Calcutta High Court (Appellete Side)
Bharatiya Janata Party & Anr vs The State Election Commission & Ors on 20 April, 2018
Author: Subrata Talukdar
Bench: Subrata Talukdar
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Mr. Justice Subrata Talukdar
W.P. 4716(W) of 2018
with
CAN 2208 of 2018
Bharatiya Janata Party & Anr.
vs.
The State Election Commission & Ors.
with
W.P. 4737(W) of 2018
Communist Party of India (Marxist)
vs.
The State of West Bengal & Ors.
with
W.P. 4753(W) of 2018
Party of Democratic Socialism (PDS) & Anr.
vs.
The West Bengal State Election Commission & Ors.
For the Petitioner in person
in WP 4716 (W) of 2018 : Mr. Pratap Banerjee
For the Respondent in
WP 4716 (W) of 2018,
WP 4737 (W) of 2018 &
WP 4753 (W) of 2018 and
CAN 2208 of 2018 : Mr. Kalyan Banerjee
For the Proforma
Respondent in person
in WP 4716 (W) of 2018 : Mr. Adhir Ranjan Chowdhury
Secretary, State Election
Commission : Mr. Nilanjan Sandilya
O.S.D. & Additional Chief
Secretary & R.D. Dept. : Mr. Saurabh Kumar Das
For the Petitioner in person
in WP 4737(W) of 2018 : Mr. Bikash Ranjan Bhattacharyya
For the Petitioner in person
in WP 4753(W) of 2018 : Mr. Samir Putatunda
Heard on : 17/04/2018, 18/04/2018
& 19/04/2018
Judgement on : 20/04/2018
Subrata Talukdar, J.:
It is only apt that the present discussion should commence remembering Winston Churchill's famous reference in the House of Commons on 31st October, 1944 to the little man making a little cross walking into the little booth.
Churchill's words deserve to be quoted as follows:-
"At the bottom of all the tributes paid to democracy is the little man, walking into the little booth, with a little pencil, making a little cross on a little bit of paper-
no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of that point- House of Commons, 31 October 1944."
The moral therefore follows that do not belittle the impact of the little man. The war of words before this Court in this batch of analogous writ petitions, viz. W.P. 4716(W) of 2018 (for short WP I), W.P. 4737 (W) of 2018 (for short WP II), W.P. 4753 (W) of 2018 (for short WP III) along with the application, CAN 2208 of 2018 (for short the CAN), has erupted over a doubtful recall by the State Election Commission (the Commission) of its order extending time to file nominations on 9th April, 2018 on the very next morning. Therefore, the legality/propriety of the order dated 10th April, 2018 is the core issue under challenge and thrashed out during arguments.
This Court, at the outset, must record its undiluted pleasure in hearing the parties in person, viz. the petitioners, Intervenor converted into the added respondent as well as the applicant converted into the proforma respondent, arguing their individual cases with learning laced with passion.
For the record, the Bharatiya Janata Party (BJP|) are the petitioners in WPI to which the All India Trinamool Congress (AITMC) has been added as a party respondent. The Communist Party of India (Marxist) and the Party of Democratic Socialism (PDS) are the petitioners in WP II and WP III. The Indian National Congress (INC) has been impleaded as a proforma respondent to WP I through its CAN. Both the Commission and the State appear as common respondents in all the WPs.
For the further record, the parties have agreed, having regard to the immediacy of consideration of the WPs + CAN which relate to the three - tiered Panchayat Elections (for short the Elections) as notified by the Commission in consultation with the State Government (for short the State) on the 2nd of April, 2018 not to push the hearing into and through Affidavits. Such has been also recorded by an earlier order of this Court dated 18th April, 2018. The natural corollary of not inviting Affidavits would be a deemed denial of the respective allegations and counter allegations.
To obviate the difficulty which may present itself in such a situation before any Court, the Commission was invited to file a Report on Affidavit (for short the Report), which it did. The Report has woven the essential factual fabric leading to the extension and subsequent cancellation of the nomination, thereby assisting this Court in the task of ironing out the creases from the undisputed materials of the Commission itself.
The first issue argued by both Mr. Kalyan Banerjee, appearing in person for the AITMC and Mr. Sandilya, for the Commission, is the lack of maintainability of the WPs and the CAN. Relying heavily on Part VII, Chapters XI and XII, Sections 78 and 79 of the West Bengal Panchayat Act, 2003 (for short the 2003 Act), it is argued that the WPs and the CAN essentially raise an election dispute which, under the law, can be only argued before a Special Tribunal/Forum/Court. It is submitted that a challenge to the Notification dated 10th April, 2018 would mean a challenge to the election process as a whole and, such challenge by way of a writ petition simplicitor is not maintainable before this Court.
Relying on the authority of (1985)4 SCC 722 (at paragraph 6), Mr. Banerjee argues that the nature of an election dispute can be individual and, not connected to the whole election process. The judgement, according to Mr. Banerjee, is an authority on the point that only separate petitions are admissible by way of an election dispute to be considered upon adducing of evidence which, in the facts of this case, is not so.
Pointing out to the legal provisions of the 2003 Act it is submitted that the Act contemplates an election dispute of 'any' nature (S.79) to be brought before the Special Court/Tribunal/Forum as designated for the purpose. Therefore, the concept of 'any' dispute would include within its scope and purview even a challenge to the Order dated 10th April, 2018 and, accordingly must be brought before the Special Tribunal. Relying on the authority of AIR 1995 Patna 134 (at paragraph 9), it is submitted that a dispute connected to allotment of symbols was read to be in the nature of a challenge to the election process itself and, therefore only referable to a Special Tribunal.
The argument on lack of maintainability raised by Mr. Banerjee is carried forward by the Commission appearing through its Secretary, Mr. Sandilya (supra). Relying on the principles of law as laid down in AIR 1952 SC 64, (2000) 8 SCC 46 (at paragrph 34), (2003)4 MHLJ 359 (at paragraphs 15, 20, 21, 22, 31 and 64) and (1997) 1 MHLJ 637 (at paragraphs 7, 8 and 17), it is argued that similar to Article 329 (b) of the upholding the exclusivity of general election disputes, Article 243(O)(b) Constitution requires to be read in pari materia terms as connected to the Panchayat Elections.
It is emphasised that there resides unfettered prerogative in the Commission to conduct the Elections within its sovereign domain and the Commission is entitled to fix the details of the election process keeping in mind the evolving exigencies on the ground.
Reliance is next placed by the Commission on Section 22 of the Bengal General Clauses Act which provides that only an Authority which has issued a notification is entitled to revoke such notification. Therefore, the Commission, which exercised powers of extension on 9th April, 2018, reserves to itself the exclusive jurisdiction to revoke such powers by the order of cancellation dated 10th April, 2018. Pointing out to the observations of the Hon'ble Apex Court In Re: Boddula Krishnaiah, (1996)3 SCC 416 and, In Re: Bharat Singh, (1988) 4 SCC 534, by its first order of 9th April, 2018 in Writ Petition (WP)(Civil) 302 of 2018 (BJP vs. State of West Bengal) on the self-same issue, it has been opined that the election process in motion does not call for any judicial interference.
The next limb of argument presented by Mr. Kalyan Banerjee leading the defence of the Commission's action, is that assuming but not admitting that this Court cannot interfere, such interference is not called for on the basis of vague allegations/omnibus pleadings. Asserting that the WPs and the CAN are devoid of any details of specific complaints of intimidation and obstruction to filing of nominations as orally painted by the petitioners/applicant before this Court, it is reiterated that the writ petitions as well as the application are not maintainable. In support of the above argument, reliance is placed on the authority of AIR 1981 SC 558, (1988) 4 SCC 554 (at Paragraphs 11 and 13) and (2012) 3 SCC 236 (at Paragraph 22).
It is submitted that not only the failure of detailed pleadings shall be fatal to the writ petitions but, the importance of evidence to support the allegations of the nature brought by the writ petitioners and the proforma respondent before this Court, cannot be diminished on the authority of (2017) 8 SCC 47 (at Paragraph 89). It is pointed out that mere reliance on newspaper reports which cannot be treated as evidence, point to the basic lack of maintainability of the three WPs and the CAN. In this connection, the authority of (2006) 11 SCC 696 (at Paragraph 42), (1994) Suppl. (3) SCC 5 (at Paragraph 48) are relied upon.
The next issue that has been intensely argued connects to a bare reading of the Proviso to Section 46(2) of the 2003 Act. Section 46(2) with its first Proviso is therefore necessary to be reproduced:-
"46(2). Without prejudice to the generality of the provisions contained in sub-section (1), if the Commission, on receipt of complaints from the intending candidates or the recognized political parties, either from or through the District Panchayat Election Officer or its own machinery or any other agency, is satisfied that there is reasonable apprehension of prevention of, or obstruction to, the intending candidates from making nominations at the place or before the authority for the Gram Panchayat and Panchayat Samiti constituencies specified in the notice under section 44, the Commission may, by order, issue a direction to the Panchayat Returning Officer appointed for any Block, to depute one Assistant Panchayat Returning Officer at the office of the Sub-Divisional Officer having jurisdiction, for receiving nomination papers within the specified date and hour from the intending candidates for one or more Gram Panchayat or Panchayat Samiti constituencies, as the case may be:
Provided that the Commission may also, by the said order, extend the last date for making nomination for one day and also direct that all the nomination papers received under sub-sections (1) and (2) for any Gram Panchayat or Panchayat Samiti constituency, as the case may be, shall be taken up by the Panchayat Returning Officer for scrutiny of all such nomination papers, at one sitting, one after another, in terms of the notice under section 44:"
Mr. Kalyan Banerjee submits that the controlling section to the Proviso being 46(2) (supra) provides, inter alia, that the Commission "may by order" issue a direction to the Panchayat Returning Officer (for short RO) to depute an officer at the office of the Sub-Divisional Officer (SDO) having jurisdiction for receiving nomination papers within specified dates and hour mentioned in such order. Such exercise, it is pointed out, was undertaken by the Commission on the 5th of April, 2018 whereby nominations were invited to be filed also in the offices of the respective jurisdictional SDOs.
It is therefore argued that when the Proviso to Section 46(2) makes specific mention of the power of extension by the Commission "by the said order", the Commission, not having done so through its parent order of 5th April, 2018, could not do so subsequently by a separate order of 9th April, 2018. The Commission, having realised its mistake of having extended the date of nomination not statutorily prescribed, rectified its mistake immediately by the order of 10th April, 2018. Such rectification of a mistake is always permissible by a statutory body and finds legal support on the authority of (2006) 8 SCC 192 (at Paragraph 12), (2006) 3 SCC 690 (at Paragraph 22) and (1988) 2 SCC 602 (at Paragraph 104).
The Commission therefore has correctly acted in exercise of its powers under Section 46(2) Proviso (supra) by issuing the order of cancellation of the extension dated 10th of April, 2018.
On the legal issue of the construction of a statutory Proviso reliance is placed on the authorities of (1976) 4 SCC 128 (at Paragraphs 16, 17 and 18), (2001) 4 SCC 534 (at Paragraph 26).
Placing emphasis on the sovereign prerogative of the Commission to act, Mr. Sandilya submits that the basis of the observations of the Hon'ble Supreme Court through its solemn orders dated 9th April, 2018 and 11th April, 2018 in WP(C) 302 of 2018 (supra) and MA 1030 of 2018 connected to WP (C) 302 of 2018 is to the effect that the Commission as the master of the election ceremonies shall be also competent to allay the grievances of individual candidates and political parties/collective entities who allege to have been affected/obstructed/intimidated in filing of their nomination papers.
Mr. Sandilya points out that the Commission took up the exercise of allaying the grievances and, details of such exercise, have been illustratively placed before this Court by way of the Report. Further, explaining the steps taken, the Commission submits that it forwarded copies of the complaints as received till the 9th of April, 2018 to the several district and police administration connected to such complaints. The reports on such complaints are being received from the several district and police administration and, based on the reports, steps are being taken for their redressal.
Therefore, the Commission argues, that the steps being taken by the Commission to allay the grievances as noticed by the Hon'ble Supreme Court vide its order dated 9th April, 2018 (supra) read in the light of the further observations of the Hon'ble Apex Court in the same order to the effect that an election process set into motion does not call for judicial interference, require that the petitions and the application be thrown out of Court in limine.
Enlarging the argument of the Commission as discussed immediately above, Mr. Kalyan Banerjee raises the issue of the binding nature of precedents and, whether at all any precedence was created in the facts of this case by the orders of the Hon'ble Apex Court dated 9th April, 2018 and 11th April, 2018 (supra). This Court is reminded that the Hon'ble Apex Court took care to use the expression allay the grievances in accordance with law which cannot be treated as a handle by any Court to interfere in election related matters. Any such interference would be unwarranted and beyond law. In support of the above proposition reliance is placed on the authority of (2017) 4 SCC 760 (at paragraph
17), which is also an authority defining the limits of the exercise of powers on the touchstone of the expression in accordance with law.
It is submitted that the expression allay the grievances cannot be read in a manner de hors the law on the point and, any other methodology adopted by this Court which would lead to tinkering with the election is not what was intended to be a precedent binding this Court vide the orders dated 9th April and 11th April (supra).
Arguing on behalf of the petitioners in WP II, Mr. Bikash Ranjan Bhattacharyya representing in person the CPI(M), first submits that this Court is required to make a purposive interpretation of the legislative intent connected to Section 46(2) of the 2003 Act. The legislative intent, according to Mr. Bhattacharyya, is to ensure conduct of an election procedure which is free from doubts. Therefore, the legislature, in its wisdom, carved out the Proviso to Section 46(2) (supra) which enables the Commission to extend the date for filing nominations by a single day/date and, if not done by the same order under Section 46(2), then even by a separate subsequent order.
It is submitted that the interpretation of the statutory provision under examination today, viz. Section 46(2), ought not to be restrictive since, in the event the arguments of the Commission and the AITMC are accepted, for all purposes whatsoever the Commission shall be unable to exercise its powers of extension, if not done by the order of 5th April, 2018 (supra). In support of his above noted argument Mr. Bhattacharyya relies upon the authority of (1997) 5 SCC 536 (at paragraph 108) as well as on (2015)10 SCC 400 (at paragraphs 28, 29 and 32) - the latter on the point of the duties of a constitutional body.
It is further argued that this Court, sitting in writ jurisdiction, can examine whether ultimately the discretion conferred on the Commission under Section 46(2) Proviso (supra) has been correctly exercised. The Commission cannot claim to be a supra constitutional body free from the supervisory jurisdiction of a constitutional Court and the Proviso to Section 46(2), being directory than mandatory, the hands of the Commission cannot be tied to an utter inability to grant an extension when the circumstances for such extension exist.
On behalf of the petitioners in WP I, arguments have placed in person by Mr. Pratap Banerjee, Secretary of the BJP. Mr. Banerjee submits and, produces documents in support of such submission, that three dates for polling were announced during similar Panchayat Elections in 2013. Therefore, there is no inflexibility in the proposition that the Commission cannot reschedule the election format within the outer limits of the statutory framework, i.e. the 2003 Act.
Mr. Banerjee also submits that post the order dated 5th April, 2018 of the Commission (supra), the BJP submitted a representation to the Commission on 9th April, 2018 disclosing the problems being faced by its candidates in filing nominations. Accordingly, in the changed circumstances the Commission correctly extended the date of filing nominations by its order of 9th April, 2018. The cancellation of the order by the subsequent order dated 10th April, 2018 is abrupt, cryptic, mala fide reflecting extraneous pressures.
On behalf of the PDS in WP III, Mr. Samir Putatunda argues in person and submits that the Commission appears to be in a haste to complete the polling process. It is pointed out that the statutory framework under the 2003 Act grants the Commission an adequate comfort margin of time to complete the election process in accordance with law. However, it transpires from the facts and circumstances on the ground that the Commission is repeatedly slipping on its mandate under the 2003 Act.
Mr. Putatunda argues that not only the order of cancellation dated 10th April, 2018 discloses an unusual/abnormal tweak in the exercise of the Commission's discretionary powers with the cancellation being issued within hours of the extension, but also the election schedule so far drawn up discloses that a significant margin of time has been granted by the Commission for withdrawal of nominations. Mr. Putatunda imputes extraneous motives to such action by the Commission which, he submits, may not always be an accident and can be attributable to design.
On behalf of the State-respondents, Mr. Sourav Das, OSD and Additional Chief Secretary, Panchayat and Rural Development Department appears in person and defends the State's advisory to the Commission seeking cancellation of the extension. It is submitted on the authority of Section 137(1) of the 2003 Act, that the State can and must step in to remove difficulties posed in the election process.
It is submitted that for several reasons the State is rightly concerned on the impact of the extension on the polling schedule. After the notification of the polls dated 2nd April, 2018 (supra), with the Code of Conduct in place further development works are stalled. The development works, in the case of deferment of polls, shall be detrimental to the rural economy.
Additionally, after the conclusion of the polls usually a period of one month is taken for training the newly elected candidates in handling their new administrative responsibilities. This margin would be seriously compromised in the event any extension is granted to filing of nominations. It is therefore argued that once the extension came to the notice of the State by the order of the Commission dated 9th April, 2018, the State, in exercise of its mandate under Section 137(1) (supra) stepped in with its advisory. Therefore, for the above noted reasons, the action of the State is free from arbitrariness and, does not communicate any dictate.
Presenting the arguments of INC, Mr. Adhir Ranjan Chowdhury, appearing in person points out to a factual fallacy to the points raised for the State- respondents. It is submitted that both the State and the Commission are aware of the fact that Panchayat Elections under the constitutional scheme are required to be held after a gap of five years. It is further submitted that the present election in issue, i.e. the 2018 Panchayat Elections have been preponed by the Commission and time to complete the elections subsists till August 2018.
Next, Mr. Chowdhury argues that the decision of the Commission to cancel the extension of 10th April, 2018 is not only knee-jerk bowing to extraneous pressures but also legally impermissible on the ground of violation of the principles of natural justice. Describing the cancellation as unilateral, it is submitted that only one political party, viz. AITMC, is aggrieved by the cancellation of extension. This obviously leads to an imputation of the adverse ground situation indicative of the fact that the petitioners and the applicant, representing some of the other major political parties, have been thwarted in filing their nominations resulting in a rupture of the democratic process.
Submitting that the Panchayat Elections sow the seeds of a participatory democracy, Mr. Chowdhury places reliance on the orders of the Hon'ble Apex Court which, inter alia, have directed the Commission to allay grievances as well as have enjoined this Court to consider all issues expeditiously. It is contended on the authority of (2000)8 SCC 216 In Re: Ashok Kumar that both the petitions and the application are maintainable. It is alleged that the cancellation of the extension is coloured by bias and mala fides on the part of the Commission. It is clarified that the 2003 Act, viz. Section 78 thereof, speaks of a situation when a dispute connected to an election can only be raised before the Special Tribunal / Court/ Forum after the elections have been held or, in the language of the statute, were held. For the above arguments support is placed on the authority of (2001)1 SCC 182 (at paragraphs 10, 34 and 35) and (1978) 1 SCC 405 (at paragraphs 38 to 41, 78 and 96).
By way of reply to the arguments raised on behalf of the petitioners and the proforma respondent, both Mr. Kalyan Banerjee and the Commission reiterate that the legislative intent as a tool of statutory interpretation can be only brought into play when the words of the statute are ambiguous. In the facts of the present case Section 46(2) of the 2003 Act read with its Proviso is unambiguous. Therefore, when the words are clear it is not necessary for any Court to stretch its powers of interpretation to discover an assumed statutory intent.
Distinguishing the authorities relied upon by the petitioners and the proforma respondent, it is submitted that there is a clear bar upon constitutional courts to intervene when the election process has already kickstarted. Furthermore, the facts alleged by the petitioners and the proforma respondent being not admitted, there is no material evidence before this Court to warrant an assumption or presumption of facts which will have a cascading effect of throwing the election schedule into disarray.
Having heard the parties and considering the materials placed, this Court arrives at the following findings:
On the point of maintainability of the writ petition connected to an election petition, the attention of this Court is drawn to paragraph 32 of (2000)8 SCC 216 In Re: Election Commission of India vs. Ashok Kumar.
Paragraph 32 requires to be profitably quoted in extenso.
"32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:-
1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.
2) Any decision sought and rendered will not amount to calling in question an election if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.
4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court.
5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings.
The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the courts indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material."
With further reference to paragraph 32 this Court must notice the persuasive pronouncement in a similar situation connected to rejection of nomination forms in Panchayat Elections where a bar under Article 243(O) was raised to the entertainability of the writ petition under Article 226 of the Constitution of India in the teeth of statutory provisions, vide the Bombay Village Panchayat Act (1958). The Hon'ble Division Bench of the Bombay High Court as reported in AIR 2002 Bomb 87 at paragraph 4 held as follows:
"4. We may notice here that by reason of Article 243-O of the Constitution of India, election to Panchayat cannot be questioned except by an election petition. The bar of Article 243- O(4)fundamentally rests on two planks : (i) the election process must culminate in formal declaration of the result without intermediate interruptions; and (ii) the aggrieved parly has adequate and efficient remedy under election laws in questioning the election under available grounds and that must exclude other forum. However, in the peculiar facts of the present case, though petitioner has challenged rejection of his nomination papers, he cannot now be relegated to pursue the remedy under election laws. Section 15 of Bombay Village Panchayats Act, 1958 provides that validity of any elected member can be questioned by way of election petition inter alia on the ground of wrongful rejection of nomination papers. As noted above the petitioners nomination papers were accepted under the interim order of this court and petitioner was elected unopposed being sole contestant. In the circumstances remedy under election law is not available to him in challenging the order of Returning Officer rejecting his nomination papers and matter has to be examined by us under Article 226."
Therefore, in a situation where intervention by Court going to the root of the electoral exercise is called for without questioning the electoral process/election itself, this Court cannot be left to be an idle spectator to the tweaking of its discretion by the Commission under the claimed immunity of sovereign powers.
Admittedly, this Court must be completely aware of the observations and directions of the Hon'ble Apex Court dated 9th April, 2018 in W.P. (C) 302 of 2018. While noticing the law as laid down In Re: Bharat Singh, (1988 )4 SCC 534 and In Re: Boddula Krishnaiah, (1996)3 SCC 416 declining interference in an election process, at the same time the subsequent direction by the same order at paragraph 13 to the Commission to essentially consider the grievances as well as relevant factors and to take appropriate steps in regard thereto cannot be ignored. It also cannot be ignored that the Hon'ble Apex Court was pleased to outline the reasons for which the petitioners sought a remedy under Article 32 which was to enable them to file their nominations for the Panchayat Elections in issue.
Keeping in mind the principle of what can be treated as a precedent, this Court must now refer usefully to paragraphs 40 and 41, In Re: State of U.P. & Another -vs- Synthetics & Chemicals & Another, reported in (1991) 4 SCC Page-139.
"40. 'Incuria' literally means 'carelessness'. In practice per incurium appears to mean per ignoratium.' English Courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. (1944 IKB 718 Young v. Bristol Aeroplane Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, [1962] 2 SCR 558 this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury Laws of England incorprating one of the exceptions when the decision of an Appellate Court is not binding.
41. Does this principle extend and apply to a conclusion of law, Which was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law? Here again the English Courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio. A decision passed sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular' point of law involved in the decision is not perceived by the Court or present to its mind' (Salmond 12th Edition). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd., [1941] IKB 675 the Court did not feel bound by earlier decision as it was rendered 'without any argument, without reference to the crucial words of the rule and without any citation of the authority'. It was approved by this Court in Municipal Corporation of Delhi v. Gumam Kaur, [1989] 1 SCC 101. The Bench held that, 'precedents sub-silentio and without argument are of no moment'. The Courts thus have taken recourse to this principle for relieving from injustice perperated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article
141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decedendi. In Shama Rao v. State of Pondicherry, AIR 1967 SC 1680 it was ob- served, 'it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein'. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law."
Therefore, notwithstanding the argument on behalf of the added Respondent and the Commission that only the law declared by the Hon'ble Apex Court on the issue of non-maintainability of writ petitions in election matters as noticed by the order of 9th April, 2018 is of binding precedential value, it cannot be said by any stretch of imagination that the directions issued by the Hon'ble Apex Court vide Paragraphs 13,14, 15 and 16 of the same order dated 9th April, 2018 were arrived at without application of mind or without reasons, therefore deeming such directions to be of a non-binding nature.
This Court cannot be unmindful of the fact that close on the directions of the Hon'ble Apex Court dated 9th April, 2018, the Commission extended the period for filing nominations making specific reference to the complaints filed by political parties regarding non-submission of nomination papers as well as the order of the Hon'ble Supreme Court dated 9th April, 2018 to consider such grievances. Therefore, on a cumulative understanding of both facts, viz. the complaints connected to filing of nomination papers and the order dated 9th April, 2018 on such issue, the Commission exercised its powers under the Proviso to Section 46(2) of the 2003 Act extending the date by a day.
It therefore cannot stand to reason at this stage that having employed the rationale vide its order of 9th April, 2018, on the next day, i.e. 10th of April, 2018, the Commission should commit a volte face by, inter alia, stating whereas it appears that there was no specific direction by the Hon'ble Supreme Court of India for extension of the nomination date.
This Court is at pains to understand the sudden embrace by the Commission of the legal expression "strictly in accordance with law" to discover its rationale employed by the order of cancellation dated 10th April, 2018. Needless to elaborate the logic of the order of 9th April, 2018 definitely relatable to a vital aspect of the election process, viz. filing of nomination, denial of any view on the subject by the Hon'ble Apex Court in the Commission' order dated 10th April, 2018, does not behove the stature of a solid constitutional body.
This Court must therefore profitably reemphasise its earlier observations vide the order of 12th April, 2018 in WP-I that the performance of a discretion by an authority (in this case the Commission), cannot be escaped or whimsically performed by claiming sole prerogative over the method of such performance (In Re: R. vs. Marshland Commrs.(1920) 1 KB 115 (at page 166).
For the above reasons therefore, this Court must again re-emphasise its direction dated 12th April, 2018 (supra) that guidance to the Commission, a constitution sibling, at this stage would not be an exercise in the usurpation or, subversion of electoral due process.
Simultaneously, this Court must further notice the solemn order of the Hon'ble Apex Court dated 11th April, 2018 (supra) and the order of the Hon'ble Division Bench dated 16th April, 2018 in MATs 364,365 and 366 of 2018 with CANs 2199, 2204 and 2207 of 2018 respectively, enabling this Court as the Single Bench to take up the issue ultimately on merits. The emphasis by both the orders dated 11th April, 2018 and 16th April, 2018 (supra) placed upon the Single Bench to take up all issues expeditiously, fortifies the conviction of this Court that, in the particular facts and circumstances of the present writ petitions and the application, their non- entertainability shall leave the petitioners/applicant remediless.
At the same time, this Court must notice the particular language employed by Sections 78 and 79 of the 2003 Act which permits filing of any election disputes at a stage when elections were held. To the mind of this Court that stage as contemplated in Section 78 has not come and, respectfully noticing the apprehensions as noticed by the order dated 9th April, 2018, unless intervention is made at this stage, that stage of Section 78 may never be reached.
Next, this Court must turn its attention to the correct reading of the expression "may also" under the Proviso to Section 46(2). The word "may" is statutorily understood not to be a word of compulsion. The expression "may" must be understood as an enabling one conferring capacity, power or authority and implying a discretion (In Re: M.F. Dudhediya vs. S.C. Sugar Mills, AIR 1962 SC Page 1543 at Page 1557: and C. Kathiam vs. Iyyavo (AIR) 1982 SC 137) at page-104)). It has been fairly settled through authorities, both English and our Courts, that the word "may" should never mean must.
It will be useful to notice at this juncture that the word "may" in the Proviso appears with the word "also". The effect of the words "may also"
have been discussed, albeit in a different context, by the Hon'ble Supreme Court in (1998) 7 SCC 59 at Paragraphs 13, 14 and 15. "13. The words "and may also" appearing in R.2A were sought to be given a meaning that the course suggested thereafter in the Rule has to be resorted to as an optional additional step, a resort to which would be impermissible without complying with the first course suggested in the Rule. The word "also" has different attributes and its meaning is not to be confined to "further more". In legalistic use, the word "also" can be employed to denote other meninges as well. In Black's Law Dictionary the word "also has the following variety of meanings:
Also. Besides as well in addition; likewise, in like manner; similarly; too; withal. Some other thing, including, further, furthermore, in the same manner, moreover; nearly the same as the word "and" or "likewise".
14. Since the word "also" can have meaning as such "as well" or "likewise", can not those meaning be used for understanding the scope of the trio words "and may also"? Those words cannot altogether be detached from the other words in the sub-rule. Here again the word "and" need not necessarily be understood as denoting a conjunctive sense. In Stroud's judicial Dictionary it is stated that the word "and" has generally a cumulative sense, but sometimes it is by force of a context read as "or" Maxwell on "interpretation of Statutes" has recognised the above use to carry out the interpretation of the legislature. This has been approved by this Court in Ishwar Singh vs. State of UP {AIR 1968 SC 1450}. The principle of Noscitur A Sociis can be profitably be used to construct the word "and may also" in the sub-rule.
15. Hence the words "and may also" in Rule 2-A cannot be interpreted the context as denoting to a step which is permissible only as additional to attachment of property of the opposite party. If those words are interpreted like that it may lead to an anomalous situation. If the person who defies the injunction order has no property at all the court becomes totally powerless to deal with such a disobedient party. he would be immuned from all consequences even for any open defiance of a court order. No interpretation hall be allowed to bring about such a sterile or anomalous situation (vide Constitution Bench in Vidya Charan Shukla vs. Khubchand Baghel [AIR 1964 SC 1099]. The pragmatic interpretation, therefore, must be this: It is open to the court to attach the property of the disobeying party and at the same time the court can order him to be detained in civil prison also if the court deems it necessary, Similarly the court which orders the person to be detained in civil prison can also attach the property of that person. Both steps can be resorted to or one of them alone need be chosen. It is left to the court to decide on consideration of the fact situation in each case." This Court accordingly finds that the Proviso with the expression "may also" cannot be read in a restrictive sense but, must be employed to confer an enabling power on the Commission to do an act having regard to the exigencies of a situation. This Court therefore does not accept the arguments of both the AITMC and the Commission to the effect that no extension could be granted, except by the order of 5th April, 2018.
This Court must remind the Commission of the mandate of Article 144 of the Constitution of India which enjoins upon every authority/body to act in aid and assistance of the orders of the Hon'ble Apex Court and, not in derogation thereof.
This Court must next refer to Report of the Commission. The Report contains voluminous correspondence post the 5th of April, 2018 issued by the Commission to the district and police administration engaged in the electoral process connected to complaints regarding non-submission of nomination forms. The complaints were forwarded and one such complaint at page 73 of the Report is illustratively reproduced:-
"West Bengal State Election Commission 18, Sarojini Naidu Sarani (Rawdon Street) Dated 06-04.2018 Memo No. 862-SEC.1COM/NOM/PGE-298 From: The Superintendent of Police Malda Sub: Complaint regarding submission of nominations Sir/Madam, I am directed to forward herewith the following complaint, which is self explanatory, with a request to take appropriate action and send feedback to the Commission.
Sl No. Complaint by Letter no. & date
1. Hon'ble Mausam Noor. 24, 06.04.2018
M.P.
Enclo: As stated.
Yours faithfully,
Sd/-
Joint Secretary
West Bengal State Election Commission"
Therefore, this Court must notice that the Commission, being factually aware of the ground situation, decided to act on the order of the Hon'ble Apex Court dated 9th April, 2018 and thought it fit to allay the grievances/apprehensions by extending the day/date for filing nominations.
Such extension also had the overall beneficial effect of attending to individual complaints. Also, in the light of the Report of the Commission this Court came to be in seisin of the essential factual background, obviating the requirement of reiterating facts by Affidavits and leaving the parties free to focus on the legal scheme.
This Court, however, finds substance in the argument presented by Mr. Das for the State-respondents that the power of the State to intervene under Section 137 (1) cannot be read down. Therefore, the State was well within its right to issue an advisory to the Commission on the 9th of April, 2018.
However, having regard to the outer statutory framework within which the polls are required to be completed as noticed by the Hon'ble Division Bench vide its solemn order dated 16th April, 2018, this Court does not find the arguments of Mr. Das on impossibility of rescheduling the remaining dates in the election calendar to be convincing.
In the light of the above findings this Court directs as follows:-
I) The order cancelling the extension of the day/date for filing nominations as issued by the Commission dated 10th April, 2018 stands quashed;
II) The Commission is directed, upon consultation with the State and the major collective stake holders, to issue a fresh Notification extending the day/date for filing nominations;
III) The Commission shall then reschedule the further dates in the election process as per statutory framework;
IV) The Commission shall then carry forward the electoral process from the extended day/date of filing nominations as directed by (II) above;
V) The cost of Rs.5,00,000/- (Rupees five lakhs only) as directed to be deposited by the petitioners in AST 9 of 2018 by order of 12th April, 2018 and, so deposited shall be forwarded by the learned Registrar General, High Court at Calcutta to the account of the Commission towards part of its secretariat costs.
W.P. 4716(W) of 2018, W.P. 4737(W) of 2018 and W.P. 4753(W) of 2018 along with CAN 2208 of 2018 stand accordingly disposed of.
There will be, however, no order as to costs.
Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities.
(Subrata Talukdar, J.) F.B/K.B. b.r./Sws.M.