1 12.04.2018 K.B./b.r. AST 9 of 2018 (W.P. 4716(W) of 2018) With CAN 2188 of 2018 Bharatiya Janata Party & Anr. The State Election Commission and others. Mr. Pratap Banerjee .for the petitioner in person. Mr. Kalyan Banerjee .for the applicant in CAN 2188 of 2018. Mr. Nilanjan Sandilya ..Secretary, State Election Commission Mr. Saurabh Kumar Das .O.S.D. & Additional Chief Secretary & R.D. Dept. The writ petition, A.S.T. No. 9 of 2018, has appeared today along with the connected vacating application, CAN 2188 of 2018. Parties are represented in person in the order of their name/names as printed above in the cause title. For the sake of avoiding prolixity, this Court commences the present discussion from its previous order 2dated 10th April, 2018. While the contents of the order are self-explanatory by now, the operative part, to the mind of this Court, crucially connects to the cancellation of the Notification extending the time for filing nominations by the Commission vide its order of 10th April, 2018. This Court, upon a discussion of the legal provision on the issue, viz. Section 46(2) of the West Bengal Panchayat Act, 2003 (the 2003 Act), inter alia, permitted the Commission to take steps in accordance with law by treating the operation of the order dated 10th April, 2018 to have been kept in abeyance. Before further addressing the operative part of the order dated 10th April, 2018 it would be necessary to notice the following facts:- First, that by order dated 11th April, 2018 in M.A. 1030 of 2018 connected to Writ Petition (Civil) No. 302 of 2018, the Honble Apex Court granted liberty to the parties, who are also before this Court, to raise all issues before the Calcutta High Court. The Honble Apex Court observed that the High Court shall decide the matter expeditiously in accordance with law. 3Second, while considering the entitlement of the petitioners to continuity of the order dated 10th April, 2018(supra) in A.S.T. 9 of 2018, the attention of this Court is drawn by Mr. Kalyan Banerjee, appearing in person for the added respondent No.7, that the petitioners are not entitled any further to the continuity of the order dated 10th April, 2018 since, the petitioners suppressed before this Court that they intended to file a similar application in the nature of an Interlocutory/Miscellaneous Application before the Honble Apex Court and, such application, to the knowledge of the petitioners, was indeed filed. Relying heavily on the authority of 2010(2) SCC 114, Mr. Banerjee submits that the petitioners cannot be permitted the luxury of forum hunting having committed fraud on this Court by not disclosing the pendency/filing of the MA No. 1030 of 2018 connected to Writ Petition(Civil) No. 302 of 2018. Therefore, the order dated 10th April, 2018 deserves to be vacated. Connected to the second issue above, it is argued that Rule 11 of the High Court Appellate Side Writ Rules enjoins 4upon the petitioners the duty to place all pleadings before the Court from which the relief is sought. In the absence of compliance of Rule 11 (supra), the petitioners in A.S.T. 9 of 2018 cannot claim continuity of any relief on the ground of concealment of a material fact. The third issue raised on behalf of both the added respondent No.7 and the State Election Commission (the Commission), relates to the lack of maintainability of the writ petition. Relying on the authorities of AIR 1952 SC 64, (1996)3 SCC 416, (2000) 8 SCC 216 and (1985) 4 SCC 689 it is submitted that the writ petition is not maintainable and, must be treated as an Election Petition to which the arms of the present Court do not extend. Reliance is also placed in support of the above argument on the constitutional Articles governing elections to panchayat bodies. It is accordingly submitted that this Court ought not to have entertained A.S.T. 9 of 2018 at the first instance, far from conferring the petitioners with the blessing of an interim order on the 10th of April, 2018. 5On behalf of the petitioners appearance is entered in person and argument is placed in support of the extension Notification dated 9th April, 2018, as already discussed by the order of this Court dated 10th April, 2018 (supra). It is reiterated that the abrupt cancellation on 10th April, 2018 of the extension granted shows abuse of its discretionary powers by the Commission. The Commission could not have, pursuant to the order of the Honble Apex Court on the 9th of April, 2018 directing it to take steps to allay the grievances of candidates/political parties read in the light of the power endowed upon it by Section 46(2) of the 2003 Act, taken refuge behind a technicality that for any and every situation falling within the formative period of the electoral exercise, the extension of a single day/date can only be done through the same order, notwithstanding the presence of the controlling prefix may also as drafted by the legislature into the Proviso of Section 46(2). Intervention is today sought to be made in the present proceeding through respective writ petitions filed in person by three individuals representing three collective entities/ political parties. 6First, on behalf of the Bharatiya Janata Party (BJP) by Mr. Bijan Ghosh describing himself as Co-Convenor (Legal), Panchayat Election Committee, 2018. Second, Mr. Samir Putatunda, describing himself as the General Secretary of the Party for Democratic Socialism (for short PDS). Next, is the intervention by way of a petition filed on behalf of the Communist Party of India (Marxist) by Mr. Rabin Deb, describing himself as a social worker and member of the C.P.I.(M). Orally, Mr. Adhir Ranjan Chowdhury, seeks leave to intervene on behalf of the Indian National Congress(INC). Having heard the parties and considering the materials placed, this Court arrives at this stage at the following findings:-

A) That the terms of the first order of the Honble Apex Court dated 9th April, 2018 require to be reiterated, particularly Para-13 thereof:-

7 13. It is, therefore, essentially for the State Election Commissioner to consider the grievance once made by any party or/and candidate as the case may and pass appropriate order/s keeping in view the nature of grievance made and relevant factors concerning the election and its process.

B) Although there may be a legal basis to the argument advanced by Mr. Kalyan Banerjee and the Commission that normally a Writ Court may not interfere in an electoral exercise, this Court, at this stage, is of the view that this writ petition is maintainable inasmuch as the issue raised (order of 10th April, 2018 in AST 9 of 2018) goes to the root of the electoral exercise and, the Commission, being a constitutional sibling, is only in receipt of assistance of this Court for restoration of due process without seeking to obstruct or, calling in question the election itself.

C) It is trite law that where the mode of fulfilling a duty ( Proviso to Section 46(2)), lies in the discretion of an authority (the Commission), the performance cannot be escaped or whimsically performed by a claim of discretion as to its method (Reference: R. vs. Marshland Commrs, (1920) 1 KB 115 (at 166)). 8D) Even assuming, but not admitting, for the sake of argument that the writ petition is not maintainable, this Court draws sustenance from the observations at Paragraph-13 of the order of the Honble Apex Court dated 9th April, 2018 which directs the Commission to essentially (emphasis supplied) take stapes to allay the grievances raised before it.

E) Furthermore, as noticed by this Court in its order of 10th April, 2018 the Commission, by its implicit conduct of extending the day/date of filing nominations recognized the existence of such grievances. However, such extension having been abruptly withdrawn, this Court in the light of the mandate granted to the Commission by the Honble Apex Court vide its solemn order of 9th April, 2018 and, thereafter to the High Court by its further order dated 11th April, 2018, cannot be expected to shy away from its duty to assist the Commission in furtherance and, not in usurpation, of electoral due process.

F) However, at the hearing today, this Court is informed by the Commission that the Commission has 9proceeded with the scrutiny of the nomination papers when, the pre-requisite for such scrutiny in the absence of a complete brief from the Commission of the steps taken to create a level playing field cries for a timely course correction.

G) This Court is under no illusion whatsoever that it is the Commissions job to do its statutory job. This Court finds strength from a line of legal authorities that a Writ Court can and, must intervene in aid of an electoral process and, not in derogation thereof. (Reference: Election Commission of India vs. Ashok Kumar, (2000) 8 SCC 216).

H) The present discussion will be incomplete if this Court fails to record its extreme dissatisfaction at the conduct of the petitioners in person in AST 9 of 2018. Although the petitioners in person/BJP were completely in seisin of the pending proceedings before this Court and, inspite of information chose not to appear and explain their conduct connected to the charge of suppression of a material fact on 11th April, 2018 when the connected Vacating Application was mentioned for consideration, the allegation of forum convenience qua the petitioners cannot be brushed under the carpet.

J) However, at the present stage, this Court ought not to throw the baby out with the bath water. In other words, the public cause need not be drained out for reason of a defect prima facie found in the espouser of such cause. Therefore, this Court does not vacate its direction upon the Commission as contained in its order of 10th April, 2018 but, notwithstanding the feeble apology voiced by the petitioner No.2 on behalf of self and the petitioner No.1 in Court, puts the petitioners to terms by directing deposit of Rs.5,00,000/- (Rupees five lakhs only) to the Ld. Registrar General of the High Court at Calcutta towards costs which may be ultimately assessed at the conclusion of the present proceeding. Proof of deposit of the above directed amount shall be furnished by the petitioners on the next date of hearing.

K) This Court, upon the further finding that the Commission has failed to allay grievances/take steps as directed by the orders dated 9th April, 2018 and 10th April, 2018(supra), as also the mandate cast upon it to examine all issues expeditiously in accordance with law vide the solemn order of 11th April, 2018 (supra), directs the Commission before proceeding further with any step/steps connected to the electoral exercise to first apprise this Court on Affidavit of the steps taken in terms of its direction dated 10th April, 2018 read in the light of the Order of the Honble Apex Court dated 9th April, 2018. Considering the immediacy of its consideration, the matter is made returnable under the heading Fixed Matters on the 16th of April, 2018 at the first sitting of the Court when the Commission shall file its Report on Affidavit. Next, with regard to the three writ petitions mentioned today, the writ petition filed by the Communist Party of India (Marxist) and the PDS in person are allowed to be tagged along with AST 9 of 2018 on the next date. The writ petition filed by Mr. Ghosh as Co-Convenor (Legal) of the Election Committee of Bharatiya Janata Party is not permitted to be tagged having regard to the salutary principle of avoidance of multiple proceedings on a similar issue by the same entity. In the absence of formal pleadings, the oral intervention by Mr. Choudhury representing the INC is also not entertained for the present. The application, being CAN 2188 of 2018 stands thus disposed of, without pushing it to Affidavits. Let a Photostat plain copy of this order duly countersigned by the Assistant Registrar(Court) be handed over to the parties on usual undertakings. (Subrata Talukdar, J.)