The court held that the notification issued by the State Election Commission regarding the reservation of seats for SC/ST candidates and women in the ensuing Municipal Elections was in accordance with the West Bengal Municipal Elections (Reservation of Seats) Rules, 1994 and that the plea of political motivation was speculative and could not be raised as an issue for adjudication in the Court of Law.

Sidheswar Narayan, J:

In both the above writ applications filed under Article 226 of the Constitution of India the petitioners have challenged one and the same Notification, bearing No. 12RE dated 20th March, 1995 issued by the State Election Commission of the State of West Bengal regarding reservation of seats for SC/ST candidates and for women in the ensuing Municipal, Elections in the Calcutta Municipal Corporation expected to be held on in June/July, 1995. The learned Trial Court has passed an order, in both the writ applications, inter-alia, directing that the status quo as on the date of said order was to be maintained till certain time and subsequently, the interim order was allowed to continue until further orders and accordingly the whole election process has since been held up. Being aggrieved by the said interim order, the State of West Bengal has come up with two separate appeals with regard to both the writ applications. By the consent of the parties the writ applications as also the appeals arising out of those have been taken up together for hearing and disposal.

2. The writ petitioners of matter No. 679/95 were the voters in Ward No. 45 of the Calcutta Municipal Corporation and one of them, being petitioner No.1. was desirous of cortesting the ensuing election from Ward No. 45 of the said Corporation. The sole writ petitioner of matter No 724/95 was the voter of Ward No. 11 of the Calcutta Municipal Corporation and claimed himself to be prospective candidate in the ensuing Municipal Election. Be it noted however, that the right to elect or to be elected is a right conferred under the statute and it is only in the event of there being an infraction 4/5 of the statutory provisions, the notification of our jurisdiction of the High Court under Article 226 of the Constitution can be had and for no other reason since it cannot be termed to be a right guaranteed under the Constitution or a right under common law. It's a mere statutory right infraction of which will give rise to a cause of action. To this context the observations of the Supreme Court in the case of Jyoti Basu vs. Debi Ghosal (AIR 1982 SC 983) seem to be very apposite. The Supreme Court in Paragraph 8 of the report observed :-

“A right to elect, fundamental though it is to democracy, is anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the Common Law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters as those, relatnig to the trial of election disputes, is what the statute lays down. In the trial of election in disputes, Court is put in a straight jacket."

3. Turning attention on to the notification under challenge in both the writ-applications has been issued in exercise of power conferred by Rule 3 of the West Bengal Municipal Elections (Reservation of Seats) Rules, 1994 by and under the seal of the prescribed authority of the State Election Commission and it purports to publish the draft of the order to determine (1) name of the Municipality, (2) number of members to be elected to the Municipality, (3) number of constituency. (4) constituencies reserved for Scheduled Castes and Scheduled Tribes. (5) constituencies reserved for women. Since