Page No.# 1/6 vs The State Of Assam And 3 Ors
2022 Latest Caselaw 497 Gua

                                                                 Page No.# 1/6

GAHC010067562020




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : WP(C)/2102/2020

         RATAN MAJUMDER AND ANR.
         S/O- LT. SUNIL MAJUMDER, R/O- SARBAJANIN PATH, LANKA, WARD NO.
         10, P.O. AND P.S. LANKA, DISTRICT- HOJAI, ASSAM. PIN- 782446.

         2: SMTI SHIKHA RANI DAS
         W/O- SRI RAJU DAS
          R/O- VIVEKANANDA PATH
         WARD NO. 11
          P.O. AND P.S. LANKA
          DISTRICT- HOJAI
         ASSAM. PIN- 782446

         VERSUS

         THE STATE OF ASSAM AND 3 ORS.
         REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF
         ASSAM, URBAN DEVELOPMENT DEPARTMENT, DISPUR, GUWAHATI-
         781006

         2:THE DEPUTY COMMISSIONER
          HOJAI
          SANKARDEVA NAGAR
          DISTRICT- HOJAI
         ASSAM
          PIN- 782442.

         3:THE CIRCLE OFFICER (A) LANKA CUM- MAGISTRATE FOR LANKA
         MUNICIPAL BOARD
          P.O. LANKA
          DISTRICT- HOJAI
         ASSAM. PIN- 782446.

         4:THE ASSAM STATE ELECTION COMMISSION
          HOUSEFED COMPLEX
                                                                           Page No.# 2/6

             DISPUR
             GUWAHATI- 781006

Advocate for the Petitioner   : MR. K N CHOUDHURY

Advocate for the Respondent : GA, ASSAM




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                          ORDER

Date : 14.02.2022

Heard Mr. K.N. Choudhury, learned Senior Counsel, assisted by Mr. J. Abedin, learned counsel for the petitioner. Also heard Mr. B. Deuri, learned Govt. advocate appearing for the State respondent nos. 1 to 3 and Mr. R. Dubey, learned standing counsel for the respondent no.4.

2. By filing this writ petition under Article 226 of the Constitution of India, the petitioners have assailed the minutes of meeting dated 24.02.2020, held under the Chairmanship of Deputy Commissioner, Hojai (respondent no.2), by which reservation of seats of Lanka Municipal Board for the Municipal Election, 2020 had been done by drawing of lotteries instead of rotation. It is projected that the exercise was in aberration of the relevant law in force.

3. The learned Senior Counsel for the petitioners, in all fairness, has submitted that as the State Election Commission has already announced the election for the Municipal Board, Lanka. It is submitted that by virtue of various judgments by the Supreme Court of India, the writ Court exercising power under Article 226 and 227 of the Constitution of India has to adopt hands-off policy while the election process is on. However, it is submitted that in the Page No.# 3/6

recent decision of the Supreme Court of India in the case of State of Goa Vs. Fouziya Imtiaz Shaikh and another, (2021) 8 SCC 401, had clarified in paragraph 68 to the effect that the constitutional bar of Article 243 ZG(a) of the Constitution of India applies only to Courts and not to the State Election Commission, which is to supervise, direct and control preparation of electoral rolls and conduct elections to municipalities. Accordingly, placing reliance on the paragraph 68 thereof and sub-para (I) to (X) thereof, it is submitted that if any illegal orders were made by any authority including the State Government which delimit constituencies or allot seats to such constituencies, as is provided in proposition (IV) of paragraph 68 of the said case of Fouziya Imtiaz Shaikh (supra), the State Election Commission would have power to countermand illegal orders made by any authority which may be done either before or during the electoral process, bearing in mind its constitutional duties as delineated in the said proposition.

4. It would be appropriate to quote paragraph 68 of the hereinbefore referred case.

"68. A conspectus of the aforesaid judgments in the context of municipal elections would yield the following results.

I. Under Article 243 ZG(b), no election to any municipality can be called in question except by an election petition presented to a Tribunal as is provided by or under any law made by the Legislature of a State. This would mean that from the date of notification of the election till the date of the declaration of result a judicial hands-off is mandated by the non-obstante clause contained in Article 243ZG debarring the writ court under Articles 226 and 227 from interfering once the election process has begun until it is over. The constitutional bar operates only during this period. It is therefore a matter of discretion exercisable by a writ court as to whether an interference is called for when the electoral process is "imminent" i.e, the notification for elections is yet to be announced.

II. If, however, the assistance of a writ court is required in subserving the progress of the election and facilitating its completion, the writ court may issue Page No.# 4/6

orders provided that the election process, once begun, cannot be postponed or protracted in any manner.

III. The non-obstante clause contained in Article 243ZG does not operate as a bar after the election tribunal decides an election dispute before it. Thus, the jurisdiction of the High Courts under Articles 226 and 227 and that of the Supreme Court under Article 136 of the Constitution of India is not affected as the non-obstante clause in Article 243ZG operates only during the process of election.

IV. Under Article 243ZA(1), the SEC is in overall charge of the superintendence, direction and control of the preparation of electoral rolls, and the conduct of all municipal elections. If there is a constitutional or statutory infraction by any authority including the State Government either before or during the election process, the SEC by virtue of its power under Article 243ZA(1) can set right such infraction. For this purpose, it can direct the State Government or other authority to follow the Constitution or legislative enactment or direct such authority to correct an order which infracts the constitutional or statutory mandate. For this purpose, it can also approach a writ court to issue necessary directions in this behalf. It is entirely upto the SEC to set the election process in motion or, in cases where a constitutional or statutory provision is not followed or infracted, to postpone the election process until such illegal action is remedied. This the SEC will do taking into account the constitutional mandate of holding elections before the term of a municipality or municipal council is over. In extraordinary cases, the SEC may conduct elections after such term is over, only for good reason.

V. Judicial review of a State Election Commission's order is available on grounds of review of administrative orders. Here again, the writ court must adopt a hands-off policy while the election process is on and interfere either before the process commences or after such process is completed unless interfering with such order subserves and facilitates the progress of the election. VI. Article 243ZA(2) makes it clear that the law made by the legislature of a State, making provision with respect to matters relating to or in connection with elections to municipalities, is subject to the provisions of the Constitution, and in particular Article 243T, which deals with reservation of seats. VII. The bar contained in Article 243ZG(a) mandates that there be a judicial hands-off of the writ court or any court in questioning the validity of any law relating to delimitation of constituency or allotment of seats to such constituency made or purporting to be made under Article 243ZA. This is by virtue of the non-obstante clause contained in Article 243ZG. The statutory provisions dealing with delimitation and allotment of seats cannot therefore be questioned in any court. However, orders made under such statutory provisions can be questioned in courts provided the concerned statute does not give such orders the status of a statutory provision.

VII. Any challenge to orders relating to delimitation or allotment of seats Page No.# 5/6

including preparation of electoral rolls, not being part of the election process as delineated above, can also be challenged in the manner provided by the statutory provisions dealing with delimitation of constituencies and allotment of seats to such constituencies.

IX. The constitutional bar of Article 243ZG(a) applies only to courts and not the State Election Commission, which is to supervise, direct and control preparation of electoral rolls and conduct elections to municipalities. X. The result of this position is that it is the duty of the SEC to countermand illegal orders made by any authority including the State Government which delimit constituencies or allot seats to such constituencies, as is provided in proposition (IV) above. This may be done by the SEC either before or during the electoral process, bearing in mind its constitutional duty as delineated in the said proposition."

5. Accordingly, the learned Senior Counsel for the petitioners has submitted that as the Court is required to exercise hands-off policy as the election to the Lanka Municipal Board has been announced, upon instruction, he seeks to withdraw this writ petition to approach the State Election Commission with an appropriate application to challenge the delimitation process by allocating reservation of seats by drawing of lotteries and that in terms of the mandate of the hereinbefore referred case of Fouziya Imtiaz Shaikh (supra), it would be open to the said authority to take a decision of the representation so filed.

6. The learned standing counsel for the respondent no.4 has submitted that in another writ petition, the vires of the particular section of the Act has been challenged, as such a similar issue is pending before the Division Bench of this Court and accordingly, he submits that this matter be deferred.

7. In this connection, the Court is of the considered opinion that as the learned Senior Counsel for the petitioners seeks to withdraw this writ petition on the basis of the provisions of Article 243 ZG(a) of the Constitution of India, which requires the Courts to exercise hands-off policy where elections have Page No.# 6/6

been announced, the adjournment of the matter would not help the petitioner in any manner. Rather, the Court finds that the petitioners may be prejudiced if there is any delay in approaching the State Election Commission with a prayer as proposed. Moreover, when the petitioners seek liberty to withdraw their writ petition and approach the competent authority for remedy, the Court ought not to keep the matter pending in its board.

8. The Court is of the further considered opinion that as the petitioners are seeking to withdraw this writ petition and further more in view of provisions of Article 243 ZG(a) of the Constitution of India, as the Court is required to adopt hands-off policy, the Court is inclined to accept the prayer made by the learned Senior Counsel for the petitioners and accordingly, this writ petition is closed on withdrawal with liberty to approach the State Election Commission in terms of the direction contained in the hereinbefore referred case of Fouziya Imtiaz Shaikh (supra).

9. It is needless to say that it would be open to the State Election Commission to exercise its discretion on representation, if any, filed by the petitioners. It is needless to observe that if the petitioners are still aggrieved by the decision of the respondent no. 4, the petitioners would be at liberty to seek appropriate remedy, if so advised.

JUDGE

Comparing Assistant