Pub Mangaldai Anchalik Panchayat vs State of Assam

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2018 Supreme(Gau) 1421

IN THE HIGH COURT OF GAUHATI
A.K.GOSWAMI, J.
Pub Mangaldai Anchalik Panchayat - Appellant
Vs.
State of Assam - Respondent
Case No. WP(C) 1455 of 2018 and Linked Cases WP(C) No. 2622, 2840, 1969, 1935, 2909, 2465, 2471, 1714, 2551, 2012, 2018, 2768, 1881, 2242, 3002, 1862, 2043, 1887, 1973, 1897, 2548, 1817, 2948, 1825, 2682, 2005, 2441, 2929, 2080, 2512, 2637, 2402, 1754, 2819, 2105, 2769, 2047, 2067, 2085, 2482, 2547, 2003, 1794, 1987, 2766, 2491, 2311, 1835, 2090, 2390, 1959, 2449, 1815, 1948, 2293, 2761, 2485, 1998, 2404, 1706, 1661, 2045, 2227, 2024, 1894, 2978, 1725, 1923, 1988, 1653, 2634, 2356, 1811, 1819, 2828, 1723, 1831, 1901, 1655, 2557, 1986, 2388, 2453, 1759, 1866, 1703, 2156, 1864, 1650, 2843, 1849, 1718, 3026, 1955, 1791, 1906, 1995, 1907, 2456, 2189, 2426, 1687, 1694, 2531, 2308, 2052, 1371, 1898, 2306, 1793, 2070, 1838, 2452, 2844, 1976, 1720, 3023, 2638, 1938, 1619, 2455, 1460, 1795, 2830, 2446, 2229, 1813, 2473, 2056, 2396, 2062, 2303, 1726, 2009, 2137, 2437, 1712, 1918, 2397, 3016, 1892, 2186, 1904, 1691, 2748, 2054, 1758, 2542, 2553, 1368, 1913, 1374, 1721, 1658, 2865, 2206, 2177, 2006, 2554, 2781, 3020, 1839, 2835, 2135, 2795, 1891, 2231, 2200, 1709, 1992, 1974, 2091, 2149, 2001, 2767, 2680, 1735, 2387, 2174, 1649, 2233, 2036, 1968, 2198, 2560, 1823, 3012, 2201, 2008, 2224, 2033, 2351, 1627, 1859, 2161, 2130, 2398, 2472, 1757, 2182, 1727, 2823, 2475, 1724, 2468 and 1636 of 2018
Decided On : 29-05-2018

Advocates Appeared:
For the Petitioner:A.R. Bhuyan, Advocate
For the Respondent: G.A., Assam

Headnote:
Constitution of India,1950 - Article 243E and 243E(1) - Assam Panchayat Constitution Rules, 1995 - - Rules 16, 17, 18, 22, 26, 34, 3(b) ,44(1) and 44(7) and Clause (3) of Article 243 - Assam Panchayat Act, 1994 - Sections 125,7 and 28 - Admission - Custodian of property - Seeking redressal on that count - Writ petitions specific prayers are made for issuing a writ of mandamus direction respondents to hold election to PRIs without any delay and In some of the writ petitions, there is also a challenge to a Notification - Held, In court permitted continuation of earlier elected Panchayat bodies whose term had expired on ground that State could not take advantage of its own wrong and that State had failed to hold election before expiry of stipulated period of time and situation in present batch of cases is clearly distinguishable from and having regard to proviso contained in Article Court of considered opinion that - It will not be permissible to allow Panchayat bodies whose term had already expired to continue to function and discharge powers and duties as envisaged under Panchayat Act and as State has submitted that it will be possible for State to provide manpower to State Election Commission for holding election after a writ of mandamus is issued directing State Election Commission to hold election and complete process by and writ of mandamus is also issued directing State and its functionaries to render all co-operation and assistance - Writ petitions is disposed of

JUDGMENT & ORDER :

Arup Kumar Goswami, J.

Mr. A. K. Sarma, Mr. B. Baruah, Mr. A. R. Bhuyan, Mr. S. Khound, Mr. H. Rahman, Mr. A. K. Hussain, and Mr. D. Hussain, learned counsel appearing for the petitioners have advanced arguments on behalf of the petitioners and other learned counsel present for the petitioners have endorsed the submissions as a whole. From the side of the Government, Mr. D. Mazumdar, learned Additional Advocate General, Assam, assisted by Mr. R. K. D. Choudhury, learned Senior Government Advocate, and Ms. M. Bhattacharjee, learned State counsel, has addressed the court. I have also heard Mr. N. Borah, learned Standing counsel, Assam State Election Commission.

2. The petitioners in this batch of 229 writ petitions are Panchayati Raj Institutions (PRIs) and, in some cases, elected Presidents/Members of PRIs. This batch of writ petitions, essentially, raises a core question in relation to holding of election to the PRIs and as to who should discharge the duties and functions of the PRIs in respect of which the five year term of the elected Members of the PRIs had come to an end. In some of the writ petitions, specific prayers are made for issuing a writ of mandamus directing the respondents to hold election to the PRIs without any delay. In other cases, without such a specific prayer, primarily, direction is sought for from the court to allow the existing elected bodies of the PRIs to continue till such time the reconstitution of the PRIs is effected through the process of election. In some of the writ petitions, grievance is also expressed and prayer is made for appropriate direction for making payment of honorarium to the Presidents/Members of the PRIs. In some of the writ petitions, there is also a challenge to a Notification dated 03.03.2018, issued by the Commissioner and Secretary to the Government of Assam, Panchayat and Rural Development Department, allowing the Deputy Commissioners or his authorized officers to officiate as the custodian of the property of Gaon Panchayats/Anchalik Panchayats/Zilla Parishads after completion of the term and till completion of the election process, as well as to the consequential orders passed by the Deputy Commissioners/Chief Executive Officers of the Zilla Parishads.

3. At the very outset, the prayer with regard to payment of honorarium being not intrinsically connected with the fundamental questions raised in these writ petitions, a consensus is arrived at that said prayer will not be pressed in these writ petitions. The learned counsel for the petitioners submit that liberty may be granted to such petitioners to approach this court again to seek relief in respect of payment of pending honourarium. Learned counsel for the parties are also in agreement that the writ petitions can be disposed of at the admission stage.

4. In view of the consensus arrived at, this court is not adjudicating on the issue raised for grant of payment of honorarium, which, it is claimed, has not been paid for long. Liberty is granted to such of the petitioners, who had prayed for direction to grant honorarium, to approach this court again seeking redressal on that count. In view of the consensus noticed above, the writ petitions have been taken up for consideration for disposal at the admission stage.

5. It will be appropriate to note that by way of interim orders passed in these writ petitions, the Notification dated 03.03.2018 and the consequential orders passed by the Deputy Commissioners or Chief Executive Officers of the Zilla Parishads, as the case may be, were suspended and the existing PRIs were allowed to function. However, the PRIs were restrained from taking any policy decision and incurring any expenditure from the funds other than for the purpose of payment of salary to the staff and routine functions of the office without taking leave of the court.

6. Affidavit was filed in WP(C)

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2018 Supreme(Gau) 1421

Cases Referred (3)