BHARATIYA JANATA PARTY WEST BENGAL versus STATE OF WEST BENGAL & ORS. on 9 April 2018

[2018] 6 S.C.R. 693

BHARATIYA JANATA PARTYWEST BENGAL

v.

STATE OF WEST BENGAL & ORS.

(Writ Petition (Civil) No. 302 of 2018)

APRIL 09, 2018

[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]

Election Laws – State Election Commission issued notificationsfor panchayat elections – Petitioner, a political party alleged thatits candidates were not allowed to collect and submit the nominationforms, on account of violent resistance by supporters of the rulingparty – Petitioner sought directions to the State Election Commissionto issue nomination papers on internet so that candidates of thepetitioner could apply through e-mail – Held: In Bodula Krishnaiahcase it was held that once the election process has been set in motion,the Court ought not to interfere – In instant case, election processhas been set into motion, therefore the Court not inclined to interfere – Furthermore, the West Bengal Panchayat Elections Act empowersthe State Election Commissioner to pass appropriate orders in relationto any grievance, when made by any political party, or/and theirindividual candidate including any independent candidate withregard to any matter relating to and arising out of the election andelection process – Therefore, all political parties, their candidates,including any independent candidate/s proposing to contest theelection in question, are granted liberty to approach the State ElectionCommissioner with their any individual or/and collective grievance– State Election Commissioner to ensure disposal of any suchgrievance so made by the party concerned strictly in accordancewith law forthwith – West Bengal Panchayat Elections Act, 2003 –Constitution of India – Art.32.

West Bengal State Election Commission v. State of WestBengal & Ors. (Decision dated 28.06.2013 in S.L.P(Civil) Nos. 19928-19931 of 2013) ; Bharat Singh andOthers v. State of Haryana & Others (1988) 4 SCC534 : [1988] 2 Suppl. SCR 1050 – referred to.

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ABoddula Krishnaiah and Anr. v. State Election Commis-sioner, A.P. & Ors. (1996) 3 SCC 416 : [1996] 3 SCR687 – relied on.

Case Law Reference

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil)No. 302 of 2018.

Under Article 32 of the Constitution of IndiaC

Mukul Rohatgi, P. S. Patwalia, Sr. Advs., Ms. Aishwarya Bhati,Kabir Shankar Bose, Partha Ghosh, Nachiketa Joshi, ShubhankarChakraborty, Arijit Majumdar, S. Datta, Bharat Sood, Kallol GuhaThakurta, Shamba Dutta, Ms. Sukanya Dutta, Advs. for the Petitioner.

Tushar Mehta, ASG, Dr. Abhishek Manu Singhvi, Amrendra Saran,DV.Giri, Sr. Advs., Suhaan Mukerji, Harsh Hiroo Gushahani, SidharthKalita, Ms. Astha Sharma (for PLR Chambers & Co.), Rajat Nair,Ms. Nupur Sharma, Rohit Bhat (for B.V. Balram Das), Advs. for theRespondents.

The Order of the Court was passed byE

R. K. AGRAWAL, J. 1. By the present writ petition filed underArticle 32 of the Constitution of India, the Petitioner seeks a writ ofmandamus to direct the West Bengal State Election Commission-respondent No. 6 to issue nomination forms to the candidates of thepetitioner so as to enable them to file their nomination in the ensuingFupcoming panchayat elections as also to take immediate steps to makearrangements for submission of nomination papers through email and toprovide police protection to the candidates of the petitioner so as toenable them to collect and deposit the nomination forms for the purposeof contesting the panchayat elections already notified and also direct theGrespondents Nos. 1 to 3 to call for Central Para-Military Forces to maintainthe law and order during the conduct of the panchayat elections in theState of West Bengal.

2. We have heard Shri Mukul Rohatgi and Shri P.S.Patwalia thelearned senior counsels appearing for the petitioner and Dr. Abhishek H

Manu Singhvi and Shri Amrendra Saran, learned senior counsel for therespondent Nos. 1 to 4 and Shri Tushar Mehta, learned AdditionalSolicitor General for respondent No. 7.

3. Relying upon the newspaper reports which appeared in theTimes of India, Kolkata edition dated 03.04.2018 and 04.04.2018, theStatesmen, Kolkata edition dated 04.04.2018 and the Telegraph e-paperpreview, the learned senior counsels for the petitioner submitted that thepetitioner’s candidates who want to contest election for the panchayatwhich is to be held in the State of West Bengal are not allowed to collectthe nominations forms and to submit the same on account of violentresistance being put by the supporters of the ruling party.

4. In support thereof, learned senior counsel for the petitionerplaced before us a chart showing the nomination report cumulative upto04.04.2018 in respect of Zila Parishad, Panchayat Samiti and GramPanchayat.

5. At this juncture, learned senior counsel relied upon a decisiondated 28.06.2013 passed in SLP (C) Nos. 19928-19931 of 2013 titledWest Bengal State Election Commission Vs. State of West Bengal &Ors. to impress upon the court that on earlier occasion also when thepanchayat election in the State of West Bengal was to be held in theyear 2013, then this Court exercised its powers and directed to re-schedulethe elections.

6. Learned Senior Counsel, therefore, submitted that the StateElection Commission be directed to issue nomination papers on internetwhich may be downloaded, filled and submitted on internet by thecandidates of the Petitioner as well as candidates of all other politicalparties including those persons who want to contest the election asindependent candidates.

7. The learned counsel for the respondent, however, submittedthat the writ petition has neither been filed by an individual candidate norany details have been given to show that any candidate has beenprevented by anybody from obtaining and filing the nomination papers.Thus, in view of the decision of this Court in the case of Bharat Singhand Others vs. State of Haryana & Others - (1988) 4 SCC 534, thewrit petition itself is not maintainable.

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8. Further, relying upon the decision in Boddula Krishnaiah andAnr. vs. State Election Commissioner, A.P. & Ors. – (1996) 3 SCC416 wherein it was held as under:- “….11. Thus, it would be clear that once an election process hasbeen set in motion, though the High Court may entertain or mayBhave already entertained a writ petition, it would not be justified ininterfering with the election process giving direction to theelection officer to stall the proceedings or to conduct the electionprocess afresh, in particular when election has already been heldin which the voters were allegedly prevented from exercising theirfranchise. As seen, that dispute is covered by an election disputeCand remedy is thus available at law for redressal.”

Learned Senior Counsel for the respondent submitted that as theelection process has been set in motion, this court should not pass anydirections which may effect the elections. According to him, the StateElection Commission is the appropriate authority to look into all theseDgrievances and in fact on 05.04.2018, the West Bengal State ElectionCommission had issued a Notification No. 632-SCC/3E-30/2018providing additional venue for filing nomination.

9. Shri Tushar Mehta, learned counsel submitted that therespondent No. 7 can make arrangements for providing para militaryEforces if the State Election Commission makes a request or anydirections is issued by this Court.

10. In reply, the learned senior counsel for the petitioner invitedthe attention of the court to paragraph 6(o) wherein a specific mentionhas been made where a person who went to file his nomination wasFseverely beaten up and succumbed to the injuries.

11. We have given our thoughtful consideration to thesubmissions made by learned senior counsel for the parties. It is not indispute that the West Bengal State Election Commission had issuednotifications 02.04.2018 for holding panchayat elections in the State ofGWest Bengal. Thus, the election process has been set into motion. Inview of the decision of this Court, in the case of Bodula Krishnaiah(supra) wherein it was held that once the election process has been setin motion, the Court ought not to interfere, we are not inclined tointerfere. However, the fact remains that according to the newspaper H

reports filed along with writ petition which has been referred to by thelearned senior counsel for the petitioner incidence of violence has takenplace when the candidates have gone to obtain and file their nominationpapers. This also stands fortified with the notification dated 05.04.2018issued by the West Bengal State Election Commission where the StateElection Commission had provided additional venue for filing thenomination papers.

12. From the perusal of the Scheme and the provisions of theWest Bengal Panchayat Elections Act, 2003 (for brevity “the Act”), wefind that the Act has empowered the State Election Commissioner topass appropriate orders in relation to any grievance, when made by anypolitical party, or/and their individual candidate including any independentcandidate with regard to any matter relating to and arising out of theelection and election process.

13. It is, therefore, essentially for the State Election Commissionerto consider the grievance once made by any party or/and candidate asthe case may be and pass appropriate order/s keeping in view the natureof grievance made and relevant factors concerning the election and itsprocess.

14. We are, therefore, inclined to dispose of this petition by grantingliberty to all political parties, their candidates, including any independentcandidate/s proposing to contest the election in question, to approach theState Election Commissioner with their any individual or/and collectivegrievance.

15. If any such grievances are made by any political partiesor/and any candidate/s in writing then needless to say, the State ElectionCommissioner would ensure disposal of any such grievance so made bythe party concerned strictly in accordance with law forthwith.

16. We hope and trust that in order to ensure fair and freeelection to the panchayats, the State Election Commission shall takeappropriate steps to remove the apprehensions of the petitioner and/orintending candidates and they may not be deprived of their chance tocontest the panchayat elections. With the aforesaid observations, thewrit petition is disposed of.

Ankit Gyan

Writ Petition disposed of.

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