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2018 DIGILAW 153 (CAL)

Kalyani Sarkar v. State of West Bengal

2018-01-19

SUBRATA TALUKDAR

body2018
JUDGMENT : 1. Party/parties are represented in the order of their name/names as printed above in the cause-title. 2. From the extremely vocal submissions of all the parties, this matter is keenly fought. 3. On behalf of the petitioner, Mr. Bhattacharya, learned Senior Counsel places reliance on an order passed by the Hon’ble Single Bench dated 22nd June, 2017 in WP 16049(W) of 2017. The Hon’ble Single Bench, inter alia, was pleased to hold as follows:- “Considering the above discussion and considering the sections as quoted above in my considered view the impugned order dated 6th June, 2017 passed by the Election Commission cannot be sustained in the eye of law. Accordingly, the impugned order dated 6th June, 2017 is hereby quashed and set aside. I direct the Election Commission to reschedule the election programme from the stage of publication of the list of valid voters on the basis of the final voters’ list and complete the election process within two months from date. To assist the Election Commission Mr. Pantu Deb Roy and Ms. Iti Dutta, learned advocates of this Hon’ble Court are appointed as Special Officer. The remuneration of the learned Special Officer is fixed at 2000 G.Ms each (per month), that shall be borne by the petitioner. Needless to mention that if the Special Officers require police help during the election then the Officer-in-Charge of local Police Station on demand shall render all assistance and cooperation to the Special Officers. The petitioner and the learned Special Officer are directed to communicate this order to the Officer-in-Charge of the local Police Station. The writ petition is, thus disposed of. There will be no order as to costs. Let a xerox plain copy of this order, duly counter signed by the Assistant Registrar (Court), be made available to the learned advocates appearing for the parties and the Special Officers on usual undertaking.” 4. Aggrieved by the order of the Hon’ble Single Bench(supra), the Private Respondents therein preferred an appeal being MAT 1220 of 2017 with the connected application being CAN 7052 of 2017. Aggrieved by the order of the Hon’ble Single Bench(supra), the Private Respondents therein preferred an appeal being MAT 1220 of 2017 with the connected application being CAN 7052 of 2017. The appeal was decided by the judgement and order dated 23rd August, 2017 which, at its operative portion, reads as follows:- “At the time of hearing of the instant matter, the learned advocate representing the Election Commission submits that some of the allegations made by the appellants-particularly in respect of the names appearing in the voters’ list- have substance and are required to be looked into. In such circumstances, we are of the view that although elections to the concerned Co-operative Society are required to be held, the same cannot be held till the Election Commission publishes a fresh voters’ list after taking into consideration objections from all parties including the appellants herein. Once a fresh voters’ list is published by the competent authority, the election process shall be held in accordance with law. The impugned judgement and order dated 22nd June, 2017, stands modified to the extent as above.” 5. Mr. Bhattacharya submits that notwithstanding the clear direction of the Hon’ble Single Bench as modified by the Hon’ble Division Bench, the Respondents/Co-operative Election Commission has proceeded to publish the fresh voters’ list. 6. Drawing the attention of this Court to Page-184 of the writ petition, Mr. Bhattacharya points out that in the said fresh voters’ list, the name of the petitioner as a voter has been cancelled. 7. Second, Mr. Bhattacharya submits that the fresh voters’ list does not purport to indicate that the objections as directed to be considered by the Hon’ble Division Bench were so considered. 8. The third contention of learned Counsel for the petitioner that the fresh voters’ list bears only the signatures of the Returning Officers appointed by the Election Commission and the Society without giving any indication of the involvement of the learned Special Officers, as appointed by the order dated 12th June, 2017(supra), in the process. 9. Mr. Nayak, learned Counsel for the Respondents/Election Commission submits that a notice-inviting objections was issued by the Election Commission and such notice appears at Page-127 of the writ petition. 10. The objections as raised by the Objectors was considered in accordance with law and, there is no scrap of paper produced on behalf of the petitioner that objections were filed. 11. Mr. 10. The objections as raised by the Objectors was considered in accordance with law and, there is no scrap of paper produced on behalf of the petitioner that objections were filed. 11. Mr. Nayak further submits that the Respondents/Election Commission was to act strictly in terms of the order of the Hon’ble Division Bench dated 23rd August, 2017 which permitted the Election Commission, being the sole Authority under the statute, to publish the fresh voters’ list and complete the Election process in accordance with law. 12. It is also the submission of learned Counsel for the Respondents/Election Commission that the membership of the Society being vast the electoral process scheduled to culminate in the casting of votes on the 24th of January, 2018, ought not to be interdicted at this stage. 13. The learned Special Officers as appointed by the order of the Hon’ble Single Bench dated 22nd June, 2017 appear in-person. Learned Special Officers contend that post the order dated 22nd June, 2017, there is no iota of material available on record and, none can be produced, that the Respondents/Election Commission fulfilled the mandate of the order dated 22nd June, 2017 qua the Special Officers. 14. My. Nayek, at this stage, argues that the order of the Hon’ble Single Bench dated 22nd June, 2017 makes it abundantly clear that while the election process such as revision of voters’ list and preparation of a fresh voters’ list lie within the exclusive domain of the Election Commission any issue connected to maintaining orderliness in the conduct of the election can be exercised by the Respondents/Election Commission by co-opting the learned Special Officers in the exercise. 15. It is then sought to be brought to the notice of this Court by the learned Special Officers that notwithstanding their appointment by the order dated 22nd June, 2017, the Respondents/Election Commission has proceeded to conduct the election process through its own appointed Special Officers of the Co-operation Department of the State Government, with the nomenclature of Returning Officers. 16. Having regard to the facts brought on record as well as the directions of the Hon’ble Single Bench and the Hon’ble Division Bench (supra), this Court requires to be unequivocally satisfied whether the election process has been conducted both as per statute and, the terms of the directions of Court as recorded above. 17. 16. Having regard to the facts brought on record as well as the directions of the Hon’ble Single Bench and the Hon’ble Division Bench (supra), this Court requires to be unequivocally satisfied whether the election process has been conducted both as per statute and, the terms of the directions of Court as recorded above. 17. For the above reasons, this Court, by way of an interim measure, permits the election scheduled for 24th of January, 2018 to proceed, however with the clear restraint that the final publication of the result shall not be done without the leave of Court. 18. The petitioners are permitted to add the Manager/ the Seniormost Officer of the Respondents/Co-operative Society as well as the Bank/Bankers to the Society as party respondents to this writ petition. 19. Let a copy of the writ petition be served on the added party-Respondents. 20. Ms. Saha, learned Advocate appears for a fresh batch of petitioners in a connected writ petition and, submits that her writ petition be brought on board for conjoint consideration with this writ petition. 21. The prayer of Ms. Saha is permitted. 22. The interim order will be effective till the end of February, 2018 or, until further order/orders, whichever is earlier. 23. The matter is made returnable under the heading “Motions (Group-V) Co-operative Society” fairly at the top in the Combined Monthly List of February, 2018. 24. Affidavit of Service filed by the petitioner be retained with the record. 25. Parties are at liberty to act on a gist of the communication of this order.