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IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present: THE HON’BLE JUSTICE BISWANATH SOMADDER AND THE HON’BLE JUSTICE ARINDAM MUKHERJEE

MAT 371 of 2018 WITH

CAN 2347 of 2018 Communist Party of India (Marxist) Versus The State of West Bengal & Ors. For the Appellant

:

Mr. Mr. Mr. Mr. Mr. Mr.

Bikash Ranjan Bhattacharyya..Senior Advocate Shamim Ahmed, Siddhartha Shankar Mondal, Soumya Dasgupta, Arka Maity, Firdous Shamim…………….Advocates

For the W.B. State Election Commission

:

Mr. N.C. Bihani………………..Advocate

For the State

:

Mr. Mr. Mr. Mr. Mr.

For the Respondent No.6

:

Mr. Kalyan Bandopadhyay…….Senior Advocate Md. Apzal Ansari, Mr. Arka Kumar Nag………Advocates

Heard on

:

07.05.2018

Judgment on

:

08.05.2018

Kishore Datta….. Advocate General Abhratosh Majumder....Additional Advocate General Subhabrata Dutta, T.M.Siddiqui, Nilotpal Chatterjee…………Advocates

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THE COURT:– 1.

The instant appeal arises out of an order dated 25th April,

2018, by which the learned Single Judge disposed of the writ petition, being W.P. 4933(W) of 2018, by holding, “Accordingly, this Court does not detain the writ petition any further by inviting affidavits. No orders of intervention are called for from this Court at this stage.” 2.

On a perusal of the writ petition, it appears that the

appellant, being the writ petitioner, inter alia, alleged that nominated candidates of the petitioner on being prevented could not reach the office of the concerned Block Development Officer or Sub-Divisional Officer to file their nomination. A few nominated candidates who were able to return from the office of the Block Development Officer somehow managed to send their nomination through e-mail to the Election Commission as well as to the Returning Officer. The State Election Commission though should have allowed the intending candidates to file their nomination through e-filing, inter alia, refused to accept such e-filing. It is also the case of the writ petitioner that in terms of section 6 of the Information Technology Act, 2000

(hereinafter referred to as the Act of 2000) filing of any form, application or any other document with any office, authority, body or agency owned or controlled by the appropriate Government (which expression includes the State Election Commission) is permissible. The Commission should have entertained the nomination papers sent through e-mail. It is the further case of the writ petitioner that the website of the West Bengal State Election Commission itself shows that they already have such mechanism.

3.

It appears from the writ petition that several prayers had

been made. One of the alternative prayers is as follows:“A Writ of and/or in the nature of mandamus by directing the West Bengal State Election Commission to accept the nominations already filed by email or other electronic method.” 4.

As it appears from the order impugned, the appellant (being

the writ petitioner) pressed for the alternative prayer (supra) and on such prayer being turned down, the same has given rise to the instant appeal.

5.

Before us the appellant (being the writ petitioner) reiterated

the same and further contended that the election process in its true sense cannot be said to have commenced unless the intending candidates are allowed to file their nomination papers. The appellant also contends that section 6 of the Act of 2000 read with section 90 thereof permits the State Election Commission to accept nominations sent through e-mail. The appellant also reiterated the submission made before the learned Single Judge that there is a mechanism in the website of State Election Commission to accept nomination papers through e-mail. 6.

The learned senior counsel appearing on behalf of the

appellant submitted that the appellant does not intend to go into detailed argument and the appellant’s purpose would be sub-served if the intending candidates who have filed their nomination through email be allowed to contest for elections to the Gram Panchayats, Panchayat Samities and Zilla Parishads. 7.

At the first date of hearing (i.e. on 2nd May, 2018) we made it

clear to the appellant that if at all we are inclined to grant any relief to the appellant, it would be confined to the intending candidates who

had filed their nomination by e-mail by 23rd April, 2018 on or before 03:00 p.m., being the cut-off date and time as per the notification of the State Election Commission dated 21st April, 2018.

In order to

enable us to consider the grievances of the appellant, we directed to the appellant to prepare a list of candidates, who, according to the appellant, had filed their nomination before 23rd April, 2018 prior to 03:00 p.m. and supply a copy thereof to the State Election Commission so that the State Election Commission could look into the same, but the Commission was even reluctant to look into such list. 8.

At the beginning of the hearing on 7th May, 2018, the

appellant’s learned senior counsel submitted that a list of candidates who had filed their nomination by e-mail by 23rd April, 2018 on or before

03:00

p.m.

had

been

supplied

to the

State

Election

Commission and/or its advocate. The learned counsel appearing on behalf of the State Election Commission accepted such position but submitted that such list, being quite a voluminous one, was handedover quite late on Saturday (5th May, 2018).

9.

On a query from the Court, the learned counsel for the State

Election Commission submitted that the Commission has received 25 e-mails containing nomination of 62 intending candidates nominated by the appellant-party. On a further query, the learned counsel submitted that the State Election Commission has, in total, received 340

complaints

from

different

intending

candidates

of

being

prevented from filing of nomination papers with their respective Returning Officers. All such complaints have been forwarded to different District Magistrates and Block Development Officers for necessary action.

The learned senior counsel on behalf of the

appellant sharply responded to the same contending that the e-mails sent to the various Returning Officers have not been taken into account by the Commission and there are more than 800 intending candidates nominated by the appellant who have sent their nomination through e-mail. 10.

The learned counsel for the State Election Commission

contends that the West Bengal Panchayat Elections Act, 2003 (hereinafter referred to as the Act of 2003) and the Rules framed thereunder do not provide for acceptance of nomination papers being

filed through e-mail and as such, the Commission has not accepted those nominations of intending candidates which were lodged by email. He further contended that the nomination papers have to be either filed physically by the candidate or by his/her proposer. In answer to another query from the Court as to acceptance of nomination through “Whatsapp”, the learned counsel for the State Election Commission submitted that the said intending candidates had gone physically to the office of the Commission to submit their nomination papers and pursuant to order passed by this Hon’ble Court, such nomination papers were accepted on the basis of whatever documents they had filed with the Commission through “Whatsapp” communication. 11.

The learned Advocate General on behalf of the State

contends that the statute, i.e. the Act of 2003, does not provide for acceptance of filing of nomination by e-mail and no departure from the statutory provision should be made or allowed to be made by the State Election Commission. The State Election Commission was right in not accepting the nomination of such candidates.

He further

contended that the provisions of the Act of 2000 has no manner of application in the instant case. 12.

The learned senior counsel appearing on behalf respondent

no. 6(All India Trinamool Congress) emphasises on the phrase, ‘individual candidates’ and submits that each individual candidate or his/her proposer is required to go and physically file his/her nomination papers. The appellant, being a political party, cannot seek redressal of the Commission for having not accepted the nomination filed by those intending candidates who were nominated by the appellant. He further contends by showing the reliefs claimed in the previous writ petitions by different political parties that the appellant on the self-same issue had filed a petition before the Hon’ble Supreme Court which was not entertained. As such, the writ petition out of which the instant appeal arises is hit by provisions of res judicata and/or principles analogous thereto.

13.

After considering the rival contentions we do not intend to

embark on making any enquiry into the facts relating to the alleged prevention of the candidates nominated by the appellant – either by

force or otherwise – from filing their nomination before the Returning Officers, which prompted them to file

the same through e-mail.

Further, such enquiry would not only consume time but will also require minute details to be gone into, which, in the process, would delay the election instead of allowing the same to take place as per schedule. However, the fact remains that an election process itself involves participation and to shut-out an intending bona fide candidate from participating in the process, thwarts the very basic democratic principles on which it stands.

14.

Before adverting to the argument as to the applicability of

the provisions of the Act of 2000, we need to notice the following provisions:“6. Use of electronic records and [electronic signatures] in Government and its agencies. – (1) Where any law provides for – (a) the filing of any form, application or any other document with any office, authority, body or agency owned or controlled by the appropriate Government in a particular manner; (b) the issue or grant of any licence, permit, sanction or approval by whatever name called in a particular manner; (c) the receipt or payment of money in a particular manner, then, notwithstanding anything contained in any other law for the time being in force, such requirement shall be deemed to have

been satisfied if such filing, issue, grant, receipt or payment, as the case may be, is effected by means of such electronic form as may be prescribed by the appropriate Government. (2) The appropriate Government may, for the purposes of sub-section (1), by rules, prescribe – (a) the manner and format in which such electronic records shall be filed, created or issued; (b) the manner or method of payment of any fee or charges for filing creation or issue any electronic record under clause (a).”

Section 90 :“90. Power of State Government to make rules. – (1)The State Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matter, namely:(a) the electronic form in which filing, issue, grant, receipt or payment shall be effected under sub-section (1) of section 6; (b) for matters specified in sub-section (2) of section 6; (3) Every rule made by the State Government under this section shall be laid, as soon as may be after it is made, before each House of the State Legislature where it consists of two Houses, or where such Legislature consists of one House, before that House.” 15.

The State Election Commission has been constituted under

section 3 of the West Bengal State Election Commission Act, 1994 (hereinafter referred to as the Act of 1994) with Constitutional sanction.

It therefore does not strictly come within the ambit of

section 6(1)(a) of the Act of 2000 to be a body or agency owned or controlled by the appropriate Government.

Similarly, the State

Government is not called upon to make rules in terms of section 90 of the Act of 2000 in respect of filing of nomination forms through email. It is for the State Election Commission – being a Constitutional body/authority

– to provide for the same, as filing of nomination

through e-mail invariably prevents large scale violence centering around the Panchayat elections and above all, bloodshed and loss of precious human life. Further, it eliminates hurling of accusations and counter-accusations

and

encourages

peaceful

and

wider

participation. Above all, it upholds the democratic principles which form a pivotal part in the Panchayat election process and is not to its derogation but on the contrary, furthers it.

To that extent, the

relevant provision of the Act of 2000 shall be deemed to be read into the applicable provision of the Act of 2003 in respect of filing of nomination papers, purely by implication. As such, though filing of nomination through e-mail is not a recognized procedure under the Act of 2003 or the rules framed thereunder, in a situation where allegations of obstruction of intending candidates from filing of nomination papers has surfaced and has been also noted by the State

Election Commission in its order dated 9th April, 2018, it was incumbent upon the State Election Commission to allow filing of nomination papers through e-mail if the same had been received by the Commission within the cut-off time on 23rd April, 2018, in order to dispel all criticism against it. The provision of the Act of 2003, the rules framed thereunder, read with the provisions of the Act of 1994, however, leaves no manner of doubt that cooperation of the State Government is an integral part for effective functioning of the State Election Commission.

16.

As such, we are of the view that the State Election

Commission should have accepted the nomination of the intending candidates who had sent their papers through e-mail

for the

following reasons:-

(a)

There are two set of rights involved in the instant case.

One, being the right of intending candidates to participate in the election process and the other is that of the electorate of having option of more candidates to exercise their right to choose in a more effective manner.

(b)

The State Election Commission, being a Constitutional

body has to act fairly, transparently and independently to advance the democratic principles by allowing willing candidates to contest and at the same time provide for more options to the electorate to choose.

When large scale

allegations as to its independence, transparency and fairness had been made, it should have acted with caution and diligence. It ought to have considered allowing filing of nomination through e-mail and also accepted such nominations. This would have made all allegations against it virtually otiose.

(c) voting

The right guaranteed to the electorate to exercise its right

gets

substantially

enhanced

by

wider

participation of candidates in the election process as the voter can then exercise his/her voting right with a larger option i.e. to choose from more candidates, the persons by whom he/she wants to be represented. The Commission, in order to ensure the same and being the supreme authority while the election process has been set to motion should have ensured willing candidates to participate in order to enable a voter to exercise his/her option in a more prudent manner. The Commission, therefore, ought to have allowed nomination being filed by all intending candidates, particularly in the backdrop of allegations of candidates being prevented from filing nominations, which the Commission had itself noticed while passing its order dated

9th April, 2018, by allowing filing of such nomination through e-mail and accepting the same instead of disallowing on the ground that the Act of 2003 or the Rules framed thereunder does not provide for the same. (d)

Moreover, the Hon’ble Supreme Court by its order

dated 9th April, 2018 granted “liberty to all political parties, their candidates, including any independent candidate/s proposing to contest the election in question, to approach the State Election Commissioner with their any individual or/and collective grievance.” Upon noticing this order, the State Election Commission passed its order dated 09th April, 2018. This order of the Commission was, however, recalled on 10th April, 2018 which was again noticed by the Hon’ble Supreme Court while passing its order dated 11th April, 2018. Considering the pendency of the matter before this High Court, the Hon’ble Supreme Court granted liberty to the parties to approach the High Court. The Commission by considering the spirit of the orders passed by the Hon’ble Supreme Court could have effectively redressed the grievances of the intending candidates and political parties by allowing them to file nominations through e-mail. 17.

We are also of the view that going by the nature of the

orders passed by the Hon’ble Supreme Court of India on 9th April, 2018 and 11th April, 2018, there can be no application of res

judicata or of principles analogous thereto in the facts and circumstances of the instant case.

18.

In the backdrop of the discussions made hereinabove,

we direct the State Election Commission to accept the nomination of all the candidates nominated by the appellant who have duly filed their nomination and submitted the same electronically to the

Panchayat

Returning

Officers

or

the

State

Election

Commission within 03:00 p.m. on 23rd April, 2018. We further direct that the names of such candidates be published in the list of candidates contesting in the Panchayat Elections, 2018, in respect of the constituencies for which they have filed their respective nominations.

19.

Before parting, we wish to make it clear that our

judgment including the directions given is based purely within the narrow confines of law – as interpreted and construed by us – and cannot be said to be a commentary or observation in respect

of the prevailing law and order situation in the State of West Bengal made by the Court in any manner whatsoever.

20.

The appeal and the connected application stand disposed

of accordingly. There shall be, however, no order as to costs. Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on priority basis.

(ARINDAM MUKHERJEE, J.)

(BISWANATH SOMADDER, J.)