Page No.# 1/12
GAHC010040152022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1494/2022
ANIMA DEVI SARKAR
W/O. DILIP KUMAR SARKAR, WARD NO.15, VILL. AND P.O. BIDYAPARA,
P.O. AND P.S. DHUBRI, ASSAM, PIN-783301.
VERSUS
THE STATE OF ASSAM AND 6 ORS
REP. BY THE PRINCIPAL SECRETARY, HOUSING AND URBAN AFFAIRS,
GOVT. OF ASSAM, DISPUR-781006.
2:THE ASSAM STATE ELECTION COMMISSION
HAVING ITS OFFICE AT ADITYA TOWER
2ND FLOOR OPPOSITE DOWN TOWN HOSPITAL
G.S. ROAD
DISPUR PIN-781006.
3:THE DEPUTY COMMISSIONER
DHUBRI
ASSAM
PIN-783301.
4:THE MAGISTRATE
DHUBRI MUNICIPAL BOARD ELECTION
DHUBRI
ASSAM
PIN-783301
HAVING ITS OFFICE AT THE OFFICE OF THE DC
DHUBRI
ASSAM.
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5:THE DHUBRI MUNICIPAL BOARD
REP. BY THE EXECUTIVE OFFICER
DHUBRI
ASSAM
PIN-783301.
6:IVY LATA ROY MONDOL
W/O. SUSHANTA MANDAL
VILL. BIDYAPARA WARD NO.15
P.O. BIDYAPARA
P.S. AND DIST. DHUBRI
ASSAM
PIN-783301.
7:SABERA KHATUN
W/O. SAIFUL ISLAM
VILL. BIDYAPARA
WARD NO.15
P.O. BIDYAPARA
P.S. AND DIST. DHUBRI
ASSAM
PIN-783301
Advocate for the Petitioner : MR. A CHAMUAH
Advocate for the Respondent : GA, ASSAM
BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK 04/03/2022 Heard Mr. C P Sharma, learned Senior counsel assisted by Mr. A. Chamuah, learned counsel for the petitioner. Also heard Mr. R. Dubey, learned Standing Counsel, Assam State Election Commission for the respondent No. 2 and Mr. D Nath, learned Senior Government Advocate, Assam for the respondent No. 3.
2. The facts of the case is that in exercise of the power conferred under Article 243ZA of the Constitution of India read with Sections 12-A and 26 of the Assam Municipal Act, 1956, as amended, the State Election Commissioner, Assam, respondent No. 2 by Notification No. SEC.145/2019/426 Page No.# 3/12 dated 09.02.2022 notified the election of the 80 (eighty) Municipal Boards of Assam including their respective Wards together with 16 numbers of Wards of Dhubri Municipal Board including its Ward No. 15 to elect Commissioners from their respective wards notifying the Time Schedule as follows:-
Sl. No. Events Date
15.02.2022 (Tuesday)
1 Last Date of making nominations (11:00 AM to 03:00 PM)
17.02.2022 (Thursday)
(10:00 AM to 04:00 PM)
2 Scrutiny of nomination papers
Publication of List of validly nominated 17.02.2022 (Thursday) Candidates 3 Last Date for Withdrawal of Candidature 20.02.2022 (Sunday) 4 (11:00 AM to 03:00 PM) Publication of List of Contesting 20.02.2022 (Sunday) Candidates 5 06.03.2022 (Sunday) 6 Date of Poll (08:00 AM to 04:00 PM) 09.03.2022 (Wednesday) (From 08:00 AM till completion of Counting process) 7 Counting of Votes
3. From the said date of Notification, i.e., 09.02.2022, all the provisions of the Model Code of Conduct also came into force with immediate effect.
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4. Prior to the Notification No. UDD(M)285/2019/Pt./536 dated 17.11.2020, the Urban Development Department, Government of Assam amongst others notified 7 (seven) Wards of Dhubri Municipal Board of Dhubri District including Ward No. 15 as reserved for women.
5. Further, by Notification No. UDD(M)285/2019/Pt.II/30 dated 25.11.2020, the State Government in the Urban Development Department notified 46 Municipal Boards of different Districts of Assam including Bilasipara Municipal Board, Sapatgram Municipal Board, Gauripur Municipal Board, Gulakganj Municipal Board and Chapar Municipal Board, where the Chairperson of those Boards should be from a woman, where Chairman of Bilasipara Municipal Board and Sapatgram Municipal Board should be a woman from Scheduled Caste Community.
6. Being nominated by the recognized political party Asom Gana Parishad, the petitioner submitted her candidature for the post of Ward Commissioner of Ward No. 15 of Dhubri Municipal Board before the concerned Magistrate cum Returning Officer with regard to said 2022 Dhubri Municipal Board Election. Finding her nomination for the Ward Commissioner of Ward No. 15 of Dhubri Municipal Board as a candidate of AGP being valid, the concerned Magistrate cum Returning Officer of the Ward No. 15 of Dhubri Municipal Board Election 2022 of District-Dhubri on 17.02.2022 included the name of the petitioner in the relevant Form V as provided under Rule 26 (9) of the Rules for the Election of Commissioner of Municipal Boards under the Assam Municipal Act, 1956, i.e., the list of validly nominated candidates for Election to the post of Commissioner of Ward No. 15 of Dhubri Municipal Board, wherein her name figured in the Serial No. 2 amongst the three candidates for the said election along with one Ms. Ivy Lata Roy Mondol as a BJP candidate at Serial No. 1 and another, Ms. Sabera Khatun as an INC candidate at Serial No. 3.
7. After the notified date and time of withdrawal of candidature on 20.02.2022, petitioner did not find her name in the Form VIII, i.e., the list of contesting candidates for Election to the post of Commissioner of Ward No. 15 of Dhubri Municipal Board as notified on 20.02.2022 by the concerned Magistrate cum Returning Officer of said Ward No. 15 of Dhubri Municipal Board Election 2022, amongst the list of the three candidates whose name figured in the Form V, i.e., the list of validly nominated candidates for Election to the post of Commissioner of Ward No. 15 of Dhubri Municipal Board notified on 17.02.2022 by the concerned Magistrate cum Returning Officer of the said Ward No. 15, where the names of said Ms. Ivy Lata Roy Mondol as a BJP candidate at Serial No. 2 and that of Ms. Sabera Khatun as an INC candidate at Serial No. 3 figured in the same. By the said Notification, the concerned Magistrate cum Returning Officer of the said Ward No. 15 also notified that the poll will take place on 06.03.2022 between the hours of 08:00 AM to 04:00 PM.
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8. Petitioner stated that she did not file any application for withdrawal of her candidature for Election to the post of Commissioner of Ward No. 15 of Dhubri Municipal Board. Not finding her name in the list of contesting candidates for Election to the post of Commissioner of Ward No. 15 of Dhubri Municipal Board in the Form VIII, notified on 20.02.2022, being aggrieved, the petitioner preferred a writ petition on 22.02.2022 being WP(C) No. 1287/2022 praying amongst others for issuance of a Writ of Mandamus directing the State Election Commissioner, Assam, respondent No. 2; the Deputy Commissioner, Dhubri, Assam, respondent No. 3 and the Magistrate, Dhubri Municipal Board Election, Dhubri, Assam, respondent No. 4 to include her name in the said list of contesting candidates for election to the Ward No. 15 of Dhubri Municipal Board, which is scheduled on 06.03.2022.
9. After hearing the learned counsels for the petitioner as well as the learned counsel for the State Election Commissioner, Assam, considering the Constitutional provisions, the provisions of the Assam Municipal Board Act, 1956, as amended and relying on the decision of the Hon'ble Supreme Court of India in the case of State of Goa and Another -Vs- Fouziya Imtiaz Shaikh and Another, reported in (2021) 8 SCC 401, by order dated 22.02.2022, the Court disposed of the said writ petition WP(C) No. 1287/2022 at the motion stage itself with the observation that -
the petitioner may approach the Assam State Election Commission, respondent No. 2 for redressal of her grievances, if so advised. In the event of any such approach by the petitioner, the Assam State Election Commission, respondent No. 2, needless to say, shall consider her case in accordance with law, within a reasonable period, considering the fact that 08:00 AM to 04:00 PM on 06.03.2022 is the time and date notified for election to said Ward No. 15 of Dhubri Municipal Board, where its election campaign would come to an end on 04.03.2022 at 04:00 PM.
10. As the respondents State Election Commission did not pass any order even up to 28.02.2022 in spite of filing representation on 23.02.2022 before the said authority by the petitioner and as the time for the said election was running out, she being aggrieved, preferred this writ petition praying amongst others to issue writ in the nature of mandamus/certiorari directing the Assam State Election Commission, respondent No. 2; the Deputy Commissioner, Dhubri, respondent No. 3 and the Magistrate, Dhubri Municipal Board Election, Dhubri, respondent No. 4 to include her name in the list of contesting candidates for the Dhubri Municipal Board Election from Ward No. 15 scheduled on 06.03.2022 and further, to direct the Assam State Election Commission, respondent No. 2 to dispose of her representation dated 23.02.2022.
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11. On 28.02.2022, the Court considering the order dated 22.02.2022 passed in WP(C) No. 1287/2022 observed that the Commissioner, the Assam State Election Commission, respondent No. 2 shall dispose of the representation of the petitioner at the earliest by 11:00 AM on 02.03.2022 intimating her about the outcome of the same immediately either personally and/or through her email and/or mobile phone etc., fixing the matter on 03.03.2022.
12. On 03.03.2022, both Mr. Sharma, learned counsel for the petitioner and Mr. Dubey, learend Standing Counsel, Assam State Election Commission placed before the Court that the Commissioner State Election Commission, Assam passed an order on 02.03.2022 on the representation of the petitioner dated 23.02.2022 rejecting her said representation.
13. On the prayer, the Court allowed the petitioner as well as the Commissioner, State Election Commission, Assam, respondent No. 2 to make their necessary submission with regard to said order dated 02.03.2022 passed by the State Election Commissioner, Assam rejecting the representation of the petitioner dated 23.02.2022, noted above.
14. Mr. Sharma, learned Senior counsel for the petitioner placing the said order dated 02.03.2022 of the State Election Commissioner, Assam stated that the State Election Commission came to a finding at Para-(D) that the nomination of the petitioner was neither accepted nor rejected on 17.02.2022 but kept on hold for an enquiry and that inadvertently the Election Magistrate had included the name of the petitioner in Form V.
15. At Para-E of the said order dated 02.03.2022, the Commissioner, State Election Commission observed that the Election Magistrate decided to conduct a summary enquiry and the petitioner was called over phone to appear on 18.02.2022 for such enquiry. But as she did not turn up, notice was issued to her for appearance on 19.02.2022 at 11:00 AM before the Election Magistrate and accordingly, she appeared on 19.02.2022 for enquiry where the statement of the brother of the petitioner was recorded in that enquiry.
16. At Para-F of the said order dated 02.03.2022, the Commissioner, State Election Commission observed that after enquiry, the Election Magistrate passed a speaking order on 20.02.2022 rejecting nomination of the petitioner and the rejection was endorsed on her nomination paper on 20.02.2022 and therefore, the name of the petitioner did not figure in the list of contesting candidates.
17. In the said order dated 02.03.2022, the State Election Commissioner, Assam came to the finding that the fact that a complaint was filed against the petitioner, where she was called for an Page No.# 7/12 enquiry and an enquiry was conducted against her has been suppressed by her before the said authority as well as the High Court.
18. Since there was an enquiry against the petitioner and she was also given an opportunity of hearing and as her nomination was rejected by a speaking order, therefore, her contention that opportunity of hearing was not provided to her was found to be false and since the said speaking order of the Election Magistrate dated 20.02.2022 has not been called in question, the State Election Commissioner, Assam by the said order dated 02.03.2022 did not accede to the prayer made by her as remedy is provided under the Assam Municipal Act, 1956 for challenging such rejection of nomination. The said Commissioner also came to the finding that in the absence of any challenge to such rejection by a competent forum, i.e., the District Judge of the concerned District, the said authority specified that it cannot usurp such jurisdiction.
19. As such, in the said factual background as well as legal propositions regarding election matter propounded by the catena of judgments of the Hon'ble Supreme Court, the Commissioner, Election Commission, Assam thereby by order dated 02.03.2022 rejected the representation of the petitioner holding that her name cannot be included without there being a challenge to the rejection of her nomination and interference of the same by the competent authority as mandated under the Assam Municipal Act, 1956.
20. Mr. Sharma, learned Senior counsel for the petitioner submitted that name of the petitioner figured in the list of validly nominated candidates in the Form V as provided under Rule 26 (9) of the Rules for the Election of Commissioner of Municipal Boards under the Assam Municipal Act, 1956, where the said Rule has been framed under the provisions of Sub Section (2)(i) of Section 301 of the Assam Municipal Act, 1956, having statutory force.
21. Mr. Sharma, learned Senior counsel for the petitioner placed the provisions of Rules 23 and 26 of the said Rules for the Election of Commissioner of Municipal Boards including Rule 26(9).
22. Rules 23 and 26 of the said Rules for the Election of Commissioner of Municipal Boards under the Assam Municipal Act, 1956 reads as follows:-
23. Nomination of candidates for election.--
(1) Any person whose name appears in the Final electoral Roll and not disqualified under Section 15 of the Act may be nominated as a candidate for election to fill any seat in any Ward of the Municipality by the candidates in person or by his proposer between the hours of 11 O'clock in the forenoon and 3 O'clock in the after-noon delivering to the Magistrate in his office Page No.# 8/12 nomination paper completed in the prescribed from No. IV appended to these Rules and signed by the candidate and by an elector of the Ward as proposer. (2) On the presentation of the nomination paper, the Magistrate shall satisfy himself that the names and electoral numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the Electoral Rolls.
Provided that the Magistrate shall permit any clerical or technical error in the nomination paper in regard to the said names or numbers to be corrected in order to bring them into conformity with the corresponding entries in the Electoral Rolls; and where necessary, direct that any clerical or printing error in the said entries shall be overlooked. (3) Nothing in this Rule shall prevent any candidate from being nominated by more than one nomination paper for election in the same Ward.
26. Scrutiny of Nomination. --
(1) The day for the scrutiny of nomination paper shall be the second day after the last day of making the nominations.
(2) Scrutiny shall be made by the Magistrate in his office from 10 a.m. to 4 p.m. on the scrutiny day and may adjourn to the following office day if the scrutiny cannot be completed within the scrutiny day.
(3) The candidates or their agents authorised in writing in that behalf may attend the scrutiny and the Magistrate shall give them all reasonable opportunities for examining nomination paper for all candidates delivered within the time and in the manner laid down in Rule 23. (4) The Magistrate shall then examine the nomination papers and shall decide all objections which may be made to any nomination, and any, either on such objections or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds, --
(a) That the candidate either is not qualified or is disqualified from being chosen to fill the seat;
(b) That there has been a failure to comply with any provision of Rule 23;
(c) That the signature of candidates or of the proposer on the nomination paper is not genuine.
(5) Nothing contained in clauses (b) and (c) above shall be deemed to authorise the rejection of the nomination of any candidate on the grounds of irregularity in respect of nomination paper, if the candidate has been duly nominated by means of other nomination paper in respect of which no irregularity has been committed.
(6) The Magistrate shall not reject any nomination paper on the grounds of any defect which is not of a substantial character.
(7) The Magistrate shall endorse on each nomination paper his decision accepting or rejecting the same and if, the nomination paper is rejected, shall record in writing a brief statement of his reason for such rejection.
(8) For the purpose of this Rule, a certified copy of any entry in the Electoral Roll for the time being in force of a Ward shall be conclusive evidence of the fact that the person referred to in Page No.# 9/12 that entry is an elector in the Ward.
(9) Immediately after all the nomination paper have been scrutinized and declarations accepting or rejecting the same have been recorded, the Magistrate shall prepare a list of validity nominated candidates, that is to say, candidates whose nomination have been found valid, and affix it in the notice board of the Municipal Office. This list of validity nominated candidates shall be in Form V appended to these Rules.
23. Mr. Sharma, from Sub Rule 4 of Rule 26 of the said Rules placed before the Court that the Magistrate on examining the nomination papers and deciding all objections that may be made to any nomination and any either on such objection or on his own motion after such summary enquiry, if any, as it thinks necessary reject any nomination only on the grounds of (a) that the candidate either is not qualified or is disqualified from being chosen to fill the seat; (b) that there has been a failure to comply with any provision of Rule 23 and that the signature of candidates or the proposer on the nomination paper is not genuine. Mr. Sharma stated that the petitioner does not fall in any of aforesaid grounds.
24. Mr. Sharma, also placed before the Court that the petitioner does not come under any of the provisions of Section 15 of the said 1956 Act as amended including the 10 (ten) grounds provided in the Sub Section 1 of said Section 15 of the 1956 Act.
25. Regarding her educational qualification petitioner stated that she passed her Class-X High School Leaving Certificate Examination in the year 1986 under the Board of Secondary Education, Assam, Guwahati (in short, known as SEBA) with Roll D 94 No. 1008. She has also passed her Pravesika Examination, 1999 with Roll 07 No. 249 under the Assam Sanskrit Board, Guwahati. The Board of Secondary Education, Assam recognizes the said Pravesika Examination conducted by the Assam Sanskrit Board, Guwahati as equivalent to High School Leaving Certificate Examination conducted by SEBA.
26. Mr. Sharma, also stated that the petitioner passed 'Saraswati' Madhyama Examination, 2006 (a two years course) conducted by the Assam Sanskrit Board, Guwahati equivalent to Class-XII Higher Secondary passed (10+2 Examination) and the said examination conducted by the Assam Sanskrit Board is duly recognized by the Council of Boards of Secondary Education of India (COBSE). Said COBSE is a statutory body duly recognized by the Government of India in the MHRD.
27. On behalf of the petitioner, Mr. Sharma, further submitted that the post of Commissioner of Ward No. 15 of Dhubri Municipal Board is reserved for woman and not for woman of Scheduled Caste Community and therefore, even if the petitioner claims to be a Scheduled Caste being married to a Page No.# 10/12 Scheduled Caste but born to a Hindu General Caste parents, the concerned Magistrate could not have rejected the nomination paper of petitioner on the said ground being a defect which is not of a substantial character.
28. Mr. Sharma, learned Senior counsel for the petitioner submitted that when the concerned Magistrate cum Returning Officer have already on 17.02.2022 notified the list of validly nominated candidates for Election to the post of Commissioner of Ward No. 15 of Dhubri Municipal Board in the Form V, that includes her name, the said Magistrate once accepting the nomination of the petitioner being the functus officio have no such power to make any such enquiry after such Notification made in the Form V provided under Rule 26 (9) of the Rules for the Election of Commissioner of Municipal Boards under the Assam Municipal Act, 1956.
29. For all these reasons, after such Form V Notification published on 17.02.2022 even if any such enquiry is made by the concerned Magistrate, the same is not sustainable in law and that the State Election Commission failed to consider all these aspects being an independent authority under the relevant Act and Constitutional provisions.
30. In these regards, Mr. Sharam, also placed reliance in the judgment of the Hon'ble Apex Court in the case of State of Goa and Another -Vs- Fouziya Imtiaz Shaikh and Another (Supra), where the Hon'ble Court have held that if there is a constitutional or statutory infraction by any authority including the State Government either before or during the election process, the State Election Commission by virtue of its power under Article 243 ZA(1) can set right such infraction and for that purpose, the State Election Commission can also approach a writ Court to issue necessary direction in that behalf and it is entirely up to the State Election Commission to set the election process in motion or in cases where a constitutional or statutory provision is not follow ed or infracted to postpone the election process until such illegal action is remedy and further, the State Election Commission will do taking into account the constitutional mandate of holding elections before the term of a Municipality or Municipal Council is over and further in extra ordinary cases the State Election Commission may conduct election after such term is over, only for good reason.
31. Mr. Sharma pointed out the concerned Magistrate being the functus officio illegally reviewed his order after accepting her to be a validly nominated candidate without having any such power under the law and the relevant Act and Rules in force. Moreover, the petitioner has not furnished with any such copy of speaking order dated 20.02.2022 passed by the said Magistrate without having any such power under the law.
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32. Mr. Sharma submitted that the State Election Commissioner, Assam while rejecting the representation of the petitioner vide order dated 02.03.2022 did not consider all these aspects independently as required under the law.
33. On being enquired, Mr. Dubey, learned counsel for the State Election Commission submitted that the State Election Commission passed the said order dated 02.03.2022 rejecting the representation of the petitioner on consideration of the records and that the concerned Magistrate definitely have communicated the said speaking order to the petitioner either by affixing the same in the Notice Board of the concerned Municipality.
34. However, from the perusal of the speaking order dated 20.02.2022 issued by the concerned Magistrate to the Dhubri Municipal Board Election, 2022, it is seen that the same was not marked either to the petitioner or for the Notice Board concerned.
35. From the perusal of the order dated 02.03.2022 passed by the State Election Commissioner, Assam rejecting the representation of the petitioner dated 23.02.2022, it is seen that the Commissioner sought for para wise response on the factual aspects of the matter from the Deputy Commissioner and on the basis of factual report and para-wise comment dated 01.03.2022 submitted by the Deputy Commissioner, Dhubri along with the other relevant documents like the nomination papers of the three candidates, complaint lodged against the petitioner, statement of the brother of the petitioner, copy of notice issued to the petitioner etc., the said Commissioner passed the order dated 02.03.2022. But the said Commissioner in his order dated 02.03.2022 did not state as to when notice to the petitioner was issued and it is seen that the said authority did not consider the provisions of the 1956 Act including Section 15 of the said Act as well as the relevant Rules for the Election of Commissioner of Municipal Boards under the Assam Municipal Act, 1956 including Rule 26 of the said Rules regarding the conditions for ineligibility for election and the grounds on which nomination can be rejected by the concerned Magistrate while issuing the said order. The said order dated 02.03.2022 also did not state as to when the speaking order dated 20.02.2022 passed by the concerned Magistrate being functus officio reviewed his order after accepting the nomination of the petitioner to be a validly nominated candidate was communicated to her or ordered for affixing the same in the Notice Board concerned.
36. From the above, the Court is of the view that the State Election Commissioner, Assam while rejecting the representation of the petitioner dated 23.02.2022 vide his order dated 02.03.2022 did not pass the said order exercising its independent power and found to have acted mechanically Page No.# 12/12 without considering the relevant provisions of the 1956 Act as amended as well as the relevant Rules for the Election of Commissioner of Municipal Boards under the Assam Municipal Act, 1956 as amended.
37. As such, the order dated 02.03.2022 passed by the State Election Commissioner, Assam rejecting the representation of the petitioner dated 23.02.2022 is hereby set aside and quashed.
38. The State Election Commissioner, Assam is therefore, directed to consider the said representation of the petitioner dated 23.02.2022 afresh, as an independent agency in accordance with law, following the provisions of the Constitution of India, the Assam Municipal Act, 1956 as amended and the Rules for the Election of Commissioner of Municipal Boards under the Assam Municipal Act, 1956 as in force after giving an opportunity of hearing to the petitioner, the other two candidates for Election to the post of Commissioner of Ward No. 15 of the Dhubri Municipal Board 2022, the concerned Magistrate for the Dhubri Municipal Board Election 2022 and the Deputy Commissioner, Dhubri in the interest of justice.
39. With the aforesaid observation and direction, this writ petition stands disposed of.
JUDGE Comparing Assistant