Party For Democratic Socialism (Pds) & Anr. v. West Bengal State Election Commission & Ors.

1 01.05.2018 K.B. /b.r.

/F.B/Sws.M.

AST 14 of 2018 With ASTA 8 of 2018 AST 13 of 2018 With ASTA 7 of 2018 W.P. 4969(W) of 2018 Party for Democratic Socialism (PDS) & Anr.

West Bengal State Election Commission & Ors.

With Communist Party of India (Marxist) State of West Bengal & Ors.

With Golam Mostafa & Ors.

The State of West Bengal & Ors.

Mr. Sabyasachi Chatterjee Mr. Sourav Mondal Mr. Debarshi Amin ..for the petitioner Mr. Saktinath Mukherjee Mr. N.C. Bihani Ms. Papiya Banerjee (Bihani) .for the Commission Mr. L.K. Gupta Mr. Brajesh Jha Mr. Debasish Shah Mr. Sumeet Chowdhury Mr. Amarjit De Mr. Radhamohan Roy Mr. Sukanto Ghosh Mr. Manabendra Bandopadhyay .for the intervenor Mr. Kishore Dutta Mr. Abhratosh Majumder 2Mr. Subhobrata Dutta Mr. T.M. Siddiqui Mr. Nilotpol Chatterjee .for the State Mr. Koushik Chanda Mr. Soumen Bhattacharya for the Respondent No. 7 in AST 14 of 2018 Mr. Samim Ahmed ..for the petitioner in AST 13 of 2018 Mr. Kalyan Banerjee ..for the intervenor Sir Samuel Creasy (former Chief Justice of Ceylon now SriLanka) in his book Fifteen Decisive Battles of the World refers to a fascinating legend connected to the attempted invasion of England by the Spanish Armada in the 16th Century. As the Spanish galleons closed onto the English shore, the major English generals of the stature of Sir Francis Drake, Sir Walter Raleigh, among several others, were at a bowling game. On news of the approaching Armada, the Generals/Captains of the Navy left their Bowling Alleys and were taking to their ships. It was Sir Drake who stopped them and, suggested that the game be played till over. All agreed and, it was so done.

The above allusion may not be entirely suggestive enough of the poll-related issues being successively raised before Court and the further fact of the Court retiring today in the midst of hearing to attend to an equally important ceremonial oath and, thereafter, with the assistance of the learned Members of the Bar, reassembling to complete the hearing.

Without embarking upon too much of unsolicited advice, the agony of both the Legislative/Executive Combine and the Court does not require to be traced out beyond the doorsteps of the West Bengal Election Commission (the Commission). The petitions have come almost as a tidal wave and much, to the discomfiture of any Constitutional Court, the Commission time and again reminded of its responsibilities.

The issue in this fresh batch of three Writ Petitions along with two Intervention Applications is the Notification of the Commission dated 26th April, 2018 fixing 14th May, 2018 as the day/date of polling alleging lack of attention to the finer/final details of the security arrangements that may be necessary for the poll.

3Three writ petitions and two Intervention Applications are therefore taken up for conjoint consideration on issues which are pari materia.

The petitioners and, the interventionists, are political parties who claim respectively to be and, not to be, aggrieved by the Election Notification dated 26th April, 2018 of the Commission by which the twenty odd districts of the State of West Bengal are scheduled to go for Panchayat Polls on 14th May, 2018.

The opening paragraph of the notification deserves to be quoted in verbatim:-

In compliance with the order of the Honble High Court, Calcutta in WP No. 4716(W) of 2018, W.P. No. 4737(W) of 2018 and WP No. 4753(W) of 2018 dated 20.04.2018 read with Notification No. 2828/PN/O/I/E-01/2-17 (Pt-II) dated 26.04.2018 issued by the State Govt., the West Bengal State Election Commission, hereby appoints in respect of those districts as mentioned in the schedule below, the 14th May, 2018 as the date on which the poll shall, if any, be taken from 7.00 A.M. to 05.00 P.M.

This Court has had the distinct pleasure of hearing learned Senior Counsel for the appearing parties whose names appear in the order of their cause as printed in the cause title above, including the learned Advocate General and the learned Additional Advocate General.

The point for arguments before this Court in the three writ petitions and the intervening applications is principally the order dated 24th April, 2018 in W.P. 4886 (W) of 2018, also passed by this Court. By the order of 24th April, 2018 this Court essentially took into consideration the following two issues.

The first issue stood connected to the exercise of jurisdiction by the Commission extending the date of notification for filing of nominations pursuant to the earlier order of this Court dated 20th April, 2018.

In the context of its earlier pronouncements this Court, reiterating the same, declined any further intervention on the first issue.

4The second issue connected to the security arrangements for the Panchayat Polls which was also and earlier the subject matter of an adjudication by the Honble Division Bench in a Public Interest Litigation (PIL) bearing No. W.P.

4613(W) of 2018.

This Court had the occasion to notice the direction dated 6th April, 2018 in the PIL as well as the attempt to move ahead with the direction dated 6th April, 2018 by the writ petitioner therein by way of a contempt application being CPAN 312 of 2018.

While discussing the conspectus of facts and circumstances, this Court arrived at the following findings.

First, while appreciating that the Commission is the holder of the electoral process under the statutory framework, having regard to the aspect of security arrangements as well as the direction passed by the superior Benches, particularly the Honble Apex Court vide its order dated 9th April, 2018, this Court permitted the Commission to take cognizance of the complaints filed before it by the major stake holders/ collective entities, as also defined by the order dated 9th April, 2018 (supra) and then, meaningfully carry forward the electoral exercise.

This Court had also directed the Commission to place its remedy by way of security arrangements connected to the polling calendar at each stage of which it is necessary before the Honble Division Bench, which, as recorded above, is already in seisin of the same.

Mr. Saktinath Mukherjee, learned Senior Counsel appearing in support of the Commissions Notification dated 26th April, 2018 defines the aspect of security arrangements and the observations made by this Court vide its order dated 24th April, 2018 as a process.

Mr. Mukherjee submits that in connection with the security arrangements the major stakeholders have been consulted and, upon such consultation, the Commission has arrived at the view that 14th May, 2018 shall be taken to be the day/date of polling.

5Mr. Mukherjee points out that the complete understanding of the Commission on the security scenario shall be placed before the Honble Division Bench on the date the PIL is next fixed for consideration which, this Court is informed, is the 4th of May, 2018.

Next, Mr. Mukherjee points out that the directions of this Court in fixing the onward polling process on the 20th of April, 2018 in W.P. 4716(W) of 2018 with CAN 2208 of 2018, W.P. 4737(W) of 2018 and W.P. 4753(W) of 2018 have been dutifully complied with by the Commission.

Having heard the parties and considering the materials placed, this Court must observe at the outset that the Commissions job qua the order dated 24th April, 2018 although is clear to all but, the Commission itself. While admitting prima facie force behind Mr. Mukherjees submission that the security arrangements belong to the realm of the Honble Division Bench (and such has been expressed by the order dated 24th April, 2018 (supra)), this Court must, at the same time, notice the lack of symmetry between the materials placed on behalf of the Commission on its application of mind to the concerns raised in the order 24th April, 2018 vis-a-vis, the fixation of a polling date on 14th May, 2018.

The diffidence of the Commission is perhaps evident from the language of the Notification dated 26th April, 2018 which, inter alia, states the 14th May, 2018 as the date on which the poll shall, if necessary, (emphasis supplied), be taken..

In the backdrop of the above discussion, this Court, while acknowledging the competence of the Commission to place its full understanding of the security arrangements before the Honble Division Bench on 4th May, 2018, as argued today, at this stage directs the Commission to treat the polling date as Notified by it as only tentative.

AST 14 of 2018 with ASTA 8 of 2017, AST 13 of 2018 with ASTA 7 of 2018 and W.P. 4969(W) of 2018 stand accordingly disposed of.

6Urgent certified photocopy of this order, if applied for be given to the parties upon compliance of all necessary formalities.

(Subrata Talukdar,J.)