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2016 Supreme(Gau) 299
IN THE HIGH COURT OF GAUHATI ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Indira Shah, J.
Gyamar Yakum – Petitioner
Versus
State of Arunachal Pradesh and Others – Respondents
W.P. (C) No. 266 (AP) 2015
Decided On : 10-03-2016
For the Petitioners:T. Son, D. Miodam, T. Milli, T. Maling, B. Ganga, R. Sanglo, K. Natung, Advocates.
For the Respondents:K. Ete, Learned AAG, Ms. L. Hage, Govt. Advocate, M. Pertin, Senior Counsel, K. Dabi, C. Gongo, J. Dulom, H. Tayo, W. Sawin, S. Ringu, K. Dubey, Y. Kiri, L. Perme, Advocates.
Headnote:
Constitution of India, 1950 - Article 226 - Arunachal Pradesh Local Authorities (Prohibition of Defection) Act - Section 3 (1)(a) and 3(1)(b) - Contempt of Courts Act, 1971 - Sections 11 & 12 - Vote - Spite of party whips - Notice - Petitioner has challenged the impugned dismissal order No. KK/PR- passed by the Addl. Deputy Commissioner Local Authorities (Prohibition of Defection) Amendment Act, 2006 complaint filed by the petitioner and others - Alleged that in spite of party whips private respondents indulged themselves in anti-party activities by supporting and voting candidate of Peoples Party of Arunachal openly in defiance of party whip and therefore, in spite of having majority of INC elected ASMs and GPMs, the petitioner was defeated by the regional party candidate by margin of 74 votes in the bye-election held complaint under Section 3 (1)(a) and 3(1)(b) of Local Authorities (Prohibition of Defection) Act was lodged - On receipt of the complaint Member Secretary of 6th ASMs forwarded it to the Deputy Commissioner - District, for necessary action - Deputy Commissioner took cognizance of the complaint and issued notice submitted their replies - On perusal of written replies and after hearing both the parties, the Deputy Commissioner passed an order declaring the 5 ASMs and 4 GPMs as disqualified for indulging in anti-party activities in terms of Section 3 of the aforesaid Act – Held, Voting in or intentionally remains absent from any meetings of contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf without obtaining prior permission of such party, person or authority and such voting abstention or absence has not been condoned by such political party, person or authority within fifteen days from the date of voting or such abstention or absence - petitioner submitted before the in-charge of Deputy Commissioner counting sheets showing the number of votes obtained by INC and PPA candidate to prove that the respondents were not working for INC party - Submitted photographs showing respondents allegedly participated in the victory celebration of PPA candidate - Deputy Commissioner held that evidence of counting sheets is grossly insufficient and inconclusive - Allegation of voting against INC candidates is neither verifiable since it was a voting by secret ballot and not open ballot - It was further observed from the photographs - Alleged victory celebration was in fact Reconciliation Ceremony of outgoing team and new team as it was clearly visible on banners shown in the photographs senior functionaries of INC, Ex-Ministers, President Arunachal Pradesh Youth Congress were also invited and the said ceremony was attended by Members across the party lines - appears that the petitioner failed to prove that the respondents acted against the nominee of INC or gave up membership of INC voluntarily or involuntarily - Court does not find that the decision of the Deputy Commissioner in-charge suffers from any infirmity, legal or factual - Petition dismissed
1. Heard Mr. T. Son, learned counsel appearing on behalf of the petitioner. Also heard Mr. K. Ete, learned Addl. Advocate General assisted by Ms. L. Hage, learned State counsel appearing on behalf of the State and Mr. M. Pertin, learned Sr. Counsel assisted by Mr. K. Dabi, learned counsel appearing on behalf of respondent Nos. 5 to 13.
2. By filing this application under Article 226 of the Constitution of India, the petitioner has challenged the impugned dismissal order No. KK/PR-72/2008 dated 26.03.2015 passed by the Addl. Deputy Commissioner, Koloriang under Arunachal Pradesh Local Authorities (Prohibition of Defection) Amendment Act, 2006 dismissing the complaint filed by the petitioner and others.
3. The private respondent Nos. 5 to 13 were elected as ASMs and GPMs on Indian National Congress (INC) tickets from 73-Langth Loth-II, 68-Hiya, 77-Lower Nyapin, 76-Upper Nyapin, 75-Gyammar, 276-Gyammar, 261-Iyer Labajariang, 254-Tapuk Colony and 269-Kumayar respectively. During the bye-election held in the month of May, 2013 for Zilla Pari shad Member, all the 5 ASMs and 4 GPMs were issued party whips by the President Block Congress Committee 19th Nyapin Assembly Constituency Secretary, BCC (Nyapin-Sangram Assembly Constituency), Kurung Kumey District, Arunachal Pradesh. While issuing the party whips, it was clearly directed the concerned Congress Panchayati Raj Members to support and to vote in favour of INC Candidate in the ensuing bye-election to be held on 16.09.2013 for the victory of the party, failing which a disciplinary action was to be initiated against the anti-party activities which may lead to disqualification under the Arunachal Pradesh Local Authorities (Prohibition of Defection) Act.
4. It is alleged that in spite of party whips, the private respondents indulged themselves in anti-party activities by supporting and voting Smti. Gyamar Diriang, a candidate of Peoples Party of Arunachal (PPA, in short) openly in defiance of party whip and therefore, in spite of having majority of INC elected ASMs and GPMs, the petitioner was defeated by the regional party candidate Smti. Gyamar Diriang by margin of 74 votes in the bye-election held on 16.09.2013. Accordingly, a complaint under Section 3 (1)(a) and 3(1)(b) of Arunachal Pradesh Local Authorities (Prohibition of Defection) Act was lodged. On receipt of the complaint, the Member Secretary of 6th Nyapin ASMs forwarded it to the Deputy Commissioner, Koloriang, Kurung Kumey District, Arunachal Pradesh for necessary action. The Deputy Commissioner took cognizance of the complaint and issued notice to all 5 ASMs and 4 GPMs. They submitted their replies. On perusal of written replies and after hearing both the parties, the Deputy Commissioner passed an order dated 31.10.2013 declaring the 5 ASMs and 4 GPMs as disqualified for indulging in anti-party activities in terms of Section 3 of the aforesaid Act.
5. Being aggrieved with the said order, all the ASMs and GPMs assailed the said order by filing writ petition being WP (C) 489 (AP) 2013 and this Court disposed of the same directing the aggrieved parties to appear before the Deputy Commissioner on or before 15.02.2014 and submit certified copy of the order. The Deputy Commissioner was also directed to issue necessary show-cause notices to the aggrieved parties in terms of the complaint lodged by the Member Secretary and to allow them to file their replies within a specified time period prescribed under the Act. Further, the Deputy Commissioner was also directed to take fresh decision after hearing all the parties. It is alleged that the petitioner on several occasions approached the Deputy Commissioner to declare the respondents herein as disqualified but the matter remained pending. On arrival of Addl. Deputy Commissioner, who was holding the charge of Deputy Commissioner, Kurung Kumey District issued notices to the aggrieved parties. The complainant in the meantime filed a contempt petition under Sections 11 & 12 of the
