Kolkata (West Bengal) [India], September 28 (ANI): The Calcutta High Court on Tuesday refused to stay September 30 Bhabanipur by-poll.
The Court listed the matter for further hearing on November 17.
The Bench headed by Chief Justice Rajesh Bindal and Justice Rajarshi Bharadwaj, said that the information furnished by the Chief Secretary of the State to the Election Commission was contrary to the facts as in the State restrictions on account of COVID-19 pandemic had been extended up to September 30, 2021, vide order dated September 15, 2021.
"We also do not record any finding on the issue that an Election Petition may or may not be maintainable after the result of the Assembly is declared. Any of the losing party shall have the right to avail of his/her appropriate remedy to challenge the election on the grounds available in law," the court said.
"As the process of election was initiated with the issuance of press note dated September 04, 2021, and the polling has to be held on September 30, 2021, we do not find it appropriate to interfere with the decision of the Commission to hold a by-election to Bhabanipur Assembly Constituency at this stage."
The court, however, said, "We record our strong reservation about the conduct of the Chief Secretary in writing a letter to the Election Commission stating that there would be 'constitutional crisis' in case by-election to the Bhabanipur Constituency is not held."
The Court opined that he is a public servant, who is to discharge his duties in terms of provisions of law, whosoever may be in power. He is not to ensure that any particular person should come in power and in the absence there would be a 'constitutional crisis'.
The Court said that the further the Election Commission was also misled regarding the flood situation. It is known to all that there had been excessive rains in the state.
It further added that be that as it may, the most offensive part is the conduct of the Chief Secretary, who projected himself to be more as a servant of the political party in power than a public servant, whereby he stated that there would be a constitutional crisis in case election to Bhabanipur Constituency is not held from where respondent wants to contest an election.
The Court observed that what constitutional crisis the Government could face with one person losing or winning the election, was not explained.
The Court noted that the Election Commission in its wisdom decided to hold an election to Bhabanipur Assembly Constituency, for which the schedule was declared.
"It was decided not to hold by-elections to other 31 Assembly Constituencies and 3 Parliamentary Constituencies. Only the request of the Chief Secretary of the State of West Bengal for holding the election in the Bhabanipur Assembly Constituency was accepted. The Commission further decided to hold elections in two other Assembly Constituencies in West Bengal and one in Odisha, which was earlier deferred," the Court noted.
The PIL moved by Sayan Banerjee, through Advocate Ankur Sharma questions the request made by the Chief Secretary of the Government of West Bengal, to the Election Commission to hold the by-elections in 159-Bhabanipur Assembly Constituency, 'in view of administrative exigencies and public interest and to avoid a vacuum in the State'.
It contended that the priority to hold the by-elections amidst the Covid-19 pandemic is based on unreasonable, mala fide and undue influence caused by an unelected Chief Minister to interfere with the free and fair democratic process of elections.
The Bhabanipur Assembly seat was vacated by the West Bengal Agriculture Minister Sobhandeb Chattopadhyay in May, making way for West Bengal Chief Minister Mamata Banerjee to contest from Bhabanipur seat as a move to continue to hold her post.
By-poll will be held in Bhabanipur on September 30 and results will be declared by October 3. (ANI)