SMTI. RITA KAKOTI BORAH v. THE STATE OF ASSAM AND 4 ORS

Advocate for the Petitioner : MS. D SAIKIA Advocate for the Respondent : SC, P AND R.D. Page No.# 2/7 BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

07.11.2022 ORDER Heard Shri H. Buragohain, learned counsel for the petitioner. Also heard Shri NK Dev Nath, learned Standing Counsel, P & RD Department for the respondent no. 1 and 3 as well as Shri J. Handique, learned State Counsel for the respondent no. 2 and Shri M. Nath, learned Senior Counsel for the respondent nos. 4 and 5, who is assisted by Shri A. Bhattacharjee.

Considering the subject matter of this writ petition and as agreed to by the parties, the present writ petition is taken up for final disposal at the admission stage.

Before going to the issue involved, the facts as projected by the petitioner is that the petitioner is a Member of the Nagaon Zilla Parishad (NZP), who is elected from the Samuguri Constituency. The said constituency is a reserved constituency for Scheduled Caste Women. The petitioner is aggrieved on the failure of the respondent authorities to handover the post of the President of the NZP to her and in this regard she places reliance upon the notification dated 28.01.2019 by which the post of President of the NZP was reserved for Scheduled Caste Women. The petitioner claims to be the only reserved category woman candidate to be elected from the reserved category seat and therefore it is contended that the action of the respondent authorities in not giving the opportunity to act as the President of the NZP is not in accordance with law and required interference. Page No.# 3/7

Shri Buragohain, learned counsel for the petitioner submits that it is only the petitioner, who fulfills the condition of being a Woman from Scheduled Caste and is elected from a Constituency reserved for the Scheduled Caste. He further submits that since the President of the NZP is reserved for a Scheduled Caste-Women candidate as per notification dated 28.01.2019, not giving the scope to the petitioner would be in violation of the said notification.

Per contra, Shri NK Dev Nath, learned Standing Counsel, P & RD Department submits that the interpretation of the petitioner may not be correct as the requirement of the notification in question is only with regard to the candidate and not the constituency and in the instant case, the respondent no. 5 is also a Woman from Scheduled Caste community and therefore, there is no error or restriction in the said respondent no. 5 being appointed as the President of the NZP.

While endorsing the submission of the learned Standing Counsel of the Department, Shri M. Nath, learned Senior Counsel for the respondent nos. 4 and 5 has submitted that the object of the legislature in reserving the post of the President for Women-Scheduled Caste can only with regard to the candidate and therefore the constituency from which the candidate is elected is not relevant. In other words, the learned Senior Counsel submits that whether the constituency is a reserved constituency or a non-reserved constituency is of no consequence so far as the candidate is a woman belonging to the Scheduled Caste category, who can also contest from a non-reserved constituency. He submits that since the reservation is meant for the candidate, the election of his client has been done strictly in accordance with law which does not requiring any interference. He further submits that the facts are also peculiar in the instant case where the petitioner did not even offer her candidature for the post of President and accordingly the respondent no. 5 was the only candidate remaining and was elected uncontested. The learned Senior Counsel submits that the said aspect is not the subject matter of challenge in the writ petition. Page No.# 4/7

Shri Buragohain, learned counsel for the petitioner however submits that the petitioner was the deceitfully prevented from offering her candidature for the post of President. In this regard, he has drawn the attention of this Court to the averments made in paragraph 7 of the writ petition. Though the aforesaid aspect may constitute a dispute, the said dispute is strictly factual in nature which cannot be determined by a writ Court exercising jurisdiction under Article 226 of the Constitution of India.

Concerning the present dispute, a decision of the Hon’ble Supreme Court of India reported in (1998) 1 SCC 285 (Kasambhai F. Ghanchi and Others Vs. Chandubhai D. Rajput and Others.) can be referred to. In the said case, a Three Judges Bench of the Hon’ble Supreme Court has laid down that the law earlier laid down in the case of (1997) 1 SCC 122 (Saraswati Devi Vs. Shanti Devi) was not the correct interpretation and it is the candidate who is of relevance while ascertaining the caste and gender. For ready reference, paragraphs 10 and 13 of the case of Kasambhai (supra) are extracted hereinbelow- “10. Before referring to Saraswati Devi case1, it will be appropriate to examine the provisions of the Constitution as well as the Act and the Rules for their true import and effect. As is evident from the provisions quoted earlier the municipalities are required to be represented by members belonging to all sections of the society.

The idea of providing reservation for the benefit of the weaker sections of the society is not only to ensure their participation in the conduct of the affairs of the municipality but it is also an effort to improve their lot. The reservation ensures that the specified minimum number of persons belonging to that category become members of the municipality. If because of their popularity a larger number of Scheduled Castes, Scheduled Tribes, Backward Classes or women get elected to the municipality than the number of reserved seats that would be welcome. When the idea is to promote the weaker sections of the society, and to improve their lot, it would be a contradiction in terms if members belonging to that section are debarred from standing to the office of the President because such a candidate is popular enough to get elected from a general constituency. It is a fundamental principle of democratic election that a person who is more popular is elected, popularity being measured by the Page No.# 6/7 number of votes which the person gets. The language of various legal provisions do not in any way suggest, expressly or by necessary implication, that even though a person who belongs to a reserved category and is popular enough to get elected from a general constituency should be barred from contesting the election of the President when that office is to be filled only by a reserved category person.

In view of the aforesaid facts and circumstances, this Court is of the considered opinion that the objective of the legislature being only with regard to the candidate regarding the gender and the particular category which in this case is Schedule Caste, whether the said candidate is elected from a constituency reserved for the said category or not would not be relevant so long as the candidate fulfills the requirement of the gender and the particular category which in this case is duly met by the private respondent no. 5. It is not in dispute that the private respondent no. 5 is a woman candidate belonging to the Scheduled Caste category and therefore her eligibility to contest for the post of President of Nagaon Zilla Parishad cannot be questioned. Only because the petitioner happens to be elected from a constituency reserved for Schedule Caste would not give her any added benefit if there is any contest from a similarly situated woman candidate belonging to the Schedule Caste category even if elected from a non-reserved constituency. The aforesaid view is also supported by the decision of the Hon’ble Supreme Court quoted above.

In view of the aforesaid facts and circumstances, this Court is of the considered opinion that no case for interference has been able to be made out by the learned counsel for the petitioner. It is however made clear that in case the petitioner chooses to challenge the procedure of election, such dispute may be adjudicated independently and in accordance with law and no observation has been made on merits.

Shri Buragohain, learned counsel for the petitioner further submits that there Page No.# 7/7 was a mutual agreement between the petitioner and the respondent no. 5 regarding sharing of the tenure. This submission has, however, been strenuously disputed by Shri M. Nath, learned Senior Counsel for the respondent no. 5. It is needless to state that the parties are at liberty to come to an agreement which is recognized by law but this Court would refrain from making any direction in that matter.

The writ petition accordingly stands disposed of. JUDGE Comparing Assistant