The power of judicial review under Article 226 of the Constitution is ordinarily excluded in election matters, but not wholly excluded, and can be exercised to uphold democratic principles.

ORDER

1. Counsel for the parties have been heard on interim prayer for forensic audit of CCTV footage of Contai Municipal election.

2. This writ petition relates to the allegations of malpractices such as booth capturing, forged voting, violence etc. during the Contai municipal elections held on 27.02.2022. The prayer in the petition is to hold fresh polls to the Contai Municipality by deployment of central paramilitary forces.

3. Earlier orders were passed by this Court and directions were issued for holding the polling in free, fair and fearless manner because since beginning petitioner was apprehending various malpractices and violence during election. By earlier order dated 23.02.2022 in WPA (P) 271 of 2021 in the case of Mousumi Roy vs. West Bengal State Election Commission and Others, this Court instead of accepting the prayer for deployment of paramilitary forces, had issued several directions to ensure holding of fair election in the Municipalities, including the direction to the State Election Commission to install CCTV cameras at conspicuous spot in all main and ancillary booths across the State and to preserve the footage. After the election, a serious issue has been raised that in spite of direction of this Court and even after holding the State Election Commission personally responsible, no free and fair elections have been held in the State specially in Contai Municipality.

4. At this stage, pressing for interlocutory order, submission of Counsel for the petitioner is that forensic audit of CCTV footage, preserved on the direction of this Court, is necessary to bring this fact to light that large scale violence and illegal polling has taken place during the Contai Municipal Election. Learned Counsel for the petitioner by referring to the earlier orders of this Court has submitted that CCTV footage has been preserved on the direction of this Court to carry out its forensic audit and to ensure if free and fair elections took place. He has submitted that this Court has reposed confidence on the State Election Commission which has been belied and the directions of this Court have not been complied with, therefore, only option is to direct forensic audit of CCTV footage. He has further submitted that the State Election Commission cannot change its stand now and deny the forensic audit. In support of his submission, he has placed reliance upon the order of the Hon'ble Supreme Court in the matter of Digvijay Mote vs. Union of India and Others reported in (1993) 4 SCC 175, Election Commission of India vs. State Bank of India, Patna and Others reported in AIR 1995 SC 1078, Laxmibai vs. Collector, Nanded and Others reported in (2020) 12 SCC 186 and L. Chandra Kumar vs. Union of India and Others reported in (1997) 3 SCC 261. He has further submitted that the forensic audit should be done from any of the CFSL at Hyderabad, Delhi etc.

5. Learned Counsel for the State Election Commission opposing the prayer for interlocutory order, has submitted that the main prayer in the petition to cancel the election cannot be granted in writ jurisdiction, therefore, the interim prayer also cannot be granted and that there is a constitutional bar contained in Article 243-ZG(b) of the Constitution. In support of this submission he has placed reliance upon the judgment of the Hon'ble Supreme Court in the matter of Jaspal Singh Arora vs. State of M.P. and Others reported in (1998) 9 SCC 594, Gurdeep Singh Dhillon vs. Satpal and Others reported in (2006) 10 SCC 616 and State of Goa and Another vs. Fouziya Imtiaz Shaikh and Another reported in (2021) 8 SCC 401. He has also placed reliance upon Sections 75 and 78 of West Bengal Municipal Elections Act, 1994 and has submitted that the only remedy available is to file an election petition.

6. Learned Advocate General has also supported the submission of the State Election Commission and has submitted that when this Court does not have jurisdiction to grant final relief then interim relief cannot be gran