Partha Sarathi Das vs The State Of Assam And 5 Ors
2022 Latest Caselaw 519 Gua

                                                                 Page No.# 1/5

GAHC010023212022




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

                          Case No. : WP(C)/785/2022

         PARTHA SARATHI DAS
         S/O. LT. HIMANGSHU KUMAR DAS, FOREST OFFICE ROAD, DAS PATTY,
         WARD NO.20 (NOW RE-DESIGNATED AT 22), P.O. KARIMGANJ, DIST.
         KARIMGANJ, PIN-788710.

         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM, DISPUR,
         GUWAHATI-781006.

         2:THE SECRETARY
         TO THE GOVT. OF ASSAM
          URBAN DEVELOPMENT DEPTT.
          DISPUR
          GUWAHATI-06
         ASSAM.

         3:THE ASSAM STATE ELECTION COMMISSION
          REP. BY THE SECRETARY
          HOUSEFED COMPLEX
          BELTOLA
          GUWAHATI-06.

         4:THE DIRECTOR
          MUNICIPAL ADMINISTRATION
          DISPUR
          GUWAHATI-06.

         5:THE DEPUTY COMMISSIONER
          KARIMGANJ
         ASSAM.

         6:SRI MISSION RN. DAS
          EX-MLA AND THE FORMER CHAIRMAN
         AIDC
                                                                        Page No.# 2/5

             ASSAM
             S/O. LT. PROMODE RANJAN DAS
             R/O. BONOMALI ROAD
             WARD NO.14
             DIST. KARIMGANJ
             PIN-788710

Advocate for the Petitioner   : MR. K N CHOUDHURY

Advocate for the Respondent : GA, ASSAM

                                    BEFORE
                         HONOURABLE THE CHIEF JUSTICE
                     HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                          ORDER

Oral Date : 15.02.2022

Heard Mr. K.N. Choudhury, learned senior counsel for the petitioner. Also heard Mr. D. Saikia, learned Advocate General, Assam, assisted by Ms. M. Bhattacharjee, learned Additional Senior Government Advocate, Assam, appearing for the respondent Nos.1, 2, 4 & 5 and Mr. R. Dubey, learned standing counsel, Assam State Election Commission, appearing for the respondent No.3.

In this writ petition, the petitioner has challenged the delimitation of certain areas and wards relating to Karimganj Municipal Board. All the same, by the time this matter was taken up for the first time on 09.02.2022, notification regarding election had already been issued.

We had requested Mr. D. Saikia, learned Advocate General, Assam to appear in the matter.

Today, Mr. K.N. Choudhury, learned senior counsel for the petitioner and Mr. D. Saikia, learned Advocate General, Assam are both before us.

Page No.# 3/5

At this stage, we must record that right from the decisions in Ponnuswami -Vs- Returning Officer, Namakkal Constituency , reported in (1952) 1 SCC 94 and Mohinder Singh Gill -Vs- Chief Election Commissioner , reported in (1978) 1 SCC 405, the law is settled that the Courts will normally not interfere in a matter relating to elections, which includes delimitation, once the notification has been issued. Consequently, we refrain from entertaining the writ petition at this stage.

All the same, Mr. K.N. Choudhury, learned senior counsel for the petitioner has placed before us a recent ruling of the Apex Court in State of Goa & Ors. -Vs- Fouziya Imtiaz Shaikh & Anr. , reported in (2021) 8 SCC 401, where the law as laid down in Ponnuswami and Mohinder Singh Gill has been reiterated but in view of the powers given to the Election Commission under the Constitution for the superintendence, direction and control of the elections, liberty has been given to the petitioner to approach the State Election Commission. The guidelines given by the Apex Court in the case of Fouziya Imtiaz Shaikh is in Paragraph 68, which read as under:-

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

68.1. 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 243-ZG 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.

68.2. 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.# 4/5

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

68.3. The non obstante clause contained in Article 243-ZG 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 243-ZG operates only during the process of election.

68.4. Under Article 243-ZA(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 243- ZA(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 up to 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.

68.5. 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.

68.6. Article 243-ZA(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 243-T, which deals with reservation of seats.

68.7. The bar contained in Article 243-ZG(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 243-ZA. This is by virtue of the non obstante clause contained in Article 243-ZG. 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 statute concerned does not Page No.# 5/5

give such orders the status of a statutory provision.

68.8. Any challenge to orders relating to delimitation or allotment of seats 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.

68.9. The constitutional bar of Article 243-ZG(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.

68.10. 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 68.4 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."

We must note that any interference even by the State Election Commission should be rare exception, for the law in these matters is settled that normally no interference is made once the notification of election has already been issued. Yet as we have stated, in view of the guidelines given by the Apex Court in the aforesaid decision and considering the request made by the learned senior counsel for the petitioner for withdrawal of the writ petition, the writ petition is dismissed as withdrawn with a liberty to the petitioner to approach the State Election Commission in accordance with law.

As there is also a challenge, inter alia, to the validity of Section 26(5) of the Assam Municipal Act, we make it clear that although this petition has been dismissed as withdrawn, this aspect will remain open.

                                       JUDGE                    CHIEF JUSTICE

Comparing Assistant