Calcutta High Court (Appellete Side)
Rakesh Mazumdar & Anr vs West Bengal State Election Commission & ... on 11 February, 2022
Author: Shampa Sarkar
Bench: Shampa Sarkar
11.02.2022
Sl. No.3
srm
W.P.A. No. 2466 of 2022
Rakesh Mazumdar & Anr.
Vs.
West Bengal State Election Commission & Ors.
Mr. Loknath Chatterjee,
Mr. Sukanta Ghosh,
Mr. Rajesh Kumar Shah
...for the Petitioners.
Ms. Sonal Sinha
...for the West Bengal State
Election Commission.
The petitioners have alleged that the petitioners went
to submit nomination papers, but those were not accepted by
the Municipal Returning Officer, Guskara Municipality.
A communication from the Municipal Returning
Officer, Guskara Municipality addressed to the
Commissioner of West Bengal State Election Commission
dated February 10, 2022 has been produced before this Court
by Ms. Sinha, from which it appears that the petitioners did
not reach the venue for submission of the nomination papers
within 3.00 p.m. on February 9, 2022, which was the last date
and time for filing the nominations.
The petitioners have prayed for a direction upon the
West Bengal State Election Commission and the Municipal
Returning Officer, State of West Bengal to accept the
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nomination papers, allow the petitioners to contest the
elections with a further interim prayer restraining the said
authorities from proceeding with the election until the
nomination papers of the petitioners were accepted.
Mr. Chatterjee, the learned Advocate appearing on
behalf of the petitioners, submits that the contentions of the
Commission were not correct. However, the communication
of the Municipal Returning Officer, Guskara Municipality to
the Commissioner of the West Bengal State Election
Commission dated February 10, 2022 speak otherwise.
It has been settled by the judicial authorities, time and
again, that no election shall be called in question except by
the mode framed by the legislature.
In the matter of N.P. Ponnuswami v. Returning
Officer, Namakkal Constituency, 1952 SCR 218 : AIR 1952
SC 64, the Hon'ble Apex Court held that, having regard to
the important functions which the legislatures had to
perform in democratic countries, it had always been
recognized to be a matter of first importance that elections
should be concluded as early as possible according to time
schedule and all controversial matters and all disputes
arising out of elections should be postponed till after the
elections were over, so that the election proceedings would
not be unduly retarded or protracted.
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The right to vote or stand as a candidate for election
was not a civil right but was a creature of statute or special
law and must be subject to the limitations imposed by it.
Strictly speaking, the Hon'ble Apex Court held that it was
the sole right of the legislature to examine and determine all
matters relating to the election of its own members, and if the
legislature took it out of its own hands and vested in a
Special Tribunal an entirely new and unknown jurisdiction,
that special jurisdiction would have to be exercised in
accordance with the law which creates it. Where a right or
liability was created by a statute which gave a special
remedy for enforcing it, the remedy provided by the statute,
only, must be availed of. These were the specific conclusions
of the Hon'ble Apex Court.
In the decision of N.P. Ponnuswami (supra) the
Hon'ble Apex Court held that even if apparently the term
'election' could be interpreted as the final decision of
returning a candidate, the process of selection or election of a
candidate in this regard should be given a much wider
meaning and should be taken as the entire process from the
date of the notification till the candidate is returned.
The Apex Court held that the word "election" could be
and had been appropriately used with reference to the entire
process which consisted of several stages and embraced
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many steps, some of which may have an important bearing
on the result of the process.
The question which arose before the Hon'ble Apex
Court was whether the law of elections in this country
contemplated that there should be two attacks on matters
connected with election proceedings, one while they were
going on, by invoking the extraordinary jurisdiction of the
High Court under Article 226 of the Constitution and
another after the elections were completed, by means of an
election petition.
The Apex Court held that any matter which had the
effect of vitiating an election should be brought up only at
the appropriate stage in an appropriate manner before a
Special Tribunal and should not be brought up at an
intermediate stage before any court.
The Apex Court held that before an election machinery
could be brought into operation, there were three requisites
which were required to be attended to, namely, (1) there
should be a set of laws and rules making provisions with
respect to all matters relating to, or in connection with,
elections, and it should be decided as to how these laws and
rules were to be made; (2) there should be an executive
charged with the duty of securing the due conduct of
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elections; and (3) there should be a judicial tribunal to deal
with disputes arising out of or in connection with elections.
The Hon'ble Apex Court further held that election
being an integral part of a democratic process there should
not be any clog in the process of election by interference by a
writ court. Thus, separate laws had been enacted for disposal
of such disputes. The reason why the High Court should not
interfere under Article 226 of the Constitution of India and
allow elections to be conducted smoothly and
uninterruptedly had been explained thus in paragraph 18 of
N.P. Ponnuswami (supra):
"(1) Having regard to the important functions which
the legislatures have to perform in democratic
countries, it has always been recognized to be a matter
of first importance that elections should be concluded
as early as possible according to time schedule and all
controversial matters and all disputes arising out of
elections should be postponed till after the elections
are over, so that the election proceedings may not be
unduly retarded or protracted.
(2) In conformity with this principle, the scheme the
election law in this country as well as in England is
that no significance should be attached to anything
which does not affect the 'election'; and if any
irregularities are committed while it is in progress and
they belong to the category or class which, under the
law by which elections are governed, would have the
effect of vitiating the 'election' and enable the person
affected to call it in question, they should be brought
up before a Special Tribunal by means of an election
petition and not be made the subject of a dispute
before any court while the election is in progress."
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Although, the prayer of the petitioners is that the
nomination papers may be directed to be accepted, the Court
does not have the jurisdiction under Article 226 of the
Constitution of India to pass such orders when the process is
in progress, in view of the law discussed hereinbefore.
The West Bengal Municipal Election Act, 1994
prescribes the procedure by which any person aggrieved by
any action touching the question of election may approach
the appropriate forum, by filing an election petition. For
proper appreciation, Sections 75 and 76(b) of the West Bengal
Municipal Election Act, 1994 are quoted below:
"75. (1) If the validity of any election of a member is
called in question by any person qualified to vote at such
election, such person may, at any time within ten days
immediately after the date of declaration, of the result of
the election, file a petition before the District Judge of the
district within which the election has been or should
have been held and shall, at the same time, deposit two
hundred rupees in the court as security for the cost likely
to be incurred: Provided that the validity of such election
shall not be called in question in any such petition--
(a) on the ground that the name of any person
qualified to vote has been omitted from the
electoral roll, or
(b) on the ground that the name of any person not
qualified to vote has been inserted in the electoral
roll: Provided further that if only two candidates
contested such election, the petitioner may, in
addition to calling in question the election of the
returned candidate, claim that if the election of the
returned candidate is set aside, the other
candidate may be declared duly elected.
(2) The provisions of the Code of Civil Procedure, 1908,
shall apply, as far as may be, in the matter of
adjudication of an election petition under sub-section (1).
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76. If the District Judge, after holding such inquiry as he
deems fit in respect of an election petition, is satisfied
that--
(a) xxx xxx xxx
(b) the result of the election has been materially affected
by any act or omission in violation of the provisions of
this Act or the rules made thereunder, or
(c) xxx xxx xxx"
The Court is of the view that under the election laws,
rejection of a nomination paper could be used as a ground to
question the election and such ground could not be urged in
any other manner, at any other stage and before any other
court except before the Special Tribunal. If the grounds on
which an election could be called in question could be raised
at an earlier stage and errors, if any, were rectified, there
would be no meaning in enacting a provision like Article
243-ZG(b).
The provision is quoted below:-
"(b) no election to any Municipality shall be called in
question except by an election petition presented to
such authority and in such manner as is provided for
by or under any law made by the Legislature of a
State."
Non-acceptance of nomination papers amounts to
denial of the right of the petitioner to participate in the
election and a implied rejection. This is also a dispute
covered by the special law and cannot be called in question
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by way of a writ petition. The allegations also raise disputed
questions of facts which have to be decided by leading
evidence. The petitioners allege refusal of the nomination
papers although they were within time and the authorities
have denied the same. The AMRO Guskara Municipality has
narrated the entire incident of February 9, 2022 to the
Municipal Returning Officer, Guskara Municipality, as
follows:-
"In this connection, this is to state that at 2.45 PM
announcement through PA system was made from
Nomination Hall towards intending candidates to
approach to the concerned earmarked Nomination
Table for submission of nomination form. The
announcement of closure of nomination time was
also made at 3.00 PM. At around 3.15 PM, 2 persons
approached at Table No. 02 and wanted to file
nomination but as the time was over, their
nomination could not be accepted. This is also to
state that nomination of total 16 nos Wards were
arranged to be received in the Hail with 4 tables
evenly distributed Wards among 4 AMROS. There
was clear signage mentioning Ward wise Table for
nomination along with PA system. During closure
of nomination time, candidates/proposers were
present before each table inside the hall. It was not
possible for me to identify the intending candidate
or proposer who ought to file nomination at my
table as I was receiving nomination of candidate of
BJP for Ward no. 08. Despite announcement,
nobody turned up in person at Table No. 02 before
3.00 PM except candidate of BJP for Ward No. 08
and candidate of INC for Ward No. 07. Besides
announcement through PA system vocal
announcement was made towards candidate
intending to file nomination with a request to come
to the table and submit the requisites before 3.00
PM, but nobody turned up in person not only for
filing nomination but also for any sort of enquiry
whatsoever.
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It was not possible for me to identify any person
present inside nomination hall as intending
candidate/proposer, and I am unable to comment
regarding presence of intending BJP candidates for
Ward No. 06 & 07 inside nomination hall. But I am
to reiterate that no such persons namely Rakesh
Majumder & Ganesh Sarkar came before me prior
to 3.15 PM.
Being an AMRO, my intention was always to
receive nomination whoever approached in person
irrespective of any political party at my table within
the time frame set up by the State Election
Commission.
On 09/02/2022, total 13 nos of nomination were
submitted by the BJP and 02 nos of nomination
were submitted by INC at the nomination tables
inside the hall."
In turn, the Municipal Election Officer intimated the
Commissioner of the West Bengal State Election Commission
that all the candidates of the opposition were allowed to file
their nominations. The relevant portion of the letter is quoted
below:-
"Sir,
I am to inform you that Nomination of Guskara
Municipality was being received at BDA
Conference Hall, New Collectorate Building, Purba
Bardhaman. Total four AMROs deployed for 16
(Sixteen) No. of ward for Guskara Municipality and
table wise ward avocation displayed in BDA Hall
prominently. Adequate chair were placed for
intending Candidates/Proposer inside as well as
outside of BDA Hall and Public Address System
also placed for important announcement.
On 09/02/2022 intending Candidates/Proposer of
BJP of Guskara Municipality entered the
Administrative Building and approached BDA Hall
at about 2.30 P.M. All Candidates/ Proposers were
allowed inside Nomination Hall as few minutes
were left for filing of Nomination.
Allegation made by the Mr. Shishir Bajoria for
refusal of nomination of Rakesh Majumder &
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Ganesh Sarkar is denied. On 09.02.2022 total
13(Thirteen) No. of Nomination filed by BJP
Candidates in Guskara Municipality and no
intending Candidate/ Proposer approached
AMROS within 3.00 P.M. of 09/02/2022 was refused.
Detailed report of concerned AMRO is annexed
herewith for your kind perusal."
These are issues which have to be proved in evidence.
Filing a petition under Section 75 would be the only way,
such dispute can be resolved.
In the matter of Manda Jaganath v. K.S. Rathnam,
(2004) 7 SCC 492, the Hon'ble Apex Court held as follows:-
"14. The word "election" has been judicially defined
by various authorities of this Court to mean any and
every act taken by the competent authority after the
publication of the election notification.
15. In Ponnuswami [AIR 1952 SC 64] this Court held:
(AIR p. 68, para 9)
The law of elections in India does not contemplate that
there should be two attacks on matters connected with
election proceedings, one while they are going on by
invoking the extraordinary jurisdiction of the High
Court under Article 226 of the Constitution (the
ordinary jurisdiction of the courts having been
expressly excluded), and another after they have been
completed by means of an election petition.
16. The above view of this Court in Ponnuswami
case [AIR 1952 SC 64] has been quoted with approval
by the subsequent judgment in M.S. Gill [(1978) 1 SCC
405] wherein this Court after quoting the passages
from the said judgment in Ponnuswami case [AIR
1952 SC 64] held that there is a non obstante clause in
Article 329 and, therefore, Article 226 stands pushed
out where the dispute takes the form of calling in
question an election, except in special situations
pointed out but left unexplored in Ponnuswami
case [AIR 1952 SC 64] . It is while considering the
above unexplored situations in Ponnuswami [AIR
1952 SC 64] that in M.S. Gill case [(1978) 1 SCC 405]
this Court held thus: (SCC p. 429, para 34)
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'34. This dilemma does not arise in the wider view
we take of Section 100(1)(d)(iv) of the Act. Shri
Rao's attack on the order impugned is in substance
based on alleged non-compliance with a provision
of the Constitution viz. Article 324 but is neatly
covered by the widely-worded, residual catch-all
clause of Section 100. Knowing the supreme
significance of speedy elections in our system the
framers of the Constitution have, by implication
postponed all election disputes to election petitions
and tribunals. In harmony with this scheme Section
100 of the Act has been designedly drafted to
embrace all conceivable infirmities which may be
urged. To make the project foolproof Section
100(1)(d)(iv) has been added to absolve everything
left over. The Court has in earlier rulings pointed
out that Section 100 is exhaustive of all grievances
regarding an election.'
17. In the very same paragraph this Court, however,
demarcated an area which is available for interference
by the High Court and the same is explained as
follows: (SCC pp. 429-30, para 34)
'But what is banned is not anything whatsoever
done or directed by the Commissioner but
everything he does or directs in furtherance of the
election, not contrarywise. For example, after the
President notifies the nation on the holding of
elections under Section 15 and the Commissioner
publishes the calendar for the polls under Section
30, if the latter orders Returning Officers to accept
only one nomination or only those which come
from one party as distinguished from other parties
or independents, is that order immune from
immediate attack. We think not. Because the
Commissioner is preventing an election, not
promoting it and the Court's review of that order
will facilitate the flow, not stop the stream. Election,
wide or narrow be its connotation, means choice
from a possible plurality, monolithic politics not
being our genius or reality, and if that concept is
crippled by the Commissioner's act, he holds no
election at all.'
(emphasis in original)
18. Of course, what is stated by this Court hereinabove
is not exhaustive of a Returning Officer's possible
erroneous actions which are amenable to correction in
the writ jurisdiction of the courts. But the fact remains
12
that such errors should have the effect of interfering in
the free flow of the scheduled election or hinder the
progress of the election which is the paramount
consideration. If by an erroneous order conduct of the
election is not hindered then the courts under Article
226 of the Constitution should not interfere with the
orders of the Returning Officers, remedy for which
lies in an election petition only.
19. In Election Commission of India v. Shivaji [(1988) 1
SCC 277] this Court while considering a challenge to
the election notification which included certain Zila
Parishads within a notified constituency, held
following the judgment in Ponnuswami [AIR 1952 SC
64] that even if there were any ground relating to the
non-compliance with the provisions of the Act and the
Constitution on which the validity of any election
process could be questioned, the person interested in
questioning the election has to wait till the election is
over and institute a petition in accordance with
Section 81 of the Act calling in question the election of
the successful candidate.
20. Learned counsel for the writ petitioner before the
High Court had relied upon a judgment of this Court
in S.T. Muthusami v. K. Natarajan [(1988) 1 SCC 572]
wherein this Court had held following the judgment
in Ponnuswami case [AIR 1952 SC 64] that
entertaining of a writ petition by the High Court
under Article 226 of the Constitution cannot be
supported and consequently it set aside the judgment
of the Division Bench of the High Court and
dismissed the writ petition filed in the High Court. In
that case the question involved was a dispute between
two candidates claiming the official symbol of a
political party. This judgment came to be
distinguished by the High Court on the basis of facts
though the law laid down there was squarely
applicable against the maintainability of the writ
petition."
In the matter of Mohinder Singh Gill v. Chief Election
Commr., (1978) 1 SCC 405, the Hon'ble Apex Court held as
follows:-
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"126. The above being the legal position, Article
329(b) rules out the maintainability of the writ
application. Article 329(b) provides that
"notwithstanding anything in this Constitution ...
no election to either House of Parliament . . . shall
be called in question except by an election petition
presented to such authority and in such manner as
may be provided for by or under any law made by
the appropriate legislature". It is undisputed that
an election can be challenged only under the
provisions of the Act. Indeed Section 80 of the Act
provides that "no election shall be called in
question except by an Election petition presented in
accordance with the provisions of" Part VI of the
Act. We find that all the substantial reliefs which
the appellants seek in the writ application,
including the declaration of the election to be void
and the declaration of Appellant 1 to be duly
elected, can be claimed in the election petition. It
will be within the power of the High Court, as the
election Court, to give all appropriate reliefs to do
complete justice between the parties. In doing so it
will be open to the High Court to pass any ancillary
or consequential order to enable it to grant the
necessary relief provided under the Act. The writ
application is therefore barred under Article 329(b)
of the Constitution and the High Court rightly
dismissed it on that ground.
127. In view of our conclusion that the High Court
had no jurisdiction to entertain the writ application
under Article 226 of the Constitution, it will not be
correct for us, in an appeal against the order of the
High Court in that proceeding, to enter into any
other controversy, on the merits, either on law or on
facts, and to pronounce finally on the same. The
pre-eminent position conferred by the Constitution
on this Court under Article 141 of the Constitution
does not envisage that this Court should lay down
the law, in an appeal like this, on any matter which
is required to be decided by the Election Court on a
full trial of the election petition, without the benefit
of the opinion of the Punjab and Haryana High
Court which has the exclusive jurisdiction under
Section 80-A of the Act to try the election petition.
Moreover, a statutory right to appeal to this Court
has been provided under Section 116-A, on any
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question, whether of law or fact, from every order
made by the High Court in the dispute.
128. So, in view of the scheme of Part VI of the Act,
the Delhi High Court could not have embarked
upon an enquiry on any part of the merits of the
dispute. Thus it could not have examined the
question whether the impugned order was made by
the Election Commission in breach of a rule of
natural justice. That is a matter relating to the
merits of the controversy and it is appropriately for
the Election Court to try and decide it after
recording any evidence that may be led at the trial.
It may be that if we pronounce on the question of
the applicability of the rule of natural justice, the
High Court will be relieved of its duty to that
extent. But it has to be remembered that even for
the purpose of deciding that question, the parties
may choose to produce evidence, oral or
documentary, in the trial court. We therefore refrain
from expressing any opinion in this appeal on the
question of the violation of any rule of natural
justice by the Election Commission in passing the
impugned order.
129. At the same time we would like to make it
quite clear that any observation, on a question of
law or fact, made in the impugned judgment of the
Delhi High Court, bearing on the trial of the
election petition pending in the Punjab and
Haryana High Court, will stand vacated and will
not come in the way of that trial. That High Court
will thus be free to decide the petition according to
the law. We would also like to make it quite clear,
with all respect to the learned Judges who have
delivered a separate judgment, that we may not be
taken to have agreed with the views expressed
therein about the applicability of audi alteram
partem or on the applicability of the guidelines in
Sections 58 and 64-A to the facts and circumstances
of this case, or the desirability of ordering a re-poll
in the whole constituency, or the ordering of a re-
poll of postal ballots etc. Election is a long elaborate
and complicated process and, as far as we can see,
the rule of audi alteram partem, which is in itself a
fluid rule, cannot be placed in a strait-jacket for
purposes of the instant case. It has also to be
remembered that the impugned order of the
Election Commission could not be said to be a final
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pronouncement on the rights of the parties as it was
in the nature of an order covering an unforeseen
eventuality which had arisen at one stage of the
election. The aggrieved party had all along a
statutory right to call the entire election in question,
including the Commission's order, by an election
petition under Section 80 of the Act, for the trial of
which an elaborate procedure has been laid down
in the Act. Then, as has been stated, there is also a
right of appeal under Section 116-A. These and
perhaps other relevant points may enter the scales
in considering at the trial of the election petition
whether there may not be sufficient justification to
negative the existence of any implied duty on the
part of the Commission, at that stage, to hear any
party before taking its decision to order or not to
order a re-poll. We do not therefore think it
necessary or desirable to foreclose a controversy
like this by any general observations and will leave
any issue that may arise from it for trial and
adjudication by the Election Court."
In the matter of State of Goa v. Fouziya Imtiaz
Shaikh, (2021) 8 SCC 401 the Hon'ble Apex held as that
Under Article 243-ZG(b), no election to any municipality
could be called in question except by an election petition
presented to a Tribunal was 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 the result a judicial hands-off was mandated
by the non obstante clause contained in Article 243-ZG,
debarring the High Court under Articles 226 and 227 of the
Constitution from interfering, once the election process had
begun and until it was over. Article 243-ZG operates as a bar
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just like Article 329(b) of the Constitution and the same
principles governing Article 329(b) of the Constitution shall
be applied in this case.
In the matter of The Chief Election Commissioner and
ors. vs. Ujjwal Kumar and ors, (MAT 366 of 2021 decided on
12.03.2021), the Division Bench of this Court held as follows:-
"5. Examining Section 36(4) and Section 100(1)(c) of the RP Act, we note that scrutiny of nomination papers is a stage in the election process and the result of such scrutiny would be available for adjudication in terms of Section 100(1)(c) of the RP Act which makes improper rejection of nomination as a ground to declare the election to be void; while clause 4 of Section 36 which relates to scrutiny of nomination provides that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a "substantial character". Trying to draw a line between the phrase 'improperly rejected' in Section 100(1)(c) of the RP Act and the rejection of 4 nomination paper on the ground of any defect which is not of a "substantial character" as occurring in Section 36(4) of the RP Act, it would be so thin that it always swings in favour of having that issue open for consideration in the Election Petition. This is also because, any rejection of the nomination paper by the returning officer on the ground of any defect and the question whether such defect is of a 'substantial character' or not, as well as the question whether such rejection amounts to improper rejection for the purpose of Section 100(1)(c) of the RP Act are essentially mixed questions of facts and law. In the trial of Election Petition in terms of Chapter III in Part VI of the RP Act, such issue could be gone into comprehensively. Such questions are not to be decided by the writ court merely as if it is a jurisdictional issue or an issue of law only. 6. Relying on the decision of the Hon'ble Supreme Court of India referred in N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency, Namakkal, Salem Dist. & others reported as AIR 1952 SC 64, Their Lordships of the Apex Court, in Manda Jaganath Vs. K.S. Rathnam 17 and others reported in (2004) 7 SCC 492, held that the possible erroneous 5 actions of Returning Officer which could be considered as amenable to correction in the writ jurisdiction are only such errors which would have the effect of interfering in the free flow of the scheduled election or hinder the progress of the election. It was held that if by an erroneous order, conduct of the election is not hindered, then the courts under Article 226 of the Constitution should not interfere with the orders of the Returning Officer, remedy for which lies in an Election Petition only. The paramount consideration is and ought to be the progress of the election."
As a result of the decisions discussed hereinabove, especially the decision of the Hon'ble five Judges Bench in Mohinder Singh Gill (supra), this court comes to the conclusion that reliefs prayed for by the petitioners, if entertained, would amount to interference with the election process which commenced from the date of issuance of the notification and any order passed herein would be a direct interference with the election process. This court cannot direct the authorities to accept the nomination papers and allow the petitioners to contest the elections. The last date for filing nominations was 9th February and the election process has further progressed thereafter.
It is also submitted from the bar that the scrutiny of the nomination papers have also been held. Thus the writ court does not have any jurisdiction to deal with the issues raised in the writ petition in view of the Special Law enacted 18 and adjudication of these disputed questions of facts would be by a Special Tribunal constituted for such purpose.
Under the facts and circumstances of the case, the remedy of the petitioner shall be by way of an election petition and the same shall be considered in terms of Section 75 and Section 76(b) of the West Bengal Municipal Election Act, 1994. The Special Tribunal shall decide all issues independently.
This writ petition is, thus, disposed of.
There will be no order as to costs.
The parties are to act on the basis of the server copy of this order or the learned Advocates' communication.
(Shampa Sarkar, J.)