Calcutta High Court: In a petition challenging the decision of the Returning Officer, who extended the election schedule for the West Bengal Dental Council, particularly altering the dispatch dates of ballot papers, a single judge bench comprising of Sabyasachi Bhattacharyya,* J., held that the actions taken by the West Bengal Dental Council and the Returning Officer were in accordance with the law, and the objections raised by the petitioner were without merit. The Court directed the Returning Officer to issue a proper Notification to reschedule the timelines of the election process for the West Bengal Dental Council especially considering the expenditure already incurred and the overdue elections, keeping in view the smooth and efficient conduct of the election.
Factual Matrix
In the instant matter, the petitioners challenge the decision of the Returning Officer, who extended the election schedule for the West Bengal Dental Council, particularly altering the dispatch dates of ballot papers. The petitioners argued that such alteration contravenes the Dentists Act, 1948, and the West Bengal Dentists Rules, 1950. The petitioners alleged that the alteration was made under pressure from certain council members and government influence. The respondents justified the alteration citing logistical reasons and claimed that it was made in the best interest of the election process.
The petitioners, claiming to be the President and a member respectively of the West Bengal Dental Council, brought a common challenge before the High Court regarding the alteration of the election schedule for the Council. Both writ petitions challenged the actions of the Returning Officer. The petitions are heard together and decided by a common judgment. For convenience, the petitioner in WPA No. 27846 of 2023 is referred to as “the petitioner.”
Moot Point
-
Whether the Returning Officer had the authority to alter the election schedule for the West Bengal Dental Council?
-
Whether the actions of the Returning Officer were influenced by external pressure?
-
Whether the changes made by the Returning Officer, such as altering the venue for dispatch of ballot papers, were lawful?
-
Whether the Vice-President of the Council could be added as a signatory for signing cheques?
-
Whether the President’s term of office has expired, and if so, what implications does it have on the ongoing election process?
Parties’ Contentions
The petitioners contended that the Returning Officer exceeded his authority by altering the election schedule and making changes which were influenced by external pressure and government dictates. It was contended that the alterations in the election process, including changing the venue for dispatch of ballot papers, were unlawful. It was contended that the addition of the Vice-President as a signatory for cheques was unauthorized and since the President’s term of office continues, he has the authority to act.
On the other hand, the respondents contended that the Returning Officer had the authority to alter the election schedule and the changes were made in the best interests of the democratic election process, not under external pressure. It was contended that the alterations in the election process were lawful and aimed at improving efficiency. It was stated that the Vice-President was added as a signatory to ensure the smooth functioning of the election process. It was lastly contended that the President’s term of office has expired, and therefore, he cannot continue to act.
Court’s Assessment
The Court noted that the Notification dated 26-08-1963, empowered the Vice-President to assume the duties of the President in case of the latter’s inability to perform his duties, which included signing cheques, therefore, the Vice-President can assume the President’s powers, including signing cheques, after the President’s term expires.
The Court noted that the change of venue for sending ballot papers is to be decided by the Returning Officer and held that the change of venue for sending ballot papers does not vitiate the election process, as it was decided by the Returning Officer and there was no evidence of undue pressure or government dictation.
The Court referred to J. Mitra & Company (P) Ltd. v. Controller of Patents & Designs, (2008) 10 SCC 368 and stated that the National Dental Commission Act of 2023 (2023 Act) has not yet been proclaimed by Notification and, as such, cannot be said to have commenced as yet. The Court opined that the Central Government’s instructions regarding a new Act and rules do not deter holding elections to the State Council, as the Dentists Act, 1948 (1948 Act) still holds the field until the 2023 Act is notified.
“The 2023 has not yet been notified or given effect to; hence the 1948 Act still holds the field. There cannot be any reason for perpetuating the headless state of affairs in the State Council in uncertain anticipation of future promulgation of the 2023 Act. As of now, the elections are overdue and the same should not be stalled on such vague ground.”
The Court noted that the process of election to the State Council is distinct from the Central Council election and can proceed independently. The Court referred to Jayantbhai Manubhai Patel v. Arun Subodhbhai Mehta, (1989) 2 SCC 484 where the Supreme Court discussed the jurisdiction to change the date of an election and to postpone it or to fix dates for holding it afresh till the elections were completed. The Court held that the Registrar, acting as the Returning Officer, has the power to alter the Election Notification and reschedule the dates for the various phases of the election process, subject to the same manner and conditions as the original Notification, and such alterations must be published in the Official Gazette.
The Court highlighted the importance of ensuring the smooth and efficient conduct of the election process, especially considering the expenditure already incurred and the overdue elections. The Court concluded that allowing the election process to continue with the rescheduled timeline is necessary to prevent a vacuum in the functioning of the Dental Council and to uphold democratic principles.
“The Dental Council has already incurred huge expenditure in initiating the election process up to the stage of scrutiny of nominations. Only the dispatch of ballot papers and the voting is left. If at this stage the same is stalled, the democratic process of functioning of the Council shall be hampered rather than facilitated. The existing body has exhausted its tenure and the elections are long due. Further protraction would only serve the purpose of the existing body to continue illegally in perpetuity.”
Court’s Decision
The Court dismissed Writ Petitions and directed the Returning Officer to issue a proper Notification in accordance with law for rescheduling the timelines of the rest of the election process within fortnight.
[Subhra Nandy v. Returning Officer, W.B. Dental Council, 2024 SCC OnLine Cal 1841, order dated 22-02-2024]
*Judgment by Justice Sabyasachi Bhattacharyya
Advocates who appeared in this case :
Mr. Kallol Basu, Mr. Suman Banerjee, Mr. Atreya Chakraborty, Counsel for the Petitioners
Mr. Abhratosh Majumdar, Mr. Nilotpal Chatterjee, Mr. Satyaki Banerjee, , Counsel for the Respondent 1 to 3
Mr. Sirsanya Bandopadhyay, Mr. Arka Kumar Nag, Counsel for the State
