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2008 DIGILAW 579 (GAU)

Sajal Chandra Das v. State of Assam

2008-08-06

I.A.ANSARI

body2008
ORDER Iqbal Ahmed Ansari, J. 1. The petitioner, sponsored by Bharatiya Janata Party, a national party, recognized by the Election Commission of India, contested the election for membership of Kamrup Zilla Parishad from the Constituency No. 19, Sonapur Zilla Parishad, Kamrup, Assam, the said Constituency being a Constituency reserved for the members of the Scheduled Caste. Respondent No. 7 contested the said election on being sponsored by Indian National Congress (I), another national party, recognized by the Election Commission of India. Yet another independent candidate contested the said election. Respondent No. 7, having secured highest number of votes, was declared elected and the election result has been notified by the State Election Commission, constituted under the Assam Panchayat Act, 1994, (in short, 'the A.P. Act'). The petitioner claims that while he is a member of Scheduled Caste, respondent No. 7 is not a member of any Scheduled Caste and respondent No. 7 was, therefore, not qualified to contest the said reserved Constituency. The State Election Commission, constituted under the provisions of the A.P. Act, has already, in a similar case, has, according to the petitioner, declared a candidate, disqualified; hence, in the present case too, the State Election Commission could have declared respondent No. 7 as a person not qualified to have contested the election, in question, from the said reserved constituency. However, upon being approached by the petitioner, the State Election Commission has taken no action in the matter. Thus, the omission, on the part of the State Election Commission, to declare respondent No. 7, as a person disqualified from being a member of Zilla Parishad from the said reserved Constituency, is, according to the petitioner, not only illegal, but also arbitrary and discriminatory. 2. By making this application under Article 226 of the Constitution of India, the petitioner has therefore, sought for issuance of appropriate Writ(s) commanding the State Election Commission to hold enquiry into the question as to whether respondent No. 7 is or is not a member of any of the Scheduled Caste and declare, following such enquiry, the present petitioner, who had secured second largest number of votes in the said election, as duly elected, on the ground that respondent No. 7 was not qualified to contest the said election from the said reserved Constituency. 3. I have heard Mr. N.N. Karmakar, learned counsel for the petitioner, and Mr. P. Roy, learned Additional Senior Govt. 3. I have heard Mr. N.N. Karmakar, learned counsel for the petitioner, and Mr. P. Roy, learned Additional Senior Govt. Advocate, appearing on behalf of the respondent Nos. 1, 3 and 4, I have also heard Mr. M.U. Mahmud, learned Standing Counsel, State Election Commission; appearing on behalf of the respondent No. 2. 4. Presenting the case of the present writ petitioner, Mr. Karmakar contends that respondent No. 3, namely, Deputy Commissioner, Kamrup (Metro), acted illegally by not rejecting the nomination of the respondent No. 7 under Rule 22(2)(b)(i) of the Assam Panchayat (Constitution) Rules, 1995, inasmuch as the nomination of the respondent No. 7 ought to have been rejected on the ground that he is not a member of any Scheduled Caste. Mr. Karmakar also contends that the petitioner has been discriminated by the respondents/authorities concerned, particularly, the State Election Commission, inasmuch as the State Election Commission, in similar circumstances, has already declared a candidate disqualified after the candidate already stood declared elected, but in the case of the petitioner, the State Election Commission has taken no action at all. 5. Appearing on behalf of the State Election Commission, Mr. M.U. Mahmud does not dispute the fact that the State Election Commission has the power to declare a candidate disqualified even after the election result is declared and thereby set aside his election. Mr. Mahmud, however, submits that in the case at hand, there is no credible material to show that respondent No. 7 is not a member of Scheduled Caste and it is for this reason that the State Election Commission has not interfered with the election of the respondent No. 7. 6. In view of the fact that one of the principal grounds, for the present petitioner, to file this writ petition is that he has been discriminated by the State Election Commission in the manner is alleged by the petitioner, it is necessary, first, to determine as to what 'discrimination, in a case of present nature, will, in law, mean. In this regard, it needs to be pointed out that if anyone has, in the past, received benefit of an illegal act of a State, such an illegal act cannot be commanded by a Writ Court to be repeated in the name of removing discrimination, for, discrimination must arise out of legally valid and enforceable acts and not a wrong, illegal or arbitrary act. This vital aspect of law has been succinctly described by the Apex Court in Chandigarh Administration and another v. Jagjit Singh and another, reported in (1995) 1 SCC 745 : ( AIR 1995 SC 705 ) wherein the Apex Court has held that the mere fact that an authority has passed a particular order in the case of another person, similarly situated, cannot be a ground for issuing a writ in favour of the petitioner on the plea of discrimination if the order, in favour of the other person, is found to be contrary to law or not warranted in the facts and circumstances of the case. Noticing that the High Courts, in exercise of their writ jurisdiction, have been passing orders to remove discrimination and thereby asking the authorities concerned to repeat the illegality, the Apex court has expressed its anxiety on such approach and has laid down succinctly the position of law, in Chandigarh Administration (supra), in the following words: 8. We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at a little length. Generally speaking, the mere fact that the respondent authority has passed a particular order in case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be allowed and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat the illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law indeed, wherever, it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such please would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and similar relief can be given to the petitioner if it Is found that the petitioners' case is similar to the other persons' case. But then why examine another persons case in his absence rather than examining the case of the petitioner who is present before the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of the case, than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case nor is his case. In our considered opinion, such a course barring exceptional situations--would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and illegal, in accordance with relevant legal principles. Each case must be decided on its own merits, factual and illegal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial word. (What is the position in the case of orders passed by authorities in exercise of their quasi-judicial power, we express no opinion. That can be dealt with when a proper case arises). (Emphasis is added) 7. Thus, an act or omission, on the part of an authority, cannot, in the light of the decision in Chandigarh Administration (supra), be regarded 'discriminatory' merely on the ground that the authority concerned has refused to give or declined to give such a benefit or relief, which it had given to another person in the past unless the person, who claims to have been 'discriminated' shows that the benefit or the relief, which had been given by the authority concerned to another person, in the past, was permissible to be given in law. 8. Hence, from the decision in Chandigarh Administration (supra), it becomes clear that in the name of removing 'discrimination', this Court cannot, and ought not to, permit a situation to develop, whereby this Court, inadvertently, commands any of the respondents, including the State Election Commission, to pass an order or do an act, which is beyond the authority or jurisdiction of the State Election Commission even if the State Election Commission had passed, in the past, an order of the kind as the present petitioner seeks to obtain from the State Election Commission. 9. Thus, While determining the question as to whether the present petitioner is being discriminated or not by the State Election Commission what needs to be determined is as to whether the State Election Commission has any power to declare, on a mere application, petition or representation, made by a candidate, who has lost a Panchayat election that a candidate, who already stands declared elected, was disqualified at the time of filing of his nomination papers or is disqualified from continuing to remain an elected person. 10. Rule 44 of the Assam Panchayat (Constitution) Rules, 1995, (in short, 'the A.P. (Constitution) Rules') deals with the counting of votes and declaration of the result of election. 10. Rule 44 of the Assam Panchayat (Constitution) Rules, 1995, (in short, 'the A.P. (Constitution) Rules') deals with the counting of votes and declaration of the result of election. Rule 44(7) provides that on receipt of the records under sub-rule (6), Deputy Commissioner or the Sub-Divisional Officer, as the case may be, shall declare the candidate, who has received the highest number of votes in respect of every election, to have been elected to that office or seat and publish a notice, at his office, stating the name of the persons so declared, as the President and member of the Gaon Panchayat, Anchalik Panchayat and member of Zilla Parishad, as the case may be, and shall forward a copy to the State Election Commission for notification. 11. A careful reading of sub-rule (7) of Rule 44 clearly shows that it is the Deputy Commissioner or the Sub-Divisional Officer, as the case may be, who shall, upon receiving the records of the votes, which had been counted, declare the candidate, who has received the highest number of votes in respect of an election, to have been elected to that office or seat and publish a notice, at his office, stating the name of person, so declared, as the President or member of the Gaon Panchayat, Anchalik Panchayat or the Zilla Parishad, as the case may be. After making of this declaration, sub-rule (7) of Rule 44 requires the Deputy Commissioner or the Sub-Divisional Officer, as the case may be, to forward a copy of such declaration of the election to the State Election Commission for notification. 12. Bearing in mind the above position of law with regard to the declaration of result of the election of, amongst others, the members of Zilla Parishad, let me turn to the provisions of law as far as constitution of a Zilla Parishad is concerned. The provisions, as regards constitution of Zilla Parishad, have been made in Section 65. This Section reads: 65. The provisions, as regards constitution of Zilla Parishad, have been made in Section 65. This Section reads: 65. Constitution of Zilla Parishad.-(1) The Zilla Parishad shall consists of-- (i) the members directly elected from the territorial constituencies of the district: Provided that the Government may, by notification in the Official Gazette, determine the territorial constituencies, in the district keeping in view the overall population of the district at a rate of one member for a population of not less than thirty thousand and that each territorial constituency shall elect one member to the Zilla Parishad through direct election in the manner prescribed: Provided further that every Legislative Assembly Constituency shall have four territorial constituencies and in case of a part of the Legislative Assembly Constituency with a population less than thirty thousand falling within the district, then, this part shall form a territorial Constituency. (ii) the Presidents of the Anchalik Panchayats; (iii) the Members of the House of the People and the Members of the State Legislative Assembly representing a part or whole of the district whose constituencies lie within the district. (2) All the members shall have the right of vote except in the motion of no-confidence in which only the directly elected members and members nominated by the Government shall exercise such rights. 13. From a careful reading, as a whole, of Section 65, what becomes abundantly clear is that a Zilla Parishad consists of three classes of persons, namely, (i) 'directly' elected members from the various constituencies, which fall within the territorial limits of the Zilla Parishad, (ii) Presidents of the Anchalik Panchayats, who, by virtue of their office, become a member of a Zilla Parishad, and (iii) members of the House of People and the Members of the State Legislative Assembly, who too, by virtue of the offices, which they hold, become members of a Zilla Parishad. 14. Thus, while the Presidents of the Anchalik Panchayats and members of the House of People and the members of the State Legislative Assembly become members of the Zilla Parishad by virtue of the offices, which they hold, the other members of a Zilla Parishad are 'directly' elected from the various territorial constituencies of the district concerned. In the case at hand, the petitioner was, admittedly, not President of any Anchalik Panchayat and he had contested the election 'directly' from the territorial constituency of the Zilla Parishad, in question. In the case at hand, the petitioner was, admittedly, not President of any Anchalik Panchayat and he had contested the election 'directly' from the territorial constituency of the Zilla Parishad, in question. Hence, his election was a 'direct' election and, in terms of the provisions of Section 127 of the A.P. Act, it is the Panchayat Election Tribunal, which has the authority to decide the validity of the 'direct' election of a member of a Panchayat, such as, Zilla Parishad. Section 129(b) makes it further clear that no election to any Panchayat shall be called question except by an election petition presented to the Tribunal, constituted under Section127, within sixty days from the date of declaration of election results. 15. However, the present case is, somewhat, different in the sense that the petitioner seeks a writ in the nature of mandamus commanding the State Election Commission to declare an elected candidate (respondent No. 7) as a person, who was disqualified from contesting the election, in question, from the said reserved Constituency or is disqualified from continuing to hold the membership of a Zilla Parishad on the ground that he is not a member of any Scheduled Caste and could not have, therefore, contested the election, in question, from the said reserved constituency. In short, the ground of challenge to the election of respondent No. 7, as already indicated above, is that respondent No. 7 is not a member of any Scheduled Caste. 16. The question, therefore, is as to whether the State Election Commission has the power to set aside the declaration of the result of an election on the ground that the person, who stands declared as elected, was not qualified to contest the election. In this regard, it is noteworthy that the scheme of the A.P. Act and the A.P. (Constitution) Rules clearly shows that the election to an Anchalik Panchayat is over with the declaration of the result and, thereafter, the State Election Commission becomes functus officio and the result of such an election, if 'direct', can be challenged only by taking resort to the provisions of law as contained in Section 127, particularly, when an Election Tribunal already stands constituted by the State Government in exercise of its powers under Sec. 127. Nothing, contained in the provisions of the A.P. Act and/or the A.P. (Constitution) Rules, empowers the State Election Commission to declare a person, who has already been declared elected, as a person disqualified to hold the office or to set aside his election. 17. In support of his case that it is possible for the State Election Commission to declare a person disqualified, Mr. Karmakar places reliance on the cases of The Election Commission of India v. N.G. Ranga and others ( AIR 1978 SC 1609 ) and Brundaban Nayak v. Election Commission of India and another ( AIR 1965 SC 1892 ). 18. In the light of the stand, which has been taken by the petitioner, for the purpose of sustaining his writ petition, what needs to be pointed out is that after a person has already been declared elected as a Member of the either House of Parliament or to the House or either House of the Legislature of a State, his election can be set aside by resorting to the provisions of Article 329, which empowers a High Court to set aside such an election. It is only in a case, where a Member of Parliament suffers from disqualification from remaining the member of either House of the Parliament that the Election Commission has some role to play and it is such a situation, which Article 103 deals with. Article 103is, therefore, reproduced hereinbelow: 103. Decision on questions as to disqualifications of members (I) If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of Article 102, the question shall be referred for the decision of the President and his decision shall be final. (2) Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion. 19. A bare reading of Article 103 shows that if any question arises as to whether a member of either House of Parliament has become subject of any disqualification mentioned in Clause (1) of Article102, the question shall be referred for decision of the President and his decision shall be final. 19. A bare reading of Article 103 shows that if any question arises as to whether a member of either House of Parliament has become subject of any disqualification mentioned in Clause (1) of Article102, the question shall be referred for decision of the President and his decision shall be final. Clause (2) of Article 103, however, obliges the President to obtain opinion of the Election Commission before giving his decision on any such question of disqualification, which may have been raised. Clause (2) of Article 103 also makes it mandatory for the President to act according to the opinion given by the Election Commission of India. Similar provisions exist in the Constitution, in the form of Article 192, as regards disqualification of a member of the House of the Legislature of a State. It is in the light of this scheme of the Constitution of India that the two decisions, namely, N.G. Ranga (supra) and Brundaban Nayak (supra) which Mr. Karmakar relies upon, need to be considered. 20. In Brundaban Nayak (supra), one of the important questions which fell for determination was as to who could raise the question that a Member of a Legislative Assembly is disqualified from holding the office of the member of such an assembly. In this regard, the Apex Court clarified that this question can be raised not only on the floor of the Legislative Assembly by a Member of an Assembly, but also by an ordinary citizen or voter, in the form of a complaint, to the Governor. It was clarified in Brundaban Nayak (supra), that it is not the Governor, but the Election Commission, which has to hold enquiry into the question of such disqualification, which may have been raised. 21. Similarly, in the case of N.G. Ranga (supra), the Supreme Court expressed the view that though there is no specific provision in the Representation of the People Act, 1951, (as the same stood at that time), to give any notice to the person against whom a complaint of his being disqualified is received, such a power has to be inferred to be existing in favour of the Election Commission if it has to make an effective inquiry into the question of disqualification of such a candidate, on the question having been referred to it by the President. 22. 22. Hence, both the cases, namely, N.G. Ranga (supra) and Brundaban Nayak (supra), which Mr. Karmakar relies upon, are cases, which relate to challenges posed to the qualification of an elected member of the House to continue to hold such membership and the Election Commission came into picture only when a complaint was made, as regards the disqualification of a member, to the President or the Governor, as the case may be. 23. In short, thus, the Election Commission of India comes into picture when a complaint, with regard to disqualification of a member of the either House of Parliament or of the Legislative Assembly of a State is made by a defeated candidate or any other citizen including a voter to the President or the Governor of the State concerned, as the case may be. When such a complaint is made, the President or the Governor, as the case may be, is required to obtain opinion of the Election Commission of India on the question of disqualification of the member concerned and when such an opinion is sought for, the Election Commission of India is competent to hold an enquiry and, depending upon the result of the enquiry, the Election Commission of India shall render its opinion. The opinion, so rendered by the Election Commission of India, is binding on the President or the Governor, as the case may be, inasmuch as the President or the Governor, as the case may be, is required to act according to the opinion of the Election Commission of India on the question of disqualification, which may have been referred to the Election Commission. Moreover, whatever decision is rendered, in accordance with this scheme of the Constitution, by the President or the Governor; such a decision shall be final. 24. I may, at this stage, pause here to refer to Sections 146, 146A and 146B of the Representation of People Act, 1951. Moreover, whatever decision is rendered, in accordance with this scheme of the Constitution, by the President or the Governor; such a decision shall be final. 24. I may, at this stage, pause here to refer to Sections 146, 146A and 146B of the Representation of People Act, 1951. A combined reading of Sections 146, 146A and 146B, which fall under Part-A and relates to disqualification, shows that in connection with the tendering of any opinion to the President under Article 103 or, as the case may be, to the Governor under Article 192, when the Election Commission considers it necessary or proper to make an enquiry, the Commission shall have, for the purpose of holding such enquiry, powers of a civil court, under the Code of Civil Procedure, so far as the following matters are concerned, (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of any document or other material object producible as evidence; (c) receiving evidence on affidavits, (d) requisitioning any public record or a copy thereof from any Court or office. 25. Section 146A makes it clear that no statement, made by a person, in the course of giving evidence before the Election Commission, shall subject him to, or be used against him in, any civil or criminal proceeding except a prosecution for giving false evidence by such statement. Section 146Bempowers the Election Commission to regulate its own procedure. In short, thus, Sections 146A and146B give requisite powers to the Election Commission to enable it to make enquiry for the purpose of rendering opinion to the President or the Governor, as the case may be. 26. The question, now, is as to whether the powers, similar to the ones, as the Election Commission of India has, under the Constitutional scheme embodied in Article 103 and Article 192, the State Election Commission too, under the A.P. Act and/or the A.P. (Constitution) Rules, has. It is of immense importance to note that both, Mr. Mahmud, learned Standing Counsel, State Election Commission, and Mr. Karmakar, Learned counsel for the writ petitioner, traces such a power of the State Election Commission, in Assam, to the provisions contained in Rule 54. Thus, Rule 54 assumes great importance and the provisions contained therein need to be minutely and dispassionately analysed. Rule 54 reads: 54. Mahmud, learned Standing Counsel, State Election Commission, and Mr. Karmakar, Learned counsel for the writ petitioner, traces such a power of the State Election Commission, in Assam, to the provisions contained in Rule 54. Thus, Rule 54 assumes great importance and the provisions contained therein need to be minutely and dispassionately analysed. Rule 54 reads: 54. Other matters not provided in these Rules: As regard other matters not provided in the Assam Panchayat (Constitution) Rules, 1995, the matters shall be guided by the relevant Rules under the Representation of the People Act, 1951. 27. From a cautious reading of Rule 54, it becomes clear that as regards any matter, which is not provided by the A.P. (Constitution) Rules, such a matter shall be guided by the relevant Rules, which may have been framed under the Representation of the People Act, 1951. In other words, when the AP (Constitution) Rules are found silent with regard to any matter, the provisions contained in the Rules, which may have been framed under the Representation of the People Act, 1951, shall be resorted to. 28. It is, now, of paramount importance to note, as already indicated above, that so far as the question of disqualification of a member of either House of the Parliament or of the Legislative Assembly of a State is concerned, the source of power of the Election Commission of India is, primarily, traceable to Articles 103 and 192 of the Constitution and in order to enable the Election Commission to hold an effective enquiry, civil Courts powers, in certain respects, have been made available to it, by virtue of the provisions of Section 146 of the Representation of the People Act, 1951. 29. The question, therefore, is this: Similar to the powers as have been vested in the Governor of a State in respect of the disqualification of a member of the Legislative Assembly of the State, whether the Assam Panchayat Act confers any power on the Governor of the State or any other authority to deal with the disqualification of the President, Vice-President, member of a Gaon Panchayat, Anchalik Panchayat and/or Zilla Parishad? It may be noted, in this regard, that Section 111 of the Assam Panchayat Act deals with various disqualifications, which an elected President, Vice-President, member of a Gaon Panchayat, Anchalik Panchayat and/or Zilla Parishad may incur. It may be noted, in this regard, that Section 111 of the Assam Panchayat Act deals with various disqualifications, which an elected President, Vice-President, member of a Gaon Panchayat, Anchalik Panchayat and/or Zilla Parishad may incur. The Assam Panchayat Act makes no provisions empowering the Governor or any other authority to render any decision on the question of disqualification of a President, Vice-President, member of a Gaon Panchayat, Anchalik Panchayat and/or Zilla Parishad in the manner as can be done by the President under Article 103 or by the Governor under Article 192. 30. Thus, the Assam Panchayat Act does not confer any power on the Governor to render any decision on the question of disqualification, which a President, Vice-President, member of a Gaon Panchayat, Anchalik Panchayat and/or Zilla Parishad may have been suffering from. Resultantly, therefore, the State Election Commission too, under the Assam Panchayat Act, has no role to play on the question of disqualification of such a person after the result of the election has been declared. As far as Rule 54, which the State Election Commission relies upon, as a source of its power to declare a President, Vice-President, member of a Gaon Panchayat, Anchalik Panchayat and/or Zilla Parishad as disqualified, it is necessary to point out that AP (Constitution) Rules have been framed under the Assam Panchayat Act. The Rules, in question, are therefore, delegated pieces of legislation. When there is no substantive power in the Assam Panchayat Act conferring jurisdiction on the Governor of the State to decide the question of disqualification in the manner as can be done by a Governor of a State by virtue of the powers vested in him under Article 192, the Governor has no role to play on the question of disqualification of a President, Vice-President and/or member of a Gaon Panchayat, Anchalik Panchayat and/or Zilla Parishad even if such a disqualification is brought to the notice of the Governor after the result of the election, in respect of the person concerned, has been declared. Consequently, the State Election Commission also has no role to play in this regard. 31. Consequently, the State Election Commission also has no role to play in this regard. 31. As far as Rule 54 of the Assam Panchayat (Constitution) Rules, 1995, is concerned, we must bear in mind that Rule 54 makes applicable provisions of the rules, which have been framed by virtue of the powers given under the Representation of the People Act, 1951, such as, the Registration of Electors Rules, 1960, the Conduct of Election Rules, 1961, etc. In the absence of any substantive power given by the AP Act (similar to the one as in given in Representation of the People Act, 1951), the power given by Rule 54 (which relate to the relevant Rules, which may have been framed under the Representation of the People Act, 1951), cannot be resorted to by the State Election Commission for the purpose of holding any enquiry on the question of disqualification of a President, Vice-President, member of a Gaon Panchayat, Anchalik Panchayat and/or Zilla Parishad after the result of such an election has already been declared. The power to issue summons, etc., is invoked by the Election Commission of India by virtue of the substantive power vested in it by Section 146 of the Representation of the People Act, 1951, and not by virtue of the provisions contained in any of the Rules framed under the Representation of the People Act, 1951. What, on the other hand, Rule 54 relates to are the various Rules, which have been framed under the Representation of the People Act, 1951, and not to the Representation of the People Act, 1951, itself. 32. What clearly transpires from the above discussion is this: A combined reading of the scheme of the Constitution of India, the Representation of the People Act, 1951, and the Assam Panchayat Act, 1954, clearly shows that after the election results are declared, the State Election Commission has no role to play with regard to any disqualification with which any of the President, Vice-President, member of a Gaon Panchayat, Anchalik Panchayat and/or Zilla Parishad may have been suffering from. Rule 54 aforementioned does not confer, and cannot be treated to have conferred, any such jurisdiction on the State Election Commission inasmuch as Rule 54 relates to only such powers, which are available to the Election Commission of India under the Rules framed by virtue of the provisions of the Representation of the People Act, 1951. Rule 54 aforementioned does not confer, and cannot be treated to have conferred, any such jurisdiction on the State Election Commission inasmuch as Rule 54 relates to only such powers, which are available to the Election Commission of India under the Rules framed by virtue of the provisions of the Representation of the People Act, 1951. 33. What emerges from the above discussion is that in the present case, when respondent No. 7 already stands declared as elected, his election cannot be declared to be illegal by the State Election Commission as has been sought for by the petitioner. The State Election Commission cannot, therefore, be commanded by issuing any Writ, in the nature of mandamus, to hold an enquiry into the question of disqualification of respondent No. 7 and/or to declare his election as illegal or to declare him as a person disqualified to hold the seat of the member of Kamrup Zilla Parishad. 34. From a combined reading of the scheme of the Constitution of India, Representation of the People Act, 1951, and the Assam Panchayat Act, 1994, it also becomes clear that after the election results are declared, the State Election Commission, on its own, cannot hold any enquiry and cannot interfere with the result of an elected candidate. In the case of a Member of the House of Parliament, it is the President, and in the case of a Member of a Legislative Assembly, it is the Governor of the State, who has the power to decide, whether a person who already stands elected, is suffering from such a disqualification, which would disentitle him to remain a Member of such a House. For the purpose of rendering such a decision, the President or the Governor, as the case may be, is bound to obtain the opinion of the Election Commission of India. The Election Commission of India has the power to hold an inquiry into such a question on the question having been referred to it by the President or the Governor, as the case may be, and, upon holding such Inquiry, the Election Commission shall render its opinion and it is, in terms of the opinion given by the Election Commission, that the President or the Governor, as the case may be, shall decide the issue. On the other hand, the statutory remedy available to a person, who has been 'directly' elected as a member of a Zilla Parishad, lies in challenging the election by making an election petition to the Election Tribunal constituted under Section 127. 35. I may, at this stage, pause here to refer to Article 243O, which undisputedly, empowers the State Legislature to enact laws in matters relating to Panchayat Elections curtailing perhaps, if need be, the jurisdiction of the Civil Courts and High Court. It is, therefore, necessary to look into the provisions of Article 243O, which I find, lays down as follows: 243-O. Bar to interference by courts in electoral matters: Notwithstanding anything in this Constitution. (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243K, shall not be called in question in any Court; (b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such a manner as is provided for by or under any law made by the Legislature of a State. 36. For the purpose of this writ petitioner, we are not concerned with Article 243O(a). What concerns us is the ambit and scope of Article 243O(b). 37. A careful reading of Article 243O(b) shows that no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such a manner as is provided for by or under any law made by the Legislature of a State. In other words, no election to any Panchayat can be questioned before any Court except by making an election petition to such authority as may be provided for by or under any law made by the State Legislature. 38. In other words, unless and except to the extent the State enact laws barring Courts from deciding questions arising out of elections held for Panchayat, Article 243O(b) will not by itself create any bar for a person aggrieved by an election to a Panchayat to approach Civil Court or even High Court. 38. In other words, unless and except to the extent the State enact laws barring Courts from deciding questions arising out of elections held for Panchayat, Article 243O(b) will not by itself create any bar for a person aggrieved by an election to a Panchayat to approach Civil Court or even High Court. However, if the State Legislature enacts laws to constitute an authority to look into such disputes, then, except for the class of disputes in respect of which the State Legislature, by making law, vests powers in such an authority, the remaining disputes can be raised before any other competent Court, notwithstanding the fact that Panchayat Election Tribunal exists. Hence, it is thus, really for the State Legislature to decide the scope and ambit of the Panchayat Election Tribunals. 39. Thus, the State Legislature, in Assam, too have the power, under Article 243O, to make laws for creation of authority, which will look into the disputes arising out of Panchayat Elections and the State Legislature has in its own wisdom, enacted the Assam Panchayat Act. However, instead of imposing complete bar on the jurisdiction of all Courts to entertain all petitions relating to the Panchayat, the State Legislature, in Assam, vested the Tribunals to be constituted, as indicated above, the powers to decide only such disputes, which arise out of 'direct' elections. In short, the State Legislature had the power under Article 243O(b) to enact laws and could have enacted laws for constitution of a Tribunal to look into the disputes arising out of, or relating to, direct as well as indirect elections held under the Panchayat Act, but the State Legislature, in their own wisdom, have chosen to bring only direct elections under the jurisdiction of such Tribunal. Similarly, the State Legislature, in Assam, could have, by making law, empower the Governor of the State to deal with the question of disqualification of a President, Vice-President, member of a Gaon Panchayat, Anchalik Panchayat and/or alia Parishad in the manner as is available to a Governor under Article 192. The State Legislature, in Assam, has, however, chosen not to confer any such jurisdiction on the Governor of the State. The State Legislature, in Assam, has, however, chosen not to confer any such jurisdiction on the Governor of the State. No provisions have also been made under the Assam Panchayat Act conferring any role on the State Election Commission, which can be said to be in tune with the role of the Election Commission of India envisaged under Article 103 and/or Article 192. When considered in this light, it becomes more than abundantly clear that the State Election Commission, in Assam, has no role to play after the result of the election of a President, Vice-President, member of a Gaon-Panchayat, Anchalik Panchayat and/or Zilla Parishad has been declared if such a question relates to disqualification of such a person. The remedy of an aggrieved person lies in either challenging the election of the person concerned by way of an election petition to the Panchayat Election Tribunal, which may be constituted by virtue of the provisions of Section 127, or, if the law so permits, by way of civil suit or, in an appropriate case, even by way of a writ petition made under Article 226. 40. What is also imperative to note is that according to Article 243F(2) of the Constitution of India, when a question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in clause (1) of Article 243F, the question shall be referred for the decision of such authority and in such manner as the legislature of a State may, by law, provide. 41. From the provisions contained in Clause (2) of Article 243(F), what becomes clear is that the question of disqualification can be referred to such an authority, which the Legislature of a State may, by making law, provide. In the A.P. Act, since no authority, other than Election Tribunal, has been provided, which can decide the question of disqualification of a member of a Panchayat after the election result already stands declared, the remedy of a person, who may feel aggrieved by the election of a person, who was not qualified to contest a 'direct' election, lies in making an application to the Panchayat Tribunal if the candidate concerned had been suffering from such disqualification even at the time, when he had contested the election. If, however, a person becomes disqualified subsequent to the declaration of the result of an election, the remedy would lie in a civil Court of competent jurisdiction or, in an appropriate case, even in the High Court by way of an application under Article 226 of the Constitution of India. 42. By making the present writ petition under Article 226, the petitioner, however, sought for a direction to be given to the State Election Commission to declare the respondent No. 7 as a person, who is qualified from becoming or from continuing to remain a member of Kamrup Zilla Parishad. Since the State Election Commission has no such authority, as the petitioner seeks, this writ petition must be held to be wholly devoid of merit and deserves to be dismissed. 43. Because of what have been discussed and pointed out above, it becomes clear that no mandamus, as has been sought for by the petitioner, can be issued by this Court directing the State Election Commission to hold enquiry into question of disqualification of the respondent No. 7. 44. In the result and for the reasons discussed above, this writ petition fails, the same is not admitted and shall accordingly stand dismissed. No order as to costs.