Gauhati High Court
Ratia Bordoloi And 2 Ors vs The State Of Assam And 4 Ors on 25 September, 2020
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/7
GAHC010104132020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 3068/2020
1:RATIA BORDOLOI AND 2 ORS.
S/O. LT. MAHESWAR BORDOLOI, R/O. BHUMURAGURI, JAGIROAD,
MORIGAON, ASSAM.
2: TAPUDHAN DAS
S/O. LALIT DAS
VILL. CHATABAR
P.O. CHATABAR
P.S. ROHA
NAGAON
ASSAM.
3: MANTU BORDOLOI
S/O. BIREN BORDOLOI
VILL. KHULAGAON
P.O. KHULAGAON
P.S. JAGIROAD
MORIGAON
ASSAM
VERSUS
1:THE STATE OF ASSAM AND 4 ORS.
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, WPT AND BC
DEPTT., GUWAHATI-06.
2:THE SECRETARY TO THE GOVT. OF ASSAM
WPT AND BC DEPTT.
GUWAHATI-06.
3:THE ASSAM STATE ELECTION COMMISSION
REP. BY THE STATE ELECTION COMMISSIONER
Page No.# 2/7
HOUSEFED COPLEX
DISPUR
GUWAHATI-06.
4:THE PRINCIPAL SECRETARY
TIWA AUTONOMOUS COUNCIL
MORIGAON
ASSAM.
5:BABUL BORDOLOI
S/O- MAHENDRA BORDOLOI
RESIDENT OF VILL.-DHAKIPHALI
P.O.- UDARI
P.S.- MORIGAON
DIST.- MORIGAON
PIN- 782105
ASSAM
Advocate for the Petitioner : MR K P PATHAK
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 25-09-2020 Heard Mr. K.P. Pathak, learned senior counsel, assisted by Mr. R. Bora and Mr. D. Gogoi, learned counsel for the petitioners. Also heard Mr. D. Mozumdar, learned Addl. Advocate General of the State, assisted by Mr. R. Dhar, learned Addl. Senior Govt. Advocate, appearing for respondent nos. 1, 2 and 3, Mr. S. Neogi, learned counsel for the respondent no.4, and Mr. B. Kaushik, learned counsel for respondent no.5. None appears on call for the respondent no.3, i.e. the State Election Commission.
2) The three writ petitioners herein are the elected members of the General Page No.# 3/7 Council of the Tiwa Autonomous Council. As per the provisions of section 7(1) of the Tiwa Autonomous Council Act, 1995 (hereinafter referred to as "the said 1995 Act" for brevity), the General Council has a 5 (five) year tenure and, as such, the terms of the present General Council, having been sworn in on 09.10.2015, would end on 08.10.2020. The General Council can otherwise be dissolved earlier by applying section 68 of the said 1995 Act. Accordingly, by filing this writ petition under Article 226 of the Constitution of India, it is prayed for a direction to the respondents to hold elections to the General Council of the Tiwa Autonomous Council within time or in the alternative to extend the present Council by another one year in terms of section 7(3) of the said 1995 Act.
3) The learned senior counsel for the petitioners has meticulously referred to the various relevant provisions of the said 1995 Act and the Tiwa Autonomous Council (Election) Rules, 2005 (hereinafter referred to as "the said 2005 Rules" for brevity). It is submitted the normal tenure of the General Council would be from 09.10.2015 to 08.10.2020. The proviso to Rule 17(1) of the said 2005 Rules envisages that where general elections is held otherwise than on dissolution of the existing general council, no notice for holding election for constituting General Council shall be issued at any time earlier than six months prior to the date on which the duration of the General Council would expire under the provisions of section 7 of the Act. The learned senior counsel has explained his interpretation of section 7 and section 68 of the said 1995 Act and power exercisable thereunder. It has been submitted that as no notification to hold elections has been issued till date, as such, notwithstanding any notifications or orders that may be produced by the State, there is no likelihood that the State Election Commission can hold general elections to the General Council of Tiwa Autonomous Council on or before 08.10.2020, as such, the only practicable alternative for the Government is to extend the term of the of office of the General Council for a period not exceeding one year as provided for under section 7(3) of the said 1995 Act.
4) It is submitted that the purpose of constituting the Tiwa Autonomous Council within the Constitutional framework is to have a local self government for the "non- Sixth Scheduled areas of Assam" for the Tiwa (Lalung) Tribal areas of the State as may be Page No.# 4/7 notified. Hence, it is not envisaged that Executive shall take over functions of the said Tiwa Autonomous Council. It is also submitted that under the present circumstances, directions by the Court to extend the tenure of the General Council would just, appropriate and proper because under similar facts and circumstances, the Government of Assam had, in the past, extended the tenure of two other Autonomous Councils, i.e. (i) Deori Autonomous Council, vide notification no. TAD/BC/467/2015/9 dated 10 th July, 2015; and Thengal Kachari Autonomous Council, vide notification no. TAD/BC/468/2015/33 dated 22 nd July, 2016.
5) It is also submitted that by order dated 03.09.2020, this Court had directed the Government to take a decision on the request made by the Tiwa Autonomous Council to the Govt. of Assam vide resolution dated 14.07.2020 under agenda no. 7, requesting the Government to hold elections to General Council within time or if elections cannot be held, the terms of the present council may be extended as per Tiwa Autonomous Council Act by one year. However, notwithstanding the purported disposal of said resolution, if any, that might be produced by the Addl. Advocate General of the State today, such disposal was mechanical and without addressing the request made thereunder.
6) The learned counsel for respondent nos.5 and 6 have made their respective submissions in support of the submissions advanced by the learned senior counsel for the petitioner.
7) Per contra, the learned Addl. Advocate General has submitted that in course of hearing on 15.09.2020, they had produced a photocopy of the notification dated 01.09.2020 by which the Assam State Election Commissioner had announced a time schedule for publication of photo-electoral roll. It is submitted that by order dated 03.09.2020, the Court had directed the Government to take a decision on the resolution dated 14.07.2020 on or before 08.09.2020, which time was extended till 25.09.2020 by order dated 15.09.2020 and that the Commissioner & Secretary to the Govt. of Assam, WPT & BC Department by memo no. TAD/BC/318/2013/148 dated 22nd September, 2020 had taken a decision on the Page No.# 5/7 said resolution by the Tiwa Autonomous Council dated 14.07.2020 to the effect that Assam State Election Commission was the authority to hold elections and that the Assam State Election Commission had already issued notification to prepare constituency wise photo- electoral roll for Tiwa Autonomous Council. Hence, it is premature to presume that elections would not be held. It is submitted that as best, there may some inadvertent delay in holding the elections owing to present situation. The learned Addl. Advocate General has submitted a photocopy of the said memo dated 22.09.2020, which is kept as a part of record together with copy of instructions dated 05.09.2020 and notification dated 01.09.2020. Accordingly, it is submitted that as the grievance of the petitioners has been addressed, this matter has become infructuous and the same is liable to be dismissed.
8) Upon a perusal of the notification no. SEC.54/2020/47 dated 01.09.2020, issued by the Assam State Election Commissioner as per Rule 4 and Rule 16 of the said 2005 Rules, the following time schedule had been notified for preparation and publication of constituency wise photo electoral roll for election to the Tiwa Autonomous Council, viz., (1) date of publication of the draft photo-electoral roll - 24.09.2020; (2) last date for receiving claims and objections - 09.10.2020; (3) last date for disposal of claims and objections - 16.10.2020; and (4) final publication of photo-electoral roll - 22.10.2020. Thus, it is seen that preliminary steps has been taken by the Assam State Election Commission, which is required to be undertaken for holding elections in Tiwa Autonomous Council.
9) It is further seen that there is nothing contained in the said 2005 Act the said 2005 Rules prescribing that the elections to the General Council has to be held before the expiry of the term/ tenure of the out-going General Council. Thus, in the absence of any such statutory provision, there is no material from which the Court can presume that the intention of the legislature is to hold election so that the new General Council can take over immediately on expiry of the tenure of the out-going General Council. Thus, in other words, the Court is unable to presume that the provisions of section 7 of the said 1995 Act and Rule 17(1) of the said 2005 Rules envisages that elections to the General Council is mandatorily required to be completed on the date of expiry of the term of the existing General Council.
Page No.# 6/7 From the time schedule as notified vide notification dated 05.09.2020, the only presumption that can be drawn is to the effect that the election to the General Council of Tiwa Autonomous Council is not likely to be held within 08.10.2020, i.e. within the tenure of the present General Council.
10) Therefore, merely because in the past, due to delay in holding elections in two similarly situated Autonomous Council, the Government had extended the tenure of the General Council by exercising power under section 7(3) of the said 2005 Act, yet, such an action in the past would not be sufficient for the Court to issue a mandamus, thereby directing the Government to extend the tenure of the Tiwa Autonomous Council. In the opinion of the Court, a mere delay in holding and completing the election process stands in a different pedestal than a total inaction on part of the State as well as Assam State Election Commission to hold elections. In the present case hand, the timelines for publication of constituency wise photo-electoral roll has been notified. We have not been shown any provisions of law which prescribe that notification for holding election on a particular date can be issued prior to the publication of final electoral roll. Therefore, as on date, there is no material available on record for the Court to presume that the State has no intention to hold elections of the General Council of Tiwa Autonomous Council.
11) Out of the two alternative prayers made in the writ petition, it is reiterated at the cost of repetition that from the herein before referred notification dated 05.09.2020, the State respondents are seen to have already initiated preliminary steps, essential for the purpose of holding election to the General Council for the Tiwa Autonomous Council. Therefore, there is no immediate need for the Court to issue a direction to the State respondents to exercise power under Section 7(3) of the said 2005 Act and to extend the tenure of the General Council of Tiwa Autonomous Council, which is the alternative prayer made by the petitioners.
12) Hence, the Court is not inclined to grant any of the two alternative reliefs as Page No.# 7/7 prayed for.
13) Before parting with the records, it is made clear that although some collateral or consequential issues were urged as to the effect of not holding elections immediately after draft photo-electoral roll is published, but as cause of action for such eventualities has not yet arisen, the Court has not examined any issues other than ones relating to the prayer made in this writ petition.
14) The writ petition stands disposed of.
JUDGE
Comparing Assistant