JUDGMENT
The Court
1. This writ petition is made challenging the change of venue of the counting centre from Salt Lake Stadium to Derogeo College at
Rajarhat.
2. In the writ petition the petitioner annexed various representations
made to the Chief Electoral Officer as well as the Chief Election Commissioner regarding the protest against abrupt change of counting venue from Salt Lake Stadium to Derogeo College, Rajarhat.
3. After so many representations on 23rd September, 1999 being the annexure-E to the petition, the Officer on Special Duty and Joint Secretary, from the Office of the Chief Electoral Officer, West Bengal, Writers’ Buildings, Calcutta informed the petitioner being candidate of the Parliamentary Constituency from a political party which as follows :–
“With reference to your letter No. BJP/99-101 dated 21.9.99 requesting for change of venue for counting of votes from Derogeo College, Rejarhat to Salt Lake Stadium, I am directed to inform you that the Election Commission of India has already approved Derogeo College, Rajarhat as the venue for counting of votes and therefore no change is possible at this stage.
I am directed to Inform you further that adequate security arrangements will be made at Derogeo College, Rajarhat, to facilitate peaceful counting of votes.”
4. Even thereafter the said petitioner, being one of the candidates of the general election to be held in 1999 of the said Parliamentary Constituency, made another representation on 25th September, 1999 to the Chief Election Commissioner as well as to the Chief Election Officer for consideration of his case. Thereafter, this writ petition was made before this Court with a
supporting affidavit dated 1st of October, 1999. Initially, this Court refused to accept the writ petition since the election has been declared in view of Mohinder Slngh Gill’s case . But thereafter, the petitioner got an assignment in this respect from the Hon’ble Acting Chief Justice and pursuant to such assignment it was proceeded before this Court in presence of the respondents-Authority when no order was passed and the application was made returnable today i.e., 5th October, 1999 with a direction upon the learned counsel appearing for the respondents Authority to give an outline in respect of adequate arrangements for holding counting at the said Derogeo College, Rajarhat.
5. Today, the matter was heard at length I have carefully considered the arguments advanced by Dr. Debi Prasad Pal, learned senior counsel appearing for the petitioner as well as Mr. Aninda Kumar Mitra, learned senior counsel, appearing for the respondents Authority on the question of fact as well as law. So far as the factual aspect is concerned. Dr. Pal handed over several photographs of the locality showing, that (a) the College is situated by the side of a field alleged as Jungle (b) no electricity arrangement is there, (c) no protection is there because the windows are open and (d) the area is surrounded by water.
6. Subsequently, he raised a question of law by showing Rule 51 of the Conduct of Elections Rules, 1961 and proviso thereof and contended that the Returning Officer is supposed to give reason before the change of the venue and the same is mandatory.
7. Incidentally, a question arose before this Court about the maintainability of the writ petition when he has relied upon a decision (Boddula Krishnaiah & Another v. State Election Commissioner & Ors.) in paragraph 11 whereof the Supreme Court has already clarified the position in respect of entertaining the writ petition when the election has already been declared. I found that the ratio of the Judgment is that once an election process has been set in motion, though the High Court may entertain or may have already entertained a writ petition, it would not be Justified in interfering with the election process giving direction to the election officer to stall the proceedings or to conduct the election afresh, in particular when election has already been held in which the voters were allegedly prevented to exercise their franchise.
8. In view of the Judgment as aforesaid, it cannot be said that the writ petition is not maintainable since the Court is not interfering with the election process giving direction to the Election Officer to stall the proceedings or to conduct the election process afresh. Therefore, it is resolved that the application is maintainable.
9. So far as the merit is concerned, although Dr. Pal submitted at length in respect of question of law as to the consultation process to be followed by the appropriate Authority with the candidate and cited two Judgments, first (M.A. Rasheed & Ors. v. The State of Kerala) in paragraph 9 whereof it is said that administrative decisions in exercise of powers even if conferred in subjective terms are to be made in good faith on relevant consideration and second, reported in AIR 1986 SC 1182 (Commissioner of Income-tax. Bombay & Ors. v. Mahindra & Mahindra
Ltd. & Ors.) in paragraph 11 whereof it is said that the act on the part of the administrative authority must be in good faith, must have regard to all relevant considerations and must be swayed by irrelevant considerations, must not seek to promote purpose aline to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously but I do not think that at this belated stage such act on the part of the Returning Officer will be interfered and can be interfered in view of the Rule 51 of the Conduct of Elections Rules, 1961.
10. Mr. Mitra, has Joined the issue to that extent by saying that the case is not falling under the Rule 51 because of the reason that it is not a case of change or alternation of the venue, the venue was fixed. I am afraid that the question as agitated by Mr. Mitra can be over-looked in such situation. However a better protection is needed that the Court appreciated.
11. Therefore, let the photographs separately handed over to the Court by both the parties be kept with the record with other documents.
12. Under such circumstances, this writ petition, in merit, is disposed of without giving any direction for filing affidavits with the following directions for the purpose of creating more confidence in the mind of the candidates as well as the counting agents, voters etc. :–
(a) Adequate posting of Central Reserve Police Force (CRPF) will be made within and surrounding the campus of the counting centre or centres as well as in the appropriate place or places of the counting centre at Derogeo College, Rajarhat.
(b) The Chief Electoral Officer of the State is directed to depute two or more Special observers for observing the counting system upon being physically present from the beginning of the counting till the end of the counting process in the counting centre or centres of the Derogeo College at Rajarhat
(c) In spite of an assurance as given by the respondents that adequate electricity arrangements have been made but they shall also look into it specifically so that there cannot be any obstruction or interference in respect of counting process by electrical failure in any manner whatsoever.
No order as to costs.
The Chief Electoral Officer and all parties are to act on a signed copy minutes of the operative part of the Judgment on the usual undertakings.
12. Petition disposed of