Gauhati High Court
WA/36/2021 on 10 February, 2021
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GAHC010009172021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Writ Appeal No.36 of 2021
1. Amri Karbi Development Society having its Head Office
at Samata (Fong- Ari), P.O. Samata, P.S. Sonapur, District-
Kamrup, Assam, PIN- 782402, represented by its President,
Sri Haren Phangcho.
2. Sri Haren Phangcho,
aged about 62 years,
Son of Late Sashi Phangcho, resident of Markang, P.O.
Nortap, P.S. Sonapur, District- Kamrup, PIN- 782402,
presently serving as the President of Amri Karbi
Development Society.
3. Sri Bhagen Teron,
aged about 49 years,
Son of Late Chandra Kanta Teron, resident of village: Taloni,
P.O. Dhupguri, P.S. Khetri, District- Kamrup (M), Assam, PIN-
782403, presently serving as the Secretary of Amri Karbi
Development Society.
............ Writ Appellants
-versus-
1. The State of Assam,
represented by the Commissioner and Secretary to the
Government of Assam, WPT & BC Department, Dispur,
Guwahati- 781006.
2. The State Election Commission,
Housefed Complex, Dispur, Guwahati- 781006.
3.Tiwa Autonomous Council,
represented by its Principal Secretary, Morigaon, Assam.
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4.Sri Bishnu Ranghang,
Son of Chikan Ranghang, resident of village Rewa Maheswar,
P.O. Gandhinagar, District- Kamrup (Assam), Pin- 782403.
5.Sri Dharmeswar Daloi, resident of village: Mairakuchi, P.O.
Digaru, P.S. Sonapur, District- Kamrup, Assam, Pin- 782401.
6.Sri Raju Gorait, resident of Kendubasti, P.O. Digaru, District-
Kamrup, Assam, Pin- 782401.
7.Sri Prangdak Longhang, resident of village: Dhorbam, P.O.
Dhupuri, District- Kamrup, Assam, Pin- 781026.
8.Sri Ajit Khaklary, resident of village: Kamarkuchi, P.O. Tepesia,
District: Kamrup, Assam, Pin- 782402.
...............Respondents
:: BEFORE ::
HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA
HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
For the Appellants : Mr. I. Choudhury, Senior Advocate.
Mr. A. Barua, Advocate.
For the Respondent No.1 : Mr. D. Mazumdar, Addl. Advocate General,
Assam.
Mr. R. Dhar, Government Advocate, Assam.
For the Respondent No.2 : Mr. N. Borah, Advocate.
For the Respondent No.3 : Mr. S. Neogi, Advocate.
Date of hearing of Judgment & Order : 10th February, 2021.
JUDGMENT AND ORDER (ORAL)
(Sudhanshu Dhulia, C.J.)
Heard Mr. I. Choudhury, learned senior counsel for the writ appellants/applicants/review
petitioners, assisted by Mr. A. Barua, Advocate. Also heard Mr. D. Mazumdar, learned Add.
Advocate General, Assam, assisted by Mr. R. Dhar, learned Government Advocate representing
respondent no.1. Mr. N. Borah, learned counsel appears for respondent no.2 whereas Mr. S.
Neogi, learned counsel appears for respondent no.3.
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2. The writ appellant no.1 is the Amri Karbi Development Society and the writ appellant
nos.2 and 3 are the President and Secretary of the Amri Karbi Development Society. Their
principal grievance is for action of the State Government and consequently they are also
aggrieved by the order of the learned Single Judge of this Court as well by which six out of thirty-
six constituencies of Tiwa Autonomous Council have been wrongly constituted. Their contention
would be the State Government has not worked in accordance with law while undergoing an
exercise of delimitation and that their contention before the learned Single Judge has not been
appreciated. They have also challenged the very constitution of these constituencies and the
consequent elections to be held on these constituencies.
3. The Legislative Council of Assam passed an Act known as "The Lalung (Tiwa) Autonomous
Council Act, 1995" by which the Lalung Autonomous Council was created. Thereafter, by an
amendment brought in the year 2001, the name of Lalung (Tiwa) Autonomous Council
(Amendment) Act, 2001 was changed and the word "Tiwa" has been substituted in place of
"Lalung (Tiwa). From the year 2001 it became "Tiwa Autonomous Council" (from hereinafter
referred to as "the Autonomous Council"). Initially, there were twenty-six constituencies and later
on in the year 2015, it was increased to thirty-six constituencies. The admitted position is that
elections were held only in respect of thirty out of thirty-six constituencies and no elections were
held the remaining six constituencies which are ̶ 26-Dimoria Constituency, 32-Digaru
Constituency, 33-Khetri Constituency, 34-Sonapur Constituency, 35-Ampri Constituency and 36-
Phong- Ari constituency respectively. In the year 2010, however, elections were held for only
thirty constituencies.
4. Again, in the year 2015, elections were held to only thirty constituencies leaving the
aforesaid six constituencies. When, elections were to be held for the year 2020 for the
Autonomous Council. A writ petition i.e. WP(C) No.4630/2015 was filed by the residents of those
constituencies where the elections had not been held so far with the prayer that since they are
the residents of six constituencies which is a part of the Autonomous Council yet they are being
deprived of their democratic rights and not allowed to elect their representatives of the
Autonomous Council. The learned Single Judge after the exchange of pleadings came to the
conclusions that the State does not have any reasonable cause for not holding the elections to
these thirty-six constituencies and thereafter passed the following orders:-
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"14.The Hon'ble Supreme Court in the aforesaid two decisions have categorically laid down the
importance of holding the timely elections in the grass root level organizations. The Lalung (Tiwa)
Autonomous Council being the creature of a statute, when there is a requirement under the statute to
hold the elections in all the Constituencies, there is a legal obligation on the part of the authorities to
hold such elections. This Court is of the opinion that the reason cited for not holding the election in the
aforesaid six numbers of Constituencies in the year 2010 and 2015 are absolutely untenable in law as
the state machinery has to deal with any law and order issue which may arise at the time of holding the
elections, that too, for a Council existing in a geographical area covering parts of only three districts of
the State of Assam.
15.In view of the aforesaid facts and circumstances and the discussions made, though no directions are
issued so far as the elections held in the year 2015 are concerned in view of the fact that the term is on
the verge of completion, it is directed that for the elections which are to be held in the year 2020, the
same has to include all the 36 numbers of Constituencies as stipulated in the Act of 1995, as amended.
Since the reason cited for not holding the election in the aforesaid six numbers of Constituencies in the
year 2010 and 2015 are held to be untenable in law, the State respondents are restrained from taking
up any similar reasons so far as the elections scheduled in 2020 are concerned.
16.With the aforesaid observations, the writ petition is disposed of."
5. Thereafter, when the election exercise was initiated, the writ appellants/applicants/review
petitioners before this Court came to know that now the elections are to be held for the
remaining six constituencies as well, and hence they approached this Court and filed review
petition before the learned Single Judge which was dismissed on 16.12.2020. Against which the
writ appellants/applicants/review petitioners has filed present writ appeal. The case of the
appellants/applicants/review petitioners before the learned Single Judge was that vital facts could
not be stated before the learned Single Judge. Such as that earlier a Public Interest Litigation (PIL
No.35/2015) was filed before a Division Bench of this Court for the same relief by the
Autonomous Council (Society) saying that the six constituencies should not be included in the
elections and considering the wide implications of the matter the Division Bench at the relevant
time directed as follows:-
"As such, instead of keeping this PIL pending before this Court, we dispose of the same by
granting liberty to the petitioners to make appropriate representation before the Chief Secretary to the
Government of Assam ventilating their grievances. If such representation is submitted by the petitioners
along with a copy of this order then the same would be considered on merit and disposed of by making
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a speaking order, as expeditiously as possible, preferably within a period of six months from the date of
receipt of the representation. It is made clear that if the petitioners continue to feel aggrieved in the
matter even after a decision taken in the representation is communicated by the Government, they will
be at liberty to approach this Court by filing appropriate proceeding.
With the above observation, this PIL stands closed.
No order as to cost."
6. The writ appellants/applicants/review petitioners further argue that in terms of the
aforesaid directions of the Division Bench the writ appellants/applicants/review petitioners had a
approached the Government of Assam through its Chief Secretary and the Chief Secretary
considering the sensitive nature of the matter and after getting approval of the Hon'ble Chief
Minister, referred the matter to a Group of Ministers headed by a Minister of Industries &
Commerce Department to get an amicable solution of the dispute. The exact observations of the
Chief Secretary with regard to this matter reads as follows:-
"The matter relating to inclusion and exclusion of the constituencies from the "Tiwa Autonomous
Council is very sensitive in nature. The issue is to be dealt with utmost care and without affecting
communal harmony and peace in the area for which the demand for inclusion and exclusion is asked for.
In view of the observations above, Hon'ble Chief Minister, Assam has approved to refer the
matter to the Group of Ministers headed by Shri Chandra Mohan Patowary, Hon'ble Minister, Industries
& Commerce Deptt. for amicable solution of the dispute. Accordingly, the matter may be placed before
the Group of Ministers to examine the matter regarding inclusion or exclusion of 6 constituencies
namely 26-Dimoria Constituency (ST), 32-Digaru Constituency, 33-Khetri Constituency, 34-Sonapur
Constituency, 35-Ampri Constituency and 36-Phong- Ari constituency and to give its recommendations
for consideration by the Cabinet."
7. This Court has been informed by the writ appellants/applicants/review petitioners that since
then the matter is still pending before the High Level Group of Committee which consists of the
Group of Ministers. The contention of the appellants/applicants/review petitioners before the
learned Single Judge, therefore, was that the order passed by the learned Single Judge in the writ
petition directing the State Government to hold elections to all the constituencies, including the
remaining six constituencies may just be in violation of the earlier order passed by the Division
Bench in PIL No.35/2015 considering that the matter was still under consideration of the State
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Government. The learned Single Judge however, did not find any conflict between the earlier
order of the Division Bench and his own order and considering the limited scope for interference
in a review petition, declined to interfere in the matter as there was no error apparent on the face
of the records. Being aggrieved the writ appeal is filed.
8. As far as elections to the thirty-six constituencies of Autonomous Council are presently
concerned, we have been informed at the Bar that elections have now already taken place for all
the constituencies, including the six constituencies for which a dispute was raised earlier. To that
extent, we find there was absolutely no error in the order of the learned Single Judge for not
interfering with the matter. As elections when notified are not to be interfered with by the courts.
This is in view of the long line of judgments of the Hon'ble Apex Court starting from N.P.
Ponuswani v. Returning Officer, reported in AIR 1952 Supreme Court 64 and Mohinder Singh Gill
and Another -Versus- the Chief Election Commissioner, New Delhi and Others , reported in (1978)
1 SCC 405.
9. All the same, while arguing his case before this Court, the counsel for the writ
appellants/applicants/review petitioners Mr. Choudhury has taken us to another aspect of the
matter which we thought would be worthwhile to consider. Section 48 of the Delimitation Act
which is as under:-
"delimitation: 48.(1) There shall be 10 (ten) constituencies in a Village
Council area for electing members to the village council. Each such
constituency shall be a single member constituency and shall be territorial.
(2) There shall be 26 (twenty six) constituencies covering the council area for
electing members to the General Council. Each constituency shall be a single
member constituency and territorial.
(3) The Government shall, by order published in the official Gazette,
determine the territorial limited of the constituencies into which the Village
Council area or the council area shall be delimited for the purpose of election of
members to the Village Council and the general council."
Mr. Choudhury further argues when a delimitation exercise has to take place. It also has to
consider certain important factors which is the tribal population of an area. The learned counsel
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would argue that after the 2005 amendment to the Tiwa Autonomous Council Act (the
amendment known as "the Tiwa Autonomous Council (Amendment) Act, 2005), the Preamble
was also changed and now reads as ̶
"Preamble- Whereas it is expedient to provide for the establishment of a Tiwa Autonomous
Council within the State of Assam with maximum autonomy within the framework of the Constitution,
comprising of the Satellite Areas and Core Areas, for Social, economic, educational, ethnic and cultural
advancement of the Tiwa and other Scheduled Tribes communities residing therein."
Now the new definition of "Satellite Areas" and "Core Areas" are reads as follows:-
"2(q) "Satellite Areas" means the area or areas consisting of non-contiguous cluster of villages
predominantly inhabited by Scheduled Tribes population having 50% and above as a whole in the
cluster and not necessarily in the individual villages;
2(u) "Core Areas" means the compact and contiguous areas predominantly inhabited by Scheduled
Tribes population having 50% and above as a whole in the area and not necessarily in the individual
villages;"
10. The emphasis of the learned counsel for the writ appellants/applicants/review petitioners
would be that an area whether it is "Core Areas" or "Satellite Areas" which is having less than
50% of the tribal population cannot be a part of the Autonomous Council and these facts have
not been taken into consideration. To the contrary, the learned counsel for the State would argue
that the percentage of the tribal population for the six constituencies is as follows:-
Constituency ST General Total % of ST
No. 26 Dimoria 2303 4853 7156 32.183
No.32 Digaru 3022 5189 8211 36.804
No.33 Khetri 1431 7245 8676 16.494
No.34 Sonapur 2223 5121 7346 30.261
No.35 Ampri 865 4476 5341 16.195
No.36 Phong Ari 1107 7325 8432 13.128
11. Since we have already been apprised at the Bar that this matter is under consideration of a
High Level Committee consisting of Group of Ministers, we leave it to the wisdom of the High
Level Committee which shall look into all the aspect of the matter, including the provisions
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contained in the Act as to how an area has to be a part of the Autonomous Council and take a
decision on it. We make it very clear that this is also not in conflict with the order of the learned
Single Judge. The directions of the learned Single Judge for holding elections of all the thirty-six
constituencies was only for the elections of 2020, which has already taken place.
12. In view of the observations above, the writ appeal stands disposed of.
JUDGE CHIEF JUSTICE
Comparing Assistant
