Calcutta High Court (Appellete Side)
Bharatiya Janata Party vs The State Of West Bengal & Ors on 28 January, 2020
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
1 28.01.2020
.
Item no. 21.
Court No. 14ap W.P. No. 1554 (W) of 2020 Bharatiya Janata Party Versus The State of West Bengal & Ors.
Mr. Smarjit Roy Chowdhury, Mr. Ajit Kumar Mishra, Mr. Indrajit Chatterjee.
..For the petitioner.
Mr. Nayan Chand Bihani, Ms. Papiya Banerjee Bihani.
...For the West Bengal State Election Commission.
Mr. Kishore Datta, ld. Advocate General, Mr. Sirsanya Bandopadhyay.
...For the State.
The writ petitioner is a political party and has challenged the process of Election to be held to the Howrah Municipal Corporation.
The specific issue urged is that after publication of a draft order, in terms of Rules 3 and 4 of the West Bengal Municipal Elections (Reservation of Seats) Rules, 1994 on 20th December, 2019, objection was filed by the petitioner on 2nd January, 2020.
The petitioner would argue that an All Party Meeting was called by the Election Commission and was held but the objection of the petitioner was not heard.
Counsel appearing on behalf of the Election Commission would rely upon Rule 4(2) and 4(3) of the aforesaid West Bengal Municipal 2 Elections (Reservation of Seats) Rules, 1994 stating that the Commission is required to receive objections to the draft order published under Rule 4(1) and is only required to consider the same and dispose them off. No hearing is contemplated in the said Order.
It is submitted by reference to an order dated 2nd January, 2020 that such consideration has been effected. A photostat copy of this order is taken on record and shall be furnished to the Counsel for the petitioner.
The Election Commission relies upon a judgment of the Hon'ble Supreme Court in the case of State of Uttar Pradesh & Ors. - Vs. - P. S.S. Samity reported in 1995 (Supplement) 2 SCC 305 at paragraph 45. The Hon'ble Supreme Court has held in as follows:
"45. What is more objectionable in the approach of the High Court is that although clause (a) of Article 243-O of the Constitution enacts a bar on the interference by the courts in electoral matters including the questioning of the validity of any law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made or purported to be made under Article 243-K and the election to any panchayat, the High Court has gone into the question of the validity of the delimitation of the constituencies and also the allotment of seats to them. We may, in this connection, refer to a decision of this Court in Meghraj Kothari v. Delimitation Commission [(1967) 1 SCR 400 : AIR 1967 SC 669] . In that case, a notification of the Delimitation Commission whereby a city which had been a general constituency was notified as reserved for the Scheduled Castes. This was challenged on the ground that the petitioner had a right to be a candidate for Parliament from the said constituency which had been taken away. This Court held that the impugned notification was a law 3 relating to the delimitation of the constituencies or the allotment of seats to such constituencies made under Article 327 of the Constitution, and that an examination of Sections 8 and 9 of the Delimitation Commission Act showed that the matters therein dealt with were not subject to the scrutiny of any court of law. There was a very good reason for such a provision because if the orders made under Sections 8 and 9 were not to be treated as final, the result would be that any voter, if he so wished, could hold up an election indefinitely by questioning the delimitation of the constituencies from court to court. Although an order under Section 8 or Section 9 of the Delimitation Commission Act and published under Section 10(1) of that Act is not part of an Act of Parliament, its effect is the same. Section 10(4) of that Act puts such an order in the same position as a law made by Parliament itself which could only be made by it under Article 327. If we read Articles 243-C, 243-K and 243-O in place of Article 327 and Sections 2(kk), 11-F and 12-BB of the Act in place of Sections 8 and 9 of the Delimitation Act, 1950, it will be obvious that neither the delimitation of the panchayat area nor of the constituencies in the said areas and the allotments of seats to the constituencies could have been challenged nor the court could have entertained such challenge except on the ground that before the delimitation, no objections were invited and no hearing was given. Even this challenge could not have been entertained after the notification for holding the elections was issued. The High Court not only entertained the challenge but has also gone into the merits of the alleged grievances although the challenge was made after the notification for the election was issued on 31-8-1994."
It is argued that although the subject matter of challenge in the aforesaid decision was a Parliamentary Election, the provisions referred to under Article 243 (o) of the Constitution of India are pari materia with the provisions of Article 243 (z). 4
It appears from the aforesaid decision of the Hon'ble Supreme Court that the election process would essentially include declaration of seats and reservations thereof after limitation and delimitation. Such view is also supported by a decision of a Co-ordinate Bench of this Court in the case of Sk. Maison & Ors. - Vs. - The State of West Bengal & Ors. reported in 2009 (1) CLJ (Cal) 33.
"15. The decision in Manda Jaganath (supra) has been looked into by this Court. Contents of Paragraph-14 thereof support the stand taken by Mr. Sanyal that any act prior to publication of the election notification would not be embraced by the word 'election'. However, as held earlier, reservation of seats being an important step in the process of holding of election to a Municipality under the Act and being part of the entire process culminating in a candidate being declared elected, the view taken by the Apex Court in Paragraph-14 of Manda Jaganath (supra) may not apply here. In any event, the view expressed in Paragraph-14 of Manda Jaganath (supra) seems to be inconsistent with the view taken in Paragreaph-7 of the decision in Ponnuswami (supra) and the other decisions of the Apex Court following it and, therefore, this Court being bound by both the decisions would prefer to be guided by the law laid down in Ponnuswami (supra) not because of the numerical supremacy of Judges constituting the Bench but, to this Court, it appears to be better in point of law.
16. in a plethora of decisions, it has been consistently held that the High Court in exercise of writ jurisdiction must resist the temptation of interfering with an election at the intermediary stage for granting relief."
The aforesaid view is cited with approval. It is, therefore, submitted that since the Statute does not prescribe any hearing, of the petitioners. The West Bengal Municipal 5 Elections (Reservation of Seats) Rules, 1994 is stated to have been followed in letter and spirit.
The next argument of the Counsel for the Election Commission by reference to Article 243 (z)(g) of the Constitution of India that bars interference of Court in electoral matters. It is laid down in the aforesaid Article that any stage of Election or grievance in respect thereof can only be challenged by way of Election Petition to be filed before the prescribed authority, who is the District Judge in the instant case.
Counsel for the petitioner submits that the order passed and handed over in Court today had not been communicated to it prior to this date.
Considering the above decisions of the Hon'ble Supreme Court as also the lead case on the matter i.e. N.P. Ponnuswami - Vs. - The Returning Officer & Ors. reported in AIR 1952 SC 64, this Court is of the view that the remedy of the petitioner would lie after the Election process is completed before the District Judge under the provisions of the West Bengal Municipal Elections Act, 1994. The West Bengal Municipal Election, prima facie, appears to have been followed the Election Commission.
It is recorded, however, that the petitioner's objection has been in fact raised before the Election entitling it to challenge the same after the conclusion of the Election process. 6
Therefore there shall be no interim order at this stage. Let affidavit-in-opposition to the main writ petition be filed by the Election Commission within a period of two weeks from date; Reply, if any, thereto shall be filed one week thereafter.
List the matter after three weeks.
(Rajasekhar Mantha, J.)