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IN THE HIGH COURT OF GAUHATI
T. Nandakumar Singh, J.
Premananda Hazarika
Vs.
Assam State Election Commission and Ors.
Writ Petition (C) No. 725 of 2008
Decided On: 15.07.2008
ELECTION - PANCHAYAT - JURISDICTION - STATE ELECTION COMMISSION - ELECTION PROCESS - DECLARATION OF RESULT - ELECTION PETITION - LIMITATION - INTERFERENCE BY COURT - BAR - CONSTITUTION OF INDIA, ARTICLES 243-O, 329 - ASSAM PANCHAYAT ACT, 1994, SECTIONS 114, 127, 129 - ASSAM PANCHAYAT (CONSTITUTION) RULES, 1995, RULES 44(7), 54, 64.
Fact of the Case:
Petitioner, who received the highest number of votes in the election for Zilla Parishad Membership of 29 No. Uttar Bajali ZPC held on 14.01.2008, challenged the order of the State Election Commissioner, Assam, dated 19.02.2008 for declaring candidature of the present Petitioner from 29 No. Uttar Bajali Reserved Zilla Parishad Constituency in the District of Barpeta as illegal, null and void and the second highest scorer of votes, namely, Shri Babul Borah (Respondent No. 4) to have been elected from the said constituency and also the notification dated 22.02.2008 issued by the State Election Commissioner, Assam declaring Sri Babul Borah (Respondent No. 4) as duly elected as an Independent Candidate from 29 No. Uttar Bajali (ST) reserved, ZPC within the District of Barpeta, w.e.f. 22.02.2008.
Finding of the Court:
1. The State Election Commission, Assam, Dispur has the jurisdiction and authority to issue the impugned order dated 19.02.2008 and the impugned notification dated 22.02.2008 after announcement of result of the said election on 29.01.2008. 2. The Petitioner has the statutory alternative remedy for Election Petition against the impugned order dated 19.02.2008 and the impugned notification dated 22.02.2008.
Issues: 1. Whether the State Election Commissioner, Assam, Dispur has the jurisdiction and authority to issue the impugned order dated 19.02.2008 and the impugned notification dated 22.02.2008 or not? 2. Whether the Petitioner has the statutory alternative remedy for Election Petition against the impugned order dated 19.02.2008 and the impugned notification dated 22.02.2008 or not?
Ratio Decidendi: 1. The process of election came to an end only after declaration in the form 21C or Form 21D as the case may be is made under Rule 64 of the Conduct of election Rules, 1961. 2. Under Rule 44(7) of the Assam Panchayat (Constitution) Rules, 1995 and Hand Book for conduct of Panchayat Elections, 2007 prescribed by the Assam State Election Commission, the Deputy Commissioner or the Sub Divisional Officers as the case may be, shall declare a candidate who has received highest number of votes to have been elected in the prescribed form and publish the notice in its office. 3. Announcement of result of the election in the manner notified by the Sub Divisional Collector (C), Bajali on 29.01.2008 is not the declaration contemplated in Rule 44(7) of the Assam Panchayat (Constitution) Rules, 1995, that the Petitioner who has received highest number of votes in respect of the election for membership of 29 No. Uttar Bajali ZPC to have been elected and also that the process of election continued till Respondent No. 1 issued the impugned order dated 19.02.2008 and the impugned notification dated 22.02.2008 and as a result the Respondent No. 1 had the authority and power to issue the impugned order dated 19.02.2008 and the impugned notification dated 22.02.2008. 4. Efficacious statutory remedy against the impugned order and the impugned notification would be the Election Petition to the Tribunal constituted under Section 127 of the Assam Panchayat Act, 1994.
Final Decision: Writ petition is dismissed. The writ Petitioner may file the Election Petition to the Election Tribunal, if so advised, within a period of 2 (two) months from today. The Election Tribunal on receipt of the Election Petition shall not reject the same on the ground of limitation and shall proceed to decide the election petition on merit in accordance with the provisions of law.
T. Nandakumar Singh, J.
1. By this Writ Petition, the Petitioner, who received the highest number of votes in the election for Zilla Parishad Membership of 29 No. Uttar Bajali ZPC held on 14.01.2008, challenges the order of the State Election Commissioner, Assam, dated 19.02.2008 for declaring candidature of the present Petitioner from 29 No. Uttar Bajali Reserved Zilla Parishad Constituency in the District of Barpeta as illegal, null and void and the second highest scorer of votes, namely, Shri Babul Borah (Respondent No. 4) to have been elected from the said constituency and also the notification dated 22.02.2008 issued by the State Election Commissioner, Assam declaring Sri Babul Borah (Respondent No. 4) as duly elected as an Independent Candidate from 29 No. Uttar Bajali (ST) reserved, ZPC within the District of Barpeta, w.e.f. 22.02.2008. The only ground for challenging the impugned order dated 19.02,2008 and the impugned notification dated 22.02.2008 is that the State Election Commissioner, Assam, Dispur, Guwahati has no jurisdiction and authority to issue the impugned order and the impugned notification after announcement of result of the said election on 29.01.2008.
2. Heard Mr. B. Das, learned Counsel appearing for the Petitioner, Mr. M.U. Mahmud, learned standing counsel, ASEB for Respondent Nos. 1, 2 and 3, Mr. A.M. Majumder, learned senior Counsel for Respondent No. 4 and Mr. P. Goswami, learned Counsel for Respondent No. 5.
3. A short fact, in nutshell, leading to the filing of the present writ petition is required to be recapitulated for deciding the core questions:
(a) whether the State Election Commissioner, Assam, Dispur has the jurisdiction and authority to issue the impugned order dated 19.02.2008 and the impugned notification dated 22.02.2008 or not?
(b) whether the Petitioner has the statutory alternative remedy for Election Petition against the impugned order dated 19.02.2008 and the impugned notification dated 22.02.2008 or not?
The Petitioner is a registered voter of 128 No. Baghmara Gaon Panchayat at Sl. No. 4, House No. 2 under 3 No. Purba Kathalmuri Gaon Panchayat Constituency in the District of Barpeta and also of Paschim Rehabari Village of District, Baska at S1. No. 142, House No. 176 under the Bodo Territorial Autonomous District council area (hereinafter reffered to as BTADC). The Respondent No. 1 (Assam State Election Commission, Dispur) issued notification dated 27.11.2007 for holding Panchayat Election including membership from 29 No. Uttar Bajali reserved ZPC in the District of Barpeta. On. 14.12.2007 the Petitioner submitted his nomination as candidate for Zilla Parishad membership of 29 No. Uttar Bajali reserved ZPC. Admittedly, 29 No. Uttar Bajali ZPC is a reserved constituency for ST (plain). The Petitioner obtained ST (P) certificate, only on 17.11.2007 issued by the Chairman, Sub Divisional ST Development Board, Bajali which was countersigned by one EAC of Bajali, not by the SDO. The election was held on 14.01.2008 and the Petitioner secured highest number of votes as per the announcement of result by the Sub Divisional Officer (C), Bajali on 29.01.2008. it is stated that the result of the election was also published duly in the newspaper. The writ Petitioner also annexed a copy of the result of the election announced on 29.01.2008 by the Sub Divisional Officer (C) Bajali, as Annexure/2 to the writ petition, which reads as follows:
Election of ZPC Member from 29. No. Uttar Bajali ZPC Constituency.
SI. No. Name of the Candidate Total valid vote received by the candidate Party wise description of contesting candidate
1. Kishore Das 3874 INC
2. Dibakar Sarania 1833 BJP
3. Premananda Hazarika 4509 AGP
4. Khanindra Das 2008 IND
5. Babul Boro 4032 IND
6. Munin Swargiary 1207 IND
7. Ranjit Sarania
8.
9.
4. It appears from the pleadings of the writ Petitioner in the writ petition and reply affidavit filed by the writ Petitioner to the affidavit in opposition filed by Respondent No. 1 and also th
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