S.B. Sinha, J. - (1.) This writ application raises a pure question of law apart from the factual aspects which are disputed. The petitioner is a candidate in the ensuing Calcutta Municipal Corporation Election as a Congress (I) candidate. The last date for filing nomination paper was 8th June, 1995. The date of scrutiny was 10th, 11th and 12th June, 1995 and the last date of withdrawal of the candidature was 14th June, 1995. The date of poll is 9th July, 1995. The petitioner filed his nomination paper. It appears that there are 10 candidates who are contesting the election from Constituency No. 44. The Municipal Returning Officer issued a list of polling stations for constituency No. 44 and in relation to constituency No. 44/1 and 44/2, Here School, Room No. 1 and Room No. 2, situated at 87, College Street, Here School, was declared to be the polling stations which included Ram Kamal Sen Lane and Nil Madav Sen Lane. By a notice dated 29-6-95 the District Municipal Election Officer gave a notice to the petitioner and other candidates which are as follows ; - "A hearing will be given by the undersigned on 30-6-95 in the Office of the undersigned at Garstin Place in connection with some proposal(s) in respect of Ward No. 44. You are requested to kindly attend the same at the time and date fixed".
(2.) According to the petitioner he attended the said meeting and came to learn that the meeting was con vined for the purpose of alteration of the polling booth in respect of constituency No. 44/1, 44/2, 44/7 and 44/8. The petitioner has contended which is not disputed as it is evident from the record produced before me, that he has objected to the said proposal on the ground that he has taken effective steps for canvassing the election and has distributed slips to each voters of the effected constituency The petitioner however has stated that the premises No. 87, college Street, Calcutta, is a spacious place where polling can be made more comfortably. However, by an order dated 1 -7-95 as contained in annexure 'G' to the writ application the District Municipal Election Officer, Calcutta, and Collector of Calcutta, decided to correct the list of polling stations of Ward No. 44 in the following manner:- "In polling station Nos. 44/1 and 44/2 the building under column 3 should be read as "C.M.C. Primary School, Room No. 1 "and "C.M.C. Primary School, Room No. 2" respectively and location of the polling station under column 2 should be read as Nil Madhab Sen Lane in respect of both the stations. Again in polling Station Nos. 44/7 and 44/8 the building under column 3 should be read as "C.M.C. Primary School, Room No. 3 "C.M.C. Primary School, Room No. 4" respectively and location of polling stations should be read as Nil Madhab Sen Lane in respect of both the stations. The Room Nos. in respect of polling stations remaining at Hare School should be renumbered. He is advised to make necessary corrections. Mr. S. K. Kapoor, learned Counsel appearing on behalf of the petitioner has raised various contention in support of this writ application. The learned Counsel firstly submitted that the proposed polling station at Nil Madhab Sen Lane is not at all a sui place for the purpose of a polling booth inasmuch as, a Morgue, a butcher House and a meat-shop are located near the gate of C.M.C. Primary School and thus many voters would be reluctant to go there to cast their votes. The learned Counsel has produced before me various photographs to show that the area in question is a water logged area. He however, submitted that the shifting of polling station is being done at the instance of the ruling party. The learned Counsel has drawn my attention of Sections 4, 8, 9, 12 and 61 of the West Bengal Municipal Election Act and submitted that in terms thereof, only the Municipal Returning Officer has jurisdiction to pass such order. According to the learned Counsel, Section 4 having in no uncertain terms stated that the statutory functionary would exercise his power and perform functions in accordance with the provision of the said Act and the West Bengal State Election Commission Act, 1994; the District Municipal Election Officer who is the authority under Section 8 of the Act could not have performed the function of the Municipal Returning Officer, an authority appointed under Section 9 thereof. In support of the aforementioned contention, the learned Counsel has relied on a decision of the Division Bench of Assam High Court in the case of Tazuddin Ahmed v. Dhaniram reported in AIR 1959 Assam 128.
(3.) The learned Counsel appearing on behalf of the State Election Commission and Mr. Dutta, learned Counsel, appearing on behalf of the State could not produce before me any documents in terms whereof the District Municipal Election Officer could have exercised the power under Section 12 of the Act. The learned Counsel submitted that unfortunately in place of one Municipal Election Commissioner, 14 Municipal Election Commissioners have been appointed and thus the District Municipal Election Commissioner has acted in terms of the directives of the State Election Commission. The leared Counsel also submitted that the petitioner must be held to have submitted himself to the jurisdiction of the said authority and thus this Court should not exercise its extra-ordinary writ jurisdiction at this stage.;