Tripura High Court
Rajesh Debbarma S/O Lt. Ram Chandra ... vs The State Of Tripura Through The Chief ... on 13 July, 2022
Author: S.G.Chattopadhyay
Bench: Indrajit Mahanty, S.G.Chattopadhyay
HIGH COURT OF TRIPURA
AGARTALA
WP(C)(PIL) No. 8 of 2022
1.Rajesh Debbarma S/o Lt. Ram Chandra Debbarma, Address of
Village Wakhirai para, P.O- Gulirai bari, P.S- Bishramganj,
Sepahijala, West Tripura, Pin-799103.
2.Dahlia Debbarma W/o- Shri Jimmy Carter Bongcher, Address of
village-Radhia para, P.O- Madhu Chowdhury para, P.S- Lefunga,
West Tripura, Pin-799211
-----Petitioner(s)
Versus
1.The State of Tripura through the Chief Secretary, Government
of Tripura, New Secretariat complex, P. S- New Capital Complex,
P.O- Kunjaban, Agartala, West Tripura, Pin- 799010.
2.The State Election Commission of Tripura
through the Commissioner, State Election Commission,
Government of Tripura, New Secretariat building, P. S- New
Capital Complex, P.O- Kunjaban, Agartala, West Tripura, Pin-
799010.
3.State Election Department, Govt. of Tripura
through the Secretary, Election Department, Government of
Tripura, P. S- West Agartala, P.O-Agartala, West Tripura, Pin-
799001.
4.The Tribal Welfare department through the Secretary,
Government of Tripura, Gurkhabasti, P. N Complex, Agartala,
West Tripura, Pin- 799006.
5.The Revenue Department through the Secretary, Government of
Tripura, New Secretariat building, P. S- New Capital complex, P.O-
Kunjaban, Agartala, West Tripura, Pin- 799010.
6.Tripura Tribal Areas Autonomous District Council
(TTAADC) through the Chief Executive Officer, (CEO) P.S-
Radhapur, Khumulwng, West Tripura, Pin- 799035
-----Respondent(s)
2
BEFORE HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY For Appellant(s) : Mr. Mintu Debbarma, Adv.
Mr. Arup Debbarma, Adv.
Mr. Mintu Debbarma, Adv.
Ms. Rashmita Jamatia, Adv.
Mr. H. Debbarma, Adv.
For Respondent(s) : Sr. GA
Mr.D.Bhattacharjee, GA,
Mr.Bhaskar Debbarma, Adv
Date of hearing : 13.07.2022
& delivery of Judgment
/Order
Whether fit for reporting : YES / NO
Judgment & Order (Oral)
(Per S.G.Chattopadhyay), J
[1] The petitioners who are the practicing advocates by
occupation, have filed this Public Interest Litigation (PIL) seeking a direction to the respondents including State Election Commission (SEC) for holding general election for formation of 587 village committees under Tripura Tribal Areas Autonomous District Council (TTAADC) since the previous term of those elected bodies lapsed on 07.03.2021.
[2] The grievance of the petitioners is that 5 years' term of all the Village Committees under TTAADC ended on 07.03.2021. WP(C)(PIL)08/2022 3 Since then, SEC [Respondent No.2] did not take any initiative for holding election to constitute the Village Committees under TTAADC. In absence of elected Village Committees, care taker administrators were appointed for running the administration of the Village Committees w.e.f. 08.03.2021 by a notification dated 04.03.2021 published in the Tripura Gazette in its extraordinary issue dated 05.03.2021[Annexure-1 to the Writ Petition]. As a consequential fall out of not holding election over such a long period of time important activities like sanitation, conservancy in the ADC villages, construction, maintenance and improvement of village wells and tanks and implementation of various beneficial schemes have come to a standstill causing distress to the people living within the ADC villages including the petitioners. Moreover, the delay in holding timely election to the Village Committees has also frustrated the legislative mandate and offended the democratic norms.
[3] The petitioners approached the state [respondent-1] as well as SEC by submitting written representations for holding Village Committee Elections. Since there was no response from the respondents, the petitioners approached this court by filing this PIL seeking the following directions:
WP(C)(PIL)08/2022 4 "i. Admit the Writ Petition as Public Interest Litigation.
ii. Issue rule upon the Respondents to show cause as to why a writ in the nature of mandamus and / or order/ orders direction/ directions of like nature shall not be issued directing the Respondents to conduct the Village Committee Election as soon as possible in order to constitute total 587 fresh and new Village Committees throughout the Tripura Tribal Areas Autonomous District Council (TTAAD ) or 6th (sixth) Schedule areas of the state and under " Section 4(1) of the Tripura Tribal Areas Autonomous District (Establishment of Village Committee)Act, 1994" in exercising the procedure provided under "Section 4(4) of the Tripura Tribal Areas Autonomous District Village Committee (Conduct of Election)Rules, 1996", iii. As to why such other order/orders should not be passed so as to give justice to the poor indigenous Schedule Tribe people of the state and upon causes shown to make the Rule absolute;
iv. Pass any other relief/reliefs as the Hon'ble Court may deem fit and proper".
[4] The respondents including SEC have appeared and filed their reply. The State Election Department [Respondent No.3] had filed an affidavit on 24.06.2022. In the said affidavit the Addl.
Chief Electoral Officer of the State Election Department has asserted that SEC [Respondent No.2] is responsible for conducting the Village Committee elections. The Election Department [Respondent No.3] is responsible only for conducting Lok Sabha election, Rajya Sabha Election, state Legislative Assembly election and election to the office of President and Vice-President under the supervision and directions of the Election Commission of India.
WP(C)(PIL)08/2022 5 [5] The first affidavit of Respondent No.2 [SEC] came to be filed on 11.07.2022 wherein the Secretary to SEC has pressed into service the following grounds for delay in conducting the Village Committee elections:
"i. Rule-8 of the Tripura Tribal Areas Autonomous District Village Committee(Preparation of Electoral Roll) Rules,1996 provides that for each constituency, there shall be an electoral roll showing the names of the persons qualified to vote.
ii. During village Committee Election held in 2016, the total electors of TTAADC areas were 7,68,561. During TTAADC Election held in 2021, total electors of TTAADC area were 8,65,041. If present Village Committee Election is held on the basis of Electoral Rolls of 2016 without revision, it is estimated that about 1(one) Lakh electors will be deprived of their right to vote. Besides, about 21,000 new voters who have migrated from Mizoram under Bru Community are yet to be settled by the State Respondent. iii. Rule-15 of Tripura Tribal Areas Autonomous District Village Committee (Preparation of Electoral Roll) Rules, 1996 provides that the Electoral Rolls of each village Committee Constituency shall be prepared by splitting up of Assembly Constituency / Constituencies for the time being in force as to the area comprised within the constituency for the election of a member of a Village Committee from that constituency.
WP(C)(PIL)08/2022 6 iv. According to above Rules, the Electoral Rolls of Village Committee Constituency should be prepared by splitting up of Assembly Electoral Roll now in force i.e. Assembly Electoral Rolls published in January 2022. In that case, no eligible voters will be deprived of their right to vote. v. Therefore, conduct of election with the Village Committee Electoral Rolls 2016 is contrary with the Rules as huge number of eligible electors will be deprived of their democratic rights i.e. to cast their votes.
vi. Conduct of any election requires time for its preparation and compliance of some statutory period.
vii. Without proper and appropriate preparation, conduct of election can't be held properly/smoothly.
viii. For conduct of any election it is prerequisites to prepare updated electoral rolls (in case of Village Committee Electoral Rolls need to be prepared for 2634 Constituencies), procurement of materials/ statutory forms, covers etc. in time before the election. For which time for preparation is required.
ix. Moreover, man power for conduct of election and security personnel need to be planned and arranged including their training etc. for conduct of smooth election. x. The Village Committee Election is conducted using ballot papers and ballot boxes for which sufficient time requires for preparation."
WP(C)(PIL)08/2022 7 [6] In the said affidavit a time schedule for conducting said village committee elections has been furnished on behalf of SEC which reads as under:
"
(1) Preparation of Electoral Rolls by the Electoral Registration Officers including 60(Sixty)days splitting up of Assembly Electoral Rolls, data entry, checking and printing of the draft electoral rolls.
(2) In consultation with State Government and TTAADC draft roll to be published and 20(twenty)days finalized after hearing of claims and objections.
(3) Finalization of Polling Stations 08(Eight)days (4) After finalization of Electoral Rolls in consultation with the TTAADC and 10(ten) days confirmation received from the all stakeholders regarding smooth preparation election schedule to be notified by the Commission.
(5) Statutory period from making Nomination after notification by the TTAADC 08(eight) days regarding calling upon of Village Committee Election.
(6) Scrutiny and withdrawal of candidatures 03(three)days
etc
(7) Statutory period Not less than
16 (Sixteen)
days
(8) Day of Poll 01(one)day
(9) Gap period before counting / re-poll day if 03(three)days
any
(10) Counting 01(one)day
(11) Election process to be completed by 07(Seven) days notification Total days required:- 137(Days) "
WP(C)(PIL)08/2022 8 [7] Today, SEC has submitted another affidavit pursuant to our order dated 12.07.2022 in which SEC has indicated a tentative schedule of dates for holding election to the Village Committees under TTAADC which reads as under:
"
Sl.No Event Tentative Dates
1 Tentative Date of 26/10/2022
Notification
2 Day of Poll 28/11/2022
"
[8] Respondents 1,4 and 5 in their joint affidavit have stated
that even though the village committee election of TTAADC fell due on 07.03.2021, the process for conducting the election has been delayed on account of unprecedented situation arising out of the spread of Corona virus. However, the respondents, in coordination with SEC, have undertaken preparation of constituency-wise electoral rolls for the Village Committee elections. Respondents have further stated in their affidavit that election to the Village Committees has been delayed mainly due to the spread of corona virus and preparation of constituency-wise electoral rolls. It is also asserted that the election would be held after the monsoon season is over. It is stated that in order to ensure that the functions of the village committees are not disturbed, initially administrators were WP(C)(PIL)08/2022 9 appointed for each of the Village Committees and thereafter nominated Village Development Committees for all 587 villages under TTAADC were constituted by notification dated 10.05.2021. Thereafter, by notification dated 07.09.2021, the Executive Committee of TTAADC took over the administration of the Village Committees. Moreover, among the 37136 'Bru' migrants settled in the state, 21703 are adults who would be electors for the Village Committee elections. Therefore, the process of delimitation, disposal of claims and objections and enrollments of new voters would be time consuming which would at least take 6 months for completion of the entire process. In paragraph 8 of their affidavit, respondents 1,4 and 5 have categorically stated that "it will be congenial to hold election for Village Committees after 'Sharadiya' festive season in the state is over and in the month of November,2022"
[9] Respondent No.6 [TTAADC] in its affidavit dated 24.06.2022 has asserted that it has submitted as many as 6 representations to SEC, the State Tribal Welfare Department as well as to the State Government for conducting election to the Village Committees under TTAADC. But no process has been initiated for holding the election even after the lapse of a period of more than 01 WP(C)(PIL)08/2022 10 year. Respondent No.6 has also urged the court to issue direction to SEC and State Government to conduct election to the Village Committees under TTAADC at the earliest.
[10] We have heard Mr.S.S.De, learned Advocate General appearing for the state who contends that election to the Village Committees under TTAADC has been delayed for various reasons and the COVID pandemic is one of those reasons. Learned Advocate General has submitted that SEC has come out with a pragmatic time schedule keeping in mind the time that may be taken for preparation of fair and objective electoral rolls. According to learned Advocate General, it would be difficult to conduct the election in the festive season in October 2022. Therefore, SEC has suggested the date of polling at the end of November and hopefully the entire process will be completed by the end of November, 2022. Counsel urges the court to accept the proposal of SEC and issue directions accordingly.
[11] Counsel appearing for the petitioners contend that appointment of administrator cannot be the solution to deferring the Village Committee election for such a long period of time. It is further contended by the counsel of the petitioners that SEC was not WP(C)(PIL)08/2022 11 unaware of the 5 years' term of the previously elected bodies. It could have completed preparation of the electoral rolls in advance before the term expired in terms of the legal mandate. Now, after the election has become over due, SEC cannot come out with a plea that election has been delayed for revision of the electoral rolls. Counsel urged the court to issue direction to SEC as well as to the State Government for conducting the Village Committee election under TTAADC at the earliest.
[12] Perused the record. Considered the submissions of the counsel representing the parties and the entire facts and circumstances of the case.
[13] As stated, SEC has submitted 2 affidavits. In its affidavit dated 11.07.2022, it has been stated that in 2016 when the last Village Committee election was held, number of total voters were 7,68,561. During the last 5/6 years the number of voters has gone up and if election is held without revision of electoral rolls, about 1 lakh voters are likely to be deprived of their right to franchise. Moreover, about 21,000 new voters of 'Bru' community have migrated from Mizoram and settled in Tripura who would be included in the electoral rolls. The SEC has, therefore, suggested WP(C)(PIL)08/2022 12 that at least 137 days would be required for completing the whole election process.
[14] In the affidavit dated 13.07.2022, SEC has given a tentative schedule. As per the schedule, election can be notified on 26.10.2022 and held on 28.11.2022.
[15] In order to refute the contention of SEC regarding revision of electoral rolls, petitioners' counsel relied on the decision of the Hon'ble Supreme Court in the case of Kishansing Tomar V. Municipal Corporation of the city of Ahmedabad reported in AIR 2007 SC 269 and contended that in the said judgment, the Apex Court has viewed that where the revision of the electoral rolls could not be carried out within a reasonable time, the election has to be conducted based on the then existing electoral rolls. Counsel has referred to paragraph 18 of the judgment wherein the Apex Court has held as under:
"18. 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 WP(C)(PIL)08/2022 13 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."
[16] Petitioners' counsel also relied on the decision of the Apex Court in the case of Suresh Mahajan Versus State of Madhya Pradesh and Another reported in 2022 SCC On Line SC 589 to contend that delimitation or formation of ward cannot be a valid ground for the State Election Commission to discharge its constitutional obligation in notifying the election programme and to ensure that the elected body is installed before the expiry of 5 years' term of the outgoing elected body. Counsel has referred to paragraph 11 of the judgment which reads as under:
"11. In any case, the ongoing activity of delimitation or formation of ward cannot be a legitimate ground to be set forth by any authority much less the State Election Commission-to not discharge its constitutional obligation in notifying the election programme at the opportune time and to ensure that the elected body is installed before the expiry of 5 (five) years term of the outgoing elected body. If there is need to undertake delimitation - which indeed is a continuous exercise to be undertaken by the concerned authority - it ought to be commenced well-in-advance to ensure that the elections of the concerned local body are notified in time so that the elected body would be able to take over the reigns of its administration without any disruption and WP(C)(PIL)08/2022 14 continuity of governance (thereby upholding the tenet of Government of the people, by the people and for the people). In other words, the amendment effected to the stated enactments cannot be reckoned as a legitimate ground for protracting the issue of election programme of the concerned local bodies."
[17] Counsel of the petitioners also placed reliance on the common judgment dated 12.01.2021 of the Division Bench of this High Court in Apu Debbarma Versus State of Tripura & Ors. [WP(C)(PIL)12 of 2020] and Tripura People Front (TPF) & Ors. Versus State of Tripura & Ors [WP(C)814 of 2020], wherein the petitioners sought for issuing direction to the State Election Commission for holding general election to constitute new district council under TTAADC since the term of the previously elected council ended on 17.05.2020. Even though no rigid time line for holding the election was granted, in view of the Constitutional status of the District Council and the important functions and duties performed by it, this High Court viewed as under:
"[5] We fully share the anxiety of the petitioners that the constitution of the District Council through duly elected members is of considerable public importance. The District Council has constitutional status and has important functions and duties to perform. Such functions cannot be entrusted to an administrator for indefinite period of time. We therefore, expect the respondents and in particular WP(C)(PIL)08/2022 15 the Election Commission to proceed further with the process of conducting such election in full earnest and hold the election as early as possible. In the affidavit in reply the Election Commission has stated that Electoral Rolls of all Assembly Constituencies under Annual revision with reference to 01.01.2021will be published by Election Commission of India on 15.01.2021 and thereafter on the basis of such fresh list and finalization of publication of Assembly electoral rolls, the election Commission of Tripura will take up the matter and finalize the electoral rolls for general election of TTAADC and thereafter the process of election will commence.
[6] We do not intend to provide any rigid time lines for this purpose, more so when the Advocate General has stated before us that under no circumstances there shall be any extension of the term of the administrator after 17.05.2021, however, we would expect the State machinery not to treat this dead line as a date or time till which they can delay the process if otherwise within normal reasonable bounds it is possible to hold the election and declare the result sooner. We would expect the respondents to complete the election process without any further waste of time, of course, subject to completion of statutory formalities and the mandatory period required to be granted for completing particular stages. ........................................................................................"
[18] To further evaluate the contentions of the parties, we may refer to the relevant legal provisions. TTAADC has framed Tripura Tribal Areas Autonomous District (Establishment of Village Committee) Act, 1994 and Tripura Tribal Areas Autonomous District Village Committee (Conduct of Election) WP(C)(PIL)08/2022 16 Rules, 1996 in exercise of powers conferred under paragraph 3 of the 6th Schedule to the Constitution. Section 10(1) of the Tripura Tribal Areas Autonomous District (Establishment of Village Committee) Act, 1994 provides that the members of the Village Committee elected at a general election shall hold office for 5 years from the date appointed for its first meeting and no longer unless otherwise dissolved under any law for the time being in force. Sub- section (4) of Section 10 of the said Act provides that the election to constitute Village Committee shall be completed before the expiration of its duration specified under sub-section (1). Sub- section (3) of Section 10 provides that such election shall be conducted by the State Election Commission in consultation with the District Council by appointing a date by notification published in the official gazette. [emphasis supplied by us] [19] Undisputedly, the term of the previously elected Village Committees have come to end on 07.03.2021 and as such the election is overdue. As per the affidavits submitted by SEC, election cannot be held on the basis of the electoral roll of 2016 because in the TTAADC election held in 2021, total number of enrolled voters came to be 8,65,041 whereas it was 7,68,561 in 2016. Therefore, about 1 lakh voters will have to be included by WP(C)(PIL)08/2022 17 way of revision of the electoral rolls. Moreover, about 21,000 people of 'Bru' community have migrated from Mizoram and settled in Tripura. The inclusion of the eligible voters of this community in the electoral rolls is also necessary for holding the Village Committee election.
[20] Plea of SEC is not totally devoid of merit. In fact, it is SEC which will conduct the election after a fair and complete assessment of the situation and ensure that no eligible voter is denied of the right to franchise and they are in a position to exercise their franchise in a free and fair manner unhindered by any pandemic or any other hostile circumstances. At the same time, we cannot be oblivious of the fact that election to the Village Committees is long overdue and holding of timely election even in local bodies is a basic feature of democracy. In the matter of SPECIAL REFERENCE NO. 01 of 2002 [Gurjarat Assembly Election Matter] reported in (2002)8 SCC 237, the Apex Court viewed in paragraph 128 of its opinion delivered on 28.10.2002 as under:
"128. Democracy is a basic feature of the Constitution. Whether any particular brand or system of government by itself , has this attribute of a basic feature, as long as the essential characteristics that entitle a system of government to be called WP(C)(PIL)08/2022 18 democratic are otherwise satisfied is not necessary to be gone into. Election conducted at regular, prescribed intervals is essential to the democratic system envisaged in the Constitution. So is the need to protect and sustain the purity of the electoral process. That may take within it the quality, efficacy and adequacy of the machinery for resolution of electoral disputes."
[21] There is no doubt that the Tripura Tribal Areas Autonomous District (Establishment of Village Committee) Act, 1994 under Section 20 has assigned important duties and functions to the Village Committees. Therefore, there is force in the submissions of learned counsel of the petitioners that such functions cannot be entrusted to an administrator for an indefinite period of time.
[22] In such a situation, the SEC, as an independent body, will have to weigh the competing demands and expedite the entire process to hold the Village Committee elections without further delay in order to maintain the democratic norms. [23] Though we are not proposing any rigid time lines for this purpose, keeping in view SEC's affidavits and the materials placed before us, we would expect SEC and state machinery to notify the date of election at the earliest and complete the entire WP(C)(PIL)08/2022 19 process of Village Committee elections including declaration of results preferably within the first week of November, 2022. [24] In terms of the above, the PIL stands disposed of.
Pending application(s), if any, shall also stand disposed of.
(S.G.CHATTOPADHYAY), J (INDRAJIT MAHANTY), CJ Saikat Sarma, PS-II WP(C)(PIL)08/2022