T. Nandakumar Singh, J.@mdashBy this Writ Petition, the Petitioner, who received the highest number of votes in the election for Zilla Parishad Membership of 29 No. Uttar Bajali ZPC held on 14.01.2008, challenges the order of the State Election Commissioner, Assam, dated 19.02.2008 for declaring candidature of the present Petitioner from 29 No. Uttar Bajali Reserved Zilla Parishad Constituency in the District of Barpeta as illegal, null and void and the second highest scorer of votes, namely, Shri Babul Borah (Respondent No. 4) to have been elected from the said constituency and also the notification dated 22.02.2008 issued by the State Election Commissioner, Assam declaring Sri Babul Borah (Respondent No. 4) as duly elected as an Independent Candidate from 29 No. Uttar Bajali (ST) reserved, ZPC within the District of Barpeta, w.e.f. 22.02.2008. The only ground for challenging the impugned order dated 19.02,2008 and the impugned notification dated 22.02.2008 is that the State Election Commissioner, Assam, Dispur, Guwahati has no jurisdiction and authority to issue the impugned order and the impugned notification after announcement of result of the said election on 29.01.2008.
2. Heard Mr. B. Das, learned Counsel appearing for the Petitioner, Mr. M.U. Mahmud, learned standing counsel, ASEB for Respondent Nos. 1, 2 and 3, Mr. A.M. Majumder, learned senior Counsel for Respondent No. 4 and Mr. P. Goswami, learned Counsel for Respondent No. 5.
3. A short fact, in nutshell, leading to the filing of the present writ petition is required to be recapitulated for deciding the core questions:
(a) whether the State Election Commissioner, Assam, Dispur has the jurisdiction and authority to issue the impugned order dated 19.02.2008 and the impugned notification dated 22.02.2008 or not?
(b) whether the Petitioner has the statutory alternative remedy for Election Petition against the impugned order dated 19.02.2008 and the impugned notification dated 22.02.2008 or not?
The Petitioner is a registered voter of 128 No. Baghmara Gaon Panchayat at Sl. No. 4, House No. 2 under 3 No. Purba Kathalmuri Gaon Panchayat Constituency in the District of Barpeta and also of Paschim Rehabari Village of District, Baska at S1. No. 142, House No. 176 under the Bodo Territorial Autonomous District council area (hereinafter reffered to as BTADC). The Respondent No. 1 (Assam State Election Commission, Dispur) issued notification dated 27.11.2007 for holding Panchayat Election including membership from 29 No. Uttar Bajali reserved ZPC in the District of Barpeta. On. 14.12.2007 the Petitioner submitted his nomination as candidate for Zilla Parishad membership of 29 No. Uttar Bajali reserved ZPC. Admittedly, 29 No. Uttar Bajali ZPC is a reserved constituency for ST (plain). The Petitioner obtained ST (P) certificate, only on 17.11.2007 issued by the Chairman, Sub Divisional ST Development Board, Bajali which was countersigned by one EAC of Bajali, not by the SDO. The election was held on 14.01.2008 and the Petitioner secured highest number of votes as per the announcement of result by the Sub Divisional Officer (C), Bajali on 29.01.2008. it is stated that the result of the election was also published duly in the newspaper. The writ Petitioner also annexed a copy of the result of the election announced on 29.01.2008 by the Sub Divisional Officer (C) Bajali, as Annexure/2 to the writ petition, which reads as follows:
Election of ZPC Member from 29. No. Uttar Bajali ZPC Constituency.
Sl. Name of the Total valid Party wise
No. candidate vote recei- description
ved by the of contesting
candidate candidates
1. Kishor Das 3874 INC
2. Dibakar 1833 BJP
Sarania
3. Premananda 4509 AGP
Hazarika
4. Khanindra 2008 IND
Das
5. Babul Boro 4032 IND
6. Munin 1207 IND
Swargiary
7. Ranjit Sarania 944 IND
8.
9.
4. It appears from the pleadings of the writ Petitioner in the writ petition and reply affidavit filed by the writ Petitioner to the affidavit in opposition filed by Respondent No. 1 and also the material documents annexed to the writ petition that the result of the said election was announced on 29.01.2008 by issuing result sheet (Annexure/2) which has been quoted above. It is the case of the Petitioner that after announcement of result of the election by issuing result sheet on 29.01.2008 by the SDO (C), election process for election of membership of 29 No. Uttar Bajali ZPC came to an end, which co-terminous with the power, jurisdiction and authority of the State Election Commission, Assam over the election of membership of 29 No. Uttar Bajali, ZPC. After 29.01.2008 Respondent No. 1 has no power, authority and jurisdiction to issue the impugned order dated 19.02.2008 and the impugned notification dated 22.02.2008.
5. Admittedly, on 08.01.2008 a petition was filed to the Commissioner, State Election Commissioner, Assam by one Sri Govinda Boro and a number of people of the locality of the said ZPC constituency and also Anr. petition on 31.01.2008 by Respondent No. 4, Shri Babul Boro (contesting Candidate, IND) for the said election and Respondent No. 5, Shri Kishore Das (contesting candidate (INC) for the said election alleging that the Petitioner, who is not an ST (P), by scrupulous means obtained forged certificate of ST(P) and filed nomination paper for the said reserved constituency and also that he managed to get his name enrolled as voter in two places at the same time i.e. (i) 128 No. Baghmara GP, Sl. No. 04, house No. 02 under 3 No. Purba Kathalmuri GP constituency (Non BTC area) in the district of Barpeta and (ii) Pachim Rehabari Village under the District, Baksha (BTAD) Sl. No. 142, house No. 176 BTAD, PS No. 36, 150 No. Rehabari LP School Area under Jalah Revenue Circle in the 42 No. Patacharkuchi, LAC as per the voter list (general election-2005) S 03 Assam. After receiving the said allegations, the Election Commission, as an interim measure ordered the DC, Barpeta and SDO (C) Bajali at Pathsala on 06.02.2008 not to declare result of the said ZPC constituency until further order.
6. The SDO (C) Bajali, Barpeta, Pathsala under his letter dated 14.02.2008 directed the Petitioner to meet the State Election Commissioner on 14.02.2008, with the certificate and other documents. In pursuant to the said direction the Petitioner, along with one Mohan Ch Das, appeared before the Respondent No. 1 and submitted his written statement along with the supporting documents. The Respondent No. 1, after giving opportunity to the Petitioner to put up his case and also after hearing him, passed the impugned order dated 19.02.2008. The impugned order is a reasoned order and the relevant portions of the impugned order dated 19.02.2008 are quoted hereunder:
seen the petition dated 31.01.2008 filed by Shri Babul Boro and Kishor Das, the two contested candidates from 29 No. Uttar Bajali Zilla Parishad Constituency in the district of Barpeta, Assam. Also seen the petition dated 08.01.2008 filed by Sri Govinda Boro and a large number of people of the locality of the said Z.P.C. Constituency out of whom one of the Petitioners is Sri Khanindra Das who contested as the independent candidate from 29 No. Uttar Bajali Z.P.C during the last Panchayat Election.
2) The substance of the Petitioners contentions are mainly as follows:
(i) Sri Premananda Hazarika one of the candidate for the post member of 29 No. Uttar Bajali ZPC is not a person belonging to scheduled tribe but he obtained false certificate of ST (P) on 17.11.2007 which was issued by the Chairman, Sub-Divisional Scheduled Tribes Development Board, Bajali and it was contersigned by one EAC of Bajali Sub-Division dated 22.11.2007, which has no value in the eye of law.
(ii) Sri Premananda Hazarika got his name recorded as a voter in two places simultaneously i.e. at 128 No. Baghmara G.P. at Sl. 04, House No. 02 under 3 No. Purba Kathalmuri G.P. Constituency in the district of Barpeta and also at Pachim Rehabari village under district of Baska at Sl. 142, House No. 176 BTAD, where election was not held due to lawful restrictions.
(iii) By obtaining the manipulated ST certificate, Sri Premananda Hazarika contested the ongoing Panchayat Election from the 29 No. Uttar Bajali ZPC, which is a reserved Constituency for ST (P) and thereby claimed as won a ZPC member from the S.T. quota.
(iv) That Sri Premananda Hazarika obtained certificate from the concerned Gaon Bura as the resident of village Kathalmuri under Patacharkuchi P.S in the district of Barpeta whereas his real birth place and residence is at village Paschim Rehabari Gaon, district: Baska BTAD. His name has been also duly recorded at village Paschim Rehabari at Sl. No. 742, House No. 176 in the voter list of 2005 Assembly Election at the said village. Since the Assembly voters list is prepared under direct supervision of the DC, Baska after detailed field verification and that since Sri Hazarika resides with his family members permanently, he cannot be treated as ordinary resident of village Purba Kathalmuri within Bajali sub-Division of Barpeta district.
3) That alleging all these matters, the Petitioners have prayed that the election of Sri Premananda Hazarika to the 29 No. Uttar Bajali ZPC from the quota of ST (P) should be kept withheld, proper enquiry about the veracity of ST (P) certificate may be made and also prayed that the 2nd highest vote scorer candidate namely Sri Babul Boro, an Independent candidate who contested the election from the said ZPC be declared as elected.
7) I have perused the Govt. Notification No. TAD/Pt/565/76, issued by the Govt. of Assam, department of welfare of Plains Tribes and Backward Classes Under Rule 3(1)(b) and (2) of the said Notification, I do not find that the EAC who put his signature on 22.11.2007 in the caste certificate is authorized to countersigned the same.
8) I have also seen one letter dated 13.02.2008 addressed to State Election Commission by Smti. Pramila Rani Brahma, Minister, WPT & BC and Agriculture, Assam wherein it is inter-alia stated by the concerned Minister of welfare of Plains Tribes and Backward Classes that the Chairman of Sub-Divisional ST Development Board, Bajali is not the authorized body to issue ST(P) certificate.
9) In this regard it is worthy to note that a person may be ST but unless proper and valid certificate to this effect is produced, the State authority cannot act on it, merely because a person claims to be a person of a particular caste or a person belonging to that community, more particularly when all such certificates are required to be produced by a candidate for scrutiny by the RO during Panchayat Election under the existing Assam Panchayat (Constitution) Rules 1995 and relevant proceedings. I also see that Sri Premananda Hazarika has not taken any step to delete his name from voter list of BTAD area.
10) I have also seen the letter dated 01.02.2008 issued by All Assam Tribal Sangha vide Memo No. AATS/C-3/2007-08/2615 dated 01.02.2008 wherein it is inter-alia stated that Sri Premananda Hazarika does not belong to ST community, which is the premier body of Tribal to deal with such matters.
11) That this Commission issued Notification for holding Panchayat Election in the State of Assam excepting BTAD and Karbi Anglong, N.C. Hills Autonomous Councils Area on 27.11.2007 asking the SDO(C) Bajali along with Ors. to issue Notification on 04.02.2008 i.e. for the 2nd phase of election to be held in Assam. Accordingly SDO(C), Bajali issued Notification fixing the date of filing nomination papers starting from 12.12.2007. It appears from the ST(P) Certificate of Sri Premananda Hazarika that he collected ST(P) Certificate on 17.11.2007 which was countersigned by one EAC on 22.11.2007 which means that he collected ST(P) certificate with the sole purpose of contesting election from the reserved seat of ST (for ZPC) and that too from an unauthorized authority and it was countersigned by one officer who has not been authorized to do so under statutory provision.
12) That in view of Rule 12(2) of AP(C) Rules, 1995, it appears that the contested candidate for local bodies like Gaon Panchayat, Anchalik Panchayat, ZPC must be a local resident and a voter from such constituency as the case may be. As per rules, the voter list for Panchayat Election should be prepared on the basis of Electoral Rolls of last Assembly Election, which is not followed in case of Sri Premananda Hazarika. Admittedly Sri Premananda Hazarika is the voter of two places at the same time, one of which is outside the purview of the ongoing Panchayat Election in the district of Baska which is in the BTAD area, which otherwise creates a doubt about his candidature. The certificate of SDC has clearly stated that Sri Premananda Hazarika is a permanent resident of village Paschim Rehabari which is within BTAD area. He is the best person to testify the residential status of a person within his jurisdiction.
13) That the present issue is a very sensitive and key issue which requires to apply proper judicial mind so that no person in the name of ST can enjoy the benefits provided to real ST people under the Constitution of India and rules framed there in a colourable manner and that too at the eleventh hour only to deprive the aspirants of ST population of the said locality who can actually contest the constituency in their reserved seat. The report of ADC does not fulfill the requirement sought by the State Election Commission regarding residential status of Sri Premananda Hazarika rather it appears to be incomplete, misleading and also confusing.
14) I have also perused the relevant observations of Hon''ble Supreme Court reported in
15) I have also perused the relevant provisions of Section 114(1) (4) of the Assam Panchayat Act 1994, and Rules 3(a) and 54 of the Assam Pachayat (Constitution) rules 1995. I have also read the provisions laid down u/s 66 of the R.O.P. Act 1951 which gives power to the Commission to provide necessary direction to the Returning Officer in respect of declaration of election result. The process of election so far the reserved constituency of 29 No. Uttar Bajali ZPC is concerned, is not yet declared, nor any certificate has been issued to any candidate by the competent authority.
16) Rule 2(C) of the Assam Scheduled Caste/Scheduled Tribes (Reservation of vacancies in services in service and posts) Rules, 1983 says that "Candidates belonging to Scheduled caste and scheduled Tribes" means the candidates possessing their certificates to that effect issued by the authorities as mentioned in Rule 3.
It means there must be a certificate in respect of ST and at the same time, it must be a certificate as per Rule 3 of the said Rules.
17) Rule 3(1)(b) of the said Rules say that in case of Scheduled Tribes Candidates, the scheduled Tribes MLAs Scheduled Tribes MPs and Members of the Advisory Council for the welfare of Scheduled Tribes, Presidents and Vice Presidents of the All Assam Tribal Sangha and District Units of the All Assam Tribal Sangha and the Chairman of the Integrated Tribes Development Project Implementation Committees, and the Sub-Divisional Tribal Development Boards are authorized to issue caste certificate within the jurisdiction of the Sub-Divisions.
18) Moreover, in view of Rule 2(C) and Rule 3(1)(b) of the Assam Scheduled Castes/Scheduled Tribes (Reservation of vacancies in services and posts) Rules 1983 followed by Govt. Circular, issued through Memo. No. TAD/BC/58/2001/247 dated 20.07.2007 by the Commissioner & Secretary Govt. of Assam, WPT & BC Deptt., the certificate dated 17.11.2007 which was countersigned by an EAC dated 22.11.2007 is in violation of statutory direction and is an invalid certificate from the very beginning and merely because of passing the process of scrutiny of nomination paper by DC/SDO(C) or any other officer at some point of time, or due to not raising any objection by any one at the relevant point of time would no way help terming it as legal and valid document, otherwise there would be no value of Acts, Rules, Notifications, Circulars etc. and any body by using faraud or pretending the ignorance of law or rules would take undue benefits and, there would be no rule of law and administrative justice.
19) As per Rule 12(2) of the Assam Panchayat (C) Rules, 1995, when the Electoral Roll of the Assam Legislative Assembly prepared under the provision of ROP Act, 1951, the same shall be the list of voters for such Gaon Panchayat, Anchalik Panchayat or Zilla Parishad Constituency as the case may be. In that view, the enrolment of Sri Premananda Hazarika''s name within the village Pub Kathalmuri in the district of Barpeta is not lawful as his name in the last assembly Election appeared at village Paschim Rehabari in the district of Baska at Sl. No. 142, House No. 176 within BTAD area. As such, he cannot contest election at a constituency, which is located in the district of Barpeta in view of Rule 12(2) and 22(1) of the Assam Panchayat (Constitution) Rules, 1995. Acceptance of his nomination papers by the concerned RO was not correct.
20) The Election Commission, being a constitutional authority cannot close its eyes over such key and sensitive issue being an authority u/s 114(1) (4) of Assam Panchayat Act, 1994 and Rule 3(a) and (b) of Assam Panchayat (Constitution) Rules, 1995 which has total control over election matter with a broader power in all issues connected with election till the election process is over, which is not yet completed in respect of 29 No. Uttar Bajali reserved ZPC.
21) Accordingly the Commission on the perusal of contents of allegations submitted by different candidates, public and also on perusal of the written explanations of Mr. Hazarika and after perusal of all the relevant documents/reports/notifications/circulars of different authorities as stated above, holds that ST(P) certificate dated 17.11.2007 obtained by Sri Premananda Hazarika which was countersigned by an EAC on 22.11.2007 is not a valid document. It has not come from a competent authority as per statutory provisions and as such the same is void abinitio i.e. illegal from the very beginning. Any seat of holding public office on the basis of such invalid and unacceptable document is void ab-initio and this Commission by applying its independent judicious mind and also keeping in view of the provisions of law, rules etc. as discussed above and after hearing the parties considers the election to the ST (P) reserved constituency of 29 No. Uttar Bajali Z.P.C. by Sri Premananda Hazarika I illegal and has no value in the eye of law and as such he is not entitled to get the result declared as elected.
22) Accordingly, I declare the election/candidature of Sri Premananda Hazarika from 29 No. Uttar Bajali reserved ZPC in the district of Barpeta as illegal, null and void; and the second highest scorer of votes, namely Sri Babul Boro, who undisputedly is an ST(P) contesting candidate from the said constituency, is declared as elected from the said constituency. 1 am, being the constitutional authority under 243K of the Constitution of India and also being empowered u/s 114(4) of the Panchayat Act, 1994, Rule 3(1) and (b) of Assam Panchayat (Constitution) Rules, 1995, direct the DC, Barpeta and SDO(C) Bajali to publish the name of Sri Babul Boro, an independent candidate from 29 No. Uttar Bajali ST reserved ZPC in their notice Board and to provide necessary certificate forthwith. Let a certificate in the form of notification be also issued in favour of Sri Babul Boro from this Commission forthwith considering the peculiar facts circumstances of the case.
23) Inform all concerned, accordingly.
7. The Respondent, in their affidavit-in-opposition, stated that the announcement of result of the present election on 29.01.2008 by the SDO (C) Bajali, by publishing the result (Annexure/2) is not the declaration contemplated in Rule 44(7) of the Assam Panchayat (Constitution) Rules, 1995 for declaring the Petitioner to have been duly elected to the membership of 29 No. Uttar Bajali ZPC and as such, Respondent No. 1 has the power and authority to issue the impugned order dated 19.02.2008 and also the impugned notification dated 22.02.2008 inasmuch as the process of election was not completed on 29.01.2008. The Respondent in their Affidavit-in-opposition further contended that the present writ petition is barred by Article 243-O of the Constitution of India and Section 129 of the Assam Panchayat Act, 1994.
8. By the Constitution (73rd Amendment) Act 1992, part IX of the Constitution had been inserted. Under Article 243D of the Constitution-seat shall be reserved for (a) SC and (b) ST in the manner mentioned in the Article 243D. Under Article 243K of the Constitution, superintendence, direction and control of the preparation of electoral rolls for, and conduct of, all elections to the Panchayat shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor and also Article 243-O contemplates the bar to interference by Courts in election matters. For easy reference, Article 243K and 243O are quoted hereunder:
243 K. Election to the Panchayats.: The superintendence, direction and control of preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commission to be appointed by the Governor.
(2) Subject to the provisions of any law made by the Legislature of a State the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine:
Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like ground as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment.
(3) The Governor of a State shall, when so requested by the State Election Commission, 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).
(4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters to, or in connection with, elections to the Panchayats.
243-O. Bar to interference by courts in electoral matters. - Notwithstanding anything in this Constitution-
a) the validity of any law, relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under Article 243K, shall not be called in question in any court;
b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such matter as is provided for by or under any Law made by the Legislature of a State].
On plain perusal of Article 243-O, it appears that;
Once the election process has started, the High Court cannot-
(a) direct the Election Officer to stall the proceedings or to conduct the election process afresh or
(b) direct him not to declare the result of the election of the gram panchayat, or
(c) direct him to conduct a fresh poll.
9. Article 243-O is pari materia with Article 329 of the Constitution, which reads as follows:
329. Bar to interference by courts in electoral matters. - [Notwithstanding anything in this Constitution]
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328 shall not be called in question in any court;
(b) no election to either House of Parliament or to the House of either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.
10. u/s 114 of the Assam Panchayat Act, 1994 a State Election Commission consisting of a State Election Commissioner is to be appointed by the Governor and the State Government on request of the State Election Commissioner shall make available to the Election Commission its staff, as may be necessary for the discharge of the function conferred on the State Panchayat Election Commission under the Act and also the officers on deputation to the election commission for the conduct of the Panchayat Election shall end their deputation period with the date of declaration of result of the election and during their such deputation period they shall subject to the control, superintendence and discipline of the State Election Commission. For easy reference Section 114 of the Act is quoted hereunder:
114. State Panchayat Election Commission--
(1) The Superintendence, direction and control of the preparation of Electoral roll for 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.
(2) The conditions of service and tenure of office of the State Panchayat Election Commissioner shall be such as the Governor may by rule determine, provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the High Court and the conditions of service of the State Panchayat Election Commissioner shall not be varied to his disadvantage after his appointment.
[(4) The Returning Officers, Assistant Returning Officers, Presiding Officers, Polling Officers and any other officer appointed under this Act and any Police Officers designated for the time being by the State Government for the conduct of the Panchayat Election shall be deemed to be on deputation to the State Election Commission for the period commencing on and from the date of notification calling for Panchayat Election and ending with the date of declaration of the results of the election and accordingly such officers shall during that period be subject to the control, superintendence and discipline of the State Election Commission.]
(5) Subject to the provisions of Constitution of India, as amended, the State Legislature may bye-law, make provision with respect to all matters relating to, or in connection with Election to the Panchayats.
11. Section 129 of the Assam Panchayat Act, 1994 bars interference by the court in election matters, which reads as follows:
129. Bar to interference by Courts in electoral matters.--Notwithstanding anything contained in this Act.
(a) the validity of any law relating to the delimitation of constituencies on the allotment of seats to such constituencies, made under Article 243 of the Constitution of India shall not be called in question in any court;
(b) no election to any Panchayat shall be called in question except by an election petition presented within sixty days from the date of declaration of election results to the Tribunal constituted u/s 127.
12. Under Sub-section (b) of Section 129 of the Assam Panchayat Act, 1994, election petition to any Panchayat shall be filed to the Tribunal constituted u/s 127 of the Act within 60 days from the date of declaration of election result.
13. The State Government of Assam in exercise of power u/s 141 of the Assam Panchayat Act, 1994 makes the Rules called "Assam Panchayat (Constitution) Rules, 1995". Rule 44 of the said Rule, 1995 is concerned with the counting of votes and declaration of result of the election. The relevant portion of Rule 44 is quoted hereunder:
44. Counting of Votes and Declaration of Results of the Election.--
(1) The Deputy Commissioner or the Sub-Divisional Officer as the case may be, shall arrange counting of votes on such day and at such hours and place as he may consider necessary for this purpose in respect of every election. He shall authorize one officer for counting the votes in respect of the election of Gaon Panchayat President, Gaon Panchayat member, and Anchalik Panchayat member and Zilla Parishad members separately. Such officer may be assisted by such other officers as may be appointed by the Deputy Commissioner or the Sub-Divisional Officer as the case may be.
....
....
(5) After counting each ballot paper not rejected by him, he shall keep in record the valid vote polled to each candidate in a particular election against every polling station.
(6) The record prepared under Sub-rule (5) for the election of the Gaon Panchayat, President, Member of Gaon Panchayat, member of Anchalik Panchayat and the member of Zilla Parishad by the respective officer, shall be delivered to the Deputy Commissioner or the Sub-Divisional Officer as the case may be, immediately after the counting is over, such records shall be retained in the safe custody of the Deputy Commissioner or the Sub-Divisional Officer as the case may be, for a year and shall then, unless otherwise directed by the State Election Commission, be destroyed.
(7) On receipt of the records under Sub-rule (6), the Deputy Commissioner or the Sub-Divisional Officer as the case may be, shall declare the candidate who has received the highest number of votes in respect of every election, to have been elected to that office or seat and publish a notice at his office stating the name of persons so declared, as the President and member of the Gaon Panchayat, member of the Anchalik Panchayat and member of the Zilla Parishad as the case may be, and shall forward a copy to the State Election Commission for notification.
14. The Respondent No. 1 issued a Hand Book for Deputy Commissioners and Sub-Divisional Officer (C)s for conduct of Panchayat Elections 2007. Under the said Hand Book for Conduct of Panchayat Elections a formal declaration of the result of the election should be made by the DC/SDO(C) in the prescribed form i.e. Form No. 30 (xxx) [C] Panchayat Elections in compliance with Rule 44(7) of the said Rule, 1995 i.e. Assam Panchayat (Constitution) Rules, 1995. The said form reads as follows:
Panchayat Election-2007
Form No. 30 (xxx) [C]
Return of Election
Rule 44(7)
Election of member of Anchalik Panchayat from Constituency of Gram Panchayat.
Name of the Constituency of the District Parishad ________________
Name of the Anchalik Panchayat __________
Name of the Village Panchayat ___________
Sl. Name of the Total votes
No. Candidate secured by
the candidate
1.
2.
3.
4.
5.
6.
1. Name of the Candidate securing highest number of votes:
2. No. of votes secured ____________
3. Total number of valid votes including Postal Ballots ______________
4. Total number of cancelled votes ____________
5. Total number of votes cast ____________
I hereby declare that Shri/Shrimati _________ of ____________ Gram Panchayat has been elected as the member of Anchalik Panchayat Seat.
Place
Date
DC/SDC
15. According to Rule 54 of the Assam Panchayat (Constitution) Rules 1955, matters relating to election to the Assam Panchayat shall be guided by the relevant rules under the Representation of the Peoples Act, 1951 as regards other matters not provided in the Assam Panchayat (Constitution) Rules, 1955. Under Rule 64 of the Conduct of Election Rules, 1961, declaration of result of elections and return of election in respect of Parliamentary and Assembly constituency shall be declared in the form 21C or 21D prescribed in the Conduction of Election Rules, 1961. For easy reference Rule 64 of the Conduct of Election Rules, 1961, Form 21-C and Form 21-D are respectively reproduced hereunder:
[64. Declaration of result of election and return of election.--The returning officer shall, subject to the provisions of Section 65 if and so far as they apply to any particular case, then-
(a) declare in Form 21C and Form 21D. as may be appropriate, the candidate to whom the largest number of valid votes have been given, to be elected u/s 66 and send signed copies thereof to the appropriate authority, the Election Commission and the Chief Electoral Officer; and
(b) complete and certify the return of election in Form 21E and send signed copies thereof to the Election Commission and the Chief Electoral Officer.]
(Statutory Rules and Order)
FORM 21C
(See Rule 64)
(For use in General Election when sent is contested)
Declaration of the result of Election u/s 66 of the Representation of the People Act, 1951.
Election to the House of the People from the _____________________ Parliamentary constituency is _________________ (State/Union territory).
________________ Election to the Legislative Assembly of ________________ (State/Union Territory) from ______________ Assembly constituency ______________ Election to the Metropolitan Council of Delhi from ______________ Metropolitan Council constituency.
In pursuance of the provisions contained in Section 66 of the Representation of the People Act, 1951, read with Rule 64 of the Conduct of Elections Rules, 1961, I declare that-
____________________ (Name)
______________________ (Address)
[sponsored by ___________________ (name of the recognized/registered political party)] has been duly elected in that House from the above constituency.
Place....
Date....
Signature ___________
Returning Officer
(Statutory Rules and Order)
FORM 21D
(See Rule 64)
(For use in Election to fill a casual vacancy when seat is contested)
Declaration of the result of Election u/s 66 of the Representation of the People Act, 1951.
Election to the House of the People from the ______________________ Parliamentary constituency in _________________ (State/Union territory).
_____________ Election to the Legislative Assembly of ______________ (State/Union Territory) from _______________ Assembly constituency _______________ Election to the Metropolitan Council of Delhi from ______________ Metropolitan Council constituency.
In pursuance of the provisions contained in Section 66 of the Representation of the People Act, 1951, read with Rule 64 of the Conduct of Elections Rules, 1961, I declare that-
_________________ (Name)
______________ (Address)
[sponsored by _______________ (name of the recognized/registered political party)] has been duly elected to fill the vacancy caused in that House by the resignation of ____________ election of _____________ having been declared void.
Seat of _____________ having become/having been declared vacant.
Place....
Date....
Signature __________
Returning Officer
16. It is now well settled that "election" consists of the whole procedure of election till the declaration of result, i.e. the entire process of election from the date of notification till the date of declaration of result and also that the power of Election Commission ceases with the declaration of election result. Any dispute can be decided by the Tribunal. Ref: (1) N.P. Ponnuswami v. The Returning Officer AIR 1951 SC 64 , (2)
17. The Apex Court in
4. The process of election set forth in the Representation of the People Act, 1951 consists of several stages and towards the end it requires a declaration of the result of the election. Section 66 of the Act provides that when the counting of votes has been completed the Returning Officer must declare forthwith the result of the election "in the manner provided in this Act or the Rules made thereunder". Thereafter, u/s 67 the result of the election is reported by the Returning Officer to the authorities specified therein and the declaration is published in the Official Gazette. It may be mentioned that according to Section 67-A of the Act the date on which the candidate is declared by the Returning officer u/s 66 to be elected is regarded as the date of election of that candidate. Now, as contemplated by Section 66 the declaration of the result of the election must be in the manner provided by the Act or the Rules made thereunder. The procedure for declaring the result of the election is set forth in Rule 64 of the Conduct of Election Rules, 1961. Rule 64 provides:
64. Declaration of result of election and return of election--
The returning officer shall, subject to the provisions of Section 65 if and so far as they apply to any particular case, then
(a) declare in Form 21-C or Form 21-D, as may be appropriate, the candidate to whom the largest number of valid votes has been given, to be elected u/s 66 and send signed copies thereof to the appropriate authority, the Election Commission and the chief electoral officer; and
(b) complete and certify the return of election in Form 21-E and send signed copies thereof to the Election Commission and the chief electoral officer.
It is plain that the declaration envisaged by the law that a candidate has been elected is the declaration in Form 21-C or Form 21-D. The declaration in Form 21-C is made in a general election and the declaration in Form 21-D is made when the election is held to fill a casual vacancy. It is now settled law that the right to vote, the right to stand as a candidate for election and the entire procedure in relation thereto are created and determined by statute. Accordingly, when Section 66 of the Representation of the People Act, 1951 provides that the result of the election shall be declared in the manner provided by the Act or the Rules made thereunder, the declaration can be effected in that manner only. The manner is clearly expressed in Rule 64 of the Conduct of Elections Rules, 196l. There is no other manner. There must be a declaration in Form 21-C or Form 21-D. The announcement by the Returning Officer that the Petitioner had been elected has no legal status because the declaration in Form 21-C had not yet been drawn up. Even the grant of the certificate of election in Form 22 to the Petitioner cannot avail him because Rule 66 contemplates the grant of such certificate only after the candidate has been declared elected u/s 66, which refers us back to Rule 64 and therefore to Form 21-C. There having been no declaration in Form 21-C at the relevant time, the grant of the certificate of election in Form 22-C at the relevant time, the grant of the certificate of election in Form 22 to the Petitioner was meaningless.
18. In the present case, under Rule 44(7) of the Assam Panchayat (Constitution) Rules, 1995 and Hand Book for conduct of Panchayat Elections, 2007 prescribed by the Assam State Election Commission, the Deputy Commissioner or the Sub-Divisional Officers as the case may be, shall declare the candidate who has received the highest number of votes in respect of every election, to have been elected to that office or seat in the Form No. 30 (xxx) [C] Panchayat Election, 2007 which has been quoted above, and published a notice at his office stating the name of the person so declared and shall forward a copy to the election commission for notification. On plain perusal of Rule 44(7) of the Assam Panchayat (Constitution) Rules, 1995 and Hand Book for Deputy Commissioners and Sub Divisional Officers (C)s for conduct of Panchayat Election 2007 it is crystal clear that the DC or the Sub Divisional Officer, as the case may be, shall declare a candidate who has received highest number of votes to have been elected in the prescribed form and publish the notice in its office. This Court also perused the relevant records produced by Respondent No. 1 in connection with the present election i.e. the election to the membership of 29 No. Uttar Bajali ZPC and on such perusal, it is crystal clear that as on 29.01.2008 there was no declaration declaring the present Petitioner to have been elected to the membership of 29 No. Uttar Bajali ZPC in the manner prescribed in Rule 44(7) in the prescribed form. As on 21.01.2008. there was only announcement of the result of the counting of votes for the said election. Over and above, as an interim measure, there was an order dated 6.2.2008 issued by the Respondent No. 1, not to declare the result of the election of 29 No. Uttar Bajali ZPC.
19. The Apex Court in a case arising from this Court i.e. in
20. The Apex Court in
21. For the reasons discussed above, this Court is of the considered opinion that announcement of result of the election in the manner notified by the Sub Divisional Collector (C), Bajali on 29.01.2008 i.e. Annexure-2 to the writ petition, which has been quoted above, is not the declaration contemplated in Rule 44(7) of the Assam Panchayat (Constitution) Rules, 1995, that the Petitioner who has received highest number of votes in respect of the election for membership of 29 No. Uttar Bajali ZPC to have been elected and also that the process of election continued till Respondent No. 1 issued the impugned order dated 19.02.2008 and the impugned notification dated 22.02.2008 and as a result the Respondent No. 1 had the authority and power to issue the impugned order dated 19.02.2008 and the impugned notification dated 22.02.2008. Therefore, keeping in view of Articles 243-O and 329 of the Constitution of India as well as Sections 127 and 129 of the Assam Panchayat Act, 1994, this Court is of considered view that efficacious statutory remedy against the impugned order and the impugned notification would be the Election Petition to the Tribunal constituted u/s 127 of the Assam Panchayat Act, 1994. Ref: (1)
22. In the present case there is serious disputed question of fact as to whether the present Petitioner is a member of the ST(P) or not? and also admittedly only member of the ST(P) could contest the election to the membership of 29 No. Uttar Bajali ZPC, which is again admittedly a reserved constituency for ST(P). This Court in a writ proceeding is not sufficiently equipped to decide the disputed question of fact for which both oral and documentary evidence are required to be taken into consideration and the Tribunal constituted u/s 127 of the Assam Panchayat Act, 1994 is well equipped in election proceedings to decide disputed question of facts by taking into consderation of oral as well as documentary evidence produced by the parties. Accordingly, this Court, keeping view of the ratio laid down by the Apex Court in Harnek Singh''s case (supra) as well as this Court in (a) Chandan Kumar Sarkar''s case and (b) Md. Siraj Ahmad''s case (supra), exercises self restraint in exercising writ jurisdiction under Article 226 of the Constitution in the present writ petition against the impugned order and the impugned notification.
23. The Apex Court in
11. However, the question which requires consideration is--if there are more than two candidates for one seat and the elected candidate is subsequently found to be disqualified, whether the candidate who has secured more votes than the remaining candidates should be declared as elected or not. For this, we would consider the ingredients of Section 101 which inter alia provide that after declaring election of the returned candidate to be void, the High Court may declare the Petitioner or such other candidate to have been duly elected if-
(a) in fact the Petitioner or such other candidate received a majority of valid votes; or
(b) but for the votes obtained by the returned candidate by corrupt practices, the Petitioner or such other candidate would have obtained a majority of the valid votes.
12. Therefore, the first ingredient for declaring the election Petitioner or other candidate to have been duly elected depends upon error for various reasons in counting of valid votes and if it is found that in fact the Petitioner or such other candidate received a majority of valid votes, he is to be declared elected.
13. The second ingredient provides for establishing that the votes obtained by the returned candidate were obtained by corrupt practices and but for such votes the Petitioner or such other candidate would have obtained a majority of valid votes. Say as in the present case, the difference between the elected candidate and the election Petitioner is of 10,327 votes and if it is established that the elected candidate obtained more than 10,327 votes by corrupt practices then the Petitioner or such other candidate who has obtained majority of valid votes could be declared as elected.
14. However, in an election where the elected candidate is declared to be disqualified to contest election and there are more than two candidates contesting election, there is no specific provision under the Act under which the person who has secured the next highest number of votes could be declared as elected. The Act is silent on this point. Further, it cannot be presumed that the votes secured by the disqualified elected candidates would have been wasted or would have been secured by the next candidate who has secured more votes. If disqualified candidate was not permitted to contest the election then how the voters would have voted in favour of the candidate who has secured more votes than the other remaining candidates would be a question in the realm of speculation and unpredictability. In such a situation declaring the election of the returned candidate on the ground of his initial disqualification to contest the election by itself would not entitle the election Petitioner or any other candidate to be declared elected.
24. Keeping in view the ratio laid down by the Apex Court in Prakash Khandre (supra) this Court observes that Respondent No. 1 cannot declare the candidate who secured second highest number of votes in the said election i.e. for election of membership of 29 No. Uttar Bajali ZPC held on 14.01.2008 to have been elected. This point shall be taken into consideration by the Tribunal constituted u/s 127 of the Assam Panchayat Act, 1994 in the event of filing election petition by the present writ Petitioner as per direction of this Court.
25. The election petition is to be filed within sixty days from the date of declaration of result of the election to the Tribunal but because of pendency of the present writ petition the period of limitation for filing election petition had already expired. Such type of eventuality had already been considered and discussed by the Apex Court in
3. The remedy is a statutory remedy and limitation is one of the conditions to entertain election petition. By judicial order the limitation cannot be nullified. In support thereof, he placed reliance on the judgment of this Court in
For the reasons discussed above, writ petition is dismissed. The writ Petitioner may file the Election Petition to the Election Tribunal, if so advised, within a period of 2 (two) months from today. The Election Tribunal on receipt of the Election Petition shall not reject the same on the ground of limitation and shall proceed to decide the election petition on merit in accordance with the provisions of law. Interim order passed by this Court in the present writ petition shall continue for a period of two months from today and the Election Tribunal at his wisdom may pass any interim order as it deems fit according to law in the peculiar facts and circumstances of the present case.
