W.P. No. 315 of 2013. Case: West Bengal State Election Commission Vs State. High Court of Calcutta (India)

Case NumberW.P. No. 315 of 2013
CounselFor Petitioner: Samaraditya Pal, Sr. Adv., L. C. Behani, Sr. Adv., Ms. Amrita Pandey, Ms. Anamika Pandey, Advs. and For Respondents: Bimal Chatterjee, A.G., Ashok Banerjee, Govt. Pleader, Paritosh Sinha, Abhrotosh Majumdar, Suman Sengupta, Saktinath Mukherjee, Sr. Adv., Jayanta Mitra, Sr. Adv., Sakya Sen, Advs.
JudgesBiswanath Somadder, J.
IssueConstitution of India - Article 243K; West Bengal Panchayat Elections Act (21 of 2003) - Sections 42, 134; West Bengal State Election Commission Act (8 of 1994) - Sections 8, 4
CitationAIR 2013 Cal 144
Judgement DateMay 10, 2013
CourtHigh Court of Calcutta (India)

Judgment:

  1. To be or not to be; even that is not the question! Panchayat election must be held in the State of West Bengal - as soon as possible - both parties cry out in unison! Yet, the West Bengal State Election Commission and the State of West Bengal have locked horns and are now before a Constitutional Court seeking appropriate directions for holding such election!

  2. The instant writ petition has been filed by the West Bengal State Election Commission (hereinafter referred to as "the Commission"), principally seeking the following reliefs:-

    "

    1. A Declaration that the 1st and 2nd impugned Notifications dated 22nd March, 2013 and 26th March, 2013 are unconstitutional, illegal and void;

    b) A writ of and/or in the nature of Mandamus do issue commanding and directing the respondent State to forthwith withdraw and cancel the impugned notifications;

    c) A writ of and/or in the nature of Mandamus do issue commanding and directing the respondent State and its servants and agents to forthwith implement the requirements spelt out in its letters and in particular those contained in the letter dated 25th March, 2013 and thereafter issue a notification under S.42 of the West Bengal Panchayat Elections Act in accordance with law, and effectively cooperate with the Commission for holding the Panchayat elections as early as possible;

    d) A Declaration that Section 42 of the West Bengal Panchayat Elections Act, 2003 read with Section 8 of the West Bengal State Election Commission Act, 1994 is ultra vires as it offends Article 243K of the Constitution of India;"

  3. Initially, when the matter was taken up for hearing, this Court - considering its importance and paucity of time - had requested the learned senior counsel representing the Commission and the learned Advocate General to sit across the table and try and resolve the issues sought to be raised in the instant writ petition, out of Court. However, since the impasse could not be resolved across the table, this Court has now been left with no other option, but to decide the matter on its merit.

  4. Before going into interpretation of certain provisions of law, which would ultimately decide the fate of holding Panchayat election in the State of West Bengal, it is necessary, at first, to advert to the submissions made on behalf of the Commission and the State.

  5. The main thrust of the submission advanced by the learned senior counsel representing the Commission was centered around the consultative process required to be followed before the State Government issued a notification under section 42 of the West Bengal Panchayat Elections Act, 2003 (hereinafter referred to as "the Act"). According to the learned senior counsel, there were several outstanding issues, which were required to be resolved through effective and meaningful consultation, before the State could issue the impugned notifications dated 22nd March, 2013 and 26th March, 2013 under section 42 of the Act. During the course of hearing of the matter, the State Government had issued another notification under section 42 of the Act on 04th April, 2013, which has been taken on record in terms of an earlier order dated 09th April, 2013.

  6. The learned senior counsel appearing on behalf of the writ petitioner submitted that there were primarily four outstanding issues as on 16th April, 2013. Without resolving those issues - through an effective and meaningful consultative process - the State of West Bengal could not have issued the notification under section 42 of the West Bengal Panchayat Elections Act, 2003, on 22nd March, 2013. The four outstanding issues are as follows:

  7. Deployment of adequate security forces including Central Paramilitary Force (CPMF).

  8. Appointment of balance 134 observers as per section 134 of the West Bengal Panchayat Elections Act, 2003.

  9. Phasing of the elections, i.e. the number of phases and grouping of the Districts.

  10. Funding by the State.

  11. So far as the consultative process for deployment of Central Paramilitary Force is concerned, it was submitted by the learned senior counsel for the Commission that right from 27th September, 2012, the Commission was pleading with the State Government for deployment of Central Paramilitary Force for the ensuing Panchayat General elections. On 27th September, 2012, the State Election Commissioner wrote to the Chief Secretary, Government of West Bengal, bringing it to the notice of the State Government that the Commission had reviewed the law and order problem that had cropped up during the last Panchayat General Election, held in the year 2008. The Commission had also assessed the ground realities including the situation prevailing in the naxalite affected areas in the State. On the basis of such exercise, the Commission firmly held that deployment of Central Paramilitary Force in adequate numbers was absolutely essential, in addition to the State Police Force, for conducting the elections in a peaceful, free and fair manner. The other relevant portion of the letter dated 27th September, 2012 is set out hereinbelow:

    Apart from protecting the polling stations, which number around 62,000 and guarding of strong rooms and counting centres, the CPMF will also be required for conducting flag marches, point patrolling and other confidence building measures. Their services will further be required for area domination in the pre-poll period.

    In view of the above requirements, the Commission will require at least 800 companies of the CPMF in the 17 districts going for the Panchayat polls, in phases. They shall be placed under the control of the Commission, and their deployment plan shall be drawn up by this Commission in consultation with the concerned authorities and the State Level Force Coordinator, (if any) appointed by the Ministry of Home Affairs.

    You are further requested to ensure that 300 companies of the CPMF are available during the nomination phases of the elections.

    You are, therefore, requested to take up the matter with the concerned authorities in the Ministry of Home Affairs and keep this Commission informed about the developments in this regard.

  12. It was specifically contended by the learned senior counsel for the Commission that the request of the Commission - as stated in the letter dated 27th September, 2012 - was never responded to by the State Government. The next letter he referred to was the Commission's letter dated 17th December, 2012, which was issued by its Secretary and was addressed to the Principal Secretary to the Government of West Bengal, Panchayats and Rural Development Department. The Secretary of the Commission in the said letter reiterated the Commission's view with regard to deployment of Central Paramilitary Force by stating as follows:-

    "The Commission also firmly holds the view that deployment of Central Paramilitary Forces in adequate numbers is absolutely essential in addition to the State Police Force for conducting the elections in a peaceful, free and fair manner. A proposal in this regard has also been initiated and forwarded to the Chief Secretary, Govt. of West Bengal with the request to take up the matter with the concerned authorities in the Ministry of Home Affairs, Govt. of India."

  13. According to the learned senior counsel for the Commission, instead of acceding to the request of the Commission for deployment of Central Paramilitary Force for the Panchayat election and for holding such election in a multiphased manner, the Principal Secretary to the Government of West Bengal, Panchayats and Rural Development Department by a letter dated 10th January, 2013, intimated the Secretary of the Commission that a single day poll would ensure proper management of law and order instead of multiple day poll. The Principal Secretary also annexed a copy of the letter dated 1st January, 2013, whereby the views of the Director General and Inspector General of Police, Government of West Bengal with regard to holding of poll in one day was enclosed, justifying the necessity of holding of Panchayat poll in one day. The learned senior counsel for the Commission referred to both the letters - that of the Principal Secretary and the Director General and Inspector General of Police, Government of West Bengal extensively and submitted that it would be apparent from the tenor of the said two letters that none of the critical issues that were raised by the Commission were sought to be addressed by the State Government. He specifically referred to the letter of the Director General and Inspector General of Police, Government of West Bengal, dated 1st January, 2013 to highlight the fact that not only the Director General had not stated anything specifically with regard to actual manpower deployment regarding availability of security forces, but - in effect - had admitted that the State Police would not be able to provide armed coverage to all the polling booths. The learned senior counsel for the Commission stressed on the expression "would attempt to", as used hereinbelow:-

    In conducting Panchayat Poll in one day the State Police would attempt to provide armed coverage to as many premises as possible depending on additional availability of force. It is expected that some force from CAPF will be available and Kolkata Police will also be able to provide good number of Police Personnel during the Panchayat Elections. It may also be mentioned here that the State Police will also be able to take services of Regular Home Guards/NVFs/enrolled Civil Police Volunteers/ Village Police Volunteers/NCCs who will be available for this purpose. Regular Home Guard and NVF volunteers are trained in arms handling and can be deployed with arms. Others enrolled personnel like Civil Police Volunteers, Village Police Volunteers, NCCs etc. are also trained and may be deployed effectively. We would not appoint any Temporary Home Guards but only use those who are already enrolled.

    State Police will also ensure appropriate pre-poll...

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