High Court
Case Details
WP(C) 3942/2012 BEFORE HON’BLE MR JUSTICE N.CHAUDHURY By this application under Art. 226 of the Constitution of India, the petitioner has challenged the legality and validity of Notification dated 12.08.2012 issued by Joint Secretary, TCA etc. Karbi Anglong Autonomous Council, Diphu thereby ca nceling the election of the present petitioner as Chairman of Bokajan Town Commi ttee. 2. The facts involved in this case needs to be briefly stated : The petitioner being a permanent resident of Bokajan Town Committee und er Karbi Anlong Autonomous Council contested election for Ward No. 7 in the Town Committee. The election by way of adult suffrage was held on 31.07.2012. Result was declared on the same date i.e. on 31.07.2013 and thereupon the District Co uncil issued Notification on 7.8.2012 declaring the elected members as well as n ominated members of the Town Committee purportedly under Rule 4 of the Karbi Ang long District (Constitution of Town Committees) Rules 1958 ( hereinafter referre d to as the Rules). The petitioner has stated in paragraph 8 of the writ petitio n that on 10.08.2012 all the elected and nominated members were administered oat h and the petitioner also took oath accordingly. Thereafter, the members elected the petitioner as Chairman of the Town Committee. One Mohan Rongpi was elected as Vice Chairman on the same date. But hardly one day had passed in the meantime . On 12.8.2012, the impugned notification was issued by the Joint Secretary canc eling the election of the petitioner as Chairman of the Town Committee and the s aid cancellation was attributed to the receipt of complaints and legal opinion. It is the case of the petitioner that no notice was served on the petitioner bef ore issuance of the impugned Notification whereby his status as elected Chairman of the Town Committee was set at naught by an Officer of the Karbi Anglong Auto nomous Council, by impugned notification dated 12.8.2012 barely after two days p urportedly on the ground that there was complaint against him by majority of mem bers.
Legal Reasoning
I have heard Ms. M. Hazarika, learned Sr. Advocate, appearing on behalf 3. of the petitioner assisted by Mr. N.K. Borah. I have also heard the learned coun sel appearing on behalf of respondent No. 5. Ms. T. Hasne, on being instructed b y Mr. J. Chutia, learned Standing counsel for the respondents No. 2, 3 and 4. Mr . M. Khataniar, learned counsel, appearing on behalf of the respondent No. 1 is also heard. The learned Sr. counsel arguing for the petitioner in this case, has mad 4. e the following submissions :- There is no provision either in the Karbi Anlong District (Constitution (i) of Town Committees) Rules 1958 and/or in the Karbi Anglong District (Town Commit tees) Act, 1954 vesting any power of jurisdiction on the District Council to ca ncel the election of any Chairman or Vice Chairman by the elected members. The order dated 12.08.2012, therefore , is unauthorized and without jurisdiction. (ii) The petitioner having been elected by the popularly elected members of t he Town Committee as Chairman on 07.08.2012 and he having taken oath on 10.08.20 12, there was no reason whatsoever, for setting aside his election two days ther eafter on 12.08.2012 and as such, the said decision being based on extraneous co nsideration is vitiated. (iii) That the petitioner having taken oath as Chairman of the Town Committee on being elected by the popularly elected members on 10.08.2012, the authority act ed in violation of the principles of natural justice in not affording an opportu nity of hearing to him before canceling his appointment and, that too, ’purporte dly’ on the complaints received from the majority of the Ward Commissioners. Eve n if it is presumed for the time being that the authority has power to cancel su ch election, the order dated 12.08.2012 is non-est in law. 5. The respondent No. 3 has filed an affidavit-in-opposition. In the said a ffidavit, it is not denied that the petitioner was elected either as member or a s Chairman of the Town Committee; rather the fact that the petitioner was electe d as Chairman on 10.08.2012 was admitted in paragraph 6 of the affidavit-in-oppo sition. However, it was the stand of the said respondent No. 3 that the petition er had not been administered oath. The affidavit-in-opposition does not show as to whether there is any source of power of the District Council for canceling th e election of the Chairman and/or Vice Chairman. 6. I have gone through the Rules. The Rules also do not show as to the exis tence of any condition empowering the District Council to cancel the will of the electorate. 7. Rule 9 of the Rules provides that a general election shall be held under the Rules for constitution of the first Town Committee and also for reconstitut ion of the Town Committee on the expiration of the duration thereof or on its di ssolution, as the case may be. The said election was held on the basis of the el ectoral rolls prepared under Rule 20 of the said Rules. Rule 42 of the Rules pro vides that on the completion of the poll the Presiding Officer shall then and th ere count all the votes and declare such candidate or candidates as the members and thereafter promptly forward all papers including the electoral rolls enclose d with ballot papers etc to the District Council, whereupon the District Council would issue notification under Rule 44 of the Rules. From perusal of these Rules provided under Chapter III, it appears that 8. the election of members of Town Committee under Karbi Anlong Autonomous Council is on the basis of the principles of universal adult franchise and as such membe rs are popularly elected by electorate of the Town Committee. There is no provis ion in the Rules for no confidence motion against the President or Chairman and/ or in the parent Act. In the absence of Rules for such exercise of power it is t o be presumed that once a member or a Chairman is elected by the members, he wou ld continue to hold the office for the specified term. Here in this case, the Di strict Council, who is ultimately the appropriate authority to probe into the al legation, set aside the election of the petitioner as Chairman, petitioner conti nues to remain an elected member notwithstanding. None of the counsel appearing for the respondents could point out any provision which empowers the District Co uncil to pass such an order for canceling the election of Chairman or Vice Chair man. In that view of the matter, the first submission of the learned Sr. counsel for the petitioner that the impugned order dated 12.08.2012 is without jurisdic tion, is upheld. Even if it is to be assumed that on the basis of a complaint th e District Council being an overall authority, is empowered to pass orders for c anceling the election of Chairman or Vice Chairman, in that event such an action has to be in compliance of the fundamental principles of natural justice. While it is alleged that the complaints were received from the majority of the Ward C ommissioners of the Town Committee, no opportunity was given to the elected Chai rman to prove that he enjoys/enjoyed the confidence of the majority members in a floor test. Neither the names of the objectors/members are disclosed in the imp ugned order nor has the petitioner been furnished with a copy of the complaint o n the basis of which the petitioner has been unseated. Supposing that there is a power for such setting aside the election of Chairman or Vice Chairman, in that event also absence of the confidence of the electorate/members of the Town Comm ittee has to be examined in a floor test and for that, opportunity should have b een given by allowing the members to hold a meeting for the purpose. Whether the re was at all any complaint by any of the Ward Commissioners of the Town Committ ee, it could not be ascertained because of failure on the part of the District C ouncil to afford opportunity. The District Council or the authority passing the impugned notification dated 12.08.2012 is not an authority to elect either a mem ber of the Town Committee or its Chairman and as such, in the absence of a speci fic statutory provision, the impugned order canceling the election of the petiti oner as Chairman deserves to be adjudged as illegal and unauthorized. 9.Taking all these aspects into consideration it appears that the impugned order dated 12.08.2012 deserves to be interfered with by way of judicial review and accordingly this writ petition is allowed. The imp ugned order dated 12.08.2012 canceling the election of the petitioner as Chairma n of Bokajan Town Committee is set aside. Consequently, the election of the resp ondent No. 5 of this writ petition as Chairman in place of the petitioner, deser ves to be set aside and it is accordingly set aside. 11.