ORDER

Oral Date : 15.02.2022 Heard Mr. K.N. Choudhury, learned senior counsel for the petitioner. Also heard Mr. D. Saikia, learned Advocate General, Assam, assisted by Ms. M. Bhattacharjee, learned Additional Senior Government Advocate, Assam, appearing for the respondent Nos.1, 2, 4 & 5 and Mr. R. Dubey, learned standing counsel, Assam State Election Commission, appearing for the respondent No.3.

In this writ petition, the petitioner has challenged the delimitation of certain areas and wards relating to Karimganj Municipal Board. All the same, by the time this matter was taken up for the first time on 09.02.2022, notification regarding election had already been issued.

We had requested Mr. D. Saikia, learned Advocate General, Assam to appear in the matter.

Today, Mr. K.N. Choudhury, learned senior counsel for the petitioner and Mr. D. Saikia, learned Advocate General, Assam are both before us.

At this stage, we must record that right from the decisions in Ponnuswami -Vs- Returning Officer, Namakkal Constituency, reported in (1952) 1 SCC 94 and Mohinder Singh Gill -Vs- Chief Election Commissioner, reported in (1978) 1 SCC 405, the law is settled that the Courts will normally not interfere in a matter relating to elections, which includes delimitation, once the notification has been issued. Consequently, we refrain from entertaining the writ petition at this stage.

All the same, Mr. K.N. Choudhury, learned senior counsel for the petitioner has placed before us a recent ruling of the Apex Court in State of Goa & Ors. -Vs- Fouziya Imtiaz Shaikh & Anr., reported in (2021) 8 SCC 401, where the law as laid down in Ponnuswami and Mohinder Singh Gill has been reiterated but in view of the powers given to the Election Commission under the Constitution for the superintendence, direction and control of the elections, liberty has been given to the petitioner to approach the State Election Commission. The guidelines given by the Apex Court in the case of Fouziya Imtiaz Shaikh is in Paragraph 68, which read as under:-

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

68.1. 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 243-ZG 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.

68.2. 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.

68.3. The non obstante clause contained in Article 243-ZG 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 243-ZG operates only during the process of election.

68.4. Under Article 243-ZA(1), the SEC is in overall charge of the superintendence, direction and control of the preparation of electoral rolls, and the conduct of all municipal elections. If there is a constitutional or statutory infraction by any authority including the State Government either before or during the election process, the SEC by virtue of its power under Art