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2020 Supreme(Cal) 327
IN THE HIGH COURT OF CALCUTTA
Rajasekhar Mantha, J.
Bharatiya Janat Party - Appellant
Versus
State Of West Bengal And Others - Respondents
W.P. No. 1554 (W) of 2020
Decided On : 28-01-2020
Mr. Smarjit Roy Chowdhury, Mr. Ajit Kumar Mishra, Mr. Indrajit Chatterjee, for the Appellant, for the Appellant; Mr. Nayan Chand Bihani, Ms. Papiya Banerjee Bihani. for the West Bengal State Election Commission. Mr. Kishore Datta, ld. Advocate General, Mr. Sirsanya Bandopadhyay. for the State, for the Respondent
The court established that the remedy for challenging the election process would lie after the completion of the election process before the District Judge, as per the West Bengal Municipal Elections Act, 1994.
Headnote:
Election Process - West Bengal Municipal Elections (Reservation of Seats) Rules, 1994 - Article 243 (z) - 1995 (Supplement) 2 SCC 305
Fact of the Case:
The writ petitioner, a political party, challenged the election process for the Howrah Municipal Corporation, specifically objecting to the handling of objections and the lack of a hearing by the Election Commission.
Finding of the Court:
The court found that the Election Commission followed the West Bengal Municipal Elections (Reservation of Seats) Rules, 1994 and that the petitioner's remedy would lie after the election process is completed before the District Judge.
Issues: The issues revolved around the handling of objections and the requirement of a hearing in the election process, as well as the jurisdiction of the court to interfere in electoral matters.
Ratio Decidendi: The court relied on the provisions of the West Bengal Municipal Elections (Reservation of Seats) Rules, 1994 and Article 243 (z) of the Constitution of India, as well as the decision in 1995 (Supplement) 2 SCC 305, to determine that the petitioner's remedy would lie after the election process is completed before the District Judge.
Final Decision: The court decided not to grant an interim order and directed the Election Commission to file an affidavit-in-opposition to the main writ petition within two weeks.
JUDGMENT
1. The writ petitioner is a political party and has challenged the process of Election to be held to the Howrah Municipal Corporation. The specific issue urged is that after publication of a draft order, in terms of Rules 3 and 4 of the West Bengal Municipal Elections (Reservation of Seats) Rules, 1994 on 20th December, 2019, objection was filed by the petitioner on 2nd January, 2020.
2. The petitioner would argue that an All Party Meeting was called by the Election Commission and was held but the objection of the petitioner was not heard.
3. Counsel appearing on behalf of the Election Commission would rely upon Rule 4(2) and 4(3) of the aforesaid West Bengal Municipal Elections (Reservation of Seats) Rules, 1994 stating that the Commission is required to receive objections to the draft order published under Rule 4(1) and is only required to consider the same and dispose them off. No hearing is contemplated in the said Order.
4. It is submitted by reference to an order dated 2nd January, 2020 that such consideration has been effected. A photostat copy of this order is taken on record and shall be furnished to the Counsel for the petitioner.
5. The Election Commission relies upon a judgment of the Honble Supreme Court in the case of State of Uttar Pradesh & Ors. - Vs. - P. S.S. Samity reported in 1995 (Supplement) 2 SCC 305 at paragraph 45. The Honble Supreme Court has held in as follows:
'45. What is more objectionable in the approach of the High Court is that although clause (a) of Article 243-O of the Constitution enacts a bar on the interference by the courts in electoral matters including the questioning of the validity of any law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made or purported to be made under Article 243-K and the election to any panchayat, the High Court has gone into the question of the validity of the delimitation of the constituencies and also the allotment of seats to them. We may, in this connection, refer to a decision of this Court in Meghraj Kothari v. Delimitation Commission [(1967) 1 SCR 400 : AIR 1967 SC 669] . In that case, a notification of the Delimitation Commission whereby a city which had been a general constituency was notified as reserved for the Scheduled Castes. This was challenged on the ground that the petitioner had a right to be a candidate for Parliament from the said constituency which had been taken away. This Court held that the impugned notification was a law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made under Article 327 of the Constitution, and that an examination of Sections 8 and 9 of the Delimitation Commission Act showed that the matters therein dealt with were not subject to the scrutiny of any court of law. There was a very good reason for such a provision because if the orders made under Sections 8 and 9 were not to be treated as final, the result would be that any voter, if he so wished, could hold up an election indefinitely by questioning the delimitation of the constituencies from court to court. Although an order under Section 8 or Section 9 of the Delimitation Commission Act and published under Section 10(1) of that Act is not part of an Act of Parliament, its effect is the same. Section 10(4) of that Act puts such an order in the same position as a law made by Parliament itself which could only be made by it under Article 327. If we read Articles 243-C, 243-K and 243-O in place of Article 327 and Sections 2(kk), 11-F and 12-BB of the Act in place of Sections 8 and 9 of the Delimitation Act, 1950, it will be obvious that neither the delimitation of the panchayat area nor of the constituencies in the said areas and the allotments of seats to the constituencies could have been challenged nor the court could have entertained such challenge except on the ground that before the delimitation, no objections were invited and no hearing was given. Ev
