Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 775 (GAU)

Begum Afrooja Perveen v. State of Assam

2019-06-20

UJJAL BHUYAN

body2019
ORDER : 1. This order will dispose of both WP(C) No. 1434/2019 and WP(C) No. 1632/2019. 2. Heard Mr. K.N. Choudhury, learned senior counsel assisted by Mr. J.M.A. Choudhury, learned counsel for the petitioner in WP(C) No. 1434/2019 and Mr. M.K. Choudhury, learned senior counsel assisted by Mr. SK Ghosh, learned counsel for the petitioner in WP(C) No. 1632/2019. Also heard Mr. M Nath, learned standing counsel, Panchayat and Rural Development Department, Assam and Mr. R Dhar, learned Government Advocate, Assam for Deputy Commissioner, Karimganj. 3. Matter relates to election to the post of President of Karimganj Zilla Parishad. Elections to zilla parishads and other panchayat bodies were held in the month of December, 2018. Both the petitioners were elected as members of Karimganj Zilla Parishad. Petitioner in WP(C) No. 1434/2019 is from No. 14, Nilambazar Constituency whereas petitioner in WP(C) No. 1632/2019 is from No. 16, Ratabari Constituency. 4. On 2.2.2019, Deputy Commissioner, Karimganj issued notice calling for first meeting of Karimganj Zilla Parishad (‘Zilla Parishad’) on 11.2.2019 for taking oath of members as well as for election of President and Vice President. 5. It is stated that insofar election to Vice President is concerned, one Sri Sankar Malakar got elected. Regarding election to the post of President, both the petitioners put up their candidature. It is stated that on counting of votes both the candidates got equal number of votes. To overcome the situation, it was decided to go for tossing of coin under rule 45 of the of the Assam Panchayat (Constitution) Rules, 1995 (Constitution Rules). It is stated that petitioner in WP(C) No. 1434/2019 chose tail symbol and the other petitioner chose head symbol. Deputy Commissioner, Karimganj conducted the toss. After tossing, the coin touched the side wall and chair before falling down on the ground of the conference hall. It is stated that all members had objected to the toss. On request of the members, Deputy Commissioner tossed the coin again for the second time as the first toss was not considered. This time after toss and after the coin fell flat on the ground, the tail face of the coin came out on top. Accordingly, petitioner of WP(C) No. 1434/2019 who chose tail was declared elected. However, minutes of the meeting held on 11.2.2019 were not prepared immediately. This time after toss and after the coin fell flat on the ground, the tail face of the coin came out on top. Accordingly, petitioner of WP(C) No. 1434/2019 who chose tail was declared elected. However, minutes of the meeting held on 11.2.2019 were not prepared immediately. Finally on 18.2.2019, Deputy Commissioner furnished a copy of the minutes shown to have been signed on 15.2.2019. As per the minutes, some members, including petitioner of WP(C) No. 1632/2019 had objected to the second toss. At this stage, it may be mentioned that petitioner in WP(C) No. 1434/2019 (referred to hereinafter as ‘the first petitioner’) belongs to the Indian National Congress whereas petitioner in WP(C) No. 1632/2019 (referred to hereinafter as ‘the second petitioner’) belongs to the Bharatiya Janata Party. Deputy Commissioner, Karimganj forwarded a detail report vide letter dated 15.2.2019 of the meeting held on 11.2.2019 to the Principal Secretary to the Government of Assam, Panchayat and Rural Development Department seeking necessary instruction. 6. Aggrieved by the aforesaid, first petitioner filed WP(C) No. 1434/2019 before this court assailing the reference of the dispute by the Deputy Commissioner to the Principal Secretary and seeking a direction to the respondents to accept the second toss as valid one and thereafter declare the first petitioner as elected for the post of President. 7. This court by order dated 1.3.2019 had issued notice and passed an interim order to the effect that no decision shall be taken by the Principal Secretary to the Government of Assam, Panchayat and Rural Development Department on the basis of letter dated 15.2.2019. 8. Affidavit-in-opposition was filed by Deputy Commissioner, Karimganj on 12.3.2019 denying that all the members of the Zilla Parishad had objected to the results of the first toss. Some of the members present, including MLA of North Karimganj Constituency had protested and challenged the decision based on first toss on the ground that it had touched the wall and the chair before touching the ground. There was great chaos inside the meeting hall. Apprehending law and order problem, Deputy Commissioner tosted up the coin for the second time when tail came out as a result of the toss. On seeing the tail face of the coin, members of Indian National Congress went out of the conference hall stating that their candidate, i.e., Begum Afruza Parvin (first petitioner) won the seat as a result of the toss. On seeing the tail face of the coin, members of Indian National Congress went out of the conference hall stating that their candidate, i.e., Begum Afruza Parvin (first petitioner) won the seat as a result of the toss. Subsequently, three members, namely, Sri Sanjit Paul, Shn Santilal Sinha and Shri Ashish Nath (second petitioner) submitted written objection to the second toss of the coin contending that it was illegal. Regarding belated signing of the minutes of the meeting held on 11.2.2019, Deputy Commissioner stated that he had to rush to Guwahati for some urgent official works and returned from Guwahati on 14.2.2019 which was the reason for the delay in signing the minutes. 9. First petitioner in her reply-affidavit has contested the stand taken by the Deputy Commissioner. Action of the Deputy Commissioner has been criticized as being biased and mala fide. Allegation of misuse of authority has also been raised. 10. Deputy Commissioner has filed an additional-affidavit on 1.4.2019 explaining the delay in signing the minutes of the meeting held on 11.2.2019. State Coordinator, National Register of Citizens (NRC) by letter dated 6.2.2019 had directed the Deputy Commissioner to make himself available in the office of the State Coordinator on 13.2.2019. It is stated that on 11.2.2019 in the evening, as he was proceeding to leave for Guwahati but because of visit of hon'ble Minister, Social Welfare and Soil Conservation, Assam in Karimganj, he as the Deputy Commissioner had to stay back and could leave for Guwahati only in the evening of 12.2.2019 for attending the programme on 13.2.1019. 11. In his writ petition, the second petitioner has stated that initially 19 elected members were present. However, at about 2 p.m., the absentee member, namely, Abdul Shukur, who was in custody in connection with Karimganj PS Case No. 116/2019, came to the meeting on being released by the Chief Judicial Magistrate. In the election, both the petitioners got equal number of votes, i.e., 10 each, whereafter recourse was made to rule 45 of the Constitution Rules. It is stated that on toss being made, the head face of the coin appeared but in the process, the coin had touched the wall and chair in the conference hall. First petitioner and her party men, including sitting MLA raised serious objection and pressurized the Deputy Commissioner for conducting a second toss; to which second petitioner and others lodged complaint. First petitioner and her party men, including sitting MLA raised serious objection and pressurized the Deputy Commissioner for conducting a second toss; to which second petitioner and others lodged complaint. Deputy Commissioner conducted the second toss but did not declare the result and instead, he referred the matter to the Principal Secretary to the Government of Assam, Panchayat and Rural Development Department for instruction. 12. No affidavit has been filed by any of the parties in this case. 13. Basic contention of Mr. K.N. Choudhury, learned senior counsel for the first petitioner is that the decision to go for second toss was an unanimous one as everybody had agreed that after the first toss touched the wall and the chair, it got vitiated. After the second toss when the first petitioner had called the toss correctly, i.e., when the tail face of the coin was visible, she should have been declared elected. As a matter of fact, first petitioner was congratulated by all concerned on that day. But the minutes were prepared belatedly. Mr. Choudhury, learned senior counsel submits that Deputy Commissioner had acted under extraneous consideration and had abdicated his responsibility. Referring to the decision of the Supreme Court in Purtabpore Co. Ltd. v. Cane Commissioner of Bihar, (1969) 1 SCC 308 , he submits that when an authority is conferred with a statutory power, it is he alone who is required to exercise that power. Therefore, it was the Deputy Commissioner who was required to exercise the power which was conferred on him. He could not have sought for the instruction of the Government. He, therefore, contends that based on the second toss, first petitioner should be declared elected. 14. Controverting the submissions of Mr. K.N. Choudhury, Mr. M.K. Choudhury, learned senior counsel for the second petitioner submits that there was no uniformity of decision to go for the second toss. As a matter of fact, the first toss was a valid one; just because the tossed coin touched the wall and a chair, it would not make the toss invalid. He submits that only because of hue and cry created by a few members and not all the members that the Deputy Commissioner decided to go for the second toss. Referring to rule 45 of the Constitution Rules, he submits that there is no provision for second toss. He submits that only because of hue and cry created by a few members and not all the members that the Deputy Commissioner decided to go for the second toss. Referring to rule 45 of the Constitution Rules, he submits that there is no provision for second toss. He would, therefore, contend that based on the result of the first toss, second petitioner should be declared as President of the Zilla Parishad. He has also referred to rule 57 of the Constitution Rules to contend that for removal of difficulties, Deputy Commissioner can seek instruction from the Government. 15. Mr. Nath, learned standing counsel supports the action taken by the Deputy Commissioner. He submits that because of the peculiar situation created, Deputy Commissioner thought it prudent to have the views of the Principal Secretary. But before Deputy Commissioner could take the final decision, the writ petition came to be filed. 16. Mr. R Dhar, learned Government Advocate representing Deputy Commissioner submits that Deputy Commissioner acted in the manner only to avert a possible and a serious breach of peace in the area. There was lot of hue and cry after the first toss, for which he decided to go for the second toss. To get clarification from the Government, he had sought for instruction under rule 57 of the Constitution Rules. Mr. Dhar has produced the record in original, including proceeding book of Karimganj Zilla Parishad. 17. Submissions made by learned counsel for the parties have received the due consideration of the court. 18. There is no dispute as to the narration of facts. Only dispute is relating to the need or necessity for the second toss and the validity of the second toss. 19. Before examining this aspect of the matter, it would be proper to refer to certain relevant provisions of the Assam Panchayat Act, 1994 (‘Panchayat Act’) and the Constitution Rules. 20. Section 64 of the Panchayat Act provides for establishment of Zilla Parishad. Sub-section (1) says that for every district there shall be a Zilla Parishad having jurisdiction over the entire district excluding Municipal areas, Town Committee, Cantonment, etc. 21. 20. Section 64 of the Panchayat Act provides for establishment of Zilla Parishad. Sub-section (1) says that for every district there shall be a Zilla Parishad having jurisdiction over the entire district excluding Municipal areas, Town Committee, Cantonment, etc. 21. Section 65 deals with constitution of Zilla Parishad; As per sub-section (1), Zilla Parishad shall consist of members who are directly elected from the territorial constituencies of the district, Presidents of the Anchalik Panchayats and Members of the House of People and the Members of the State Legislative Assembly representing a part or whole of the district whose constituencies lie within the district. Section 65(1)(i) deals with the first category of members. It says that Zilla Parishad shall consist of the members directly elected from the territorial constituencies of the district. Section 70 provides for election of President and Vice President of Zilla Parishad. Since election of Vice President is not an issue in this proceeding, the deliberation will only be confined to President. Sub-section (1) of section 70 of the Panchayat Act provides that when the Zilla Parishad is constituted under section 64, the Deputy Commissioner shall call a meeting of the Zilla Parishad which shall be called the first meeting of the Zilla Parishad for election of the President from amongst the members directly elected under section 65(1)(i). Pausing here for a moment, what is discernible is that under sub-section (1) of section 70, after a Zilla Parishad is constituted, the Deputy Commissioner shall call a meeting of the Zilla Parishad which shall be called the first meeting for election of President. President shall be elected by the members who are directly elected from the territorial constituencies of the district in terms of section 65(1)(i). 22. Rule 50 of the Constitution Rules deals with election of President and Vice President of Zilla Parishad. Procedure for conducting election is laid down therein. As per clause (9), in case of equality of votes in either of the said election, declaration of election shall be given by the Deputy Commissioner in the manner prescribed under rule 45. Clause (10) says that declaration as to the election to the offices of President and Vice President of the Zilla Parishad by the Deputy Commissioner shall be final provided any dispute arises in the said election. 23. Having noted the above, rule 45 may now be adverted to. Rule 45(1) reads as under:— “45. Clause (10) says that declaration as to the election to the offices of President and Vice President of the Zilla Parishad by the Deputy Commissioner shall be final provided any dispute arises in the said election. 23. Having noted the above, rule 45 may now be adverted to. Rule 45(1) reads as under:— “45. Equality of Votes. - (1) If after the counting of votes it appears that two candidates of whom only one is to be declared elected, having received equal number of votes, the Deputy Commissioner or the Sub-Divisional Officer as the case may be, or any Officer authorised by him in this behalf, shall decide which of the two shall be declared elected by tossing up a coin in presence of such candidates. Each candidate shall be assigned one side of the coin by him or by the Officer just before the toss. The candidate whose side appears visible at the top of the coin after it has fallen flat on any plain ground or table, shall be declared elected.” 24. A careful perusal of rule 45(1), would go to show that if after counting of votes, it appears that two candidates of whom only one is to be declared elected, having received equal number of votes, the Deputy Commissioner or the Sub-Divisional Officer, as the case may be, or any officer authorized by him in this behalf, shall decide which of the two shall be declared elected by tossing up a coin in presence of such candidates. Each candidate shall be assigned one side of the coin by him or by the officer just before the toss. The candidate whose side appears visible at the top of the coin after it has fallen flat on any plain ground or table, shall be declared elected. 25. From a cumulative reading of section 65(1)(i) and section 70 of the Panchayat Act read with rule 45 of the Constitution Rules, it is evident that when it comes to the election of President, it has to be from amongst the elected members. Only the elected members can vote and decide who amongst themselves shall be the President. In case of a tie in the voting, the Deputy Commissioner shall resolve the situation by tossing of coin in the presence of such ‘candidates’. Only the elected members can vote and decide who amongst themselves shall be the President. In case of a tie in the voting, the Deputy Commissioner shall resolve the situation by tossing of coin in the presence of such ‘candidates’. Each of the ‘candidates’ will be assigned one side of the coin and whoever calls correctly will be declared elected. 26. Without entering into the controversy regarding the first toss and the second toss as well as belated signing of the minutes of the meeting held on 11.2.2019, what is discernible from the materials on record is that in the meeting held for election of President on 11.2.2019 not only the elected members were present but there were other persons also, including MLA of North Karimganj Constituency. Insofar election of President or Vice President of Zilla Parishad is concerned, an MLA or MP has no role to play and their presence is not required in the meeting. Infact, they are to be elected by the elected members from amongst themselves. To that extent, presence of MLA or MP is prohibited. Deputy Commissioner, Karimganj committed an error in allowing the MLA to be present in the said meeting and thereafter allowing him to intervene in the proceedings of the meeting by raising objections here and there. That apart, language of rule 45(1) of the Constitution Rules is very clear which says that once there is equality of votes, the winner has to be decided by toss of coin which must be in the presence of such ‘candidates’. Such candidates in the context of rule 45(1) would mean only the candidates to the election of President or Vice President as the case may be. When the Deputy Commissioner decided to go for tossing, he ought to have ensured that other than the two candidates in fray, no person should have been allowed to remain in the meeting hall, besides himself or official representatives. By allowing the MLA of North Karimganj Constituency and other persons to be present in the meeting, he did not ensure that a proper ambience was maintained for tossing up of coin. In the considered opinion of the court, what transpired in the meeting held on 11.2.2019 and the subsequent decision taken by the Deputy Commissioner seeking instructions from the Government were totally beyond contemplation of section 70(1) of the Panchayat Act and rule 45(1) of the Constitution Rules. In the considered opinion of the court, what transpired in the meeting held on 11.2.2019 and the subsequent decision taken by the Deputy Commissioner seeking instructions from the Government were totally beyond contemplation of section 70(1) of the Panchayat Act and rule 45(1) of the Constitution Rules. 27. To that extent, Mr. K.N. Choudhury, learned senior counsel is right in pointing out the Deputy Commissioner had no business to seek instruction from the Government. He had to take a call in terms of the aforesaid provisions of law as discussed above. But as noticed above, what transpired in the said meeting was totally beyond the purview of the aforesaid provisions of law and in my view, completely vitiated the proceedings. 28. It has, therefore, become necessary to re-do the entire exercise once again from the stage of election of the President under section 70(1). If the election still results in a stalemate due to equality of votes, the Deputy Commissioner shall take resort to rule 45(1) of the Constitution Rules and if such an eventuality becomes a necessity, he shall ensure that other than the two candidates in fray, no one else, besides himself and other officials of his office are present in the venue. No person should be allowed to be present in the meeting venue or anywhere near the venue within a radius of 500 metres. Further, Deputy Commissioner, Karimganj shall ensure that there is proper security arrangement. 29. Let this meeting be convened within a period of 15 days from today and Deputy Commissioner, Karimganj shall ensure that full security is to be in place so that there is no breach of law and order. Proceedings of the meeting shall also be video graphed and preserved. Writ petition is disposed of in the above terms. No costs.