UJJWAL TRIVEDI v. THE STATE OF WEST BENGAL AND OTHERS

Mr. Bikas Ranjan Bhattacharya, learned Senior Advocate appearing for the petitioner submitted that in many cases the candidates were prevented REPORTABLE WPA (P) NOS. (306 AND 307) OF 2023 from filing the nominations, a person who was in Saudi Arabia has filed nomination, nominations are not being filled up in its entirety, several of the persons who had filed nominations were threatened to withdraw the nominations and considering all these factors in such areas where all these illegalities have occurred, the elections have to be stalled and elections can be conducted in other places. It is further submitted that though the learned Writ Court had issued direction for granting police protection to the candidates for filing the nominations those nominations have been rejected on the ground that it was filed after 3 P.M. without noting that the candidates were prevented from filing the nominations which necessitated them to approach the Court for appropriate directions. Further, the decisions which are always referred to by the Election Commission and the State, rendered by the Hon’ble Supreme Court are pertaining to elections to the Parliament or the State Legislature and the said decisions would not be applicable to elections to the Panchayats as the elections are governed by the West Bengal Panchayat Elections Act, 2003. Further, it is submitted that two orders passed by this Court in a public interest litigation in WPA (P) 250 of 2023 etc. dated 13.06.2023 and WPA (P) 301 of 2023 dated

15.06.2023 were not implemented and was deliberately delayed so as to make the orders unworkable. The learned Senior Advocate referred to Section 64 of the Election Act, 2003 and various other provisions of the Act to demonstrate that the State Election Commission has inherent power to defer the polls. After referring to Section 46(1) and (2) of the Election Act, 2003, it is submitted that the essence of the statute is to ensure that none are prevented from filing nomination and the inaction of the State Election REPORTABLE WPA (P) NOS. (306 AND 307) OF 2023 Commission goes against the intention of Section 46(2) of the Act in this regard, an order passed by the State Election Commission dated 25.06.2023 was referred to. The learned Senior Advocate elaborately referred to the various provisions of the Election Act, 2003 namely, Sections 46, 47, 64, 79 and 93 to demonstrate as to the procedure to be adopted while conducting the elections. It is further submitted that the candidate who was prevented from filing the nomination was a candidate who was compelled and threatened to withdraw the nomination has no other remedy as an election petition at this instance will not be maintainable as it is not one of the grounds which have been enumerated under Section 93(1)(c) of the Election Act, 2003. In support of his contention, reliance was placed on the decision of the Hon’ble Supreme Court in Mohindar Singh Gills Versus Chief Election Commissioner1, Union of India Versus Association for Democratic Rules2. In The matter of Gujarat Assembly Election3 and Dravida Munnetra Kazhagam Versus State of Tamil Nadu4. These decisions have been relied on to explain that a writ petition is not a complete bar under Article 329 (b) of the Constitution of India and the Court would be empowered to issue directions without any manner interfering with the distinct powers of the State Election Commission.

Mr. Jishnu Saha, learned Senior Advocate appearing for the State Election Commission submitted that the petitioners’ plea is a very belated attempt and no specific instance had been pointed out and the allegations are absolutely vague. The averments in paragraph 8 of the writ petition in