1. Mr. A. K. Sarma, Mr. B. Baruah, Mr. A. R. Bhuyan, Mr. S. Khound, Mr. H. Rahman, Mr. A. K. Hussain, and Mr. D. Hussain, learned counsel
appearing for the petitioners have advanced arguments on behalf of the petitioners and other learned counsel present for the petitioners have endorsed
the submissions as a whole. From the side of the Government, Mr. D. Mazumdar, learned Additional Advocate General, Assam, assisted by Mr. R.
K. D. Choudhury, learned Senior Government Advocate, and Ms. M. Bhattacharjee, learned State counsel, has addressed the court. I have also heard
Mr. N. Borah, learned Standing counsel, Assam State Election Commission.
2. The petitioners in this batch of 229 writ petitions are Panchayati Raj Institutions (PRIs) and, in some cases, elected Presidents/Members of PRIs.
This batch of writ petitions, essentially, raises a core question in relation to holding of election to the PRIs and as to who should discharge the duties
and functions of the PRIs in respect of which the five year term of the elected Members of the PRIs had come to an end. In some of the writ
petitions, specific prayers are made for issuing a writ of mandamus directing the respondents to hold election to the PRIs without any delay. In other
cases, without such a specific prayer, primarily, direction is sought for from the court to allow the existing elected bodies of the PRIs to continue till
such time the reconstitution of the PRIs is effected through the process of election. In some of the writ petitions, grievance is also expressed and
prayer is made for appropriate direction for making payment of honorarium to the Presidents/Members of the PRIs. In some of the writ petitions,
there is also a challenge to a Notification dated 03.03.2018, issued by the Commissioner and Secretary to the Government of Assam, Panchayat and
Rural Development Department, allowing the Deputy Commissioners or his authorized officers to officiate as the custodian of the property of Gaon
Panchayats/Anchalik Panchayats/Zilla Parishads after completion of the term and till completion of the election process, as well as to the
consequential orders passed by the Deputy Commissioners/Chief Executive Officers of the Zilla Parishads.
3. At the very outset, the prayer with regard to payment of honorarium being not intrinsically connected with the fundamental questions raised in these
writ petitions, a consensus is arrived at that said prayer will not be pressed in these writ petitions. The learned counsel for the petitioners submit that
liberty may be granted to such petitioners to approach this court again to seek relief in respect of payment of pending honourarium. Learned counsel
for the parties are also in agreement that the writ petitions can be disposed of at the admission stage.
4. In view of the consensus arrived at, this court is not adjudicating on the issue raised for grant of payment of honorarium, which, it is claimed, has not
been paid for long. Liberty is granted to such of the petitioners, who had prayed for direction to grant honorarium, to approach this court again seeking
redressal on that count. In view of the consensus noticed above, the writ petitions have been taken up for consideration for disposal at the admission
stage.
5. It will be appropriate to note that by way of interim orders passed in these writ petitions, the Notification dated 03.03.2018 and the consequential
orders passed by the Deputy Commissioners or Chief Executive Officers of the Zilla Parishads, as the case may be, were suspended and the existing
PRIs were allowed to function. However, the PRIs were restrained from taking any policy decision and incurring any expenditure from the funds
other than for the purpose of payment of salary to the staff and routine functions of the office without taking leave of the court.
6. Affidavit was filed in WP(C) 1368/2018, both by the State Government and the State Election Commission. Copies were furnished to the learned
counsel for the petitioners in the writ petitions.
7. Learned counsel for the petitioners, in unison, have submitted that the attending facts and circumstances of the cases would amply demonstrate that
there was a failure on the part of the State and the State Election Commission and that the ground, as projected in the affidavits that the ongoing
upgradation work of National Register of Citizens (NRC) is the primary reason for not being able to hold election, is not a genuine and valid ground
and, as such, the State and the State Election Commission had failed to discharge their Constitutional obligation to hold the election of the PRIs in time
8. It is submitted on behalf of the petitioners that in identical fact situation, this court, in WP(C) 6437/2006 (Uttar Dhemaji Gaon Panchayat and Ors.
vs. State of Assam and Ors.), decided on 25.05.2007, had allowed the Gaon Panchayats, Anchalik Panchayats and Zilla Parishads, whose five year
terms had expired, to function till the constitution of new Gaon Panchayats, Anchalik Panchayats and Zilla Parishads after election was held and,
therefore, in the instant cases, when the election is not held before expiry of the term in accordance with the mandate of Article 243E of the
Constitution of India, this court may direct the State to facilitate and the State Election Commission to hold election to the PRIs within a time-frame as
may be considered appropriate by this court and, till such time the election is held and new members take charge, the existing bodies should be allowed
to continue to discharge the duties and functions of PRIs. It is pointed out that as there is a failure on the part of the State and the State Election
Commission to hold election before the expiry of the duration, Article 243E(1) will not come in the way of continuation of the existing PRI bodies
beyond five years. Reliance is placed upon the judgements of the Supreme Court in the case of Kishansing Tomar vs. Municipal Corporation of the
City of Ahmedabad and Others, reported in (2006) 8 SCC 352, In the matter of Special Reference No. 1 of 2002 (Gujarat Assembly Election Matter),
reported in (2002) 8 SCC 237, The Tehsildar, Hinganghat and Another vs. Deorao and Others, reported in (1976) 1 SCC 761 and in the judgement of
the Karnataka High Court in the case of Prof. B. K. Chandrashekar and Another, etc. vs. State of Karnataka, reported in AIR 1999 Karnataka 461.
9. Though not on record, Mr. A. R. Bhuyan, learned counsel appearing on behalf of some of the petitioners has submitted that the State Government
had constituted certain committees to discharge certain functions and duties of the PRIs.
10. Mr. D. Mazumdar, learned Additional Advocate General, Assam, at the very outset, has submitted that the reliance placed on the judgement in
Uttar Dhemaji Gaon Panchayat (supra) is misconceived as the facts of the present batch of writ petitions and that in the said case are distinguishable
as, in the said case, there was an admitted failure of the State and the same was acknowledged by the State in the court, which is not the case in the
cases at hand and, therefore, the directions contained therein may not bind this court. He has submitted that each case has to be seen in the singular
facts presented before the court. It is submitted by him that when the State has done all that which is within its power and control and is unable to
provide necessary manpower and staff to the State Election Commission for the purpose of holding election, it cannot be construed that the State was
not interested in holding election for any extraneous consideration. Elaborating further, Mr. Mazumdar submits that a large portion of manpower
available is deployed and engaged in the NRC upgradation work, which is taken up only in the State of Assam in the entire country after 1951. He has
submitted that there is a clear mandate of the Supreme Court of India to complete the ongoing NRC upgradation work by 30.06.2018 and it was also
made clear in the order dated 20.02.2018, passed by the Supreme Court in WP(C) 274/2009 (Assam Public Works vs. Union of India and Ors.) that
holding the Local Body/Municipal/Panchayat election in the State of Assam will not be at the cost of upgradation/preparation of the final draft NRC
and that the preparation/upgradation of the final draft NRC will continue as before with full deployment of manpower. NRC upgradation work is
expected to be completed by 30.06.2018 and, thereafter, it will be possible on the part of the State to give all assistance, including providing of
necessary manpower, to the State Election Commission for holding election smoothly. The will of the Government to hold the election is manifest from
the fact that the Government had allotted funds to the State Election Commission way back in the month of March, 2018, he submits. He further
submits that if, at all, any further fund is required, the State Government will also do the needful so that there is no undue delay in holding election after
30.06.2018. Abiding by the stand taken in the affidavit, it is submitted by Mr. Mazumdar that Rule 4 of the Assam Panchayat (Constitution) Rules,
1995, does not allow delegation of any power vested upon the Deputy Commissioner and the Sub-Divisional Officer (Civil) having a bearing on
election of the Members of the PRIs. He also submits that having regard to the mandate of Article 243E, it will be wholly impermissible to allow the
PRI bodies, whose term of five years had already expired from the date appointed for its first meeting, to continue further as such bodies, in terms of
the provisions contained in Article 243E (1) of the Constitution, can continue only for five years from the date appointed for its first meeting and no
longer, more so, when no deliberate inaction can be attributed to the State for not facilitating holding of election by the State Election Commission.
Drawing attention of the court to Section 125 of the Assam Panchayat Act, 1994 (for short, “Panchayat Actâ€), learned Additional Advocate
General submits that it is permissible in certain contingencies to allow such person(s), as the Government may decide to appoint, to exercise and
perform all the powers and duties of the PRIs and, therefore, the role of the Government in PRIs is not alien to the concept enshrined in the Act.
11. Mr. N. Borah, learned Standing counsel, State Election Commission, Assam, has submitted that the Election Commission had taken up the issue of
holding of Panchayat Election in right earnest from the month of August, 2017 by way of issuing a letter to the Chief Secretary to the Government of
Assam, intimating him that the Panchayat Election is due to be held between December 2017 to February, 2018. In a meeting held on 16.09.2017,
which was attended to, amongst others, by the State Election Commissioner and the Chief Secretary to the Government of Assam, it was decided to
hold Panchayat Election before commencement of High School Leaving Certificate Examinations (HSLC) and Higher Secondary School Leaving
Certificate Examinations (HSSLC), which were likely to commence from the third week of February, 2018. Proposal was mooted by the State
Election Commission to hold Panchayat Election in two phases. However, subsequently, suggestions had come from the Police Department that it
would be advisable to hold the election in three phases. He has submitted that Electoral Roll, etc., had already been prepared and, after assistance is
given in the form of manpower by the State Government after 30.06.2018, there should not be any difficulty on the part of the State Election
Commission to hold and complete the election process by 15.09.2018. He submits that the State Election Commission had also approached the
Hon’ble Supreme Court of India, by way of filing an Interlocutory Application in Assam Public Works (supra), praying for direction to the effect
that the officers and staff of the State Government, as required by the State Election Commission, would attend to Panahcyat Election duties without
affecting the primacy and priority to the upgradation work of the NRC and also for a direction for effective coordination between the functionaries of
the Government as and when the Election Commission issues Panchayat Election notification. He submits that only the Deputy Commissioner,
Kamrup (Metro), Deputy Commissioner, Majuli, SDO (Civil), Jonai and SDO (Civil), Dhakuakhana, had reported availability of officials and staff to
conduct the Panchayat Election, but all other Deputy Commissioners and SDOs (Civil) had intimated shortage of officials and staff for conduct of the
Panchayat Election.
12. I have considered the submissions of the learned counsel for the parties and have perused the materials on record.
13. Part-IX of the Constitution, dealing with Panchayats, was inserted in the Constitution by virtue of the Constitution (Seventy-third Amendment) Act,
1992. Article 243B of the Constitution of India provides for constitution of Panchayats at the village, intermediate and district levels. However,
Panchayats at the intermediate level are not necessary to be constituted in a State having a population not exceeding twenty lakhs in terms of Article
243B
(2). Duration of a Panchayat, etc. is provided in Article 243E and it will be appropriate that the entire provision is quoted for proper appreciation,
which is as under:
“243E. Duration of Panchayats, etc.
(1) Every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its
first meeting and no longer.
(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Panchayat at any level, which is functioning
immediately before such amendment, till the expiration of its duration specified in clause (1)
(3) An election to constitute a Panchayat shall be completed
(a) before the expiry of its duration specified in clause (1);
(b) before the expiration of a period of six months from the date of its dissolution: Provided that where the remainder of the period for which the
dissolved Panchayat would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the
Panchayat.
(4) A Panchayat constituted upon the dissolution of a Panchayat before the expiration of its duration shall continue only for the remainder of the period
for which the dissolved Panchayat would have continued under clause (1) had it not been so dissolved.â€
14. Clause (1) of Article 243E envisages that the tenure of the Panchayat shall be five years from the date appointed for its first meeting and shall
continue no longer than that. Clause (3) of Article 243E states that election to constitute a Panchayat shall be completed â€
(a) before expiry of the duration specified in Clause (1) and (b) before the expiration of a period of six months from the date of its dissolution.
Therefore, the Constitutional mandate is that election to a Panchayat shall be completed before the expiry of five years period stipulated in Clause (1)
of Article 243E and, in case of dissolution, as provided in Clause (4), the new body constituted upon the dissolution of a Panchayat before the
expiration of its duration shall continue only for the remainder of the period for which the dissolved Panchayat would have continued under Clause (1)
had it not been so dissolved. A proviso is added to Clause (3) of Article 243E to the effect that in case of dissolution, where the remainder of the
period for which the dissolved Panchayat would have continued is less than six months, it shall not be necessary to hold any election under this clause
for constitution of the Panchayat for such period. Thus, the stated object of Article 243E is continuity of the Panchayat bodies regulating the tenure.
15. Article 243K of the Constitution of India recognizes independent status of the State Election Commission. It states that upon a request made in
that behalf, the Governor shall make available to the State Election Commission such staff as may be necessary for the discharge of the functions
conferred on the State Election Commission by Clause (1). Thus, in the matter of conduct of election, on receipt of letters from the State Election
Commission, the State Government concerned shall have to render full assistance and co-operation to the State Election Commission in order to
ensure that free and fair election is conducted.
16. The Panchayat Act, which came into effect from 06.05.1994, defines Panchayati Raj Bodies in Section 2(7) to mean Gaon Panchayat, Anchalik
Panchayat and Zilla Parishad. Section 5 of the Panchayat Act deals with establishment of Gaon Panchayat. Similarly, Section 31 and Section 64
provide for establishment of Anchalik Panchayat and Zilla Parishad, respectively. Duration of Gaon Panchayat, Anchalik Panchayat and Zilla
Parishad is laid down in Section 7, 35 and 68, respectively, of the Panchayat Act. While Section 7 and 35 provide that every Gaon Panchayat and
Anchalik Panchayat, save and otherwise provided in the Act, shall continue for a term of five years from the date appointed for its first meeting,
Section 68 provides that except as provided in the Act, Zilla Parishad shall continue for a period which shall not exceed five years from the date of
holding the first meeting.
17. Section 114(1) of the Panchayat Act, in tune with the Constitutional provision, provides that the superintendence, direction and control of the
preparation of electoral roll and the conduct of all election to the Panchayat, shall be vested in a State Election Commission consisting of a State
Election Commissioner to be appointed by the Governor. Section 114(3) provides that the Government shall, when so requested by the State Election
Commissioner, make available to the State Election Commissioner such staff as may be necessary for the discharge of the functions conferred on the
State Election Commissioner under the Panchayat Act.
18. In paragraph 14, 19 and 21 of Kishansing Tomar (supra), the Supreme Court held as follows:
“14. So, in any case, the duration of the Municipality is fixed as five years from the date of its first meeting and no longer. It is incumbent upon the
Election Commission and other authorities to carry out the mandate of the Constitution and to see that a new Municipality is constituted in time and
elections to the Municipality are conducted before the expiry of its duration of five years as specified in Clause (1) of Article 243-U.
*** *** ***
19. From the opinion thus expressed by this Court, it is clear that the State Election Commission shall not put forward any excuse based on
unreasonable grounds that the election could not be completed in time. The Election Commission shall try to complete the election before the
expiration of the duration of five years' period as stipulated in Clause (5). Any revision of electoral rolls shall be carried out in time and if it cannot be
carried out within a reasonable time, the election has to be conducted on the basis of the then existing electoral rolls. In other words, the Election
Commission shall complete the election before the expiration of the duration of five years' period as stipulated in Clause (5) and not yield to situations
that may be created by vested interests to postpone elections from being held within the stipulated time.
*** *** ***
21. It is true that there may be certain man-made calamities, such as rioting or breakdown of law and order, or natural calamities which could distract
the authorities from holding elections to the Municipality, but they are exceptional circumstances and under no circumstance the Election Commission
would be justified in delaying the process of election after consulting the State Govt. and other authorities. But that should be an exceptional
circumstance and shall not be a regular feature to extend the duration of the Municipality. Going by the provisions contained in Article 243-U, it is
clear that the period of five years fixed thereunder to constitute the Municipality is mandatory in nature and has to be followed in all respects. It is only
when the Municipality is dissolved for any other reason and the remainder of the period for which the dissolved Municipality would have continued is
less than six months, it shall
not be necessary to hold any elections for constituting the Municipality for such period.â€
19. In Gujarat Assembly Election Matter (supra), the Supreme Court stated as follows:
“The impossibility of holding the election is not a factor against the Election Commission. The maxim of law impotentia exusat legem is intimately
connected with another maxim of law lex non cogit ad impossibilia. Impotentia excusat legem is that when there is a necessary or invincible disability
to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform.
Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law
will in general excuse him."" Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible
by circumstances over which the persons interested had no control, like the act of God, the circumstances will be taken as a valid excuse. Where the
act of God prevents the compliance of the words of a statute, the statutory provision is not denuded of its mandatory character because of
supervening impossibility caused by the act of God. (See Broom's Legal Maxims 10th edition at pp. 1962- 63 and Craies on Statute Law 6th Ed. P.
268). These aspects were highlighted by this Court in Special Reference 1 of 1974 (supra). Situations may be created by interested persons to see that
elections do not take place and the caretaker government continue in office. This certainly would be against the scheme of the Constitution and the
basic structure to that extent shall be corroded.â€
20. In Prof. B. K. Chandrashekar and Another (supra), the Karnataka High Court had relied upon an order passed by the Supreme Court on
12.08.1997, in WP(C) 791/95. The same reads as follows:
“Before we part, we may, however, indicate that 73rd Amendment of the Constitution was made with the stated object of the continuity of the
Panchayat bodies regulating the tenure. Article 243-E of the Constitution envisages that the tenure of the Panchayat shall be five years from the date
appointed for its first meeting and shall continue no longer than that. Even a Panchayat constituted upon premature dissolution of the earlier one, shall
not continue beyond the tenure of five years. Article 243-E also provides that election of Panchayat shall be held before the expiry of the said tenure
of five years or within six months of its dissolution as the case may be. In order to ensure holding of election of Panchayats, Article 243-E of the
Constitution provides that laws relating to Panchayats in the States inconsistent with the 73rd Amendment shall continue in force only for a year from
the commencement of Seventy-third Amendment unless the competent legislature has repealed or suitably amended such laws in the meantime. It is
necessary to emphasize that various clauses of Article 243 are to be followed in letter and spirit. The concerned States cannot be permitted to
withhold election of Panchayats except in cases of genuine supervening difficulties to hold such election e.g. unforeseen natural calamities in the State
like flood, earthquake etc. or extremely urgent situation prevailing in the State for which election of the Panchayats cannot be held within the
timeframe. It will be unfortunate if the concerned States remain insensitive to the constitutional mandate of holding election of Panchayats in time and
by unjustified action, allows old bodies to continue in the office of the Panchayats. We hope and trust that the State Government will be alive and
sensitive to the duties and responsibilities flowing from the mandates of the Constitution in holding Panchayat elections"".
In the facts of the case, the Karnataka High Court directed the State Election Commission to hold the election to the Panchayats within a period of six
weeks from the date of the judgement holding that no situation had emerged because of which it could be said that election of the Panchayat could not
be held within the time frame.
21. The Tehsildar, Hinganghat and Another (supra) is a case dealing with the Bombay Village Panchayat Act, 1958 prior to insertion of Part-IX of the
Constitution of India. In the said case, the Supreme Court of India, on an analysis of the provisions of Section 7 and 28 of the said Act, held that the
scheme of the Act is that ordinarily and generally fresh election for filling up the office of the members of the Panchayat should be held before the
expiry of their term as provided in Sub-section (1) of Section 27 or within the term extended under Sub-section (2). Sub-Section (2) of Section 28, by a
deeming provision, extends the term of the office of the outgoing members to the day before the meeting called and held in accordance with Sub-
section (1). As the fresh election held was set aside and no meeting was held, the Supreme Court held that the term of the office of the outgoing
members stood extended and did not expire until the day before the holding of the meeting of the duly elected members. The proposition laid by the
court will not be of much assistance in the light of the present controversy which has to be decided on the touchstone of Constitutional amendments
brought about by insertion of Part-IX of the Constitution of India.
22. It is, thus, clear that in any case, the duration of the Panchayat is fixed as five years from the date of its first meeting and no longer and it is
incumbent upon the Election Commission and the State to carry out the mandate of the Constitution and to see to it that PRIs are constituted in time
and elections are conducted before the expiry of the duration of five years as specified in Clause (1) of Article 243E. There may be, however, genuine
supervening difficulties to hold election, such as, unforeseen natural calamities like flood, earthquake, etc., break down of law and order or extremely
urgent situation prevailing in the State for which election of the PRIs cannot be held within the time-frame. It is only in exceptional circumstances, a
State or the Election Commission may be justified in not holding election in due time. The law does not compel one to do which one cannot possibly
perform. When performance of obligations prescribed by a statute, which is mandatory in character, is rendered impossible by circumstances over
which the person or authority has no control, the circumstances can be taken as a valid and lawful excuse. This, however, does not negate the
mandatory character because of supervening impossibility. However, one must guard against situations that may be created by human contrivance to
see that elections do not take place. It needs no emphasis that Clauses of Article 243E are to be followed in letter and spirit and the State and the
Election Commission remain alive to the duties and obligations mandated by the Constitution to hold Panchayat election.
23. In WP(C) Uttar Dhemaji Gaon Panchayat (supra), the State Government and the State Election Commission had taken contradictory stands.
While the State attributed the failure to hold the election to the State Election Commission, the State Election Commission countered and stated that
the State respondents had failed to release fund for holding the election. In paragraph 13, the court held as follows:
“13. Mr. A. K. Phukan, learned Advocate General appearing for the State Government as well as Mr. N. Medhi and Mr. M. U. Mahmud, learned
counsel appearing for the State Election Commission submit that the constitutional authorities like the State Election Commission and also the State
Government are duty bound to carry out the mandate of the Constitution under Article 243E of the Constitution of India to hold election to constitute
Gaon Panchayat, Anchalik Panchayat and Zilla Parishad before the expiry of the duration and, therefore, they are admitting the failure of the State
Government and State Election Commission to fulfill the mandate of the Constitution to hold the election for constitution of Gaon Panchayats, Anchalik
Panchayats and Zilla Parishads before the expiry of the term. But the core question in the present cases is that who would be the appropriate
authority to function the Gaon Panchayat, Anchalik Panchayat and Zilla Parishad in the interregnum i.e. the period from the date of dissolution of the
Panchayats and the Zilla Parishads to the date of the constitution of new Gaon Panchayats and Zilla Parishads after completion of the election in
compliance with the mandate of the Constitution of India. In the present case, admittedly, all the Gaon Panchayats, Anchalik Panchayats and Zilla
Parishads are not dissolved for the fault of the concerned Panchayat and the Zilla Parishad under Section 12(i) of the Assam Panchayat Act, 1994 but
the dissolution was because of the failure on the part of the State Government and the State Election Commission to perform their duties to fulfill the
mandate of the Constitution of India to hold election to constitute the Gaon Panchayat, Anchalik Panchayat and Zilla Parishad before the expiry of
duration i.e. within five years from the date of their first meeting. Therefore, the State Government by taking the advantage of their own wrong cannot
take over the functioning of all the Gaon Panchayats, Anchalik Panchayats and Zilla Parishads through their employees till the constitution of the new
Gaon Panchayats, Anchalik Panchayats and Zilla Parishads after completion of the election. It is well settled principle of law that no one can take the
advantage of his own wrong. Reference to be made to the decision of the Kerala High Court (Full Bench) in Kanakku Kumara Pillai Thanu Pillai v.
Mathevan Mathevan of Aravamkadu Karakkattu Madathu Veedu and Anr., reported in MANU/KE/0040/1963: air 1963 Ker 179 and the decision of
Amrik Singh and Ors. v. Union of India and Ors., reported in MANU/SC/0445/1980: [1980] 3SCR 485 wherein the Apex Court held that if there was
any administrative lapses the concerned employee could not be victimized.â€
24. Thus, from a perusal of the above judgement, it is seen that there was a failure on the part of the State to perform its duties to fulfill the mandate
of the Constitution of India to hold election to constitute Gaon Panchayats, Anchalik Panchayats and Zilla Parishads before the expiry of the duration.
Paragraph 10 of the above judgement shows that the State Election Commission had taken a stand in the affidavit that even fund for holding election
was not provided by the State. In view of such failure of the State Government, this court held that the State, by taking advantage of its own wrong,
cannot take over the functioning of the PRIs through their employees till constitution of new Gaon Panchayats, Anchalik Panchayats and Zilla
Parishads after completion of the election. On the above premises, while directing the State Election Commission to fix a date for holding election to
all the Gaon Panchayats, Anchalik Panchayats and Zilla Parishads, also directed the State respondents to fulfill the requirements of the State Election
Commission for the discharge of its functions, including holding of election. At paragraph 14 of the judgement in Uttar Dhemaji Gaon Panchayat
(supra), following directions were issued:
“(a) The State Election Commission as contemplated under Article 243K of the Constitution of India and the Section 114 of the Assam Panchayat
Act, 1994 is to function independently of the State Government in the matter of their power of superintendence, direction and control and conduct of
all the election to all the Gaon Panchayats, Anchalik Panchayats and Zilla Parishads.
(b) The State Election Commission has to fix the date for holding election to all the Gaon Panchayats, Anchalik Panchayats and Zilla Parishads.
(c) The State respondents are to fulfill the requirements of the State Election Commission as may be necessary for the discharge of the functions of
the State Election Commission for holding election to all Gaon Panchayats, Anchalik Panchayats and Zilla Parishads.
(d) The Gaon Panchayat, Anchalik Panchayat and Zilla Parishad whose terms had expired because of the failure on the part of the State respondents
and the State Election Commission to fulfill the mandates of the Constitution to hold the election before the expiry of their terms shall be allowed to
function till the constitution of the new Gaon Panchayats, Anchalik Panchayats after completion of the election but they are not allowed to take any
major policy decision, make any expenditure from the funds other than the payment of salaries of the staffs and routine function of the office without
the permission of this Court.
(e) All the elections to the Gaon Panchayats, Anchalik Panchayats and Zilla Parishads shall be completed on or before 31.10.2007.â€
25. As, admittedly, the Panchayat election is not held as mandated under Article 243E of the Constitution, it will be necessary to see as to whether
there was a failure on the part of the State and the State Election Commission to hold election without any justifiable reason or whether there are
exceptional circumstances because of which the Constitutional mandate could not be fulfilled.
26. For a conclusion to be reached, it will be necessary to take note of the stand taken in the affidavit of the State Election Commission as well as of
the State Government. It will be appropriate to reproduce the following paragraphs (without reference to the Annexures) of the affidavit filed by the
State Election Commission:
“2. I. That it is stated that in the meanwhile keeping in view the tentative Election Schedule (i.e. to complete the Panchayat election before
15.02.2018) the State Election Commission went ahead with the following preliminary works, relating to conduct of the ensuing Panchayat Election -
a) Preparation of the Electoral roll for the Panchayat Election was taken up. Notification for such Electoral Roll was issued vide No. SEC.
24/2017/Pt-I.180 dt. 09.10.2017 and No. SEC. 24/2017/Pt-III/7 dt. 16.10.2017 and the Final Electoral Roll was published by the respective DC and
SDO(C) on 28.12.2017 except district of Barpeta, where the Final
b) The reservation for SC, ST communities and women in the PRI Constituencies at different level were taken up as per relevant provision of Assam
Panchayat Act and Rules. Instructions were issued to the concerned DCs and SDO(C)s to take up the job of reservation as per relevant provision of
the Act and Rules and guidelines issued by the State Election Commission vide No. SEC. 59/2017/8 dated 25.10.2017.
c) The Election is to be conducted using Ballot Boxes only. DCs and SDO(C)s were instructed to take up repair of the Ballot Boxes and to get ready
with requisite no. of Ballot Boxes.
J. That as regards other preparations, the State Election Commission has procured the paper for printing of Ballots, took steps for procurement of
Indelible Ink, Metal Seal, Arrow Cross Mark, which have been indented after the due formalities. In the field level also, the DCs and SDO(C)s too
have gone ahead with printing of Electoral Rolls, forming various cells etc.
K. That it is humbly stated that the State Election Commission had also held a meeting on 05.12.2017 with the recognized Political Parties of the State
to apprise them about the latest status on election preparedness by the Commission for the ensuing Panchayat Election. In the said meeting, in
response to the appraisal given by the State Election Commissioner on preparation for the Election, all the political parties unanimously requested that
election should be held as per tentative plan of the State Election Commission i.e. to complete the Election process before 15.02.2018.
L. That it is humbly stated that while the State Election Commission was fully prepared to conduct the Panchayat Election in time, the vital response
from the State Govt. i.e., from the Panchayat & Rural Development Department (as referred in para H above) has not reached the Commission as
yet. Therefore, although the State Election Commission, being obligated by the Constitution of India and other relevant provisions of the Assam
Panchayat Act and Rules to conduct the Panchayat Election in time, having initiated all the steps for holding the Panchayat Election before completion
of 5 years term of the existing PRI bodies, could not issue necessary notification for holding the said Election i.e. to complete the Election process
before 15th of February, 2018.
M. That the Commission’s initial plan of holding the Panchayat Election before 15th February, 2018 i.e. before commencement of the examination
schedule ran out of time, as it was necessary to have a minimum 50 days to complete the entire process of election to be conducted in 3 (three)
phases. The Election process starts on the day of Election Notification and ends on the day of completion of counting. The HSLC
Exam conducted by the SEBA commenced from 16.02.2018 and concluded on 08.03.2018. The HSSLC Exam conducted by the AHSEC commenced
from 23rd February, 2018 and concluded on 22nd March, 2018. It was practically not possible to conduct the Panchayat Election during the exam
schedule as most of the schools and colleges to be used as polling stations, cannot be spared due to the ongoing examinations. In view of the
constraint, as an alternative slot for holding the Panchayat Election, the Commission identified the period in between 3rd week of March, 2018 and
April, 2918, i.e. after the examination schedules were over.
*** *** ***
O. That the Commission, thereafter, issued a letter to the Chief Secretary, Assam, vide No. SEC. 24/2017/Pt-1/226 dated 06.01.2018 conveying its
intention to the State Govt. to hold the Election in between March, 24 and April 2018 and requested the Govt. to render all necessary assistance and
cooperation to the State Election Commission.
P. That in response to the aforesaid letter dated 06.01.2018, the Commissioner and Secretary to the Govt. of Assam, Panchayat & Rural
Development Department, responded vide its letter dated 12.03.2018 to the effect that as per the letter dated 01.03.2018 issued by the State
Coordinator, National Register of Citizens, Assam, wherein it was stated that as per the order of the Hon’ble Apex Court dated 20.02.2018 the
officials deployed in NRC works cannot be disturbed, and would not be available for carrying out the duties of Panchayat election even on a partial
basis. In the same letter dated 01.03.2018, as above mentioned, the State Coordinator, NRC, also conveyed that the Deputy Commissioners, Sub-
Divisional Officers, Additional Deputy Commissioners, Assistant Commissioners deployed as DMAOs cannot be deployed for Panchayat Election
works as it will ‘interfere’ with the NRC updates works and may amount to contempt of the order of the Hon’ble Supreme Court dated
20.02.2018.
Q. That in view of the above situation, the Commission sent a letter vide No. SEC. 24/2017/Pt-V/19 dated 12.03.2018 to the Chief Secretary, Govt. of
Assam, intimating the fact that as many Deputy Commissioners have intimated their difficulties to conduct the Panchayat Election in view of the
instructions from the State Coordinator, NRC, purportedly, in view of orders of the Hon’ble Supreme Court to not deploy Govt. staff in Panchayat
Election duties, and requested the Govt. to entrust the Divisional Commissioners, Range DIGs and other Senior Govt. officials to co-ordinate and guide
the DCs, SPs and SDOs in the matter of staff engagements in conduct of the ensuing Panchayat Election as and when the applicant Commission
issues Election notification.
S. That, thereafter, the State Election Commissioner filed a Miscellaneous Petition in the Hon’ble Supreme Court seeking clarification in the
matter, which came up for hearing in the Hon’ble Supreme Court on 27.03.2018. The Hon’ble Supreme Court, in the aforesaid ordersinter alia
held that,
“……………. This Court, in its previous order dated 20th February, 2018, had made it absolutely clear that while Local
Body/Municipal/Panchayat elections will be held as per the plans and schedule to be drawn up by the State Election Commission, the exercise of
holding such election will not cause any impediment in the work of upgradation of NRC and the manpower of the State Government currently engaged
in the work of upgradation of NRC will not be replaced or substituted in any manner. While reiterating the aforesaid direction and also taking note of
the submissions advanced by Shri Tushar Mehta, learned Additional Solicitor General appearing for the State of Assam on the strength of Rule 3(b) of
the Assam Panchayat (Constitution) Rules, 1995, we, however, permit the State Government to take the services of one Additional Deputy
Commissioner in each district who may be currently engaged in the NRC work and deploy the said officer in each district for work connected with the
Panchayat Elections…â€
T. That, pursuant to the aforesaid orders of the Hon’ble Supreme Court, a meeting was held in the Conference hall of the office of the Chief
Secretary, Assam, on 31.03.2018 which was attended by the State Election Commissioner; Secy., Assam State Election Commission and Senior Govt.
officials for discussion regarding conduct of the Panchayat Election in the light of orders of the Hon’ble Supreme Court dated 27.03.2018.
U. That the State Election Commissioner, Assam also held a Video Conference on 07.04.2018 with the DCs and SDO(C)s in the matter of availability
of Govt. officials and staff for Panchayat Election duties subject to orders of Hon’ble Supreme Court not to deploy NRC engaged Govt. officials
in Panchayat Election duties. The same was also attended by the Commissioner & Secy. to the Govt. of Assam, P&RD Deptt. The State Election
Commissioner requested all DCs/SDO(C)s to furnish the position of availability of Govt. staff & officials in their respective Districts/Sub-Divisions, as
per format to be issued by the State Election Commission.
The State Election Commission issued the format to the DCs/SDO(C)s vide No. SEC. 24/2017/Pt-V/116 dated 07.04.2018.
U.1. That the Deputy Commissioners and Sub-Divisional Officers have in the meantime intimated the position as regards availability or shortage of
officials in their respective jurisdiction for conduct of ensuing Panchayat Election. Out of all the DCs and SDOs, only DC, Kamrup (M), and DC,
Majuli, SDO(C) of Jonai and SDO(C), Dhakuakhana have reported availability of officials sufficient to conduct the Panchayat Election. Barring them
all DCs and SDOs have intimated shortage of officials and staff for conduct of the Election.
The said position on availability/shortage of officials and staff have in the meantime been forwarded to the State Govt. for further necessary action
etc. vide letter No. SEC. 30/2018/3 dated 23.04.2018.
V. That the State Election Commission also being unsure whether conduct of Election without the involvement of the statutory authorities viz. the DC
and SDO as per the Assam Panchayat (Constitution) rules, 1995, would be legally tenable has referred the matter to the State Govt. for seeking views
of LR and Advocate General, Assam, on the aforesaid issue, vide Commission’s letter No. SEC. 24/2017/Pt-V/119 dated 11.04.2018.
It is relevant to mention that as per Rule 16, 17, 18, 22, 26, 34, 44(1), 44(7) of the Assam Panchayat (Constitution) Rules, 1995 (amended up to date)
the respective DCs or the SDOs as the case may be, are required to perform duties and responsibilities as per the aforesaid provision of law. Further
Rule 4 of the aforesaid Rules stipulates that â€
“The Deputy Commissioner or Sub-Divisional Officer, as the case may be, shall not delegateany of his powers having bearing on Election of the
Members of the GP, AP and ZP.â€
W. That, the State Govt. has in the meantime sanctioned and released fund for conduct of Panchayat Election to the different DDOs as mentioned
below:
i) for DCs and SDO(C)s                       - Rs. 96,08,20,000. 00
ii) for SPs                                            - Rs. 42,58,20,905. 00
iii) for State Election Commission        - Rs. 11,25,05,000. 00
___________________________________________________
Total               - Rs.149,91,45,905. 00â€
27. A perusal of the above paragraphs of the affidavit of the State Election Commission goes to show that the Final Electoral Roll was published in the
month of December, 2017; constituencies for reservation for SC, ST and Women had been identified; papers for printing of Ballots had been procured
and indelible ink, metal seal, etc. had been indented. Discussions were also held with all political parties who unanimously responded favourably to the
tentative plan of the State Election Commission to complete the election process before 15.02.2018. The State Government had sanctioned and
released a sum of Rs. 149,91,45,905.00 (Rupees one hundred forty-nine crores ninty-one lakhs forty-five thousand nine hundred and five) only for the
purpose of conduct of Panchayat election. In view of difficulties expressed by the Commissioner and Secretary to the Panchayat and Rural
Development Department to spare Government officials and staff from the ongoing NRC upgradation work for the purpose of holding election, the
State Election Commissioner independently requested all Deputy Commissioners/Sub-Divisional Officers (C) to furnish position of availability of
Government staff and officials in their respective districts/sub-divisions. It is to be noted that barring the Deputy Commissioner, Kamrup (Metro);
Deputy Commissioner, Majuli; SDO (Civil), Jonai and SDO (Civil), Dhakuakhana, all others had intimated shortage of officials and staff for conduct of
the Panchayat election in view of the ongoing NRC upgradation work.
28. It will be appropriate to take note of the stand taken in the affidavit (without reference to the Annexures) of the State. In paragraph 6, it is stated
as follows:
“6. That with reference to paragraph Nos. 7 and 8, the deponent begs to submit that the inability of the State Government in holding the Panchayat
Election within the stipulated time is not with any mala fide intention, but due to extremely urgent situation that has emerged on account of upgradation
of the National Register of Citizens and the deadline fixed by the Hon’ble Supreme Court for NRC verification by 31.05.2018. It may be
mentioned that manpower necessary for the holding of Panchayat election is busy with the NRC works. Further, the Hon’ble Supreme Court by
its order dated 20.02.2018 had made it clear that the manpower of the State Government currently engaged in the works of upgradation of NRC will
not be replaced or substituted in any manner. Thereafter, the Assam State Election Commission preferred I.A. No. 43257 of 2018 in WP(C) 274 of
2009 before the Hon’ble Supreme Court of India. By order dated 27.03.2018, the Hon’ble Supreme Court was pleased to permit the State
Government to take the services of only one Additional Deputy Commissioner in each district who may be currently engaged in the NRC work and
deploy the said officer in each district for work connected with Panchayat elections. It may be apposite to refer to Rule 4 of the Assam Panchayat
(Constitution) Rules, 1995 which states that the Deputy Commissioner or Sub-Divisional Officer, as the case may be, shall not delegate any of the
powers having bearing on election of the members of the Gaon Panchayat or Anchalik Panchayat or Zilla Parishad. These officers are entrusted with
certain duties and responsibilities under the provisions of Rules 16, 17, 18, 22, 26, 34, 44(1) and 44(7) of the Assam Panchayat (Constitution) Rules,
1995. It may not be possible to carry out the election process in the absence of these officers.â€
29. It will also be appropriate to extract relevant portion of paragraph 8, which is as follows:
“8. That with reference to paragraph Nos. 11 and 12, it is submitted that judgements are to be read in the light of the facts of the case. The facts
and circumstances of WP(C) No. 6437 of 2016 which the petitioner relies upon for seeking relief before this Hon’ble Court are clearly
distinguishable from the prevailing situation in the State. It is submitted that an extremely urgent situation that has emerged on account of upgradation
of the National Register of Citizens and the deadline fixed by the Hon’ble Supreme Court for NRC verification and the manpower necessary for
the holding of Panchayat election is busy with the NRC works. On the other hand, similar situation was not present while deciding WP(C) 6437 of
2016.
*** *** *** â€
30. A perusal of the above goes to show that the State had taken a stand that it is only because of emergent situation arising from engagement and
deployment of manpower in work relating to upgradation of NRC, necessary support by way of providing manpower to the State Election Commission
to hold election could not be provided. It needs to be stated that writ petition referred to above is, in fact, WP(C) 6437 of 2006 [Uttar Dhemaji Gaon
Panchayat (supra)] and not WP(C) 6437 of 2016, which is a typing error.
31. In the order dated 20.02.2018, in Assam Public Works (supra), the Hon’ble Supreme Court observed as follows:
“From the materials on record it appears that the Local Body/Municipal/Panchayat elections in the State of Assam is due sometime in March/April,
2018. The said elections will, naturally, have to be held as per the plans and schedule to be drawn up by the State Election Commission. However, we
make it clear that the work of holding the Local Body/Municipal/Panchayat elections in the State of Assam will not be at the cost of
upgradation/preparation of the final draft NRC and that the said work i.e. preparation/upgradation of the final draft NRC will continue as before with
full deployment of manpower as on date. It is up to the State Election Commission and the State Authorities to take necessary action as may be
required for holding of the Local Body/Municipal/Panchayat elections in the State of Assam.â€
32. From the above order, it is evident that utmost priority has to be given for upgradation and preparation of NRC. The ongoing work of NRC
upgradation is not a regular phenomenon. Order dated 27.03.2018 of the Hon’ble Supreme Court had also clearly mandated that the manpower of
the State Government currently engaged in the work of upgradation of NRC will not be replaced or substituted save and except services of one
Additional Deputy Commissioner in each district who may be currently engaged in the NRC work. Affidavit of the State Election Commission reflects
that sufficient spare manpower is not available for the purpose of deployment in works relating to Panchayat election. The stand of the State that a
sizeable section of Government officials and staff are engaged in ongoing upgradation work of NRC is not disputed by the petitioners.
33. On consideration of the materials on record, it does not appear to the court that either the State Government or the State Election Commission was
not sincere in discharging their constitutional obligations and it appears to the court that only because of circumstances beyond their control, election
could not be held in terms of Article 243E of the Constitution of India.
34. In Uttar Dhemaji Gaon Panchayat (supra), this court permitted continuation of the earlier elected Panchayat bodies, whose term had expired, on
the ground that the State could not take advantage of its own wrong and that the State had failed to hold the election before the expiry of the stipulated
period of time. The fact situation in the present batch of cases is clearly distinguishable from that of Uttar Dhemaji Gaon Panchayat (supra) and,
having regard to the proviso contained in Article 243E(1), I am of the considered opinion that it will not be permissible to allow the Panchayat bodies,
whose term had already expired, to continue to function and discharge the powers and duties as envisaged under the Panchayat Act.
35. As the State has submitted that it will be possible for the State to provide manpower to the State Election Commission for holding election after
30.06.2018, a writ of mandamus is issued directing the State Election Commission to hold election and complete the process by 15.09.2018. A writ of
mandamus is also issued directing the State and its functionaries to render all co-operation and assistance to the State Election Commission in
discharging its Constitutional obligation of holding election.
36. At this stage, both Mr. Mazumdar and Mr. Bora have submitted that further fifteen days’ time may be granted so that the newly elected
bodies can take over charge.
37. The order dated 03.03.2018, issued by the Commissioner and Secretary to the Government of Assam, Panchayat and Rural Development
Department, and all other consequential orders flowing therefrom are not interfered with. The State may pass appropriate orders authorizing person(s)
to exercise powers and perform functions and duties of the Gaon Panchayats/Anchalik Panchayats/Zilla Parishads. The State may also consider
setting up of Monitoring Committees headed by Deputy Commissioners or their delegates, not below the rank of Additional Deputy Commissioners,
for monitoring discharge of duties and functions and expenditure of fund by the authorized person(s).
38. It is further directed that the arrangement, as indicated above, shall not continue beyond 30.09.2018.
39. Writ petitions stand disposed of in terms of the above.
40. The interim orders, passed earlier, shall stand vacated.
41. No cost.
