Arijit Banerjee, J.
(1) These four writ petitions involve similar issues of fact and law and have accordingly been taken up together for hearing and disposal.
(2) The basic demand of the petitioners is that the ensuing Panchayat Elections in West Bengal should be conducted in a free and fair manner. They
allege that to eliminate contest and competition the cadres of the ruling party are physically obstructing candidates of other political parties who intend
to contest the election from filing their nomination papers. The petitioners also pray for deployment of Central Forces for ensuring peaceful and
transparent election.
Re: WP 4613 (W) of 2018:-
(3) The petitioner in this writ petition is the state president of the Indian National Congress Party. The main prayers in this writ petition are as follows:-
“(a) (i) Writ in the nature of Mandamus commanding the respondents specially the respondent nos. 2 & 3 to set aside and/or quash and/or cancel
the notification bearing Nos. 515 â€" SEC/1E-88/2017 dt. 02.04.18, 516 â€" SEC/1E88/2017 dt. 2.4.18 & 517 â€" SEC/1E-88/2017 dt. 2.4.18 being
Annexure â€" ‘P-2’ of this writ petition and after set aside and/or quashing and/or cancelling the same directing the said respondents to issue a
fresh notification by extending the schedule of election from beginning to end i.e. from filing the nomination paper to the date of poll forthwith;
(ii) Writ in the nature of Mandamus commanding therespondents specially the respondent no. 3 for taking immediate steps for deployment of Central
Forces and officials from the date of filling nomination paper to the date of poll and counting forthwith;
(iii) To direct the respondent no. 3 to ensure to file thenomination paper by the contesting candidates, if necessary, b a direction for filing nomination
before the State Election Commissioner and/or concerned District Magistrate of the concerned district who in turn send the same to the concerned
places by taking the process of internet;
(c) Writ in the nature of Prohibition prohibiting the respondents from taking any steps and/or further steps as per the schedule given in the notification
dt. 2nd April, 2018;â€
(4) The basic allegation of the petitioner is that the cadres of the ruling party are scaring away intending candidates from other political parties by
meting out threats of dire consequences and also by resorting to violence. It was submitted that in spite of complaints being made to the Election
Commission, no steps have been taken by the said authority.
(5) Appearing for the State, learned Advocate General took a preliminary point that the writ petition is not maintainable as Public Interest Litigation (in
short ‘PIL’). He referred to our order dated 6 April, 2018 wherein it was recorded that the maintainability point is left open. He submitted that
the petitioner being the president of a political party and being interested in the outcome of the election, he cannot maintain the present PIL. Further,
the present writ petition is politically motivated, submitted Learned Adv. General. He referred to Rule 56 of the Writ Rules framed by this Court which
defines PIL. The said Rule reads as follows:-
“56. Definition of Public Interest Litigation:- Public Interest Litigation shall include a litigation the subject matter of which is a legal wrong or a legal
injury caused to a person or to a determinate class of persons by reason of violation of a constitutional or legal right or any burden imposed in
contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened
and such person or determinate class of persons is, by reason of poverty, helplessness of disability of socially or economically disadvantaged position,
unable to approach the Court for relief, and for redressal of which any member of the public not having any personal interest in the subject matter
presents an application for an appropriate direction, order or writ in this Court under Article 226. Notwithstanding anything contained above, in any
appropriate case, though the petitioner might have moved a court in his private interest and for redressal of personal grievances, the Court in
furtherance of the public interest involved therein may treat the subject of litigation in the interest of justice as a public interest litigation.â€
(6) Learned Advocate General submitted that the persons for whose benefit the present PIL has been instituted do not fall within the class of people
contemplated in the aforesaid rule. It is not that the persons who are allegedly affected by alleged wrongful acts of the members of the ruling party,
cannot approach the Court with their grievance. They are under no disability or in no disadvantageous position which warrants institution of a PIL for
their benefit. In this connection learned Advocte General referred to a decision of the Apex Court in Janata Dal-vs.-H.S. Chowdhary & Anr., (1992)
4 SCC 305, and submitted that only a person acting bona fide and having sufficient interest in the proceeding of PIL will have a locus standi and can
approach the Court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain
or private profit or political motive or any oblique consideration.
A vexatious petition under the guise of PIL brought before the Court for vindicating any personal grievance should be rejected at the threshold. He
then referred to the decision of the Apex Court in the case of Common Cause (A Regd. Society)-vs.-Union of India & Ors., (2008) 5 SCC 511, in
support of the submission that no PIL lies to enforce/protect political interest. He also relied on the Apex Court decision in Dattaraj Nathuji Thaware-
vs.-State of Maharashtra & Ors., (2005) 1 SCC 590, in support of the submission that public interest litigation is a weapon which has to be used with
great care and circumspection and judiciary has to be extremely careful to see that behind the beautiful veil of public interest, an ugly private malice,
vested interest and/or publicity seeking is not lurking. It has to be used as an effective weapon in the armoury of law for delivering social justice to
citizens. A PIL should not be ‘politics interest litigation.’
(7) The next point urged by Learned Advocate General was that there is a constitutional bar to the maintainability of the present writ petition. He
referred to Art. 243-O of the Constitution of India which is in pari materia with Art. 329 of the Constitution of India. Art. 243-O reads as follows:-
“A. 243-O:- Bar to interference by courts in electoral matters_Notwithstanding anything in this Constitution-(a) the validity of any law relating to
the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243K, shall not be
called in question in any court; (b) no election to any Panchayat shall be called in question except by an election petition presented to such authority
and in such manner as is provided for by or under any law made by the Legislature of a State.â€
(8) Learned Advocate General also referred to Secs. 79 and 93(1)(d) of the West Bengal Panchayat Elections Act, 2003. He submitted that on a
conjoint reading of the said sections an aggrieved candidate may challenge the election of a returned candidate after completion of the election
process before the appropriate forum by way of an election petition. The jurisdiction of civil courts is barred. The courts including the writ court
cannot interfere with the process of election and cannot pass any order which may have the effect of delaying or stalling the election process. In this
connection, Ld. Adv. General relied on the following three decisions:-
(i) N. P. Ponnuswami-vs.-Returning Officer, Namakkal Constituency, Namakkal, Salem Dist. And Four Others, AIR 1952 SC 64.
(ii) Election Commission of India-vs.-Shivaji And Ors., (1988) 1 SCC 277.
(iii) Gurdeep Singh Dhillon-vs.-Satpal and Ors., (2006) 10 SCC 616.
(9) The third preliminary objection raised by the Learned Advocate General is that the writ petition has become infructuous because of subsequent
developments. The notifications that were challenged by filing the present writ application have lost their force. Fresh notifications have been issued.
By virtue of the notification dated 26 April, 2018, the polling date has been fixed on 14 May, 2018. Such notification is not under challenge.
(10) The petitioner who appeared in person submitted that he has filed the present PIL for protection of the democratic rights of the people of West
Bengal. He has no individual interest in the matter. He is only trying to ensure exercise of franchise freely by curbing/suppressing violence. The
petitioner submitted that the police authorities are acting in connivance with the ruling Government. The Election Commission is playing second fiddle
to the State Government. 34 per cent of the Panchayat seats have been declared to be uncontested and the candidates of the ruling party have already
been declared elected from such seats. This is a mockery of democracy. The petitioner relied on the decision of the Apex Court in the case of Desiya
Murpokku Dravida Kazhagam & Anr.-vs.-The Election Commission of India, AIR 1952 SC 2191, and submitted that the right of election is the very
essence of the Constitution. The heart of the parliamentary system is free and fair elections periodically held, based on adult franchise. He further
referred to paragraph 31 of the said judgment which reads as follows:-
“31. To ensure the conduct of periodic elections to these various legislative bodies, the Election Commission is established by the Constitution. It is
endowed with such powers necessary to enable the same to function as an independent constitutional entity to discharge the constitutional obligations
entrusted to it untrammelled by the authority of the Executive12. This entire scheme of a representative democracy enshrined in the Constitution is for
the purpose of achieving the constitutional goal of establishing a Democratic Republic adumbrated in the preamble to the Constitution. It is in this
background, this Court held in Mohinder Singh Gill and Anr. (supra), that the heart of parliamentary system is free and fair elections periodically held
based on adult franchise.â€
(11) The petitioner then referred to the Apex Court judgment in People’s Union of Civil Liberties (P.U.C.L.) & Anr-vs.-Union of India & Anr.,
AIR 2003 SC 2363, wherein the Apex Court observed that ballot is the instrument by which the voter expresses his choice between candidates or in
respect to propositions and his vote is his choice or election as expressed by his ballot. The fundamental right of freedom of speech and expression
should be broadly construed and it has been so construed all these years. Freedom of expressing preference for a candidate is nothing but a freedom
of expressing oneself in relation to a matter of prime concern to the country and the voter himself. The right to vote for the candidate of one’s
choice is of the essence of democratic polity. This right is recognized by our Constitution and it has given effect to in specific form by the
Representation of the People Act.
(12) The petitioner also referred to the Apex Court decision in Rajbala & Ors.-vs.- State of Haryana & Ors., AIR 2016 SC 33, in support of his
submission that every citizen has a right to contest all elections subject to he possessing basic minimum qualifications prescribed by the Constitution.
The petitioner finally referred to the decision of the Apex Court in Election Commission of India Through Secretaryvs.-Ashok Kumar & Ors., (2000)
8 SCC 216, and in particular relied on paragraph 32 of the reported judgment which reads as follows:-
“32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already
said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:
(1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification
of election till the date of declaration of result) is to be called in question and which questioning may have the effect interrupting, obstructing or
protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in
elections.
(2) Any decision sought and rendered will not amount to ‘calling in question an election’ if it subserves the progress of the election and
facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as
questioning the election.
(3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which
enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory
body being shown to have acted in breach of law.
(4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has
been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of
evidence if the same would be lost or destroyed or rendered irretrievable by the time the result are declared and stage is set for invoking the
jurisdiction of the court.
(5) The court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of article 329(b) but
brought to it during the pendency of election proceedings. The court must guard against any attempt at retarding, interrupting, protracting or stalling of
the election proceedings. Care has to be taken to see that there is no attempt to utilize the Court’s indulgence by filing a petition outwardly
innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the court
would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with
particulars and precision and supporting the same by necessary material.
(13) In support of his prayer for deployment of Central Forces the petitioner submitted that there is insufficient force in the State to conduct/conclude
the three tier Panchayat Election peacefully. However, the State Election Commission has not asked the Central Government to deploy forces for
conducting the West Bengal Panchayat Election peacefully. There are about 330 blocks in West Bengal but the State Government has decided to
release a total of 191 officials (20 from IAS Cadre and 171 from the West Bengal Civil Service) to function as observers during the Panchayat polls
against a demand of 425 officials placed by the State Election Commission.
(14) We have also heard Mr. Shakti Nath Mukherjee, learned Senior Advocate Appearing for the State Election Commission. He has placed before
us a note pertaining to the general scale of deployment in connection with Panchayat General Election, 2018. We will revert back to the same later in
this judgment.
(15) We have given out anxious consideration to the rival contentions of the parties.
(16) The petitioner has not pressed and has given up prayer (a) (i). He has also not pressed prayer (c).
(17) In so far as prayer (a) (iii) is concerned, we are of the opinion that Art. 243-O of the Constitution of India read with Secs. 79 and 93 of the West
Bengal Panchayat Elections Act, 2003 stand in the way of allowing such prayer. Secs. 79 and 93 (1) of the 2003 Act read as follows:-
“79. Disputes as to elections._(1) If any dispute arises as to the validity of an election under this Act, any person entitled to vote at such election
may, within thirty days after the date of declaration of the results of such election, file a petition, calling in question such election on one or more of the
grounds specified in sub-section (1) of Section 93 and Section 94_
(a) before the Civil Judge having jurisdiction where such election is in respect of a Gram Panchayat or a Panchayat Samiti,
(b) before the District Judge of the district, where such election is in respect of a Zilla Parishad or the Siliguri Mahakuma Parishad.
(2) When filing a petition under sub-section (1), the petitioner shall deposit in court, as security for the costs likely to be incurred,_
(a) five hundred rupees, where the petition isfiled before the Civil Judge,
(b) one thousand rupees, where the petition isfiled before the District Judge.
(3)Every petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be
attested by the petitioner under his own signature to be a true copy of the petition.
(4) The District Judge may transfer any petition filedbefore him under sub-section (1) to any judicial officer subordinate to him not below the rank of a
Subordinate Judge.
(5) In dealing with a petition under sub-section (1), theCivil Judge, the District Judge or the Judicial Officer to whom the petition is transferred under
sub-section (4) (hereinafter referred to as the Judge) may hold such enquiry as he deems necessary.
(6) The Judges shall have all the powers of a civil court for the purpose of receiving evidence, administering oath, enforcing the attendance of
witnesses and compelling the discovery and production of documents.
(7) The decision of the Judge shall be final and shall not be called in question in any Court.
93. Grounds for declaring election to be void._(1) Subject to the provisions of sub-section (2) if the Court is of opinion_
(a) that on the date of his election a returnedcandidate was not qualified, or was disqualified, to be chosen to fill the seat under this Act;
(b) That any corrupt practice has beencommitted by a returned candidate or his election agent or by any other person with the consent of a returned
candidate or his election agent; or
(c) that any nomination has been improperlyrejected; or
(d) that the result of the election, in so far as itconcerns a returned candidate, has been materially affected-
(i) by the improper acceptance of anynomination, or
(ii) by any corrupt practice committed in theinterest of the returned candidate by an agent other than all his election agent, or
(iii) by the improper reception, refusal orrejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisionsof this Act, or of any rules made under this Act, the Court shall declare the election of the returned
candidate to be void.â€
(18) In N.P. Ponnuswami (supra), at paragraphs 17 and 18 of the reported judgment a six judges bench of the Apex Court observed as follows:-
“17. It may be pointed out that Article 329 (b) must be read as complimentary to clause (a) of that article. Clause (a) bars the jurisdiction of the
courts with regard to such law as may be made under Articles 327 and 328 relating to the delimitation constituencies or the allotment of seats to such
constituencies. It was conceded before us that Article 329 (b) ousts the jurisdiction of the courts with regard to matters arising between the
commencement of the polling and the final selection. The question which has to be asked is what conceivable reason the legislature could have had to
leave only matters connected with nominations subject to the jurisdiction of the High Court under Article 226 of the Constitution. If part XV of the
Constitution is a code by itself, i.e., it creates rights and provides for their enforcement by a Special Tribunal to the exclusion of all courts including the
High Court, there can be no reason for assuming that the Constitution left one small part of the lection process to be made the subject matter of
contest before the High Courts and thereby upset the time-schedule of the elections. The more reasonable view seems to be that Article 329 covers
all ‘electoral matters’.
18. The conclusions which I have arrived at may be summed up briefly as follows:
‘(1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a
matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all
disputes arising out of elections should be postposed till after the elections are over, so that the election proceedings may be unduly retarded or
protracted.
(2) In conformity with this principle, the scheme the election law in this country as well as in England is that no significance should be attached to
anything which does not affect the ‘election’; and if any irregularities are committed while it is in progress and they belong to the category or
class which, under the law by which elections are governed, would have the effect of vitiating the ‘election’ and enable the person affected to
call it in question, they should be brought up before a Special Tribunal by means of an election petition and not be made the subject of a dispute before
any court while the election is in progress.â€
(19) In Election Commission of India-vs.-Shivaji & Ors (supra), the Apex Court held in unequivocal terms that in view of the non-obstante clause
contained in Art. 329 of the Constitution (which is in pari materia with Art. 243-O) the power of the High Court to entertain a petition questioning an
election on whatever grounds under Art. 226 of the Constitution is taken away. Even if there is any ground relating to the non-compliance with the
provisions of the concerned statute or the Constitution on which the validity of an election process could be questioned, the person interested in
questioning the elections has to wait till the election is over and institute a petition in accordance with the provisions of the applicable statute. The
Apex Court further observed that it is not the concern of the High Court under Art. 226 of the Constitution of India to rectify any error committed in
the process of election at any stage prior to the declaration of the result of the election notwithstanding the fact that the error in question related to a
mandatory provision of the statute relating to the conduct of the election. If there was any such error committed in the course of the election process,
the Election Commission had the authority to set it right by virtue of the power vested in it under Art. 324 of the Constitution and to see that the
election process was completed in a fair manner.
(20) It will be seen from the writ petition that all the prayers except prayer (a) (ii) are for rectification of alleged irregularities committed in the election
process. The appropriate remedy for an aggrieved party is to approach the Election Commission with his grievance. If the Election Commission does
not redress such grievance, the aggrieved party shall have to wait till the conclusion of the election and then challenge the election of the successful
candidate by way of an election petition as provided under Art. 243-O of the Constitution and Secs. 79 and 93(1) of the West Bengal Panchayat
Elections Act, 2003.
(21) In so far as the point of maintainability of the present writ petition as a PIL is concerned, we are unable to agree with Ld. Adv. General. The
definition of PIL in Rule 56 of the Writ Rules framed by this Court is an inclusive definition and not an exhaustive one. Further, even that definition
envisages that in a fit case even if the petitioner has some private interest in the litigation, the Court may treat the writ application as a PIL. There
may well be overlapping of private interest and public interest and both may co-exist. For example, a few months ago, when there was an outbreak of
Dengue in the State of West Bengal, several PILs were filed in our Court for a direction on the state administration to adopt sufficient measures to
control the situation. The petitioners in such applications surely had some private interest in the sense that they were also individually affected by the
situation. However, there was also overwhelming public interest involved and nobody questioned the maintainability of such PILs.
(22) The right to express one’s franchise freely is a valuable constitutional right. The present writ petition as framed, is for protection of the said
valuable right of the citizens. The petitioner may have some private interest in the matter but no doubt a larger public interest is also involved. A free
and fair election where a member of the electorate will be able to cast his vote in favour of his chosen candidate without any obstruction or threat, is
surely in larger public interest. It is the platform on which the citadel of democracy rests. Hence, we are of the opinion that the present writ
application is maintainable as a PIL.
(23) We are unable to agree with Ld. Adv. General’s submission that the writ petition has become infructuous. Although some of the prayers may
have become infructuous, prayer (a)(ii) still survives. It cannot be said that the writ petition has become infructuous as a whole.
(24) As regards prayer (a)(ii) we had called for reports from the Election Commission as well as the State respondents regarding the security
arrangements made for peaceful holding of the Panchayat Elections. Such reports have been filed. It appears from the said reports that polling is going
to be held in 34962 premises. In all, there will be 47415 polling stations i.e. booths. Each booth will be covered by one armed police and one civic
volunteer with lathi for queue maintenance. RT Mobiles will be plying in polling areas with component of one officer (armed) along with one armed
component and one civic volunteer. They shall rush to the polling station if and when required by the presiding officer of a booth. Quick Response
Teams will be plying in polling areas with component of one armed officer along with two armed components and one civic volunteer who will rush to
the spot if and when required to tackle any untoward situation. Heavy Radio Flying Squad will be plying in police station areas with one armed
Inspector of police and half section of armed components to tackle any untoward situation where larger contingent of force is required. NAKA points
will be introduced at the polling areas to check vehicles, infiltration of trouble mongers etc. Each NAKA team will be manned by one armed officer
with three components of civic volunteers. For general police works at every police station there will be two armed officers along with three armed
components and three components of civic volunteers. They will run the day to day functioning of the police station. Striking Force consisting of two
armed officers along with four armed components, 2 gas and 12 lathi components including civic volunteers will be deployed at every polling police
station to act in case of requirement. Striking Force consisting of one armed Inspector two armed officers, along four armed, two gas and 20 lathi
components including civic volunteers will be deployed at every subdivision headquarters. One armed officer along with two armed and 16 lathi
components including civic volunteers will be posted at each distribution center, receiving center. Two armed officers along with eight armed
components will be posted at each of the Strong Rooms. The State has also requested for about 25 Coys of force from other States namely Orissa,
Telengana, Andhra Pradesh and Sikkim to which they have agreed on principle.
(25) Learned Advocate General submitted that 71,5000 armed police personnel will be deployed apart from civic volunteers who will be equipped with
lathi. Out of the 71,500 armed police personnel, 500 will be Inspectors, 10,000 will be sub-Inspectors and assistant sub-Inspectors and 61,000 will be
Constables, Home Guards and members of the National Volunteer Force. There will be about 80,000 civic volunteers with lathi.
(26) The Court is not in a position to assess as to whether or not the above arrangement is sufficient for ensuring a peaceful election and for tackling
any untoward incident. We categorically asked Mr. Mukherjee, learned Sr. Counsel, representing the Election Commission as to whether the aforesaid
arrangement is sufficient and his client is happy with the same. Mr. Mukherjee answered in the affirmative. In the report filed on behalf of the State
Election Commission, it is stated, inter alia, that the State Government has furnished security plan for Panchayat General Elections, 2018 which is
found satisfactory (emphasis is ours).
(27) A Division Bench of this Court dealt with a similar PIL in 2013 just prior to the Municipality Election. The petitioner had prayed for a direction on
the state respondents to seek central para-military force to maintain the law and order situation during the elections along with State Government
police force. It was submitted that free and fair election would not be possible in the absence of central para-military force. After hearing the parties,
the Division Bench held as follows:-
“…………….. We find that in the matter of holding election, law and order situation has to be considered by the State Election Commission and
there are various factors for request of the Central Para-Military Force, such as, law and order situation and paucity of State Force etc. Such a matter
has to be considered by the State Election Commission and the State Government and in case of any dispute between them, the State Election
Commission had approached this Court earlier. In judicial review, the Court cannot decide whether Central Para-Military Forces are necessary in any
of the election. These are the decisions to be taken by the constitutional bodies like the State Election Commission, the State Government etc.
Ordinarily, it is not for the Court to interfere with such matters. It is the duty of the Election Commission to ensure that free and fair election is held
and for that, necessary step to be taken by them.â€
(28) We completely agree with the aforesaid observations of the Division Bench. It is not competent for the court to decide as to what degree of
police force is required for conducting a free, fair and peaceful election. Since the State Election Commission is happy with the arrangement made by
the State administration, we deem it proper not to pass any further direction for the time being. However, we hope and trust that in case the State
Election Commission is of the considered opinion that further force is required in view of any changed circumstances, it will take necessary steps for
mobilization of such additional force and the State Government shall extend all help and cooperation in that regard. A free and fair election is a sine
qua non for a democracy to function properly and we expect that that the State Election Commission and the State Administration shall leave no stone
unturned to ensure a free, fair and peaceful election.
(29) WP No. 4613 (W) of 2018 is accordingly disposed of.
Re: WP 4691 (W) of 2018:-
(30) The petitioner no. 1 in this writ application claims to be an association of employees who are working under the Government of West Bengal. The
petitioner nos. 2, 3 and 4 claim to be working in various departments/directorates under the Government of West Bengal. The main prayer of the
petitioners is for a direction on the respondents and in particular the State Election Commission to ensure safety and security of the polling personnel
by deploying Central Para-Military forces at polling booths and as escorts.
(31) Technical objections have been raised by the respondents to the maintainability of this writ application. However, we need not go into the same.
From the report filed by the State Election Commission we find that the security plan furnished by the State Government covers the aspect of
protection of the polling personnel. Armed forces will accompany polling personnel from the distribution centers to the polling stations, stay with them
at the polling station and accompany them from police station to the receiving center. Comprehensive order has also been made for ex gratia
compensation to the polling personnel in case of permanent disability or death. An amount of Rs. 10 lacs as minimum amount is to be paid to the next
of kin of an official in the unfortunate event of his death on election duty. If the death is caused due to violent act of extremist or un-social elements,
the amount of Rs. 20 lacs is to be paid. In the case of permanent disability, like loss of limb, eye sight, etc. a minimum ex-gratia of Rs. 5 lacs would be
given to the official concerned which would be doubled in case of such mishaps being caused by extremist or unsocial elements.
(32) In view of the aforesaid, we are of the opinion that the grievance of the petitioners stand redressed.
(33) WP 4691 (W) of 2018 is accordingly disposed of.
Re: 4701 (W) of 2018:-
(34) The main prayers in this writ petition are as follows:-
“(a) a writ in the nature of Mandamus commanding the respondents authorities and their men and agents and subordinates to conduct smooth and
fair election.
(aii) A writ in the mandamus directing the Central Government to provide Central force from the opening day of starting of new process till one week
after declaration of result. “
(35) The aforesaid issues have been covered in our judgment delivered in WP 4613 (W) of 2018. Hence, no further order need to be passed on this
writ petition. The judgment in WP 4613 (W) of 2018 shall be operative in this judgment also. Accordingly, WP No. 4701 (W) of 2018 is accordingly
disposed of.
(36) In view of the order passed by us on 27 April, 2018 on the petitioner’s application for amendment of the writ petition being CAN No. 2314 of
2018, the said application is deemed to be disposed of.
Re: WP 5415(W) of 2018:-
(37) The main prayers in this writ petition are for a direction on the authorities to deploy Central Forces for conducting the ensuing Panchayat Election
and for a direction on the respondents to provide adequate compensation to the members of the bereaved families who are victims of political clashes
during the Panchayat Election 2018. Both these issues have been covered by us while dealing with the other writ petitions above and in particular WP
4613(W) of 2018. Accordingly, the judgment and order in WP 4613(W) of 2018 will be operative in this judgment also. WP No. 5415 (W) of 2018 is
accordingly disposed of.
Re: CAN 2550 of 2018, CAN 2522 of 2018 and 2318 of 2018;
(38) These are applications taken out by various parties for being added as party respondents in WP No. 4613(W) of 2018. The applicants contend
that they have the similar grievance and hence, they should be impleaded as parties and should be heard before the writ petition is disposed of.
(39) We are of the considered view that the applicants are not necessary parties to the writ petition. Their presence is not necessary for complete and
effectual adjudication of the issues involved in the writ petition. If they have any grievance, they would be at liberty to file independent writ petitions if
they are entitled to do so in law.
(40) CAN 2550 of 2018, CAN 2522 of 2018 and 2318 of 2018 are accordingly disposed of.
(Arijit Banerjee, J.)
Jyotirmay Bhattacharya, C.J.
I have perused the judgment delivered by my brother Justice Arijit Banerjee wherein His Lordship elaborately and extensively dealt with the
maintainability of the writ petition with reference to some of the prayers made by the petitioners in his public interest litigation and I fully agree with
His Lordship’s views expressed therein with regard to the maintainability of this writ petition with reference to the petitioner’s prayer
contained in prayer a(i) and prayer a(iii). Of course, Mr. Adhir Ranjan Chowdhury, writ petitioner, while arguing the case in person candidly submitted
that he would abandon the relief which he claimed in prayer a(i) as it is not his intention to frustrate election. He, thus, abandoned the relief which he
claimed in the said prayer. Be that as it may the relief which he claimed in the said prayer has now become redundant as the notifications which were
impugned in this writ petition were subsequently cancelled by the State Election Commissioner during the pendency of the writ petition.
The relief which the writ petitioner claimed in prayer a(iii) was founded on the basis of causes of action emanating from those impugned notifications
which were subsequently cancelled by the State Election Commission. In view of the change in the causes of action following cancellation of those
notifications by the State Election Commission, the relief which the writ petitioner has claimed in his prayer a(iii) now has become redundant. As such
I agree with the findings of my brother Justice Arijit Banerjee that the reliefs claimed by the writ petitioner in prayer a(i) and prayer a(iii) cannot be
entertained by this Court.
Let me add few sentences with regard to adequacy of the security arrangements made by the State Government during the polling period.
Maintenance of law and order is within the State subject. The State Government is the appropriate authority to take decision as to how the law and
order problem of the State will be managed. High Court has no independent mechanism for assessing the law and order problem of the State.
Here is the case where we find that a report has been submitted by the high responsible officer of the State Government regarding deployment of
armed and unarmed police personnel or civic police personnel at the polling centers within a State. It is reported that security arrangements have also
been made for safety and security of polling officers and polling personnel during their journey from distribution centers to the polling booths and for
their safe return from the polling booths to the place of counting after polling will be over. It is also reported that security arrangement has also been
made at the place of counting of ballots. The State Election Commissioner who is vested with the exclusive authority of holding free and fair election
in the State, expressed his satisfaction about the security arrangements made by the State Government during poll day. Since the State Election
Commissioner has expressed his satisfaction about the security arrangements made by the State Government, this Court having no independent
machinery to assess the adequacy of such security arrangements, declines to assess the adequacy of such security arrangements by reposing faith
and trust in the high constitutional functionary of the State who recorded his satisfaction about the adequacy and sufficiency of the security
arrangement made by the State Government. We sincerely believe that the decision which was taken by the State Government and was approved by
the State Election Commission is free, fair and unbiased.
If, however, it is found subsequently that the security arrangements which were made by the State Government and were approved by the State
Election Commissioner are inadequate and insufficient and due to inadequacy of such security arrangement any poll violence casualty occurs and/or
property belonging to the citizen is destroyed and the number of poll violence casualties is more than the poll violence casualties occurred during the
last Panchayat Election which was conducted with the deployment of both State police and Central Paramilitary force and the extent of loss of
property is more than the extent of loss of property which occurred during the last Panchayat Election, then not only the State Government will be
liable to compensate such loss of life and property of the affected persons but also the high State officials who submitted such report and the State
Election Commissioner who approved such report with regard to adequacy of such security arrangement will be personally liable to compensate such
loss, in case it is found that their decision was not fair and unbiased and submission of their such report before the Court and/or approval thereof by
the State Election Commissioner, was communicated to the Court only to mislead the Court about the adequacy of such security arrangement.
Under such circumstances such compensation to be paid to the affected person and/or next of their kin, will be recovered and/or realized not only
from the salary of the responsible officer of the State who submitted the misleading report before this Court and the State Election Commissioner who
approved such report consciously knowing the consequence thereof but also from their retrial benefits and from their personal properties by way
attachment and sale thereof. If the entire compensation money payable in this regard cannot be recovered in the manner as aforesaid, the State
Government will be liable to pay the remaining part of such compensation to the affected persons and/or their next of kins. It may be mentioned herein
that the Government has already declared different compensatory reliefs for different types of poll violence casualties and/or injuries that may be
suffered by the polling personnel during the poll day and /or in course of their engagement in polling assignment. Compensation for loss of life and/or
personal injury will be paid to the affected person and his/ her heir and successor at the same rate at which it was declared by the Government for the
affected personnel engaged for conducting the poll during the Panchayat Election. Compensation of loss of property will be paid at par with the actual
loss.
Needless to mention here that in case it is found that loss of life and property during the election day is less than the loss of life and property during the
last Panchayat election, then the State Government alone will be liable to compensate such loss of life and/or property in the same manner as indicated
above.
Before concluding we would like to express our hope and expectation that whenever the election will be held, steps will be taken so that election will
be fair, peaceful and transparent in all respects and both the State Authorities and the Election Commission will do their best to ensure the same.
Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.
(Jyotirmay Bhattcharya, CJ.)
I Agree.
(Arijit Banerjee, J.)
Later:-
An application being CAN NO. 2713 of 2018 filed in Court by Party for Democratic Socialism (PDS) and one Samir Putatunda on 10.05.2018 be
treated as on day’s list. The prayer is for adjournment of WP No. 4613(W) of 2018 sine die. We have already rejected an application filed by the
same parties for being added as party respondents to WP No. 4613(W) of 2018. In any event, we find no merit in the present application. There is no
valid reason why hearing of WP No. 4613(W) of 2018 should be adjourned sine die or at all. Accordingly, the application being CAN No. 2713 of
2018 is dismissed.
