counting centres, strong rooms for storage of polled EVMs, should keep larger societal duties in view and to explore the possibilities for the availability of other suitable alternative building/premises so that the educational institutions are least affected or the purpose for which the building has been constructed, keeping in view the larger societal needs, is not defeated. Accordingly, the District Election Officers were to personally take care of the aforementioned instructions before establishing counting centres and strong rooms for polled EVMs and ensure that larger societal duties are not forgotten or given complete go bye even where alternatives are available.
Learned counsel appearing for the respondent-authorities places reliance on the 5 judgment of Mohinder Singh Gill and another vs. Chief Election Commissioner, New Delhi and others, reported at (1978) 1 SCC 405, in support of the proposition that Article 329(b) of the Constitution of India is a blanket ban on litigative challenge to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result. Election, in such context, was given a very wide connotation by the Supreme Court.
Two limitations were laid down on the plenary character in the exercise of such power of the Election Commission.
Firstly, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission, shall act in conformity with, not in violation of, such provisions but where such law is silent Article 324 is a reservoir of power to act for the avowed purpose of, not divorced from, pushing forward a free and fair election with expedition. Secondly, the Commission, the Supreme Court held, shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice insofar as conformance to such canons can 6 reasonably and realistically be required of it as fair play-in-action in a most important area of the constitutional order, namely, elections.
Next placing reliance on the language of Article 329(b) of the Constitution of India, learned counsel for the respondent-authorities submits that no election to either house of Parliament or to the House or either House of the legislature of a State shall be called in question except by an election petition being presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature.
Learned counsel argues that, pursuant to the impugned notice, possession has already been taken and the EVM machines have commenced being stored within the college premises. In the event, at this belated juncture, any interim order is passed, the same will affect the election process, with regard to which there is a specific bar of interference by courts under Article 329(b) of the Constitution. Moreover, it is submitted that it would be next to impossible to shift the EVM machines and the entire personnel deployed in the college premises at this belated juncture.
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Controverting the contention of the petitioners that most of the class rooms and the staff room of the college premises have been occupied by virtue of the impugned notice by the respondent-authorities, learned counsel for the respondent-authorities submits that ample access have been left for the students and the teachers to access the college premises and the storage of EVM machines will not hamper the conduct of the functioning of the college at all.
A consideration of the ratio laid down in Mohinder Singh Gill (supra) cannot be read out of context. The questions before the High Court, from which the matter reached the Supreme Court, were formulated in the following lines:
"(1) Is Article 329(b) a blanket ban on all manner of questions which may have impact on the ultimate result of the election, arising between two temporal termini viz., the notification by the President calling for the election and the declaration of the result by the returning officer? Is Article 226 also covered by this embargo and, if so, is Section 100, R. P. A., 1951, broad enough to accommodate every kind of objection, constitutional, legal or factual, which may 8 have the result of invalidation of an election and the declaration of the petitioner as the returned candidate and direct the organisation of any steps necessary to give full relief?
(2) Can the Election Commission, clothed with the comprehensive functions under Article 324 of the Constitution, cancel the whole poll of a constituency after it has been held, but before the formal declaration of the result has been made, and direct a fresh poll without reference to the guidelines under Sections 58 and 64(a) of the Act, or other legal prescription or legislative backing. If such plenary powers exist, is it exercisable on the basis of his inscrutable 'subjective satisfaction' or only on a reviewable objective assessment reached on the basis of circumstances vitiating a free and fair election and warranting the stoppage of declaration of the result and the direction of a fresh poll not merely of particular polling stations but of the total constituency?
(3) Assuming a constitutionally vested capacity under Article 324 to direct 9 re-poll, is it exercisable only in conformity with natural justice and geared to the sole goal of a free, popular verdict if frustrated on the first occasion? Or, is the Election Commission immune to the observance of the doctrine of natural justice on account of any recognised exceptions to the application of the said principle and unaccountable for his action even before the Election Court?"
Even the ratio laid down in the said judgment, as summarized in paragraph 92 of the same, clearly indicates that the scope of consideration which fell before the Supreme Court was the conduct of elections and the scope of power of the Election Commission regarding such conduct.
However, the said judgment does not lay down any proposition on collateral consequences of the election process and/or other functions discharged by the concerned authorities as a prelude to the election process.
What was considered in the said judgment was the conduct of elections and the fair play involved therein, which is evident from the questions which were decided and the ratio laid down therein.
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As far as Article 329(b) of the Constitution of India is concerned, it is specifically with regard to the scope of the bar to interference by courts insofar as elections to either House of parliament or the legislature of a State, regarding which the said Article debars the courts from adjudicating.
In the present case, however, no election has been called in question at all, thereby keeping the present challenge outside the purview of operation of Article 329 of the Constitution. The grievance of the petitioners is only against the requisition, which has a direct adverse effect on the functioning of the college and, consequentially, the academic pursuit of the students.
As such, there is no question of the ratio of the judgment cited by the respondents and/or Article 329 of the Constitution having any bearing in the present matter. The power of judicial review conferred upon High Courts under Article 226 of the Constitution of India is otherwise untrammelled by fetters, since it is an essential component of the basic structure of the Constitution.
As far as the requisition is concerned, the impugned notice of requisitioning the premises 11 under Section 160 of the Representation of People Act, 1950 dated March 3, 2021 makes it evident that the college premises were requisitioned not merely for counting of votes during elections but for use of the premises as EVMs warehouse and stationing/camping of police/security personnel for guarding such EVMs. The specific purpose of the requisition, as clearly enumerated in the impugned notice dated March 3, 2021, pertains to the storage of EVMs and for being used as a polling station or dispersal/reception centre of EVMs. The guidelines issued by the Election Commission itself, as referred to above, (cited by the petitioners), dated July 28, 2010 and August 19, 2014 make it crystal clear that schools/educational institutions would not be used as EVMs warehouse and stationing/camping of police/security personnel for guarding the EVMs, which is an essential corollary of storage of EVMs.
Hence, the impugned notice, prima facie, squarely contravenes the guidelines of the Election Commission itself and is, thus, illegal.
That apart, the fundamental right of the students to have education is clearly violated by 12 the requisition of the college premises, which will hamper imparting education, taking examinations and other ancillary academic activities of the students.
The prompt manner in which the notification was issued on March 3, 2021 and possession was due to be taken on the very next date, leaving no scope for the petitioners to challenge the notification, itself reeks of mala fides on the part of the authorities. The respondent-authorities ought to have considered other options than requisitioning the premises of the educational institution-in-question for being used for the storage of EVM machines etc., as polling stations and for counting of votes, which will adversely affect the education of the concerned students beyond repair.
Hence, on the aforesaid strong prima facie case made out by the petitioners, this Court is compelled to pass an interim order, being fully conscious that the same may amount to granting the final relief, in view of the respondents having craved leave for filing affidavits in the matters.
Hence, the respondents are directed to file their affidavits-in-oppositions within three weeks 13 from date. Reply, if any, shall be filed within one week thereafter.
Till disposal of the writ petition, the operation of the impugned notice dated March 3, 2021, annexed at page 52 of the writ petition, shall remain stayed. All action taken by the respondent-authorities pursuant to the said notice, including taking possession of the college premises, storing EVM machines and deploying security personnel in the college premises, shall be reversed within a week from date and relocated to some alternative premises, as the District Magistrate and District Election Officer, Howrah, deems fit.
It is made clear that the aforesaid interim order is mandatory in nature and has to be strictly complied with by the respondent-authorities, as directed.
The respondents shall act on the communication by learned advocates for the parties and/or server copy of this order without insisting upon prior production of certified copies thereof.
The writ petition shall appear for hearing, fairly at the top of the list, on April 12, 2021.
(Sabyasachi Bhattacharyya, J.)