[WB Assembly Elections] Calcutta High Court sets aside single judge order quashing rejection of nomination papers of TMC candidate Ujjwal Kumar

A Division Bench of the Calcutta High Court has quashed the single judge order which had set aside rejection of nomination papers of Trinamool Congress candidate Ujjwal Kumar from the Joypur constituency (The Chief Election Commissioner & Ors. v. Ujjwal Kumar & Anr)..A Bench of Chief Justice Thottathil B Radhakrishnan and Justice Aniruddha Roy on Friday allowed an appeal moved by the Election Commission of India (ECI) challenging the single judge order. .Returning Officer's rejection of nomination papers of TMC candidate Ujjwal Kumar based on "hyper technical" defects: Calcutta High Court .To do so, it relied on the Supreme Court's decisions in NP Ponnuswami v. Returning Officer, Namakkal Constituency, Namakkal, Salem Dist. and ors, and Manda Jaganath Vs. K.S. Rathnam and others. .The High Court noted that in these decisions, the Supreme Court has held that the possible erroneous actions by Returning Officers that are amenable to correction in writ jurisdiction are only those errors that would have the "effect of interfering in the free flow of the scheduled election or hinder the progress of the election.".The Bench added, "... if by an erroneous order, conduct of the election is not hindered, then the courts under Article 226 of the Constitution should not interfere with the orders of the Returning Officer, remedy for which lies in an Election Petition only. The paramount consideration is and ought to be the progress of the election.".As such, the single judge order was set aside and the ECI's appeal was allowed. Whereas a request was made for a stay on the order pronounced today, the Court rejected the same. .The ECI's appeal was moved challenging an order pronounced yesterday by Justice Sabyasachi Bhattacharyya, who found that the Returning Officer's rejection of Kumar's nomination papers were on hyper-technical grounds..Appearing for the ECI today, Senior Advocate Rakesh Dwivedi contended that the High Court's jurisdiction under Article 226 of the Constitution (writ jurisdiction) is barred in election cases once the elections have commenced. .In this regard, he relied on Article 329B of the Constitution which states that "No election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for (by law). ".He added that this position has been upheld in several Supreme Court judgments including Mohinder Singh Gill & Anr vs The Chief Election Officer and ECI v. Ashok Kumar. Referring to the single judge order under challenge, Dwivedi contended thatNo notice was issued to the ECI and an ex parte order was passed;Article 329B of the Constitution not adverted to;The judgment of the Supreme Court in Mohinder Gill has not been noticed..Appearing for Kumar, Senior Advocate Kapil Sibal relied on ECI v. Ashok Kumar to argue that the Court's jurisdiction is not barred where the plea does not obstruct, interrupt or disrupt the election process or where the election process is subserved by such challenge. "No one is challenging the election.. there is no obstruction to the process of election. The argument of my friend is a complete non-starter", Sibal argued. .He disputed Dwivedi's submission that the ECI was not informed about the writ petition moved by Kumar. He also raised objection to Kumar's candidature being rejected without the authorities informing about the grounds of rejection. .In the course of the hearing today, Chief Justice Radhakrishnan briefly mused whether there could be some room for a judicial examination of the matter where the grounds of rejecting the nomination are not substantial. "That is one way of looking at it, subject to the Supreme Court judgments. The stage is that today evening you are putting final list...There is elbow room for the judiciary to look at it...", he orally observed. .Dwivedi, however, asserted that the only question is whether the court can interfere in an election case once the election period has commenced. He argued that the only remedy available in such matters is by way of an election petition."Any scrutiny will protract the election. if a writ petition is filed, a notice needs to be given to me.. all that involves protraction of the election" he added..In its order, the Bench has made allied observations. It reads:.".... any rejection of the nomination paper by the returning officer on the ground of any defect and the question whether such defect is of a ‘substantial character’ or not, as well as the question whether such rejection amounts to improper rejection for the purpose of Section 100(1)(c) of the RP Act are essentially mixed questions of facts and law. In the trial of Election Petition in terms of Chapter III in Part VI of the RP Act, such issue could be gone into comprehensively. Such questions are not to be decided by the writ court merely as if it is a jurisdictional issue or an issue of law only.".Senior Advocates Dwivedi and Jaydip Kar along with standing counsel for the ECI Amit Sharma and Advocates Indranil Roy, Daipayan Chowdhury, S Chowdhury, Souma Bhattacharya and Priyanka Chowdhury appeared for the appellants. .Senior Advocate Sibal led the arguments for Kumar. Advocates Sanjay Basu, Jishnu Chowdhury, AK Nag, Sandip Dasgupta, Sourav Bhagat, Ayan Dey, D Sarkar, M Cholera, Kunal Vajani and Debanjan Mandal also appeared for Kumar..Read the Order: