ORDER

14.02.2022 Date :

Heard Mr. K.N. Choudhury, learned Senior Counsel, assisted by Mr. J.

Abedin, learned counsel for the petitioner. Also heard Mr. B. Deuri, learned Govt. advocate appearing for the State respondent nos. 1 to 3 and Mr. R. Dubey, learned standing counsel for the respondent no.4.

2. By filing this writ petition under Article 226 of the Constitution of India, the petitioners have assailed the minutes of meeting dated 24.02.2020, held under the Chairmanship of Deputy Commissioner, Hojai (respondent no.2), by which reservation of seats of Lanka Municipal Board for the Municipal Election, 2020 had been done by drawing of lotteries instead of rotation. It is projected that the exercise was in aberration of the relevant law in force.

3. The learned Senior Counsel for the petitioners, in all fairness, has submitted that as the State Election Commission has already announced the election for the Municipal Board, Lanka. It is submitted that by virtue of various judgments by the Supreme Court of India, the writ Court exercising power under Article 226 and 227 of the Constitution of India has to adopt hands-off policy while the election process is on. However, it is submitted that in the recent decision of the Supreme Court of India in the case of State of Goa Vs. Fouziya Imtiaz Shaikh and another, (2021) 8 SCC 401, had clarified in paragraph 68 to the effect that the constitutional bar of Article 243 ZG(a) of the Constitution of India applies only to Courts and not to the State Election Commission, which is to supervise, direct and control preparation of electoral rolls and conduct elections to municipalities. Accordingly, placing reliance on the paragraph 68 thereof and sub-para (I) to (X) thereof, it is submitted that if any illegal orders were made by any authority including the State Government which delimit constituencies or allot seats to such constituencies, as is provided in proposition (IV) of paragraph 68 of the said case of Fouziya Imtiaz Shaikh (supra), the State Election Commission would have power to countermand illegal orders made by any authority which may be done either before or during the electoral process, bearing in mind its constitutional duties as delineated in the said proposition.

4. It would be appropriate to quote paragraph 68 of the hereinbefore referred case.

“68. A conspectus of the aforesaid judgments in the context of municipal elections would yield the following results.

I. Under Article 243 ZG(b), no election to any municipality can be called in question except by an election petition presented to a Tribunal as is provided by or under any law made by the Legislature of a State. This would mean that from the date of notification of the election till the date of the declaration of result a judicial hands-off is mandated by the non-obstante clause contained in Article 243ZG debarring the writ court under Articles 226 and 227 from interfering once the election process has begun until it is over. The constitutional bar operates only during this period. It is therefore a matter of discretion exercisable by a writ court as to whether an interference is called for when the electoral process is "imminent" i.e, the notification for elections is yet to be announced.

II. If, however, the assistance of a writ court is required in subserving the progress of the election and facilitating its completion, the writ court may issue orders provided that the election process, once begun, cannot be postponed or protracted in any manner.

III. The non-obstante clause contained in Article 243ZG does not operate as a bar after the election tribunal decides an election dispute before it. Thus, the jurisdiction of the High Courts under Articles 226 and 227 and that of the Supreme Court under Article 136 of the Constitution of India is not affected as the non-obstante clause in Article 243ZG operates only during the process of election.

IV. Under Article 243ZA(1), the SEC is in overall charge of the superintendence, direc