Bharatiya Janata Party West Bengal vs The State Of West Bengal

Bharatiya Janata Party West Bengal .... Petitioner(s)

Versus

State of West Bengal & Ors. .... Respondent(s)

ORDER

R.K. Agrawal, J.

1) By the present writ petition filed under Article 32 of the

Constitution of India, the Petitioner seeks a writ of mandamus

to direct the West Bengal State Election Commission-

respondent No. 6 to issue nomination forms to the candidates

of the petitioner so as to enable them to file their nomination

in the ensuing upcoming panchayat elections as also to take

immediate steps to make arrangements for submission of Signature Not Verified

nomination papers through email and to provide police Digitally signed by ASHA SUNDRIYAL Date: 2018.04.09 12:58:34 IST Reason:

protection to the candidates of the petitioner so as to enable

1 them to collect and deposit the nomination forms for the

purpose of contesting the panchayat elections already notified

and also direct the respondents Nos. 1 to 3 to call for Central

Para-Military Forces to maintain the law and order during the

conduct of the panchayat elections in the State of West

Bengal.

2) We have heard Shri Mukul Rohatgi and Shri P.S.Patwalia

the learned senior counsels appearing for the petitioner and

Dr. Abhishek Manu Singhvi and Shri Amrendra Saran,

learned senior counsel for the respondent Nos. 1 to 4 and

Shri Tushar Mehta, learned Additional Solicitor General for

respondent No. 7.

3) Relying upon the newspaper reports which appeared in

the Times of India, Kolkata edition dated 03.04.2018 and

04.04.2018, the Statesmen, Kolkata edition dated 04.04.2018

and the Telegraph e-paper preview,the learned senior counsels

for the petitioner submitted that the petitioner’s candidates

who want to contest election for the panchayat which is to be

held in the State of West Bengal are not allowed to collect the

nominations forms and to submit the same on account of

2 violent resistance being put by the supporters of the ruling

party.

4) In support thereof, learned senior counsel for the

petitioner placed before us a chart showing the nomination

report cumulative upto 04.04.2018 in respect of Zila Parishad,

Panchayat Samiti and Gram Panchayat.

5) At this juncture, learned senior counsel relied upon a

decision dated 28.06.2013 passed in SLP (C) Nos.

19928-19931 of 2013 titled West Bengal State Election

Commission Vs. State of West Bengal & Ors. to impress upon

the court that on earlier occasion also when the panchayat

election in the State of West Bengal was to be held in the year

2013, then this Court exercised its powers and directed to

re-schedule the elections.

6) Learned Senior Counsel, therefore, submitted that the

State Election Commission be directed to issue nomination

papers on internet which may be downloaded, filled and

submitted on internet by the candidates of the Petitioner as

well as candidates of all other political parties including those

3 persons who want to contest the election as independent

candidates.

7) The learned counsel for the respondent, however,

submitted that the writ petition has neither been filed by an

individual candidate nor any details have been given to show

that any candidate has been prevented by anybody from

obtaining and filing the nomination papers. Thus, in view of

the decision of this Court in the case of Bharat Singh and

Others vs. State of Haryana & Others - (1988) 4 SCC 534, the

writ petition itself is not maintainable.

8) Further, relying upon the decision in Boddula

Krishnaiah and Anr. vs. State Election Commissioner, A.P.

& Ors. – (1996) 3 SCC 416 wherein it was held as under:-

“….11. Thus, it would be clear that once an election process has been set in motion, though the High Court may entertain or may have already entertained a writ petition, it would not be justified in interfering with the election process giving direction to the election officer to stall the proceedings or to conduct the election process afresh, in particular when election has already been held in which the voters were allegedly prevented from exercising their franchise. As seen, that dispute is covered by an election dispute and remedy is thus available at law for redressal.”

learned Senior Counsel for the respondent submitted that as

the election process has been set in motion, this court should

4 not pass any directions which may effect the elections.

According to him, the State Election Commission is the

appropriate authority to look into all these grievances and in

fact on 05.04.2018, the West Bengal State Election

Commission had issued a Notification No.

632-SCC/3E-30/2018 providing additional venue for filing

nomination.

9) Shri Tushar Mehta, learned counsel submitted that the

respondent No. 7 can make arrangements for providing para

military forces if the State Election Commission makes a

request or any directions is issued by this Court.

10) In reply, the learned senior counsel for the petitioner

invited the attention of the court to paragraph 6(o) wherein a

specific mention has been made where a person who went to

file his nomination was severely beaten up and succumbed to

the injuries.

11) We have given our thoughtful consideration to the

submissions made by learned senior counsel for the parties. It

is not in dispute that the West Bengal State Election

Commission had issued notifications 02.04.2018 for holding

5 panchayat elections in the State of West Bengal. Thus, the

election process has been set into motion. In view of the

decision of this Court, in the case of Bodula Krishnaiah (supra)

wherein it was held that once the election process has been set

in motion, the Court ought not to interfere, we are not inclined

to interfere. However, the fact remains that according to the

newspaper reports filed along with writ petition which has

been referred to by the learned senior counsel for the

petitioner incidence of violence has taken place when the

candidates have gone to obtain and file their nomination

papers. This also stands fortified with the notification dated

05.04.2018 issued by the West Bengal State Election

Commission where the State Election Commission had

provided additional venue for filing the nomination papers.

12) From the perusal of the Scheme and the provisions of the

West Bengal Panchayat Elections Act, 2003 (for brevity “the

Act”), we find that the Act has empowered the State Election

Commissioner to pass appropriate orders in relation to any

grievance, when made by any political party, or/and their

individual candidate including any independent candidate

6 with regard to any matter relating to and arising out of the

election and election process.

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 be and pass

appropriate order/s keeping in view the nature of grievance

made and relevant factors concerning the election and its

process.

14) We are, therefore, inclined to dispose of this petition by

granting liberty to all political parties, their candidates,

including any independent candidate/s proposing to contest

the election in question, to approach the State Election

Commissioner with their any individual or/and collective

grievance.

15) If any such grievances are made by any political parties

or/and any candidate/s in writing then needless to say, the

State Election Commissioner would ensure disposal of any

such grievance so made by the party concerned strictly in

accordance with law forthwith.

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16) We hope and trust that in order to ensure fair and free

election to the panchayats, the State Election Commission

shall take appropriate steps to remove the apprehensions of

the petitioner and/or intending candidates and they may not

be deprived of their chance to contest the panchayat elections.

With the aforesaid observations, the writ petition is disposed

of.

...…………….………………………J. (R.K. AGRAWAL)

…....…………………………………J. .

(ABHAY MANOHAR SAPRE)

NEW DELHI;

APRIL 09, 2018.

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