Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Gau) 242

IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Sanjay Kumar Medhi, J.
Joynab Bibi, W/O- Jakir Hussain And Ors. – Petitioners
Versus
The Union Of India Represented By The Secretary, Ministry Of Panchayati Raj, Govt. Of India, 11th Floor, Jeevan Prakash Building, 25, K.G, Marg, New Delhi And Ors. – Respondents
WP(C) 762, 1232, 1161, 844, 1352, 1485 of 2024
Decided On : 22-03-2024

Advocates:
Advocate Appeared:
For the Petitioner: Mr. M U Mondal , Mr R Islam, Mr. K Mira,Mr. K R Patgiri,Mr. T J Mahanta,Shri TJ Mahanta, Sr. Adv.,Shri B. Rahman, Adv.,Shri MU Mondal, Adv.,Shri KR Patgiri, Adv.,Shri K. Mira, Adv.,Shri R. Islam, Adv.
For the Respondent: Shri D. Saikia, AG-Assam Shri K. Konwar, Adv. Ms. P. Barua, Adv., Ms. K. Phukan, CGC, Shri R. Dubey, SC-ASEC Ms. AB Kayastha, Adv.

IMPORTANT POINT
The duration of Panchayats is five years as per the Constitution and the Assam Panchayat Act, and any direction to extend the term would be in violation of the constitutional mandate. The source of power to sit in the office of Panchayats is the mandate given by the people as voters, and that mandate is only for the period prescribed in the statute holding the field.

Headnote:
Panchayat Elections - Assam Panchayat Act, 1994, Article 243E of the Constitution of India - Section 7, 35, 68 - The court dismissed the writ petitions challenging the order to take over custody of properties of GPs/APs/ZPs after the expiry of their term. The court held that the duration of Panchayats is five years as per the Constitution and the Act, and any direction to extend the term would be in violation of the constitutional mandate. The court also emphasized that the source of power to sit in the office of Panchayats is the mandate given by the people for the prescribed period in the statute, and no right accrues to continue after the term expires.
Fact of the Case:
The petitioners, who were Presidents/Members of various GPs/APs/ZPs in different districts of Assam, challenged the order to take over custody of properties after the expiry of their term. They argued that the authorities were obligated to hold elections during their tenure and hand over charge to the newly elected body within the said tenure.
Finding of the Court:
The court found that the duration of Panchayats is five years as per the Constitution and the Assam Panchayat Act, and any direction to extend the term would be in violation of the constitutional mandate. The court emphasized that no enforceable rights, much less, any fundamental rights of the petitioners had been infringed.
Issues: The primary issue was whether the tenure of the earlier elected representatives could be extended in the event of not holding the elections in time.
Ratio Decidendi: The court held that the duration of Panchayats is five years as per the Constitution and the Act, and any direction to extend such term would be in violation of the constitutional mandate. The court emphasized that the source of power to sit in the office of Panchayats is the mandate given by the people as voters, and that mandate is only for the period prescribed in the statute holding the field.
Final Decision: The court dismissed the writ petitions, holding that no enforceable rights, much less, any fundamental rights of the petitioners had been infringed. The court directed the State authorities, including the State Election Commission, to take immediate steps to hold the elections for the Panchayats as per the constitutional mandate as the earlier term had expired more than a month back.

JUDGMENT :

The subject matter of challenge in these writ petitions being similar, the same are disposed of by this common judgment and order. The petitioners herein have put to challenge an order dated 03.02.2024 of the Panchayat and Rural Development Department (hereinafter P&RD) by which concerned District Commissioner or his authorized officers have been allowed to officiate as the custodian of the properties of Gaon Panchayats (GP), Anchalik Panchayats (AP) and Zila Parishads (ZP) in the State of Assam for the gap period i.e., after completion of the term, as elections could not be held within the permissible time limit till holding of such elections. Challenge is also made to a subsequent order dated 14.02.2024 by which the District Commissioner had allowed different officers of the district to be custodian of the properties.

2. Before going into the issue involved and the grounds of challenge, it would be convenient if the background facts of the cases are narrated in brief.

WP(C)/762/2024

3. There are 18 numbers of petitioners and they were all Presidents of different GPs in the district of Dhubri. Their term of five years was complete on or about 14.02.2024.

WP(C)/844/2024

4. The four numbers of petitioners in this writ petition were the Presidents of different GPs in the district of Kamrup. The elections were held on 05.12.2018 and having declared as the winning candidate in the results announced on 13.12.2018, they had taken over charge immediately thereafter. Their term of five years was complete on or about 14.02.2024.

WP(C)/1161/2024

5. There are four numbers of petitioners, who were all elected as Presidents/Members of different GPs/APs/ZPs in the district of Barpeta. Their term of five years was complete on or about 14.02.2024.

WP(C)/1232/2024

6. There are three petitioners in this case. While the petitioner no. 1 was the President of Nayeralga AP, the petitioner nos. 2 and 3 were the Members of the said AP. Their term of five years was complete on or about 14.02.2024.

WP(C)/1352/2024

7. 35 nos. of petitioners have joined together in this writ petition, who were all elected Presidents/Members/Vice-Presidents of various GPs/APs/ZPs in the district of Hailakandi. Their term of five years was complete on or about 14.02.2024.

WP(C)/1485/2024

8. 7 nos. of petitioners have joined together in this writ petition, who were elected as President of different GPs in the district of Goalpara. Their term of five years was complete on or about 14.02.2024.

9. As indicated above, the grievance of the petitioners is with regard to the direction of the Government to take over the custody of the properties of their respective GPs/APs/ZPs vide the order dated 09.02.2024 on the expiry of the term of the said GPs/APs/ZPs till fresh elections are held. The primary contention of the petitioners is that there is a legal obligation of the authorities to hold the election of the GPs/APs/ZPs during the tenure of the earlier body and the handing over the charge to the newly elected body also has to be within the said tenure. However, the elections could not be held on time and therefore, the petitioners should be allowed to continue till such time when the elections would be held.

10. On the other hand, the contention of the State respondents is that there is no illegality in the aforesaid action as after completion of the term, no Member would have the right to continue in the said post.

11. I have heard Shri TJ Mahanta, learned Senior Counsel assisted by Shri B. Rahman, learned counsel for the petitioners in WP(C)/844/2024; Shri MU Mondal, learned counsel for the petitioners in WP(C)/762/2024 and WP(C)/1232/2024; Shri KR Patgiri, learned counsel for the petitioners in WP(C)/1161/2024, Shri K. Mira, learned counsel for the petitioners in WP(C)/1352/2024 and Shri R. Islam, learned counsel for the petitioners in WP(C)/1485/2024. Also heard Shri D. Saikia, learned Advocate General, Assam assisted by Shri K. Konwar, learned counsel and Ms. P. Baruah, learned co