PRATAP BANERJEE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This Court by order dated 1/12/2021 had issued following directions:

(2.) Submission of the learned Counsel for the petitioner is that the above directions have not been complied with and no clear time schedule to hold elections of all Municipal Corporations/Municipalities in the State has been disclosed. She has further submitted that no possibility and feasibility of holding the simultaneous elections of all the Municipalities/Municipal Corporations has been explored by the respondent Nos. 2 and 3. Referring to the notification dated 18/3/2015 filed by the petitioner along with the affidavit dated 8th December, 2021, she has submitted that in April, 2015 simultaneous elections of 91 Municipalities/Municipal Corporations/notified area were held, therefore, the same can be held now also. She has further submitted that the elections for Kolkata Municipal Corporation are going to be held by using EVMs which are not VVPAT EVMs. Placing reliance upon the judgment in the matter of Subramanian Swamy vs. Election Commission of India, (2013) 10 SCC 500 ; N. Chandrababu Naidu and Others vs. Union of India and Another, (2019) 15 SCC 377 and Reshma Vithalbhai Patel vs. Union of India, (2018) 18 SCC 675 , she has submitted that the use of VVPATs EVMs is mandatory, therefore, without it the Kolkata Municipal Corporation Elections cannot be allowed to be held. She has also submitted that in respect of Kolkata Municipal Corporation Elections, there is a procedural error in respect of the non-compliance of Sec. 38 of West Bengal Municipal Elections Act, 1994 inasmuch as no public notice in terms of the said Sec. has been given. She has submitted that this Court should issue a direction to postpone the elections of the Kolkata Municipal Corporation or stay it and in this regard she has placed reliance upon the judgment of the Supreme Court reported in Digvijay Mote vs. Union of India and Others, (1993) 4 SCC 175.

(3.) Learned Counsel appearing for the respondent No. 3 Municipal Corporation has submitted that petitioner cannot be permitted to expand the scope of the writ petitioner by raising the new issue of use of VVPATs which was not raised in the writ petition. He has further submitted that in view of constitutional bar, the election of the Kolkata Municipal Corporation cannot be stayed and earlier such a prayer has already been rejected. He has submitted that the consultative process with the State Government is going on and has referred to the communication of the State Government dated 4th December, 2021 proposing to hold the Municipal Elections in the State in 6 to 8 phases by May 2022 and declaring the time schedule on the basis of the circumstances disclosed in the affidavit dated 6th of December, 2021. He has also submitted that the sufficient number of EVMs are not available and the request to provide more EVMs has been turned down by the Election Commission of India and by the other States. He also submitted that VVPATs are to be used in the Parliamentary and Legislative Elections and not in the local body elections and has submitted that the cases relied upon by the Counsel for the petitioner are distinguishable. He has also submitted that Sec. 8 of the West Bengal State Election Commission Act, 1994 and Sec. 36 of the West Bengal Municipal Elections Act, 1994 contain the provision in respect of multiple dates of elections of local bodies.