Calcutta High Court Seeks State Gov's Response On Time Period It Would Take To Notify Elections To Remaining Municipal Bodies Apart From Kolkata Municipal Corporation [Read Order]

The Calcutta High Court on Wednesday heard extensive arguments while adjudicating upon a petition moved by BJP Sate vice-president Pratap Banerjee seeking direction to the West Bengal government and the State Election Commission (SEC) to hold municipal polls in the State in one phase. 

A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bhardwaj on Wednesday took on record the affidavit-in-opposition filed by the State Election Commission and the State government. The Bench further sought response from the State government stipulating the time period within which the State government would hold elections to the remaining municipal bodies apart from the already notified Kolkata Municipal Corporation. The matter is slated to be heard next on December 6. 

"The State as well as the State Election Commission, on or before the next date of hearing, give the plan disclosing the tentative time schedule for conducting the election of all the Municipal Corporations/Municipalities in the State in the phase manner", the Court ordered 

The State Election Commission was also directed to explore the possibility and feasibility of doing counting of votes of the Municipal Corporations/Municipal Elections after the polling is completed in all the Municipalities of the Municipal Corporation in the State. However, the Bench cautioned that the Commission must not declare the election of the Municipal bodies in the State in such a manner which will give benefit to one particular party.  

Furthermore, the Bench refused to quash the notification issued by the West Bengal State Election Commission on November 25 declaring that elections to the Kolkata Municipal Corporation would take place on December 19. 

"..We are of the view that once the notification dated 25th November, 2021 has been issued, then in view of the bar contained in Article 243-2(d) of the Constitution, the interference of this Court is not proper. In view of above, we do not intend to go into the issue of alleged statement made by the Counsel for the State Election Commission. Such a statement, if any made, would not eclipse the Constitutional provision. Hence, we find no merit in CAN 1 of 2021 seeking stay/setting aside of notification dated 25th November, 2021", the Court observed further. 

Submissions by Pinky Anand on behalf of the petitioner 

Senior advocate Pinky Anand appearing for the petitioner pointed out that the West Bengal State Election Commission on November 25 had issued a notification stating that election to the Kolkata Municipal Corporation will take place on December 19. She argued that such a notification had been issued despite a 'categorical and an unequivocal assurance' given by senior counsel appearing for the State Election Commission on November 16 that no such elections would be notified as long as the instant matter is sub-judice.  She further argued that elections to about  112 civic bodies in West Bengal including Howrah Municipal Corporation have been pending for quite some time despite the fact that the stipulated five-year term of elected representatives of these municipalities have ended in the last two years. 

She contended further that such a conduct of the State Election Commission shows that elections are 'deliberately being staggered at the behest of the State government'.  She also expressed serious reservations to the fact that the notification dated November 25 had been issued despite a clear assurance given by the State Election Commission to the contrary.

"Your Lordships, there has been complete violation of assurance given by State Election Commission in open Court", the senior counsel remarked further. Referring further to the affidavit-in-opposition moved by the State Election Commission and the State government, the senior counsel highlighted that it had been stated in the affidavits that the senior counsel for the State Election Commission had averred that no such notification would be published 'until the next returnable date' and not as long as the matter is sub-judice. She argued that such an averment by the State Election Commission is 'mala fide' and that a 'voluntary, categorical statement' had been made by the senior counsel on behalf of the State Election Commission which cannot be denied now. Senior counsel Anand further contended that the impugned statement had not been recorded in the Court's order but had been made in open Court. 

Thus, the senior counsel prayed before the Bench to quash the notification dated November 25 that stipulated that elections to the Kolkata Municipal Corporation is scheduled to take place on December 19. She further emphasized that elections to the other remaining civic bodies must be held simultaneously and on the same day and that elections to civic bodies where favourable results can be expected by the State government must not be prioritized. 

Reliance was also placed on the Supreme Court judgment in Kishan Singh Tomar v. Municipal Corporation wherein the Apex Court had held that It is incumbent upon the Election Commission and other authorities to carry out the mandate of the Constitution and to see that a new Municipality is constituted in time and elections to the Municipality are conducted before the expiry of its duration of five years as specified in Clause (1) of Article 243-U of the Constitution. The Supreme Court had also cautioned that the Election Commission shall complete the election before the expiration of the duration of five years' period and not yield to situations that may be created by vested interests to postpone elections from being held within the stipulated time.

Senior advocate Anand further argued that elections to the civic bodies were due well before the advent of the Covid-19 pandemic and that almost every part of life in West Bengal has been normalised. She stressed that elections can only be postponed in exceptional circumstances and that such circumstances have to be adequately justified by the Commission. 

"In the present case, the State Election Commission has made a mockery of the Constitutional process..it is acting as a puppet at the behest of the State government", the senior counsel remarked further. 

Furthermore, reliance was also placed on the Supreme Court judgment in State of Goa and Ors v. Fouziya Imitaz and Anr wherein the Supreme Court had categorically stated, "the most disturbing feature of these cases is the subversion of the constitutional mandate contained in Article 243K of the Constitution of India. The State Election Commissioner has to be a person who is independent of the State Government as he is an important constitutional functionary who is to oversee the entire election process in the state qua panchayats and municipalities". Thus, the senior counsel underscored that notification of elections to civic bodies cannot take place at the whims and fancies of the State government, 

It was also highlighted that the State Election Commissioner is a retired IAS officer of the State cadre who had served in the Department of Panchayat, West Bengal and had subsequently been re-appointed by the State government. 

Submissions by Jayanta Mitra on behalf of State Election Commission 

Senior Advocate Jayanta Mitra  appearing for the State Election Commission contended before the Bench that the allegation that there has been a violation of the undertaking given by the State Election Commission that no notification would be published as long as the matter is sub-judice is misconstrued. He argued that if such an undertaking were actually true then in other words the State Election Commission agreed to a stay of the entire proceedings which cannot be the case.

Contesting the averment made by the opposing senior counsel factually, the State Election Commission submitted that the senior counsel appearing for the Commission on November 16 had stated that no such notification would b published before the next returnable date i.e. on November 24 and not as long as the matter is sub-judice. 

Furthermore, senior counsel Mitra argued that even if such a statement had been made by the senior counsel appearing for the State Election Commission even then such a statement is not binding on the State Election Commission or the State government pursuant to Article 243ZG of the Constitution which bars any interference by the Court in matters pertaining to allotment of seats in constituencies except by an election petition.

In this regard, he placed reliance on the Supreme Court judgment in State of Goa and Ors v. Fouziya Imitaz and Anr where the Apex Court had significantly noted in its order, "However, there can be no doubt that Shri Tushar Mehta is right in stating that assurances given by the Advocate General that the State Government would not raise the bar of Article 243ZG(b), but would instead argue that since the election programme was "imminent" and that therefore, the High Court ought not intervene, cannot alter the position in law. There can be no doubt that no concession by counsel can operate against a constitutional bar."

"Once procedure for elections has started, Court washes its hands off", the senior counsel further remarked. 

Pertinently, the Bench enquired from the senior counsel as to why elections for only Kolkata Municipal Corporation had been notified and not for other civic bodies. In response, the senior counsel stated that elections for other civic bodies would be notified in 'due time'. 

Unsatisfied with the response, the Chief Justice probed further, "What is meant by due time? How long will it take for you to decide? How many minimum phases are required to conduct it?"

In response, senior counsel Mitra stated that it is a technical matter and that he would seek instructions in this matter and revert to the Court. 

The Chief Justice went on to remark, "It is undisputed that one and a half years have passed but no elections have taken place. Was it not your constitutional obligation to ask for other phases? Why this statement that after Kolkata and Howrah, elections for other phases will be conducted? As a constitutional machinery, should you not be made aware of the reasons?"

To this, the senior counsel submitted that apart from the ongoing Covid-19 pandemic which is causing a delay in conduct of elections to other civic bodies, the existing strength of EVMs do not allow for simultaneous elections to take place for the remaining 112 civic bodies. 

Perusing the record which contained a list of available EVMs, the Chief Justice further remarked, "More than half EVMs are available, what is the difficulty? You can conduct elections in 2 phases". 

 The senior counsel reiterated that he would seek further instructions in this regard. He further placed reliance on the Supreme Court judgment in Kishan Singh Tomar v. Municipal Corporation wherein the Supreme Court had held, "The impossibility of holding the election is not a factor against the Election Commission. The maxim of law impotentia excusat legem is intimately connected with another maxim of law lex no cogit ad impossibilia. Impotentia excusat legem is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. "Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him." Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like an act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance with the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God."

Accordingly, senior advocate Mitra submitted that the Covid-19 pandemic has been unprecedented and has completely disrupted regular life due to which civic bodies elections could not be held. He prayed that in such a situation, the 'blame cannot be put at the doorstep' of the State Election Commission. 

Submissions by AG S.N Mookherjee for State 

The Advocate General apprised the Bench that the reason that elections to the Kolkata Municipal Corporation had been prioritized was because of the vaccination status of the residents of Kolkata. In Kolkata close to 90 percent of the people had been administered the second dose of the vaccine and almost 100 percent of the people had been administered the first dose, the AG submitted. He also contended that Kolkata has the best medical infrastructure in the State which would help contain a spread of infection. 

The Court was further informed that various factors play a role when it comes to the delay in notifying elections to the remaining civic bodies- the number of EVMs, the manpower, logistics, vaccination rate in different areas and also accessibility to different areas since the State also has many hilly regions. 

He further assured the Court that it would be the State's endeavor to conduct the municipal polls as expeditiously as possible. He further stated that the outer-limit set by the State for finishing elections to all remaining civic bodies is April 2022 taking into consideration the upcoming festivals and Madhyamik examination. 

Opposing the argument of the petitioner that elections of all civic bodies must be held simultaneously and on the same day, the AG stated that there is no constitutional provision to this effect. He further stated that each municipal body is different and that this cannot be equated with an Assembly election. 

"Even in the past it has not been the case that all elections took place on the same day", the AG submitted further. 

Recording the submissions of the Advocate General, the Bench directed the Advocate General to disclose the phases of conducting elections to the remaiining civic bodies at the earliest and accordingly posted the matter for further hearing on December 6. 

Background 

Earlier, the petitioner had prayed before the Bench to hold an urgent hearing on the matter after claiming that the State government is mulling holding of elections to municipal corporations of Kolkata and Howrah.

In the plea, the petitioner contended that polls for all pending municipalities must be conducted together instead of prioritising only the polls for the Kolkata Municipal Corporation and the Howrah Municipal Corporation. It was further pointed out to the Bench that elections to more than 100 municipal bodies in the State including municipal corporations of Kolkata and Howrah have been due for a long time. 

The SEC had submitted an affidavit before the Court last week stating that it wants to hold elections to the municipal corporations of Kolkata and Howrah first as the number of double vaccinated people in these two cities is high. It had further stipulated that elections to other municipal bodies in the State would be held in phases later.

It may be noted that the State Election Commission which conducts municipal and panchayat polls in consultation with the State government has recently accepted the State's proposal to hold civic body elections in Kolkata and Howrah on December 19 and the last date for filing nominations will be on December 1. The counting of votes will take place on December 22. However, no dates have been announced for conduct of polls in other municipal bodies.

Currently, elections are pending in 112 municipalities of the State since 2020. The stipulated five-year term of elected representatives of these municipalities have ended in the last two years, however polls have not taken place due to the ongoing pandemic. The State government has recently passed a Bill to bifurcate Howrah Municipal Corporation but the Governor has sought clarifications on the legislation. 

Case Title: Pratap Banerjee v. State of West Bengal and Ors

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