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2019 Supreme(Gau) 1139
IN THE HIGH COURT OF GAUHATI
Arup Kumar Goswami, Manish Choudhury, JJ.
Afrooja Perveen - Appellants
Vs.
The State of Assam and Ors. - Respondents
Writ Appeal No. 183 of 2019
Decided On : 03-09-2019
For the Appellant : K.N. Choudhury, Learned Senior Counsel assisted by J.M.A. Choudhury, Learned Counsel
For the Respondents: M. Nath, Learned Standing Counsel, R. Dhar, Learned State Counsel and M.K. Choudhury, Learned Senior Counsel assisted by S.K. Ghosh, Learned Counsel
Headnote:
Panchayat Act –Sections 65(1)(i), 70 –Assam Panchayat (Constitution) Rules, 1995 –Rules 45(1), 50 –Toss of Coin –learned senior counsel for the appellant with reference to the letter of the Deputy Commissioner, submits that the Deputy Commissioner went for the second toss as there was complete unanimity as the coin in the first toss had touched a wall and a chair while falling to the ground and there is no dispute that in the second toss, the appellants call came right –He has submitted that the reasoning assigned by the learned Single Judge that the Deputy Commissioner, committed an error in allowing a Member of Legislative Assembly (MLA) to be present in the said meeting and in allowing him to intervene in the proceeding of the meeting is not sustainable in the eye of law –Mr. Choudhury has pointed out that after being declared elected as President, a Personal Security Officer was attached to the appellant and the landline phone as well as broadband connection of the President was also directed to be rectified –Held, Court is unable to agree with the observation of the learned Single Judge that at the time of toss of coin, no other person other than the 2(two) candidates besides himself or official representatives shall be allowed to remain present in the meeting hall –Toss of coin, when required, is also part of the first meeting of the directly elected members of the Zilla Parishad and, therefore, their presence cannot be ignored while the toss is resorted to –In view of the above discussions, court hold that the provisions of the 1994 Act and the 1995 Rules do not envisage a second toss to determine an elected candidate on the ground that the coin had touched some object in the process of its falling down and that the provisions of the 1994 Act and the 1995 Rules also do not admit of presence of any other person other than the elected members of the Zilla Parishad in the first meeting of the Zilla Parishad to be called by the Deputy Commissioner in terms of Act –Court find ourselves in agreement with the ultimate conclusion and the directions of the learned Single Judge –Accordingly, Court find no merit in this appeal –Appeal dismissed
JUDGMENT :
Arup Kumar Goswami, J.
1. Heard Mr. K.N. Choudhury, learned senior counsel assisted by Mr. J.M.A. Choudhury, learned counsel for the appellant. Also heard Mr. M. Nath, learned Standing Counsel, Panchayat & Rural Development appearing for respondent Nos. 1 & 2; Mr. R. Dhar, learned State counsel for respondent Nos. 3 & 4 as well as Mr. M.K. Choudhury, learned senior counsel, assisted by Mr. S.K. Ghosh, learned counsel for respondent No. 5.
2. This intra-Court appeal is directed against the judgment & order dated 20.06.2019 passed by the learned Single Judge in WP(C) No. 1434/2019 filed by the appellant. It is to be noted that another writ petition being WP(C) No. 1632/2019, filed by the present respondent No. 5, was also disposed of by the aforesaid judgment & order.
3. The issue that revolves around in this appeal is with regard to election to the post of President of the Karimganj Zilla Parishad. The appellant and the respondent No. 5 having been elected to the Karimganj Zilla Parishad, had contested for the post of President of the Karimganj Zilla Parishad. There are twenty members in the said Zilla Parishad and there was equality of votes as both the appellant and the respondent No. 5 secured ten votes each. In case of equality of votes, recourse has to be taken to toss of coin and the dispute has arisen with such toss of coin.
4. Rule 45(1) of the Assam Panchayat (Constitution) Rules, 1995 provides the manner and method by which one out of two candidates is to be elected in the event of equality of votes. The provision reads as under:
"45. Equality of Votes.-(1) If after the counting of votes it appears that two candidates of whom only one is to be declared elected, having received equal number of votes, the Deputy Commissioner or the Sub-Divisional Officer as the case may be, or any Officer authorised by him in this behalf, shall decide which of the two shall be declared elected by tossing up a coin in presence of such candidates. Each candidate shall be assigned one side of the coin by him or by the Officer just before the toss. The candidate whose side appears visible at the top of the coin after it has fallen flat on any plain ground or table, shall be declared elected.".
5. Before we deal with the dispute, it would be appropriate to take note of the brief facts leading to holding of the meeting on 11.02.2019 in which toss of coin was resorted to.
6. The Deputy Commissioner, Karimganj had issued a notice dated 02.02.2019 under Section 70(1) of the Assam Panchayat Act, 1994 (for short, hereinafter referred to as 'the 1994 Act') read with Rule 50 of the Assam Panchayat (Constitution) Rules, 1995 (for short, hereinafter referred to as 'the 1995 Rules') indicating that the first meeting of the Karimganj Zilla Parishad will be held on 11.02.2019 at 11 a.m. in the conference hall of the Deputy Commissioner's office at Karimganj. It is in pursuance of the said notice, the first meeting of the 4th General Body of the Karimganj Zilla Parishad was held. Though the notice dated 02.02.2019 indicated that the meeting will be held at 11 a.m., it appears that the meeting was deferred till 4 p.m. on account of arrest of one of the members of the Zilla Parishad, namely, Abdul Sukkur, in connection with Karimganj P.S. Case No. 116/2019. After both the appellant and the respondent No. 5 polled equal number of votes, in terms of Rule 45 of the 1995 Rules, the Deputy Commissioner tossed a coin. The respondent No. 5 had called 'heads' and the appellant 'tails' and while the coin was falling down, it touched a wall as well as a chair in the meeting hall and when it fell flat, it was observed that 'heads' side was visible. Because of some protestations, the Deputy Commissioner once again tossed the coin and this time the coin fell flat showing 'tails'. While the supporters of the appellant proclaimed victory and started celebrations, three members including respondent No. 5 lodged a written complaint with regard to the decision to go for a
