Gauhati High Court
Begum Afrooja Perveen vs The State Of Assam And 4 Ors on 1 March, 2019
Author: Arup Kumar Goswami
Bench: Arup Kumar Goswami
Page No.# 1/4
GAHC010045032019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 1434/2019
1:BEGUM AFROOJA PERVEEN
WIFE OF ATIQUR RAHMAN, R/O. VILL.- SOUTH KANAKPUR, P.O.
KAYASTHAGRAM, DIST.- KARIMGANJ, ASSAM, PIN- 788719.
VERSUS
1:THE STATE OF ASSAM AND 4 ORS.
REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM,
PANCHAYAT AND RURAL DEVELOPMENT DEPTT., DISPUR, GUWAHATI-6.
2:THE COMMISSIONER
PANCHAYAT AND RURAL DEVELOPMENT DEPTT.
JURIPAR
GUWAHATI-22.
3:THE DEPUTY COMMISSIONER
KARIMGANJ
ASSAM
PIN- 788710.
4:P.B. ROY
DEPUTY COMMISSIONER
KARIMGANJ
ASSAM
PIN- 788710.
5:ASHISH NATH
S/O.- PARIMAL CH. NATH
R/O. VILL- PALADAHAR
P.O. BAZARGHAT
DIST. KARIMGANJ
ASSAM
PIN- 788733
Page No.# 2/4
Advocate for the Petitioner : MR. K N CHOUDHURY
Advocate for the Respondent : SC, PNRD
BEFORE
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI
ORDER
01.03.2019 At the very outset, Mr. K.N. Choudhury, learned Senior counsel for the petitioner prays for correction of the name of the petitioner in the cause title. Mr. P.N. Goswami, learned counsel assisting him may suitably correct the name under his initials.
Heard Mr. K.N. Choudhury, learned Senior counsel for the petitioner. Also Heard Mr. M.K. Choudhury, learned Senior counsel appearing for respondent No.5; Mr. M. Nath, learned standing counsel, Panchayat and Rural Development, appearing for respondent Nos.1 and 2 and Mr. R. Dhar, learned State counsel appearing for respondent No.3.
The instant petition is filed with regard to election to the post of President of Karimganj Zilla Parishad. The petitioner and the respondent No.5 having been elected to the Karimganj Zilla Parishad contested for the post of President of Karimganj Zilla Parishad. There are 20 members in the Zilla Parishad and there was equality of votes as both the petitioner and the respondent No.5 secured 10 votes each.
Rule 45(1) of the Assam Panchayat (Constitution) Rules, 1995 provides manner and method in which one out of two candidates are to be elected in the event of equality of votes. The provision reads as under:-
"45. Equality of Votes.-(1) If after the counting of votes it appears that two candidates of whom only one is to be declared elected, having received equal number of votes, the Deputy Commissioner or the Sub-Divisional Officer as the case may be, or any Officer authorised by him in this behalf, shall decide which of the two shall be declared elected by tossing up a coin in presence of such candidates. Each candidate shall be assigned one side of the coin by him or by the Officer just before the toss. The candidate whose side appears visible at the top of the coin after it has fallen flat on any plain ground or table, shall be declared elected."
Page No.# 3/4 Rule 50 of the Assam Panchayat (Constitution) Rules, 1995 deals with the procedure for election of President and Vice President of Zilla Parishad. Rule 50(9) provides that in case of equality of votes, declaration of election shall be given by the Deputy Commissioner in the manner prescribed under Rule 45 of the Rules which has been referred to herein above. Rule 50(10) provides that declaration as to the election to the offices of the President and Vice President of the Zilla Parishad by the Deputy Commissioner shall be final provided any dispute arises in the said election.
In the instant case, recourse to tossing of coin as contemplated was resorted to in view of equality of votes on 11.02.2019. It appears from Annexure-E (page-35), which is a letter dated 15.02.2019 issued by the Deputy Commissioner, Karimganj and addressed to the Principal Secretary to the Govt. of Assam, Panchayat & Rural Development Department, that a detailed report regarding the meeting dated 11.02.2019 was given. From a perusal thereof, it appears that the first toss that was conducted by him had touched the wall and a chair while falling on the ground of the conference hall and because of that a demand was raised for another toss. It also appears therefrom that all concerned unanimously agreed upon a second toss. In the second toss, the call of the petitioner came out right.
In the proceeding of the meeting held on 11.02.2019 also, which was signed by the Deputy Commissioner on 15.02.2019, there is a reference to toss of coin twice.
While Mr. K.N. Choudhury submits on the basis of the vernacular version of the minutes dated 15.02.2019 that in the said minutes also unanimity of the members for a second toss finds place, Mr. M.K. Choudhury, learned Senior counsel appearing for respondent No.5 submits that on a proper reading of the vernacular version, it would appear that only some of the members had asked for a second toss and considering the same the Deputy Commissioner had resorted to the second toss.
Though the proceedings of the meeting dated 11.02.2019 was written on 15.02.2019, there is no indication in that letter as well as in Annexure-E as to what really transpired after the second toss. It is indicated in the minutes that supporters of the petitioner cheered the petitioner on winning the toss. There is a reference in the Annexure-E letter regarding delivery of vote of thanks by the Deputy Commissioner.
In the writ petition there is an averment in paragraph 7 that the petitioner was declared as winning candidate for the post of President of Zilla Parishad and thereafter, the Deputy Commissioner concluded the meeting with a vote of thanks. In the letter dated 15.02.2019 (Annexure-E), it is also indicated that the respondent No.5 and some other members requested him not to handover charge of President and Vice President to the illegally selected members.
It is submitted by Mr. K.N. Choudhury that the Deputy Commissioner abdicated his power in Page No.# 4/4 soliciting instructions vide his letter dated 15.02.2019 (Annexure-E) from the Principal Secretary, Govt. of Assam, Panchayat and Rural Development Department, as it was he alone who was to take a call on the result of the election and in fact, he had done so. Accordingly, he has submitted that Annexure-E letter dated 15.02.2019 seeking instructions cannot be sustained in law.
Mr. M.K. Choudhury, however, refers to Rule 57 of the Assam Panchayat (Constitution) Rules, 1995 to contend that the same was a permissible course of action.
The matter will require further deliberation.
Issue notice of motion, returnable on 13.03.2019.
No formal steps are call for with regard to respondent Nos.1, 2, 3 and 5, as they are duly represented. However, extra copies be furnished.
The petitioner will cause dasti service on respondent No.4 by routing the notice through the Court's Registry and after service is effected, an affidavit of service be filed. In the notice it will be specifically mentioned that the case will be listed on 13.03.2019.
The respondent No.4 will file his personal affidavit on or before the next date fixed.
Till then, no decision shall be taken by the Principal Secretary to the Govt. of Assam, Panchayat and Rural Development Department on the basis of the letter dated 15.02.2019 (Annexure-E).
Sd/-
JUDGE Comparing Assistant