The Court : This is an application arising out of Election Petition under Section 80A of the Representation of the People Act, 1951, read with Sections 81, 98, 99 of the Representation of People Act, 1951 filed on behalf of the Chief Electoral officer. The petitioner has sought for leave for making the application. Leave has already been considered in view of my earlier order when this Court was pleased to take up the matter on its merit by hearing the learned Counsel for both the parties.In this particular application, the Chief Electoral Officer, West Bengal has prayed for release of Electronic Voting Machines (EVMs) and VVPATs in respect of 17-Barasat parliamentary constituency of West Bengal under the custody of Barasat and Bidhannagore as detailed in paragraph 10 of the application, which is as under:“10. By a letter dated 17th October, 2019, the Chief Electoral Officer, West Bengal intends to file application before the Hon’ble High Court at Calcutta in E.P. No.2 of 2019 in respect of release of EVMs, VVPATs including BU-125, CU1925, VVPAT-1965 which are blocked in view of the filing of the said E.P.No.2 of 2019, although the same are not the subject matter in issue in the E.P. No.2 of 2019. Such EVMs/VVPATs are lying with the Sub-Divisional Officer, Barasat and Sub-divisional Officer, Bidhannagare.”The petitioner, Mr. Shanti Ranjan Das in the above Election Petition no.2 of 2019 has prayed for the following reliefs:“[a] Declare the Election of “17-Barasat Parliamentary Constituency” held on 19th May, 2019, to be void ;[b] Declare that rejection of the petitioner’s nomination was bad and the nomination filed by the petitioner was valid and he was an eligible candidate to contest the Election;[c] Declare that the Election of “17-Barasat Parliamentary Constituency” is bad because of malpractice and dishonesty;[d] A decree for declaration declaring the petitioner to be an elected candidate and possess all the necessary power authority to discharge the function of an elected candidate;[e] Declare the Election of all candidates/entire Election process of 17-Barasat Parliamentary Constituency to be void;[f] Such other or further order/orders as the Hon’ble Court may be think fit and proper upon the facts and circumstances of the instant Election Petition during the period of the case for the ends of justice.”In the said Election Petition, the respondent nos.1 and 2 being the Election Commission of India and the Chief Electoral Commissioner filed application in GA No.2449 of 2019 with a prayer for their names to be deleted from the Election Petition and, accordingly, their names have been deleted by order dated 3rd December, 2019 by a Co-ordinate Bench of this Hon’ble Court bearing in mind the decisions of the Hon’ble Supreme Court on that aspect.The present petitioner being the Chief Electoral Officer, West Bengal has enlightened this Court by provisions of Article 324 of the Constitution of India regarding superintendence, control and direction of the elections and the provision of the Article reads thus:“324. Superintendence, direction and control of elections to be vested in an Election Commission(1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission)(2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President(3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission(4) Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause ( 1 )(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine; Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment: Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner(6) The President, or the Governor of a State, shall, when so requested by th Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause ( 1.”It is also provided under Section 13CC of the Act of 1950 that the Chief Electoral Officers, District Election Officer on deputation of Election Commission are the officers on deputation to the Election Commission for the period for the purpose of election and they are under direct control, superintendence and/or discipline of the Election Commission.By citing these provisions learned Counsel for the Chief Electoral Officer submits that the Chief Electoral Officer, West Bengal is also under the superintendence, control and direction of the Election Commission and was on deputation of the Election Commission for the purpose of election which was held in the year 2019.It is also pointed out that the elections are conducted under the provision of 61A of the Representation of People Act, 1951 by Electronic Voting Machines (EVMs) and VVPATs in terms of Rules 49A to 49V as also in terms of Rule 66A, 92, 94 of the Conduct of Election Rules, 1961 as detailed in Chapter II of the Conduct of Election Rules, 1961 and being used by the Election Commission of India for conducting votes in parliamentary and assembly constituencies. Since the election process has been completed, the respective Presiding Officers are supposed to deliver the Electronic Voting Machines (EVMs) and VVPATs to the Returning Officer at such place as the Returning Officer may direct by circular dated 12th September, 2019, the Election Commission of India addressed to the Chief Electoral Officers of all States and Union Territories by providing guidelines for the use of the Electronic Voting Machines (EVMs) and VVPATs during the election period.My attention is invited to the said circular vide Annexure-B. the said circular provides the guidelines as such.“3. In case of any election where election petition has been filed, the following action shall be taken:-(i) If the EVMs are the subject of the election petition, the EVMs used at all Polling Stations in the constituency concerned shall continue to be kept in the safe custody of the District Election Officer, till such time the Election petition is finally disposed by the Courts.(ii) If the EVMs, VVPATs are not the subject of the election petition, an application may be moved to the concerned Court for allowing the EVMs concerned to the taken out of the strong room for any future election or any other purpose like movement, physical verification of EVMs. Etc.(iii) In case EVMs not involved in any Election Petiton/Court Case are stored are stored with the EVMs involved in Election Petition/Court Case, the following procedure shall be followed for segregating the EVMs not involved in any election petition/court case from the EVMs involved in EP/Court Case:-(a) A Notice informing the opening of Strong Room having EVMs involved in EP/Court Case shall be given to the petitioners/respondents of the EP/Court Case and the representatives of all political parties in writing at least 72 hours in advance requesting them to remain present at the time of opening strong room.(b) The strong room shall be opened in the presence of the District Election Office, Petitioners/respondents of the EP/Court Case and representatives of Political Parties.(c) The EVMs not involved in any EP/Court Case shall be segregated from the EVMs involved in EP/Court Case for taking out of the warehouse. A list of EVMs being taken out from the strong room shall be prepared.(d) The EVMs, which are not involved in any EP/Court Case should be taken out of the warehouse.(e) The entire process shall be videographed.(f) A copy of the list of EVMs being taken out from the strong room and copy of videography shall be given to the petitioner/respondent of the EP/Court Case and acknowledgement taken.4. If any other Court Case is pending like booth capturing etc. in which any EVM is involved, the EVM concerned or the EVM(s) used at such Polling Station(s) concerned may also be kept till the final disposal of the said case.”The moot point which has been raised at the time of hearing is the dispute between the parties and the dispute is as regards the rejection of the nomination of the election petitioner at the stage of scrutiny by the District Election Officer.Learned Counsel for the Chief Electoral Officer submits that since the issue is absolutely on a different footing and since the election petitioner has not even able to contest the election due to rejection at the stage of scrutiny by the concerned authority. There is no point to be taken note of that the Electronic Voting Machines (EVMs) and VVPATs are to be kept under seal because they are the properties of the Chief Election Commission and they are to be released by the Returning Officer after the election process is completed.
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Since the SDO, Barasat and SDO, Bidhannagore were the Returning Officers under whose custody the Electronic Voting Machines (EVMs) and VVPATs are kept in view of pendency of this election petition filed on behalf of the petitioner, Mr. Shanti Ranjan Das. They are to be released in favour of the Chief Electoral Officer, West Bengal for the reason that there is ensuing election. Accordingly, such prayer has been made.I have heard Mr. Chatterjee, learned Counsel appearing for the petitioner at length and kept in mind the moot issue which requires to be decided in the Election Petition by undertaking the prayer summarily and this Court does not find reason why Electronic Voting Machines (EVMs) and VVPATs are to be kept in because they cannot be the subject matter of decision in the said Election Petition.Accordingly, GA NO.3 of 2019 (Old GA No.2939 of 2019) is allowed and Electronic Voting Machines (EVMs) and VVPATs no. be released to the applicant and/or in favour of the Officer nominated by the applicant, namely, Chief Electoral Officer, West Bengal.Accordingly, GA NO.3 of 2019 (Old GA No.2939 of 2019) stands disposed of.