Sathi Jana & Ors. vs Uttam Bera & Ors.

Let the report in the form of an affidavit filed in Court today on behalf of the Secretary, West Bengal Co-operative Election Commission, being the respondent no. 11, be taken on record.

By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the connected application.

The appeal arises out of a judgment and order dated 21st April, 2017, passed by the learned Single Judge in W. P. 11785 (W) of 207 ( Uttam Bera & Ors. vs. The State of West Bengal & Ors .).

The appellants before us were not parties to the writ proceeding. In terms of an order dated 28th June, 2017, passed in CAN 5655 of 2017, this Court granted leave to the appellants to prefer the instant appeal against the judgment and order dated 21st April, 2017.

According to the learned advocate appearing on behalf of the appellants, his clients' specific case is that on the date of affirmation of the writ petition, i.e., on 13th April, 2017, his clients had already been declared as elected and by the time the writ petition was taken up for consideration before the learned Single Judge, i.e., on 21st April, 2017, a certificate of being elected as delegate of the concerned cooperative society was already issued by the concerned Returning Officer. He submits that in such circumstances, the learned advocate who represented the concerned Returning Officer ought to have brought this to the notice of the Court before the order was passed on 21st April, 2017.

In order to ascertain the factual position, a report in the form of an affidavit was called for from the respondent no. 11 in terms of our order dated 28th June, 2017.

The report in the form of an affidavit filed in Court today reveals that although the writ petition was affirmed on 13th April, 2017, but the same was served in the office of the Cooperative Election Commission only on 18th April, 2017. The matter was taken up by the learned Single Judge thereafter and the same was disposed of on 21st April, 2017. It has been specifically stated by the respondent no. 11 in paragraph 3(e) of the affidavit that the Election Commission virtually did not get sufficient time to make an enquiry or to ask for a report from the concerned Assistant Returning Officer within a span of two days. But the Cooperative Election Commission gave instructions to the learned advocate appearing for it that any order passed by the Hon'ble High Court in the writ petition regarding the election, the Election Commission will abide by such direction.

It has been further stated in paragraph 3(f) of the affidavit that on 21st April, 2017, when the writ petition was taken up for hearing, the writ petitioners did not serve a copy of the writ petition upon the concerned Assistant Returning Officer, although he was made party to the writ proceeding. The specific statements made by the respondent no. 11 in paragraphs 3(g) and (h) of the affidavit reads as follows: -

" g) It is further stated that the then ARO was one M Rahaman who was made a party in the writ petition being respondent no. 6 in person and as per the information of the Cooperative Election Commission, no copy of writ petition was served upon him and therefore, the Cooperative Election Commission after receiving the writ petition on 18th of April, 2017 got only two days time i.e. 19th April and 20th April and the matter was disposed of on 21st April, 2017. As such the Election Commission could not collect any Report from the concerned Assistant Returning Officer through subsequently, he was replaced by another Returning Officer. h) I say that the Election Commission could not collect any report within two days i.e. 19th April and 20th April, 2017 regarding the developments in the election process."

It is patently evident from the facts which are now on record that Uttam Bera and others, being the writ petitioners, had obtained the order dated 21st April, 2017 from the learned Single Judge without even serving a copy of the writ petition upon the concerned Assistant Returning Officer who was respondent no. 6 in the writ proceeding. As such, the order of the learned Single Judge was obtained by the writ petitioners behind the back of the principal respondent who was primarily responsible for conducting the election of the concerned Cooperative Society. That apart and in any event, it is a matter of record that as on 21st April, 2017, the election of delegates to the concerned Cooperative Society had already taken place and the appellants before us had been elected unopposed.

In such circumstances as stated above, the impugned judgment and order passed by the learned Single Judge is liable to be set aside and is accordingly set aside. The writ petition is also liable to be dismissed and stands accordingly dismissed.

The writ petitioners shall pay costs assessed at 200 G.Ms., to be deposited within a week from date with the State Legal Services Authority for being kept earmarked for its utilization by the Mediation and Conciliation Committee of the High Court.

List this matter one week hence, only for the purpose of ascertaining compliance of this Court's order in respect of payment of costs.

Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.