Toko Lalin vs Deputy Commissioner, District Lower Subansiri, Ziro

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2012 Supreme(Gau) 1007

IN THE HIGH COURT OF GAUHATI
Hon'ble Mr. Justice Iqbal Ahmed Ansari and Mrs. Justice Anima Hazarika, JJ.
Toko Lalin (ASM Talo),Resident of village Talo, Dist. Lower Subansiri, Arunachal Pradesh - Appellants
Vs.
The Deputy Commissioner, District Lower Subansiri, Ziro, Arunachal Pradesh The District Election Officer, Ziro, Lower Subansiri District, Arunachal Pradesh, Padi Hinda, Vice-President, Arunachal Pradesh Congress Committee (APCC), Rajiv Gandhi Bhawan, F-Sector, Itanagar, Arunachal Pradesh and The State of Arunachal Pradesh, Through the Secretary, Department of Panchayat Raj, Government of Arunachal Pradesh, Itanagar - Respondent
Writ Appeal No. 13(AP) of 2010
Decided On: 28.08.2012

Advocates:
Advocate Appeared:
For Appellant/Petitioner/Plaintiff: Mr. P.K. Tiwari, Mr. L. Tenzin and Mr. K. Sexena
For Respondents/Defendant: Mr. R.H. Nabam, Sr. Government counsel, Mr. B.C. Das, Mr. D. Majumder, Mr. N. Ratan, Mr. M. Kato, Mr. D. Padu, Mr. K. Tasso, Mr. G. Kato and Mr. S. Appa

Headnote:
Constitution of India – Article 226 – Representation of People Act, 1951 – Section 33 – Arunachal Pradesh Local Authorities (Prohibition of Defection) Act, 2003 – Section 6 – Prohibition of Defection Act – Section 3 – Dismissal of Writ petition – Order of Expulsion – Authority – Deputy Commissioner had no jurisdiction to decide the issue of appellants disqualification on basis of facts other than what had been indicated in complaint – Applicant acted as a counting agent for AITMC candidate only after his expulsion from INC and complaint against him for his disqualification appellant acting as counting agent was brought before Deputy Commissioner as an afterthought through a common affidavit much after conclusion of hearing before Deputy Commissioner in disqualification proceeding and same could not have formed basis for disqualification of appellant – Held, Appellant had admittedly filed rejoinder to affidavit which had been filed by rejoinder, he did not even whisper about any written legal advice rather asserted that since there was no necessity for a person to be a member of any political party to act as a counting agent of a person who becomes a candidate of another political party he acted as a counting agent of AITMC candidate because of his personal affinity tribal kinship and also social affinity – No such evidence in support of such defence was laid in the rejoinder-affidavit which had been filed by appellant late for appellant to contend that he had been legally advised or that he had a cause of personal affinity or tribal kinship to act in favour of AITMC candidate as counting – Appeal dismissed.

JUDGMENT

I.A. Ansari, J.

1. Aggrieved by the judgment and order, dated 17.08.2010, passed, in WP (C) 123(AP)/2010, dismissing the writ petition, the writ petitioner has preferred this appeal. We have heard Mr. P. K. Tiwari, learned counsel for the writ petitioner-appellant, and Mr. R. H. Nabam, learned Senior Government counsel, appearing for respondent Nos. 1 and 2. We have also heard Mr. B. C. Das, learned counsel, appearing for respondent No. 3.

2. The case of the appellant may, in brief, be set out as under:

(i) In the Panchayati Raj Elections, held in the year 2008, in the State of Arunachal Pradesh, the appellant herein was elected on an Indian National Congress ticket (in short, 'INC') as an Anchal Samiti Member (hereinafter referred to as 'ASM'), Talo, within the 16 Yachuli (ST) Assembly Constituency, his term, as ASM, being for five years, which would expire in the year 2013.

(ii) On 18th September, 2009, the Election Commission issued a Notification announcing Schedule for General Elections to the Legislative Assembly of Arunachal Pradesh. As per Schedule, the last date for submission of nomination was 25th September, 2009, the polling was to be held on 13.10.2009 and the counting was fixed on 22.10.2009.

(iii) On issue of notification for General Elections, the General Secretary (Election), Arunachal Pradesh Congress Committee (in short, 'APCC'), issued, on the same day, i.e., 18.09.09, a direction to all Panchayat leaders, elected on the INC ticket, to work for the victory of INC nominees in the State Assembly Elections, 2009.

(iv) For 16 Yachuli (ST) Assembly Constituency, three candidates filed nomination papers, one of whom one was from All India Trinamool Congress (in short, AITMC') and another was from the Indian National Congress (INC). In the nomination paper filed by the candidate of AITMC, the appellant acted as 'proposer' within the meaning of Section 33 of the Representation of People Act, 1951.

(v) Immediately after polling, held on 16.10.2009, but before the commencement of counting, an order of expulsion was published, under the authority of the Vice President, APCC, Shri Padi Hinda (respondent 3), in the local daily 'Arunachal Times', expelling the appellant herein alongwith many other Panchayat leaders of 16 Yachuli (ST) Assembly Constituency, with immediate effect, from the INC party for a period of six years on the ground of involvement in 'anti-party activities'.

(vi) On the very day of publication of the order of expulsion, i.e., 16.10.2009, respondent 3 made a complaint, in writing, to the Member-Secretary under Section 6(1) of the Arunachal Pradesh Local Authorities (Prohibition of Defection) Act, 2003 (hereinafter referred to as the 'Prohibition of Defection Act'), requesting the latter to disqualify the present appellant and some others in terms of the provisions of the Prohibition of Defection Act. Alongwith the complaint, a list of 46 (forty six) Panchayat leaders, including the appellants, was enclosed, who, according to the complainant, had attracted disqualification under the Prohibition of Defection Act, because they had acted in violation of party direction/whip to discharge their duties for the victory of INC candidates in 16 Yachuli (ST) Assembly Constituency and indulged in anti party activities against the official INC candidate.

(vii) Five days after the filing of the complaint and publication of the said expulsion notice, dated 16.10.2009, the counting of votes took place on 22.10.2009, wherein the appellant acted as the counting agent of AITMC candidate in 16 Yachuli (ST) Assembly Constituency.

(viii) On receiving the complaint, dated 16.10.2009, the Deputy Commissioner, District Lower Subansiri, Ziro, who is the competent authority, issued a message, dated 20.11.09, to the Circle Officer, Yachuli, to direct the Panchayat Members concerned, including the present appellant, to attend hearing on the complaint, in question, relating to anti-defection matter, on 14.12.09. The Circle Officer,

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