Ritzu Ghosal vs West Bengal State Election Commission & Ors.

This writ petition is directed against the order of the State Election Commission (the Commission) dated 21st April, 2018 bearing the memo no.1169-

SEC/1E-88/2017. The Notification dated 21st April, 2018 essentially follows the judgment of this Court dated 20th April, 2018 in a bunch of writ

petitions, as already stated in the notification. The notification further provides that upon consultation with the major stakeholders as directed by the

order of 21st April, 2018 (supra), the extended day/date for filing of nominations, i.e., 23rd April, 2018 and two subsequent dates thereafter, i.e., 25th

April, 2018 and 28th April, 2018 being respectively reserved for scrutiny of nominations as received on the said extended day/date and the last date for

withdrawal of candidature, have been announced.

Mr. Ghosal, appearing in person and representing himself at paragraph 2 of the writ petition as General Secretary and Spokesperson of West Bengal

Pradesh Congress Committee and Member of the All India Congress (for convenience called the INC), makes the primary point that Section 46 of the

West Bengal Panchayat Elections Act, 2003 (for short the 2003 Act) is mandatory in terms of its language and enjoins upon the Commission to

appoint the dates for various stages of election by a single notification. It is argued that the Commission having announced the extended date for filing

of nominations and the two other dates but, not the dates for holding the polls, such notification dated 21st April, 2018 is not in consonance with

Section 43 of the 2003 Act whereby and whereunder all stages of the election process are mandatorily directed to be notified upto the end of the

polling dates.

In support of the above-noted factual argument, Mr. Ghosal relies upon the authorities of (2012) 2 SCC 708 (at paragraphs 65 and 66), (2006) 6 SCC

430 (at paragraphs 26,27 and 28), (2001) 2 CHN 735 (at paragraphs 35 and 36) and finally AIR 1981 SC 2181 (at paragraph 33). The ratios of the

above decisions as placed before this Court connects to the Commission having acted in haste in electoral matters vitiating the notification dated 21st

April, 2018 not only on the limited count of non-application of mind to the statute but also to the larger degree of an act infected by mala fides/malice.

Mr. Ghosal therefore principally prays for a roll back of the notification dated 21st April, 2018 and its replacement by a complete single notification

under Section 43 of the 2003 Act read with Rule 28 of the West Bengal Panchayat Election Rules, 2006 (for short the 2006 Rules) which must

delineate all dates of the poll calendar under Section 43 (supra). Appearing on behalf of the Commission, Mr. Sandilya, its Secretary takes this Court

to the operative portion of the order of this count dated 20th April, 2018. Mr. Sandilya submits that this Court by direction nos.(I), (II), (III) (IV) and

(V) of the order of 20th April, 2018 disposing of three analogous writ petition and a connected CAN 2208 of 2018 had, inter alia, cancelled the recall

the earlier extension by order dated 10th April, 2018 and, thereafter directed the Commission, upon consultation with the State and the major collective

stake holders, to issue a fresh Notification extending the day/date for filing nominations.

By the directions at (III) and (IV)(supra) the Commission was directed to re-schedule the further dates in the election process which, Mr. Ghosal

emphasises, must be as per the statutory framework. Producing documents in Court today, Mr. Sandilya submits that the views of the major stake

holders were obtained by the Commission on 21st April, 2018 and a synopsis of the respective views is produced before this Court. Thereafter, in

exercise of its consultative power with the State Government as provided by the 2003 Act, the notification extending the date for filing nomination and

the two other dates being the notification of 21st April, 2018 (supra), was issued and advisories circulated to all district and police administration.

Therefore, the Commission has followed in letter and spirit the unique situation which has arisen following the challenge to the cancellation of the

extension notification before this Court dated 10th April, 2018, as ultimately decided on 20th April, 2018. It is pointed out that no malice can be

attributed to the Commission in carrying out such acts and, it was the intention of the Court through the order of 20th April, 2018 to enable the

Commission to carry forward the electoral exercise. It is further submitted that the order of the Court dated 20th April, 2018 has attained finality

having not been carried upward by any of the contesting parties including the INC which was the applicant/added proforma respondent through CAN

2208 of 2018. Therefore, to turn around at this stage with the comment that the Commission has failed to act in furtherance of the order dated 20th

April, 2018 and beyond the scope of the statute would be an ulterior exercise that shall not in any way contribute to the electoral process being

completed.

Intervention is sought to be made on the basis of an application by the All India Trinamool Congress (ATMC) represented by Mr. Kalyan Banerjee.

Although prima facie this Court is of the view that such intervention would not be necessary since the issues can be squarely dealt with by the

Commission, however, having regard to the argument advanced by Mr. Banerjee that in the event this Court by its present order now seeks to touch

upon the extension notification dated 21st April, 2018, his party, as a major stake holder, shall be vitally affected.

Therefore, having regard to the above submission of Mr. Banerjee the intervention is allowed and the application taken on board by grating the filing

number ASTA 6 of 2018. It is however made clear that at this stage since this writ petition is now intended to be decided finally by this Court without

pushing the matter to affidavits, the application is treated purely as an application for intervention.

Mr. Banerjee submits on a point of fact that the smaller window to the extension granted by the Commission on the 9th of April, 2018 was never

challenged by the INC. Therefore, the present conduct of the INC as represented by the petitioner inperson challenging the larger window granted on

21st April, 2018 for the 23rd of April 2018 after consultation with the major stake holders, including the INC, must be read to be an exercise which

seeks to derogate from the electoral scheme. It is reiterated that the notification of 21st April, 2018 follows the scheme as laid down by this Court in

its order dated 20th April, 2018 and, no mala fide, malice or any other extraneous interest can be attributed to the Commission for having acted in

terms of this Court’s order by extending the day/date by well announcing in advance on 21st April, 2018 the extended date of 23rd April, 2018.

Having heard the parties and considering the materials placed, this Court finds adequate substance in the argument advanced on behalf of the

Commission that the changed and evolved circumstances leading to the direction of this Court dated 20th April, 2018 have been addressed by the

Commission on the 21st of April, 2018. This Court cannot be unmindful of the fact that the order of 21st April, 2018 was issued following the law on

the point that an exercise either by Court or the Commission should be in aid of and, not in derogation of the electoral process. This Court does notice

the document filed on behalf of the Commission bulleting the views of the major stake holders considering which the Commission exercised its

statutory prerogative in consultation with the state extending the nomination filing on the 23rd of April, 2018.

This Court cannot be further unmindful of the fact that the order of 20th April, 2018 has been accepted and acted upon. The participation of the major

stake holders, including the INC, as reflected from the documents filed by the Commission in Court today, disclose that each of their views have been

noticed prior to the Commission exercising its prerogative in consultation with the State Government to re-extend the nomination date.

In view of the above movement of events this Court does not find the argument of Mr. Ghosal to the effect that the Commission acted in hot haste to

be acceptable. Accordingly, this Court does not intend to interrupt the electoral exercise further and does not intervene by passing any direction in this

petition. In view of the discussion above, any prolonged hearing of the matter on affidavits, in the view of this Court, is not called for. Therefore,

affidavits are not invited and, accordingly the allegations/counter allegations shall stand deemed to be denied. WP No. 4880(W) of 2018 stands thus

disposed of. No order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all necessary

formalities.

(Subrata Talukdar, J.)

Later:

Mr. Ghosal prays for stay of operation of this order . However, the prayer for stay is opposed by the Commission and the intervenor. In the backdrop

of the above discussion, the prayer for stay stands refused.