Point of Law: Election - Election Petition may or may not be maintainable after the result of the Assembly is declared. Any of the losing party shall have the right to avail of his/her appropriate remedy to challenge the election on the grounds available in law.

JUDGMENT :

Rajesh Bindal, J.

1. The Present petition has been filed in public interest by an advocate. The prayer is to quash the memo dated September 04, 2021 vide which decision was taken by the Election Commission of India for election to 159-Bhawanipur Assembly Constituency in the State. As an interim measure, prayer was made for stay of paras 6 and 7 of the aforesaid communication.

2. Mr. Bikash Ranjan Bhattacharya, learned Senior Counsel appearing for the petitioner submitted that the very basis on which the election to only one Constituency was notified, is erroneous. It is based on a communication from the Chief Secretary of the State that the COVID-19 situation in the State is fully under control and so is the flood situation. While referring to Article 164(4) of the Constitution of India, the Chief Secretary further informed the Election Commission that there would be constitutional crisis in the State, in case there is vacuum in the top executive as the respondent No. 5 is to contest election from that constituency. It was on the basis thereof that election to the aforesaid constituency was notified by the Election Commission. The State Assembly consists of 293 members. The Ruling party won 213 seats. One member is not that important. The respondent No. 5 had lost election from Nandigram Assembly Constituency for which she had filed Election Petition in this Court, which is pending. Despite the fact that she lost in the election, she was elected as leader of the party and sworn in as the Chief Minister of the State. Merely because one person is not elected as of now will not create any constitutional crisis as any other elected member of the Assembly can be sworn in as leader of the party and consequently, the Chief Minister. No doubt Section 151A of the Representation of Peoples Act, 1951 (for short, ‘the Act’) provides for filling up of any vacancy within a period of six months from the date of its occurrence but this period is extendable in consultation with the Central Government in case it is found that it is difficult to hold election within the said period. Individual interest is not relevant as independent decision has to be taken by the Election Commission.

3. He further submitted that on the one hand, the State is extending the lockdown restrictions time and again. Even now the same stand extended upto September 30, 2021. Further the flood situation in the city of Kolkata specially in the constituency area is also very grim but still the Election Commission was mislead in the communication by the Chief Secretary, who did not have any jurisdiction to communicate with the Election Commission for holding the elections. He was behaving like a political party spokesman and not a public servant, who has to work above party lines. How the Chief Secretary can state that the Chief Minister wants to contest from any Assembly Constituency. It is for the candidate to decide. It becomes known to the public only when the nominations are filed or the party declares a candidate. The Chief Secretary may be working not as an independent officer of the State but on the dictates. There is no material as such on record to show that there was any constitutional crisis or could be created.

4. He further argued that in the facts of the present case, the candidate who won from Bhabanipur Constituency resigned without there being any good reason or disqualification to make way for the respondent No. 5 to contest the election. It will incur substantial cost to the State exchequer. If in the Election Petition filed by the respondent No. 5, she succeeds, again she will be representing two constituencies in case she wins in the Assembly By-election of Bhabanipur Constituency. She will have to resign from one of these constituencies. The political leaders cannot be allowed to treat this as a game at the expense of the State. She should have waited till such time the Election Petition filed by her was decided. This is one of the factors to be