Kolkata, Nov 4 The Calcutta High Court on Wednesday restrained the West Bengal government from issuing any notification for the Kolkata Municipal Corporation (KMC) elections till November 6, while reserving its order on a petition challenging the delimitation of wards that increased their number from 144 to 209.
A vacation bench comprising Justices Sabyasachi Bhattacharya and Arjun Roy passed the interim order after hearing arguments on a plea challenging the legality of the notification issued for the delimitation exercise ahead of the proposed civic polls.
The court said the matter could not be finally decided on Wednesday and directed the state government not to issue any election notification based on the impugned delimitation notification in the meantime.
The matter will be heard again on November 6, when the court is likely to pronounce its order.
Senior advocate Bikash Ranjan Bhattacharya, appearing for the petitioner, argued that the delimitation notification was issued in September when there was no elected KMC council in existence, and the civic body's former chairperson, Smita Pandey, had been appointed as its administrator following the dissolution of the corporation on June 8.
Bhattacharya contended that the administrator had been entrusted only with administrative responsibilities and could not exercise the powers of an elected corporation, particularly those involving legislative or policy decisions.
He submitted that, under the law, the delimitation exercise was required to be undertaken by the State Election Commission and alleged that the entire decision-making process behind the notification was vitiated.
"The administrator cannot take legislative functions. The administrator was an employee of the corporation. Can she be given the same powers as the corporation?" Bhattacharya argued.
The bench observed that the provisions of the KMC Act appeared to create an anomaly, as they required the state government to act on the recommendation of the corporation.
"If that is so, then it would be circular logic to say that the administrator, who is given power by the state, can operate as the corporation. Then the state government is giving an instruction to itself," the court remarked.
Bhattacharya alleged that there had been no application of mind before the delimitation decision was taken and described the exercise as "gerrymandering".
He further questioned how the administrator could have assessed the financial implications of the exercise, and referred to Supreme Court judgments holding that such delimitation-related actions could be unconstitutional.
The court, during the hearing, observed that the powers of an elected corporation could not prima facie be vested in an administrator by the state government.
"We are prima facie satisfied that the powers of the corporation cannot, by law, be vested in the administrator by the state," the bench observed, adding that it was evident that the state had acted on the advice of the corporation.
Advocate General Surajit Nath Mitra, appearing for the state, opposed the petition, arguing that the government was not required to obtain the approval of the civic body's council to undertake the delimitation exercise.
He also questioned the maintainability of the plea, contending that under Article 243ZG of the Constitution, any challenge to an election-related process could be pursued only through an election petition after the polls.
Mitra maintained that the administrator had been vested with all the powers of the corporation and there was no legal restriction on her authority to undertake the exercise.
The court, however, sought to know whether any process for holding the civic polls had commenced to which the AG replied in the negative.
During the hearing, the court also pointed out that the petitioners had not challenged the amendment to the KMC Act, which had subsequently been enacted. It observed that once the proposed amendment became an Act, the challenge would have to be directed against the legislation rather than merely an administrative notification.
Bhattacharya submitted that the petitioners had approached the court before the amendment was enacted and maintained that their objection concerned the very constitution of the legal framework under which the delimitation exercise was undertaken.
With the state opposing an interim restraint, the bench asked it either to furnish an assurance that no election notification would be issued in the meantime or face an interim judicial order.
The Election Commission, represented during the proceedings, told the court that it had no information about when the KMC elections would be notified and that the decision rested with the state government.
The Bengal government had issued a notification on September 11 announcing an increase in the number of wards in KMC area.
The petitioner, who challenged the notification, alleged that the exercise to redraw ward boundaries lacked rationality and consistency, with population, geographical location and administrative considerations not being adequately taken into account.
Questions were also raised over the rationale behind the proposed reorganisation of wards.
The petitioner claimed that the exercise was undertaken to favour a particular political party and urged the court to examine the matter.
The controversy over the delimitation exercise has since triggered a political slugfest, with many anticipating that it could also have a bearing on electoral calculations in the upcoming civic polls.
