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2019 DIGILAW 693 (GAU)

Ikhtiar Uddin Ahmed v. State of Assam

2019-06-03

UJJAL BHUYAN

body2019
ORDER : Ujjal Bhuyan, J. 1. Heard Mr. A.D. Choudhury, learned counsel for the petitioner and Ms. M. Bhattacharjee, learned Government Advocate, Assam. Also heard Mr. P.K. Tiwari, learned Senior counsel assisted by Mr. A. Lal, learned counsel for the respondents. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of notification dated 16.02.2015 issued by the Secretary to the Govt. of Assam, Urban Development Department reserving the post of Chairman, Goalpara Municipal Board (Board) for Scheduled Tribe (ST) candidate and further seeks a direction to the respondents to hold election to the post of Chairman of the Board by treating it to be unreserved. 3. Case of the petitioner is that Government of Assam in the Urban Development Department had issued notification dated 06.09.2014 reserving the post of Chairperson of Municipal Boards/Town Committees in the State of Assam in favour of elected Commissioners belonging to Scheduled Caste (SC), ST and elected Women Commissioners. In respect of Chapakhowa Town Committee, the post of Chairman was reserved in favour of ST. 4. By subsequent notification dated 9.1.2015 issued by the Government of Assam in the Urban Development Department, ward wise reservation for SC, ST and Women candidates were provided for Commissioners in the different Municipal Boards/Town Committees. In respect of the Board, it was mentioned that Ward No. 2 was earmarked for ST out of the total 19 Wards. 5. At this stage, it may be mentioned that no reservation was provided in respect of Wards of Chapakhowa Town Committee. This meant that though none of the Wards of Chapakhowa Town Committee were reserved for SC, ST and Women candidates, post of Chairperson was reserved for ST. This was quite anomalous inasmuch as though none of the Wards were reserved for ST, the post of Chairperson was reserved for ST. In other words, filling up of the post of Chairperson by ST was left to chance as it was dependent upon election of ST Ward Commissioner against general/open Ward. 6. Be that as it may, election to different municipalities in the State of Assam was conducted whereafter results were declared on 12.02.2015. Petitioner was elected from Ward No. 10 of the Board. Petitioner belongs to General Category. 7. Govt. 6. Be that as it may, election to different municipalities in the State of Assam was conducted whereafter results were declared on 12.02.2015. Petitioner was elected from Ward No. 10 of the Board. Petitioner belongs to General Category. 7. Govt. of Assam in the Urban Development Department thereafter issued notification dated 16.02.2015 modifying the earlier notification dated 06.09.2014 partially by redetermining reservation of the post of Chairman of the Board in favour of ST and redetermining Chairmanship of Chapakhowa Town Committee as open category. 8. Contending that petitioner's ambition or right to contest for the office of Chairman was taken away by the impugned notification dated 16.02.2015, present writ petition came to be filed. 9. This Court by order dated 24.02.2015 issued notice and passed an interim order to the effect that election/selection for the post of Chairman of the Board should not be undertaken. 10. It is contended that respondent No. 5 subsequently got impleaded along with other respondents. Respondent No. 5 belongs to ST and was elected from Ward No. 2 as Ward Commissioner. 11. In Interlocutory Application (C) No. 1367/2015, this Court passed an order on 14.12.2015 directing that the post of Chairman of the Board should be treated as open category. 12. Petitioner has also brought on record certain subsequent developments. It is stated that though respondent No. 5 belongs to ST category, he was elected as Chairman of the Board by having majority support. However, a no confidence motion was brought against him but without facing no confidence motion, respondent No. 5 resigned from the post of Chairman on 19.03.2018. Thereafter, petitioner was elected as Chairman of the Board in which post he is presently functioning. 13. Respondent No. 5 in his counter affidavit has justified issuance of impugned notification dated 16.02.2015 to give adequate representation to ST community. 14. Petitioner has filed reply affidavit to the counter affidavit of respondent No. 5. 15. In the hearing which took place on 5.6.2018, this Court took the view that perusal of the record would be necessary for adjudication of the case. Record was essentially required to see whether re-determination in terms of notification dated 16.02.2015 was preceded by an exercise in terms of Section 33(1) of the Assam Municipal Act, 1956. 16. Record was produced by the learned Govt. Advocate on 09.05.2019. 17. Record was essentially required to see whether re-determination in terms of notification dated 16.02.2015 was preceded by an exercise in terms of Section 33(1) of the Assam Municipal Act, 1956. 16. Record was produced by the learned Govt. Advocate on 09.05.2019. 17. Elaborate submissions were made by learned counsel for the parties which have been duly considered. Also perused the citations relied upon by learned counsel for the parties at the Bar and the record produced by the learned Government Advocate. 18. Part IXA of the Constitution of India deals with Municipalities. It was inserted in the Constitution by the Constitution (74th) Amendment Act, 1992 and came into effect from 1.6.1993. 19. While Article 243-S deals with constitution and composition of Ward Committees, etc., Article 243-T deals with reservation of seats. Clause (1) says that seats shall be reserved for SCs and STs in every Municipality and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled up by direct election in that Municipality as the population of SCs or STs in the municipal area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Municipality. 20. Thus, Clause (1) provides for reservation of seats in Municipalities for SCs and STs depending upon proportion of population of such communities in relation to total population in the municipal area. 21. Clause (4) provides that offices of Chairperson in Municipalities shall be reserved for SCs, STs and women in such manner as the legislature of a State may, by law, provide. 22. Thus, under Clause (4), offices of Chairperson in Municipalities shall be reserved for SCs, STs and women in the manner provided by State legislature by law. 23. Assam Municipal Act, 1956 (1956 Act) is an Act of the State legislature providing for better provision for the organization and administration of municipalities in Assam. 1956 Act was amended by the Assam Municipal (Amendment) Act, 1997 and thereafter by Assam Municipal (Amendment) Act, 2003 to bring it in tune with the constitutional requirement. 24. Section 11 deals with number of Commissioners. 1956 Act was amended by the Assam Municipal (Amendment) Act, 1997 and thereafter by Assam Municipal (Amendment) Act, 2003 to bring it in tune with the constitutional requirement. 24. Section 11 deals with number of Commissioners. As per Section 11 (3)(d), reservation of seats in every Municipality for SCs and STs shall bear as nearly as may be, the same proportion to the total number of seats to be filled up by direct election in that Municipality as the population of SCs or STs in the municipal area bears to the total population of that area. Such seats may be allotted by rotation to different constituencies in a Municipality. As per Section 11(3)(e), seats reserved for SCs and STs under Sub-Section (d) shall be determined by the State Government by order published in the official gazette. As per proviso thereto, such seats reserved for SCs and STs may be allotted by rotation to different constituencies in such manner as the State Government may by order publish in the official gazette. 25. Section 33 of the 1956 Act deals with appointment or election of Chairman and Vice Chairman. As per Sub-Section (1), State Government shall by notification determine from time to time as to which of the Municipalities and Town Committees shall have SCs, STs or women as Chairman. Percentage of Municipalities and Town Committees with SC and ST as Chairman will be broadly in conformity with the percentage of population of SCs and STs in the State as per latest census figure. 26. Thus, under Section 33(1), State Government shall by notification determine from time to time each of the Municipalities and Town Committees which shall have SC and ST as Chairman. 27. At this stage, it may be mentioned that there is a fundamental difference while providing reservation under Section 11 (3) (d) and reservation under Section 33(1). Under Section 11(3)(d), while making reservation of seats in every municipality for SCs and STs, the State Government is required to ensure that such reservation broadly conforms to population of SCs or STs to the total population within the municipal area but when it comes to reservation of post of Chairman in Municipalities and Town Committees for SC or ST, the State Government shall ensure that such representation is broadly in conformity with the population of SC or ST in the State as a whole. 28. 28. Under Sub-Section (2) of Section 33, at the first meeting of the Municipal Board after a general election, elected Commissioners shall elect one from amongst elected Commissioners to be the Chairman. Election shall be subject to approval of the State Government but pending such approval, person elected shall be competent to discharge the duties of the Chairman. 28.1. Thus, under Sub-Section (2), after election is over, elected Ward Commissioners in the first meeting shall elect one from amongst the elected Commissioners to be the Chairman. 29. Keeping the above legal provisions in mind, case of the petitioner and respondent No. 5 may now be adverted to. 30. It is seen from the documents placed on record that Government of Assam in the Urban Development Department had issued a letter dated 05.09.2014 to all the Deputy Commissioners and Sub-Divisional Officers to identify the seats/wards to be reserved for SCs, STs and Women in the respective Municipal Boards/Town Committees. It was mentioned that if the population of SCs or STs in any ward of a Municipal Board or Town Committee to the total population of that ward was equal to .5% or below, such ward was not to be reserved for SC or ST. 31. On the next date, i.e., on 06.09.2014, the same Department issued another notification under Section 33(1) of the 1956 Act reserving the post of Chairperson in different Municipal Boards/Town Committees. At Serial No. 1 was mentioned Chapakhowa Town Committee and the post of Chairperson of that Town Committee was reserved for ST. It appears that following the letter dated 05.09.2014, notification dated 09.01.2015 was issued by the State Government reserving different wards for various categories, such as, ST, SC, ST (Women), SC (Women) and women. In respect of the Board at Serial No. 19, Ward No. 2 was reserved for ST. Petitioner was elected from the general ward No. 10 whereas respondent No. 5 was elected from the reserved ward for ST, i.e., Ward No. 2. 32. Following the election, no ST candidate was elected to Chapakhowa Town Committee from the open/general wards. As a result, there could be no ST Chairperson in Chapakhowa Town Committee. Confronted with such a situation, Government of Assam in the Urban Development Department issued notification dated 16.02.2015 partially modifying the earlier notification dated 06.09.2014. 32. Following the election, no ST candidate was elected to Chapakhowa Town Committee from the open/general wards. As a result, there could be no ST Chairperson in Chapakhowa Town Committee. Confronted with such a situation, Government of Assam in the Urban Development Department issued notification dated 16.02.2015 partially modifying the earlier notification dated 06.09.2014. By the subsequent notification, post of Chairman of the Board was reserved for elected Commissioner belonging to ST whereas post of Chairman of Chapakhowa Town Committee was declared as belonging to open category. 33. Record does not disclose that any detailed exercise was carried out before reserving the post of Chairman of the Board for ST. 34. While it is the constitutional mandate to provide reservation for SC and ST and women in respect of offices of Chairman in the Municipalities but the same is subject to the manner as may be provided by the legislature of a State by law. 35. Section 33 of the 1956 Act is the relevant Section as has been discussed above. 36. Under Sub-Section (1) thereof, State Government is mandated to determine from time to time as to which of the Municipalities and Town Committees should have SC, ST or Women as Chairman. While making such determination, State Government has to bear in mind percentage of Town Committees with SC and ST as Chairman which should broadly be in conformity with the percentage of population of SC and ST in the State as a whole. Record does not disclose that this exercise was carried out while issuing the impugned notification dated 16.02.2015. The said notification it appears was issued hurriedly to overcome the situation created by there being no ST Ward Commissioners at Chapakhowa Town Committee. 37. There is one more aspect of the matter. As per Sub-Section (2) of Section 33, election of Chairman is an indirect election by the elected Ward Commissioners. Sub-Section (2) of Section 33 is quoted hereunder:- "(2) At the first meeting of the Municipal Board after a General Election called at the instance of the Deputy Commissioner or the Sub-Divisional Officer as the case may be, the Commissioners shall elect one from amongst the elected Commissioners to be the Chairman. Sub-Section (2) of Section 33 is quoted hereunder:- "(2) At the first meeting of the Municipal Board after a General Election called at the instance of the Deputy Commissioner or the Sub-Divisional Officer as the case may be, the Commissioners shall elect one from amongst the elected Commissioners to be the Chairman. The election shall be subject to the approval of the State Government but pending such approval the person elected shall be competent to discharge the duties of the Chairman: Provided that when the first meeting is dissolved by the President without transacting any business on ground of irregularity in the convening of the meeting the next meeting will be deemed to be the first meeting for the purposes of this section as well as for the purpose of Second Schedule." 37.1. Thus, Sub-Section (2) provides that at the first meeting, the elected Ward Commissioners shall elect one from amongst the elected Commissioners to be the Chairman. The crucial word appearing in Sub-Section (2) is 'elect'. 38. Chambers 21st Century Dictionary defines the word 'elect' to mean 'to choose someone to be an official or representative by voting; to choose something by vote, in preference to other options'. 'Election' has been defined to mean 'the process or act of choosing people for office, especially political office, by taking a vote; the act of electing or choosing'. 38.1. Black's Law Dictionary, Sixth Edition, defines the word 'Elected' as carrying with it 'the idea of a vote, generally popular, sometimes more restricted, and cannot be held the synonym of any other mode of filling a position'. On the other hand, the word 'Election' has been defined as 'the act of choosing or selecting one or more from a greater number of persons, things, courses or rights; the choice of an alternative'. It has also been defined to mean 'the selection of one person from a specified class to discharge certain duties in a state, corporation or society'. 39. Thus, the expression 'elect' or 'election' connotes choosing of one person from more than one by way of voting. Applying this definition to the Board, it is evident that there is no question of election of Chairman. In the Board, Ward No. 2 is reserved for ST. This is the only ward reserved for ST. 39. Thus, the expression 'elect' or 'election' connotes choosing of one person from more than one by way of voting. Applying this definition to the Board, it is evident that there is no question of election of Chairman. In the Board, Ward No. 2 is reserved for ST. This is the only ward reserved for ST. When the post of Chairperson is reserved for ST, it would mean that the moment a ST candidate is elected from Ward No. 2, his further election as Chairman of the Board becomes automatic he being the only ST Ward Commissioner, thus rendering the election of Chairman nugatory. This clearly contravenes the mandate of Sub-Section (2) of Section 33. Therefore, before a post of Chairman in a Municipality or Town Committee is reserved for SC or ST broadly conforming to their proportion of population to the general population in the entire State, provisions of Sections 33(1) and 33(2) of the 1956 Act are to be borne in mind by the State Government. This is the exercise which this Court wanted to examine when this Court directed production of record following hearing which took place on 05.06.2018. As noted above, record does not disclose any such exercise being undertaken. 40. In the light of the above, this Court finds force in the contention of the petitioner and accordingly impugned notification dated 16.02.2015 in respect of Goalpara Municipal Board is set aside and quashed. State of Assam in the Urban Development Department shall carry out the necessary exercise in terms of Article 243T(4) of the Constitution of India read with Section 33(1) and (2) of the 1956 Act, as amended, to reserve the post of Chairman in Municipal Boards and Town Committees in the State of Assam for ST having regard to the population of ST in proportion to the total population in the State of Assam. 41. Record produced by learned Govt. Advocate is returned back. 42. Writ petition is allowed but without any order as to costs.