The High Court of Calcutta, while disposing of a petition filed by the petitioner to quash the impugned order passed by the State Election Commission, held that the State Election Commissioner ought not to have mechanically directed the aggrieved party to file an election petition for redressal of grievances.
Brief Facts:
The petitioner contested the Panchayat General Elections, 2023. On the allegation of merciless beating, snatching, and looting of ballot papers in the midst of counting of votes at the instance of the supporters of the ruling dispensation, a complaint was lodged before the State Election Commission and the Panchayat Returning Officer. As the said complaint was not considered by the respondent authorities, she filed a writ petition before this Court. The said writ petition was disposed of directing the State Election Commission to enquire into the matter and take necessary remedial steps if the allegations of the petitioner are found to be true. The State Election Commission enquired into the matter and passed a reasoned order on 24th July 2023 which is impugned in the instant writ petition.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner submitted that as the allegation of snatching and looting of ballot papers at the time of counting from the counting table has been found to be correct and has been admitted by the Commission, accordingly, the remedial measure by way of revoking the election certificate and conducting fresh election ought to have been taken by the Commission.
Contentions of the Respondent:
The learned counsel appearing on behalf of the Respondent submitted that after the declaration of the result and after issuance of the election certificate the Commission becomes functus officio and, as such, the Commission does not have any authority either to revoke or to cancel the election certificate issued in favor of the winning candidate.
Observations of the court:
The court noted that the question is whether the election certificate which was issued in favor of the winning candidate despite illegalities being noticed at the time of counting can be set aside by the Court under Article 226 of the Constitution of India. The High Court, being a Constitutional Court, is not, by any stretch of the imagination, precluded from issuing a direction under Article 226 of the Constitution when such direction does not violate any statutory provision.
The Court observed that the State Election Commissioner ought not to have mechanically directed the aggrieved party to file an election petition for redressal of grievances. It will be absolutely improper, unfair, unjust, and illegal to permit a candidate to act as an elected representative of the constituency even after noticing that counting did not take place smoothly and properly and the election result does not reflect the electorate's mandate. In such a situation the only option is to set aside the result that was declared and pass directions for cancellation/ revocation of the election certificate issued in favor of the so-called winning candidate.
The decision of the Court:
The Calcutta High Court, disposing of the petition, held that the election certificate issued in favor of respondent no. 10, Saima Jamadar stands cancelled.
Case Title: Kashmira Khan v. The West Bengal State Election Commission & Ors.
Coram: Hon’ble Justice Amrita Sinha
Case No.: WPA 18556 of 2023
Advocate for the Petitioner: Mr. Sandipan Pal
Advocate for the Respondent: Mr. Pratip Kumar Chatterjee, Mr. Sirsanya Bandhopadhyay, and Ms. Sonal Sinha
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