Ritzu Ghosal vs West Bengal State Election Commission & Ors.

THE COURT : â€

The instant appeal is the second round of litigation before this Division Bench in connection with the 2018 Panchayat elections.

The first round arose out of two interim orders passed in a writ petition, being W.P. 4716(W) of 2018, challenging, inter alia, the notification dated

10th April, 2018, issued by the State Election Commissioner recalling its order dated 9th April, 2018 by which it had extended the last date for making

nomination by one day, i.e. till 10th April, 2018.

In the first round, three appeals were filed. One by Kalyan Banerjee (in-person) challenging the order dated 12th April, 2018, passed by the learned

Single Judge in W.P. 4716(W) of 2012 (Bharatiya Janata Party & Anr. Vs. The State Election Commission & Ors.). The other two appeals were

preferred by the State Election Commission. One, challenging the order dated 10th April, 2018, passed in W.P. 4716(W) of 2018 and the other,

challenging the order dated 12th April, 2018, also passed in W.P. 4716(W) of 2018. All three intra-court mandamus appeals were disposed of by this

Division Bench in terms of an order dated 16th April, 2018, without interfering with the two interim orders passed by the learned Single Judge, being

the orders dated 10th April, 2018 and 12th April, 2018.

Pursuant thereto, the learned Single Judge heard and finally disposed of three writ petitions [being W.P. 4716(W) of 2018 (Bharatiya Janata Party

& Anr. Vs. The State Election Commission & Ors.), W.P. 4737 (W) of 2018 (Communist Party of India (Marxist) Vs. The State of West Bengal &

Ors.) and W.P. 4753(W) of 2018 (Party of Democratic Socialism (PDS) & Anr. Vs. The West Bengal State Election Commission & Ors.)] by a

common judgment and order dated 20th April, 2018. By the said order, the learned Single Judge proceeded to issue the following directions:-

“(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 withthe 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 furtherdates 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.â€​

The said order remains unchallenged by any of the parties to the said writ petitions or any interveners therein.

In compliance of the said order dated 20th April, 2018, the State Election Commission issued a notification, bearing no. 1169SEC/1E-88/2017 dated

21st April, 2018. A portion of the said notification is reproduced hereunder:-

“the West Bengal State Election Commission, hereby, appoints the extended day/date of making nominations, the date for scrutiny of nomination

received on the said extended day/date and the last date of withdrawal of candidature in connection with the Panchayat General Elections, 2018, in the

following manner;

a) the 23rd of April, 2018 from 11.00 AM up to 03.00 PM as the extended day/date for making nomination;

b) the 25th of April, 2018, as the date for the scrutiny of nominations received on the said extended day/date;

c) the 28th of April, 2018, as the last date for withdrawal of candidature.â€​

The said notification dated 21st April, 2018, gave rise to the second round of litigation wherein the appellant herein (being the writ petitioner

appearing in-person), inter alia, challenged the same, alleging that section 43 of the West Bengal Panchayat Elections Act, 2003, (hereinafter referred

to as the said Act or the Act of 2003) read with Rule 28 of the West Bengal Panchayat Elections Rules, 2006, contemplates issuance of a single

notification by and under which the Commission shall appoint the dates of various stages of election in the manner as follows:-

“a) the last date for making nomination which shall be not later than twenty-one days but earlier than thirty-five days before the date fixed for the

poll;

b) the date for the scrutiny of nominations, which shall be the second day immediately following the last date for making nominations or, if that day is a

public holiday, the next succeeding day which is not a public holiday;

c) the last date for withdrawal of candidature, which shall be the third day immediately following the date for scrutiny of nominations or, if that day is a

public holiday, the next succeeding day which is not a public holiday;

d) the date on which a poll shall, if necessary, be taken; and

e) the date before which the election shall be completed:â€​

It is also the case of the appellant/writ petitioner that the notification dated 21st April, 2018, is not in accordance with the provisions of section 46(2)

of the said Act and as such, the said notification should be set aside and/or quashed or directed to be set aside and/or quashed.

Being unsuccessful before the learned Single Judge, the writ petitioner has preferred the instant appeal along with the application for stay,

challenging the order of dismissal of the writ petition, being the order dated 24th April, 2018.

Before us, the appellant (in-person) reiterated his submission that the notification dated 21st April, 2018, is not in consonance with the provisions of

section 43 of the said Act. Relying upon such provision, he further contended that the notification dated 21st April, 2018, only provides for the day/date

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

withdrawal of candidature. The notification, however, is silent regarding the date on which a poll shall, if necessary, be taken and the date before

which the election shall be completed. As such, the notification is not in accordance with the provisions of section 43 of the said Act.

The appellant further submitted that the notification dated 21st April, 2018, cannot also be said to have been issued under the provisions of section

46(2) of the Act of 2003 as it does not provide for a direction upon 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.

Relying upon these provisions, the appellant submitted that the said notification dated 21st April, 2018, is in derogation of the statutory provisions

and as such, the same be set aside and/or quashed or directed to be set aside and/or quashed.

Responding to such argument made by the appellant, the learned senior counsel appearing on behalf of the State Election Commission contended

that the notification dated 21st April, 2018, is neither under the provisions of section 43 nor under section 46(2) of the Act of 2003, but has been issued

consequent upon the order of the learned Single Judge dated 20th April, 2018. He referred to and relied upon the directions issued by the learned

Single Judge in the order dated 20th April, 2018. He further contended that by the order dated 20th April, 2018, the Commission was directed to issue

a fresh notification extending day/date for filing nomination. The notification dated 21st April, 2018, as such, is the fresh notification in terms of

direction (II) as contained in the order dated 20th April, 2018 extending the day/date of filing nominations. Thus, it did not require for providing the date

on which a poll shall, if necessary, be taken and the date before which the election should be completed. He further contended that direction (III)

contained in the order dated 20th April, 2018, provides for re-schedulement of the further dates in the election process after issuance of a fresh

notification. A notification as per direction (III) has been issued on 26th April, 2018. The Commission has complied with the directions given in the

order dated 20th April, 2018 and therefore has not violated any statutory provision.

He further submitted that in an intra-court mandamus appeal, even if there is some infraction of law or procedure adopted under the law, in the

facts of the case and on consideration of equity, if it transpires to the writ Court that a party coming to the writ Court has not come with a clean hand

and he does not deserve any consideration from a Court of equity, such party should not be given any relief. In this context, he cited Vol. 93 CWN

924 (Secretary Salkia Sri Krishna Vidyalaya vs. Kailash Nath Rai & Ors.). He also cited 1996 (3) SCC 416 (Boddula Krishnaiah & Anr. vs. State

Election Commissioner, A. P. & Ors.) and contended that Courts should not intervene since the election process has been set in motion.

Mr. Kalyan Banerjee (appearing in-person) and representing All India Trinamool Congress (AITMC) â€" being an intervener in the writ petition

â€" submitted that the Indian National Congress (INC) did not challenge the extension granted by the Commission on 9th April, 2018. INC, as

represented by the writ petitioner, is therefore precluded from challenging the notification dated 21st April, 2018, issued after consultation with the

major stakeholders including INC by which one day’s extension has been granted for making of nomination in terms of the order dated 20th April,

2018. The said notification has been issued by the Commission following the scheme laid down in the order dated 20th April, 2018 and no mala fide,

malice or any extraneous interest can be attributed to the Commission for issuance of the said notification.

The learned Advocate General on behalf of the State produced three notifications; one dated 31st March, 2018, under section 42 of the Act of

2003, issued by the State, another dated 26th April, 2018, stated to be in compliance with the order passed by the High Court on 20th April, 2018, and

in exercise of the power conferred by sub-section (2) of section 43 and section 42 of the Act of 2003 and the last, being a notification dated 26th April,

2018, issued by the State Election Commission, also in terms of the order of the High Court dated 20th April, 2018. On a query from this Court he

submitted that the notification dated 26th April, 2018, issued by the State is prior in point of time than the notification issued by the State Election

Commission on the same date. He contended that the State Election Commission has acted in terms of the scheme as laid down in the order dated

20th April, 2018 and in compliance with the statutory provisions and therefore, no interference is called for.

Before adverting to the merits of the case and the respective rival contentions, the following dates are to be borne in mind:

31st March, 2018 : Notification under section 42 of the Act of 2003 by the State Government.

2nd April, 2018 : Notification by State Election Commission under section 43 of the Act of 2003.

5th April, 2018 : Notification by the State Election Commission under section 46 of the Act of 2003.

9th April, 2018 : Order of the Hon’ble Supreme Court.

9th April, 2018 : Order of State Election Commission extending the date for filing of nominations.

10th April, 2018 : Notification by the State Election Commission recalling its order dated 9th April, 2018.

10th April, 2018 : Order of the learned Single Judge.

11th April, 2018 : Order of the Hon’ble Supreme Court.

12th April, 2018 : Order of the learned Single Judge.

16th April, 2018 : Order of this Bench.

20th April, 2018 : Final Order of the learned Single Judge.

21st April, 2018 : Notification issued by the State Elections Commission (impugned before the learned Single Judge).

24th April, 2018 : Order of the learned Single Judge in W.P. 4880 (W) of 2018 (order impugned).

26th April, 2018 : Notification by the State Government under section 42 of the Act of 2003 in terms of the order dated 20th April, 2018 declaring re-

scheduled date for holding election.

26th April, 2018 : Notification by the State Election Commission in terms of the order dated 20th April, 2018 re-scheduling the date of election.

The “superintendenceâ€, “direction†and “control†of the preparation of electoral rolls for and the conduct of, all elections to the

Panchayats is vested in a State Election Commission in terms of Article 243K of the Constitution of India, which is set out hereinbelow:-.

“243K. Election to the Panchayats. â€" The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all

elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the

Governor.

(2) Subject to the provisions of any law made by the Legislature of a State, the conditions of service and tenure of office of the State Election

Commissioner shall be such as the Governor may by rule determine: Provided that the State Election Commissioner shall not be removed from his

office except in like manner and on the like ground as a Judge of a High Court and the conditions of service of the State Election Commissioner shall

not be varied to his disadvantage after his appointment.

(3)The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as

may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1).

(4)Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in

connection with, elections to the Panchayats.â€​

In line with such Constitutional sanction, The West Bengal State Election Commission Act, 1994, has been promulgated by the State legislature.

Section 4(2) (as amended) of the said Act of 1994 provides that, “all matters relating to, or in connection with, elections to the Panchayats shall be

regulated in accordance with the provisions of the West Bengal Panchayat Act, 1973, [and the West Bengal Panchayat Elections Act, 2003(West

Ben. Act XXI of 2003)], and the rules made thereunder in so far as they are not inconsistent with the provisions of this Act or the rules made

thereunder.†The entire scheme of the West Bengal Panchayat Elections Act, 2003, highlights and emphasizes the pivotal role of the Commission in

respect of the Panchayat election process. Part VI of the said statute is in respect of “Conduct of Electionsâ€. Part VI is divided into four

Chapters, namely, Chapters VII, VIII, IX and X. Chapter VII deals with nomination of candidates, Chapter VIII deals with candidates and their

agents, Chapter IX is in respect of poll and finally, Chapter X deals with counting of votes.

The State Election Commission, therefore, has not only been empowered with absolute authority â€" while the election process is on â€" in respect

of its “superintendenceâ€, “direction†and “controlâ€, it has also been clothed with practically impenetrable immunity against interference

with regard to the election process. A Constitutional authority with such mighty stature and power is therefore required to perform its duties and

obligations in such a fair and transparent manner so that no person can raise either an eyebrow or point an accusatory finger towards it. In other

words, the State Election Commission should conduct itself in such a manner which palpably demonstrates its paramount objective of maintaining

absolute neutrality, fairness and transparency during the election process as an apolitical and neutral body having its place within the Constitutional

scheme only to further the democratic principles based on which our Republic stands.

However, in the facts of the present case, we find that the State Election Commission â€" ever since issuance of the initial notification of the State

Government under section 42 of the Act of 2003 â€" with regard to holding of the 2018 Panchayat elections, has acted in such a manner that

eyebrows have been raised and accusatory fingers have been pointed against it time and again. Its neutrality has been seriously questioned. It has

floundered while performing its Constitutional obligation to uphold the democratic principles in a fair and transparent manner leading to a spate of

litigations ever since the election process was set to motion. In the first round of litigation, the recall of the order of the Commission dated 9th April,

2018, by an order dated 10th April, 2018 was inter alia under challenge which ultimately led to quashing of the said order by the learned Single Judge

and passing of such directions as contained in the order dated 20th April, 2018. The two appeals filed by the State Election Commission in the

meantime against the interim orders of the learned Single Judge â€" not being entertained â€" further sullied its image.

The Court, although loathed to intervene in the election process, particularly when it has been set to motion in view of the Constitutional and

statutory provisions, had to do so in respect of the 2018 Panchayat elections â€" perhaps reluctantly â€" only in view of the arbitrary manner in which

the Commission conducted itself. The election process on being intervened by the order dated 20th April, 2018 â€" which order of the learned Single

Judge has remained unchallenged till this date â€" the Commission has only one option and that is, to follow the direction given in the said order. The

order dated 20th April, 2018, however, nowhere says that the statutory framework is not required to be adhered to. Rather, the said order clearly and

unequivocally speaks that the statutory framework has to be followed [see direction (III) supra].

Upon perusal of the notification dated 21st April, 2018, we find the same is not exactly in accordance with direction (II) as contained in the order

dated 20th April, 2018. Direction (II) is based on the first proviso appended to section 46(2) of the Act of 2003. We also notice that the said

notification is composite in nature in order to bring within its fold not only the first proviso appended to section 46(2) but also the provisions contained

under section 43(1) (b) and (c) of the Act of 2003. However, the argument of the appellant/writ petitioner that the notification dated 21st April, 2018,

lacks the detail as provided under section 43 (1) (d) and (e) or that there should have been one notification containing all details as contemplated under

section 43(1) (a) to (e) could hold good had the same been issued in the normal process without any intervention of the Court. At the same time, the

Commission ought to have adhered to the statutory framework i.e. section 43 â€" to the extent it applies post 20th April, 2018 â€" while rescheduling

the further dates in the election process keeping the spirit of the Court’s direction (III) intact. The fact that the notification dated 21st April, 2018,

lacks the detail as provided under section 43(1)(d) and (e) or that there should have been one notification containing all details, however, can be

construed as an irregularity or lack of understanding of the Court’s directions and cannot be held to be either arbitrary or illegal palpably, since the

said notification is in furtherance of the election process and not in its derogation.

With regard to the argument advanced by the intervener, we do not agree that the appellant/writ petitioner having not challenged the notification

dated 10th April, 2018 is precluded from challenging the notification dated 21st April, 2018. We are compelled to observe that direction (III)

specifically contains the phrase, “further datesâ€, which contemplates more than one date. As such, the notification dated 26th April, 2018, for

holding election on a single date without providing necessary clarification â€"especially when three dates were announced in the previous notification

dated 31st March, 2018 â€" has inevitably raised eyebrows and pointing of accusatory fingers at the Commission, which could have been easily

avoided. The Commission as a Constitutional authority exercising its powers under various statutes and rules is required to act with caution and

prudence. As observed earlier, the Commission ought to have acted strictly in accordance with direction (II) as contained in the order dated 20th

April, 2018, passed by the learned Single Judge in order to avoid prolixity of litigation. However, it is evident that the Commission has, in the process,

itself invited litigations after the election process has commenced. Instead, it ought to have allayed the fears and concern of all stakeholders and above

all, the voters, who repose complete faith and trust on this august Constitutional body. Gaining their confidence, therefore, is the Commission’s

paramount duty, before, during and after the election process commences. At this juncture, we are reminded of the following words of Dr. B. R.

Ambedkar, “However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a

Constitution may be, if those implementing it are good, it will prove to be good.â€​

So far as the argument on behalf the State Election Commission with regard to interference of Court is concerned, we find that the judgment

reported in Vol. 93 CWN 924 has no manner of application in the facts of the instant case. A school authority cannot under any stretch of imagination

be equated with the State Election Commission, being a Constitutional body/authority, which has “superintendenceâ€, “direction†and

“control†over the Panchayat election process. The facts of the case in the judgment reported in Vol. 93 CWN 924 are also totally different. In

the said case, the writ petitioner stated that he was very ill and was not in a position to discharge the duties and functions as Headmaster. On medical

advice he had to take long leave for five years just to regain his health. Records, however, revealed that during such absence he had taken up an

appointment of Extra-Departmental Branch Postmaster at Raitha (Varanashi) and had acted as Branch Postmaster for at least 15 days. He had also

during the period of absence acted as an Assistant Teacher in a school near Varanashi for a long period and received salaries for such service. These

facts were suppressed by the writ petitioner which prompted the Division Bench to pass such order in the said matter. There is no allegation at all as

to suppression of facts in the present case.

Any illegality, whether palpable or otherwise, on the part of the State Election Commission, can be interfered by the Court sitting in its

Constitutional writ jurisdiction or in an appeal therefrom especially when such illegality manifests itself in an action which is arbitrary or wrongful or is

mala fide in nature. There is no scope for avoiding such action from being brought under the scanner of the writ court or before its appellate forum,

both exercising equitable and discretionary jurisdiction. At the same time, we are not unmindful about the limited scope of such interference especially

when the election process has been set to motion.

Interference with the election process, once it has been set to motion is avoided having regard to the important functions which the legislatures

have to perform in democratic countries since such functions have always been recognised to be matter of first importance. It is as such felt that

elections should be concluded as early as possible as per the time schedule. This, however, does not mean that the Election Commission can act in any

manner and its action cannot be questioned till the election is over on the plea that the election process has already commenced. There will be travesty

of justice if such a course is followed. In an appropriate case, the Court can always intervene judging the quality of the action on the part of the

Election Commission.

The Hon’ble Supreme Court by its orders dated 9th April, 2018 and 11th April, 2018 had directed this High Court to address the grievances of

all who may approach it in connection with the Panchayat elections 2018. The writ Court by its order dated 20th April, 2018 â€" which has remained

unchallenged till date â€" has indeed intervened in respect of the election process, inter alia, by quashing the notification dated 10th April, 2018 and

giving directions upon the Election Commission.

It is therefore too late in the day to contend that the Courts should not intervene having regard to the ratio laid down by the Hon’ble Supreme

Court in the judgment reported in 1996(3) SCC 416. Factually also in the said case, the elections were concluded and as such, the Hon’ble

Supreme Court found that the direction given by the High Court not to declare the result of the election or to conduct fresh poll for 20 persons was

uncalled for. The Hon’ble Supreme Court, however, held that the writ petition filed in that case was maintainable. It cannot, therefore be also said

that writ petitions are not at all maintainable as against the Election Commission questioning its illegal and wrongful acts once the election process is

set to motion.

Keeping all the above factors in mind and based on a broad conspectus of the facts of the present case, we refrain from interfering with the order

impugned only for such reasons as stated earlier. It is expected that the State Election Commission shall redeem itself upon taking note of the

observations made hereinbefore as a wake-up call.

We, however, make it clear that any observation made by us in this judgment cannot be used in any manner by any political party/individual

participating in the election process during its campaign.

The appeal and the application for stay stand disposed of accordingly. Urgent photostat certified copy of this judgment and order, if applied for, be

supplied to the parties on priority basis.