The Calcutta High Court on Friday restrained the West Bengal State Election Commission from calling elections to the Kolkata Municipal Corporation (KMC) based on a delimitation notification issued in September that proposes to increase the number of civic wards from 144 to 209.
A Division Bench of Justices Sabyasachi Bhattacharyya and Arjun Ray Mukherjee said that this restraining order will continue to operate until a petition challenging the validity of the delimitation exercise is decided.
The order was passed on an appeal filed by Dipu Das, a former ward councillor under the Communist Party of India (Marxist) [CPI(M)] regime between 2005 and 2010.
"(Appeal filed by Das) is allowed in part, by modifying the impugned order (of single judge refusing to stay delimitation exercise) by restraining respondent no. 6, that is the West Bengal State Election Commission, from issuing a notification calling an election to the Kolkata Municipal Corporation on the basis of the amended Schedule II of the KMC Act... till disposal of WPA 31433 of 2026. The rest of the said impugned order is not interfered with, naturally the observations are tentative in nature insofar as final disposal of the writ is concerned," the Court said today.
Das' plea challenged a previous order passed by Justice Hiranmay Bhattacharyya on October 29, refusing to stay the operation of the State's delimitation notification that proposed to redraw the boundaries of 144 existing municipal wards in Kolkata by amending Schedule II to the KMC Act.
Das contended that the single-judge did not examine all the grounds raised in petition, even though he was bound to.
The single-judge had stated that the exercise of delimitation can only be challenged on limited grounds since there is a bar on courts interfering in electoral matters pertaining to municipalities under Article 243 ZG of the Constitution of India.
However, Das argued that this bar of protects the validity of the law relating to delimitation and not an act done under a delegated power.
She argued that she has challenged the exercise of recommendatory powers by the Municipal Commissioner in furthering the delimitation exercise, in the absence of an elected municipal board.
The appeal also claimed that the single-judge failed to consider the issue of disparity in voter population across the redrawn wards.
Senior Advocate, Bikash Ranjan Bhattacharyya, representing Das, had submitted during hearings that the entire process of delimitation was patently illegal.
He said that the bill to amend the Kolkata Municipal Act, 1980 was introduced in the Legislative Assembly a mere two days after the notification containing the preparatory draft proposing the alteration of the wards was issued by the State government.
He emphasised that the bill was introduced without any real deliberation within two days after the notification containing the preparatory draft calling for its public inspection and objections was issued.
He also reiterated that the Municipal Commissioner who had made recommendations for the preparation of the draft redrawing the wards, was ineligible to do so. He said that such recommendations were made during the supersession of the previous municipal board, and that, the Municipal Commissioner, being a subordinate employee of the corporation, could not exercise such powers in light of the fact that the corporation is a body of elected officials.
"Can an executive officer of the corporation be deemed to be at the level of the corporation? An anomaly would arise. If the State government allots powers and functions to the Administrator (Municipal Commissioner), then Administrator can carry out such functions? The statute wanted the Municipal Commissioner to be a subordinate employee, not at the pedestal of the Corporation," he said.
Bhattacharyya also stressed that moving forward with the delimitation of the wards would prove to have immense strain on the public exchequer.
Advocate General Surojit Nath Mitra, appearing for the Kolkata Municipal Corporation, challenged the maintainability of Das' appeal. He submitted that Das did not personally raise any objections to the notifications proposing delimitation. Hence, a challenge to the delimitation process could not be brought at this stage, he contended.
The Advocate General further said that Das could not make out a case that the recommendation of the Municipal Commissioner was bad.
He further placed reliance on Article 243 ZG of the Constitution to argue that courts are barred from questioning laws pertaining to delimitation of municipal wards.