UJJWAL TRIVEDI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Since the reliefs sought for in both the writ petitions are identical, they were heard together and are disposed of by this common judgment and order. The petitioners have filed these writ petitions as public interest litigation praying for issuance of writ of mandamus to declare the West Bengal Panchayat Election, 2023 as void because of non-compliance of basic principles of Constitution and the statute to ensure free and fair elections; for issuance of a direction for an independent agency to investigate into the affairs of filing of nomination of candidates belonging to the ruling party in an abnormally short span of time i.e. 76000 nominations in two days including filing of nominations by persons who are not in India; to declare that the present State Election Commissioner is incapable of conducting election independently and to remove him from his post and be replaced by an independent person. The petitioners have prayed for other reliefs which are incidental and ancillary to the main relief.

(2.) Mr. Bikas Ranjan Bhattacharya, learned Senior Advocate appearing for the petitioner submitted that in many cases the candidates were prevented from filing the nominations, a person who was in Saudi Arabia has filed nomination, nominations are not being filled up in its entirety, several of the persons who had filed nominations were threatened to withdraw the nominations and considering all these factors in such areas where all these illegalities have occurred, the elections have to be stalled and elections can be conducted in other places. It is further submitted that though the learned Writ Court had issued direction for granting police protection to the candidates for filing the nominations those nominations have been rejected on the ground that it was filed after 3 P.M. without noting that the candidates were prevented from filing the nominations which necessitated them to approach the Court for appropriate directions. Further, the decisions which are always referred to by the Election Commission and the State, rendered by the Hon'ble Supreme Court are pertaining to elections to the Parliament or the State Legislature and the said decisions would not be applicable to elections to the Panchayats as the elections are governed by the West Bengal Panchayat Elections Act, 2003. Further, it is submitted that two orders passed by this Court in a public interest litigation in WPA (P) 250 of 2023 etc. dtd. 13/6/2023 and WPA (P) 301 of 2023 dtd. 15/6/2023 were not implemented and was deliberately delayed so as to make the orders unworkable. The learned Senior Advocate referred to Sec. 64 of the Election Act, 2003 and various other provisions of the Act to demonstrate that the State Election Commission has inherent power to defer the polls. After referring to Sec. 46(1) and (2) of the Election Act, 2003, it is submitted that the essence of the statute is to ensure that none are prevented from filing nomination and the inaction of the State Election Commission goes against the intention of Sec. 46(2) of the Act in this regard, an order passed by the State Election Commission dtd. 25/6/2023 was referred to. The learned Senior Advocate elaborately referred to the various provisions of the Election Act, 2003 namely, Ss. 46, 47, 64, 79 and 93 to demonstrate as to the procedure to be adopted while conducting the elections. It is further submitted that the candidate who was prevented from filing the nomination was a candidate who was compelled and threatened to withdraw the nomination has no other remedy as an election petition at this instance will not be maintainable as it is not one of the grounds which have been enumerated under Sec. 93(1)(c) of the Election Act, 2003. In support of his contention, reliance was placed on the decision of the Hon'ble Supreme Court in Mohindar Singh Gills Versus Chief Election Commissioner (1978) 1 SCC 405, Union of India Versus Association for Democratic Rules (2002) 5 SCC 294. In The matter of Gujarat Assembly Election (2002) 8 SCC 237 and Dravida Munnetra Kazhagam Versus State of Tamil Nadu (2020) 6 SCC 548. These decisions have been relied on to explain that a writ petition is not a complete bar under Article 329 (b) of the Constitution of India and the Court would be empowered to issue directions without any manner interfering with the distinct powers of the State Election Commission.

(3.) Mr. Jishnu Saha, learned Senior Advocate appearing for the State Election Commission submitted that the petitioners' plea is a very belated attempt and no specific instance had been pointed out and the allegations are absolutely vague. The averments in paragraph 8 of the writ petition in WPA (P) 306 of 2023 cannot be a cause of action and the writ petitions have been filed solely based upon media reports and are not maintainable. Further, it is submitted that when the writ petition is based on conjectures, the Writ Court will not entertain the writ petition. More particularly, when the prayer sought for in both the writ petitions indirectly seek to undo the entire election process. It is submitted that the averment set out in paragraphs 5 and 6 of the writ petition in WPA (P) 307 of 2023 are similar to the submissions which were made in the earlier writ petitions which were considered and the Court has passed final orders which has been affirmed by the Hon'ble Supreme Court and, therefore, the petitioners are not entitled to initiate the second round of litigation on the same aspects. Further, it is reiterated that there is no specific averment in the writ petitions as to who was the prospective candidate, who was prevented from filing their nomination or who was the candidate who was compelled to withdraw the nomination and in the absence of any details, the averments have to be treated as unsubstantiated allegations and the writ petition is liable to be dismissed. Further, the petitioners have not stated as to who prevented the prospective candidates from filing the nomination when they were prevented, how they were prevented and in the absence of any such details the writ petition is not maintainable. It is further submitted that whenever a complaint is lodged before the State Election Commission, the same was immediately considered and steps have been taken to redress the grievances. Therefore, it is prayed that the writ petition may be dismissed.