Rehana Bibi vs State Of West Bengal & Ors.

Although much much water has flown down the Hooghly buffeting the election boat, a short but, engaging fact has been asserted by the petitioner.

The petitioner pleads that she filed her nomination as an Independent candidate for a Gram Panchayat (for short GP) seat under the Sankarpur-II/X

Constituency for the ensuing Panchayat Election of 2018 (for short respectively, the G.P. seat, the Constituency and, the Election). The petitioner

further pleads that her nomination paper was submitted for the GP seat on 9th April, 2018 and, a receipt issued by the dealing Assistant Panchayat

Returning Officer (A.P.R.O)/Respondent No.5, Baruipur, 24-Parganas (South). The scrutiny of the nomination papers thereafter took place on 11th

April, 2018 at 3.30 p.m. at the office of the Block Development Officer, Baruipur/the Respondent No.4 (for short the B.D.O).

It is thereafter pleaded that by a communication dated 9th April, 2018 of the Panchayat Returning Officer, Baruipur Development Block, South 24

Parganas/the Respondent No.4, the petitioner was communicated with a notice for allotment of symbol to be so done just after 3 p.m. on 16th April,

2018 at the office of the Respondent No.4. It is then pleaded that the allotment of symbol as originally scheduled to be held on 16th April, 2018 was

rescheduled following orders of the Hon’ble Court and, the petitioner was instructed to contact the office of the Respondent No.4 on the 28th of

April, 2018. It is stated at Paragraph-8 of the writ petition that on 28th April, 2018 when, at about 3.30 p.m. the petitioner went to the office of the

A.P.R.O./Respondent No.5, she was informed that her nomination has been accepted and requested to contact the office of the Respondent No.5 on

30th April, 2018.

At Paragraph-9 of the Writ Petition it is stated that on 30th April, 2018 when the petitioner reported to the office of the A.P.R.O./Respondent No.5,

she was informed that her nomination has been withdrawn. At Paragraph-10 of the Writ Petition the petitioner asserts that she never withdrew her

nomination paper at any point of time. It is also asserted that upon a request by the petitioner to the concerned A.P.R.O. to produce any document

signed by the writ petitioner of withdrawal of her nomination, such request went unheeded.

Mr. Mukhopadhyay, learned counsel appearing for the petitioner, submits that a fraud has been committed on the petitioner preventing her from

participating in the electoral process as a candidate. Mr. Mukhopadhayay claims, with due measure of responsibility, that the original signature of the

petitioner appears in the nomination papers as filed on 9th April, 2018 and therefore, Ld. Counsel seeks the relief of Mandamus directing the

Panchayat Officer to declare the petitioner as a contesting candidate for the G.P seat under the Constituency in issue.

Appearing for the State Election Commission (the Commission), upon leave to serve notice granted by this Court to Mr. Mukhopadhyay, Mr. Bihani,

learned Counsel produces three documents transmitted by facsimile/mail by the A.P.R.O./Respondent No.5, to show that the petitioner filed for

withdrawal of her nomination through her election agent. Such application was made as per rules under Form-5 and, apparently delivered to the office

of the Respondent No.5/A.P.R.O. by the election agent of the petitioner, one Hidayatullah Sardar. The Respondent No. 5 then proceeded to treat the

notice of withdrawal of nomination by the petitioner to be valid and the petitioner was so informed on the 30th of April, 2018.

Mr. Bihani essentially raises a familiar question of law relating to the lack of maintainability of the writ petition. Placing reliance on the principles

enunciated in AIR 1952 SC 64Â and (1996) 3 SCC 416, learned Counsel argues that at any intermediate stage this Court should not interfere in the

electoral process notwithstanding its constitutional capacity to so do. Next, pointing to the provisions of Sections 78, 79 and 93 of the West Bengal

Panchayat Elections Act, 2003 (for short the 2003 Act), learned Counsel submits that the petitioner is not remediless as she is ultimately entitled to

pursue her remedy in an election petition before the statutory Special Tribunal constituted by the 2003 Act. The remedy encompasses the powers of

the Special Tribunal to annul an election in the event a corrupt practice is proved.

By way of reply, Mr. Mukhopadhyay distinguishes the application of Sections 78,79 and 93 of the 2003 Act to the facts of the present case and,

submits that the scope of the expression corrupt practice envisaged under Section 93 relates only to a returned candidate. Under the present facts, the

petitioner is neither a returned candidate nor, the elections have been held/were held as envisaged under Sections 78 and 79 of the 2003 Act.

Therefore, there cannot be even the semblance of a scope to mount an election petition in a scenario where the petitioner is robbed of a saddle on the

electoral horse.

It is submitted that electoral malfeasance of the gravest kind has been committed by officers owing obligations to citizens and tax payers, warranting

interference by a Writ of Mandamus. Having heard the parties and considering the materials placed, this Court is of the considered view that the

petitioner, as a citizen, deserves to be considered for the relief whether she is a victim of fraud and collusion in the electoral process. Being sufficiently

in seisin of the law cautioning exercise of restraint by a constitutional court qua election disputes, it stands equally settled that an issue going to the root

of the electoral exercise can be examined (In Re: Election Commission of India vs Ashok Kumar, (2000) 8 SCC 216).

In the facts of this case, prima facie, the signature of the petitioner as appearing in the Affidavit and the Vokalatnama portions warrants expert

examination with the signatures as transmitted through documents by facsimile/mail from the office of the A.P.R.O./Respondent No.5 and, produced

today by the Commission. Accordingly, this Court refers the verification of the signature to a handwriting expert and, directs the Registrar, Original

Side, to take steps by enlisting the assistance of an empanelled expert. The Registrar, Original Side, shall place his Report on the next date. Learned

Counsel for the writ petitioner and the Commission shall issue necessary instructions so that the writ petitioner, her election agent, the Respondent

Nos. 4 and 5 cooperate, including production of any original document/record required by the expert, for carrying out the above directions. Charges, as

applicable, shall be paid by the petitioner.

The petitioner shall also implead her Election Agent, the said Hedayatullah Sardar, as an Added Party Respondent to the writ petition. Leave is

accordingly granted to Ld. Advocate for the petitioner to correct the cause-title and, serve a copy of the Writ Petition on the Added Party

Respondent. Matter is made returnable as “Panchayat Election Matter†fixed on Monday at 2 p.m.It is made clear that the further electoral steps

related to the Gram Panchayat seat in issue shall be now subject to further orders of this Court. Urgent Photostat certified copies, if applied for, be

supplied to the parties subject to compliance of all requisite formalities.