Panel plea: delete 'amicably settled' - Election commission says 'stunned' by some observations in division bench's order

OUR BUREAU

Calcutta, May 17: The state election commission today filed an application in Calcutta High Court requesting it to delete words or phrases like "amicably settled", "consent order" and "consensus" in its May 14 order on the panchayat polls. The commission also requested in the application that the division bench of Chief Justice A.K. Mishra and Justice Joymalya Bagchi remove the paragraph that states that the findings of the single-judge bench of Justice Biswanath Somadder "shall not be treated as precedent". The poll panel maintained it had not given its consent to the May 14 order of the division bench that said the appeal on the panchayat elections "has been amicably settled" and issued a "consent order" that scheduled the rural polls before July 15. Today's application is likely to be moved before the division bench headed by the chief justice when the court reopens on June 3 after summer recess. The panel said that after downloading a copy of the order, it was "stunned" to see it was prefaced by the following observations: "Happily the dispute raised in this appeal between the State Government and the state Election Commission with respect of holding of the Gram Panchayat Election in the State of West Bengal has been amicably settled and is being decided by the following consent order." In its application, the commission said today: "There was never any occasion for any such and so-called amicable settlement or a consent order." According to the poll panel, it is out of regard for its constitutional responsibility that it has proceeded to take all steps to ensure that the elections are held in accordance with law and "without prejudice to its statements and submissions contained in this petition". Asked if the application was the first step towards moving the Supreme Court, commission secretary Tapas Ray said this evening that the poll panel was "acutely aware" of the option. "This is something we have thought, and our legal team corroborated, was necessary. There are rules and procedures to be followed. We are acutely aware of the availability of the Supreme Court option," he said. The application stated that the division bench started dictating the order while the poll panel counsel was making his submission and the government counsel "was vehemently opposing those submissions". The commission mentioned that the May 14 order had said the findings recorded before Justice Somadder shall not be treated as a precedent as the division bench had not gone into the merits of the case. The panel has prayed for the deletion of this direction. Asked why the commission wanted the direction to be deleted, senior advocate Gitanath Ganguli said: "Unless Justice Biswanath Somadder's findings are allowed to be used, it will be difficult for the election commission to move the Supreme Court to establish its supremacy over the government in holding elections." According to Ganguli, the issue covers Section 42 of the West Bengal Panchayat Elections Act, 2003, which empowers the state to announce the election dates. The commission maintains that it is ultra vires of the Constitution. "Justice Somadder did not declare this section as unconstitutional as desired by the commission. Now, if the commission wishes to move the apex court against this, it would have to use the judgment of Justice Somadder to state that the poll panel's concerns on Section 42 has not been addressed," he explained. According to commission sources, while going ahead with the polls, the panel also wants to "fight till the last" on the larger issue of the scrapping of Section 42 of the state law. "The legal battle is not over. We want an honourable settlement on our stand in a court of law," a commission source said. "We have to make sure that the powers and the dignity bestowed upon the commission by the Constitution cannot be undermined by any government even in the future," he added.