High Court
Case Details
WP(C) 5897/2012 BEFORE THE HON’BLE MR. JUSTICE B.K. SARMA Both the writ petitions pertaining to the same issue have been heard tog
Decision
ether and are being disposed of by this common order. I have heard Mr. G. N. Sahewalla, learned Senior Counsel assisted by Mr. P. Deka, learned counsel appearing for the petitioner in WP(C) No. 5897 of 2012 . I have also heard Mr. M. Chanda, learned counsel representing the petitioners in WP(C) No. 6265 of 2012. The State is represented by Mr. D. Saikia, learned Ad dl. Advocate General, Assam, while respondent No. 4, N. C. Hills Autonomous Coun sel is represented by Mr. P. K. Goswami, learned Senior Counsel assisted by Ms. B. Choudhury, learned counsel. I have also heard Mr. M. U. Mahmud, learned Stand ing Counsel, Election Commission, for the respondent No.3 The petitioners are aggrieved by the action on the part of the responden ts in extending the term of office of the Autonomous Counsel after expiry of its 5 years term, commencing from 5th December, 2007. In the normal circumstances i ts term was to expire on 7th of December 2012, however, the said term has been e xtended for a period of 6 months with effect from 07.12.2012 or till the first s itting of the newly elected counsel whichever is earlier. To that effect the imp ugned notification dated 03.12.2012 has been issued. For a ready reference, the same is quoted below (cid:28)No. HAD. 174/2012/91: Whereas, the term of the present NCHAC will expir e on 6th December, 2012 on completion of five years term of the Council. Whereas, it has become difficult to hold elections to the North Cachar H ills Autonomous Council in time before the above-mentioned date due to the festi vities involving (cid:28)BUSU DIMA (cid:29) in the entire District. Whereas, it is also difficult to hold elections to the Council due to th e exams scheduled to be held for HSLC and HS examinations. Whereas, having considered all the facts and circumstances in regard to the prevailing situation in Dima Hasao District including the signing of MoS and disbanding of the DHD(N) & DHD(J) within a period of six months. Now, therefore, the Governor of Assam in exercise of powers conferred in Rule 7 (1) of Assam Autonomous Districts (Constitution of District Councils) Ru les, 1951, is pleased to extend the term of the said Council for a period of six months with effect from 7th December, 2012 or till the 1st sitting of the newly elected Council, whoever is earlier. (cid:29) According to the petitioners the grounds assigned in the notification ca nnot be regarded as such so as to form an opinion towards extending the term of office of the Council. It is the case of the petitioners that such a course of a ction has been adopted on extraneous conditions and not for bonafide reasons. Both Mr. Sahewalla and Mr. Chanda, learned counsel representing the peti tioners have emphasised the need for holding the elections to uphold the princip les underlying democratic set up enshrined in the Constitution of India. They su bmitted that if the notification dated 03.12.2012 is allowed to stand, the same will encourage issuance of such notifications in future also curtaining the demo cratic right and aspiration of the people of the district in question. Mr. D. Saikia, learned Addl. Advocate General, Assam submits that the im pugned notification had to be issued, extending the term of the office of the Co uncil for good and valid reasons. In this connection he has referred to the stan d of the respondents in the counter affidavit. He has also referred to the file, in which the impugned decision was taken. Referring to the provisions of the Co nstitution (6th Schedule) and the provisions of Assam District (Constitution of District Council) Rules 1951, he submits that the Governor of Assam being empowe red in this regard has issued the impugned notification taking note of all the a ttending facts and circumstances and this Court, exercising its power of judicia l review under Article No. 226 of the Constitution of India, will not sit on app eal over such a decision. Mr. P. K. Goswami, learned counsel for the respondent No.4 submits that the Coun cil of its own does not have anything to say in the matter and it will abide by the decision to extend the term of office of the Council. He submits that this C ourt cannot substitute its decision to give direction for holding of election be fore the period of extension that has already been granted. I have considered the submissions made by the learned counsel for the parties. I have also considered the entire materials on record including the file that has been produced by Mr. Saikia, learned Addl. Advocate General, Assam. Schedule 6 of the Constitution of India empowers the Governor to make Ru les for the first Constitution of District Council and Regional Councils in cons ultation with the existing Tribal Councils or other representative Tribal Organi sations with the Autonomous District or Regions concerned. Such Rules shall prov ide for the Constitution of the district Councils; the determination of the terr itorial Constituencies etc. Clause 6 (A) empowers the Governor to extend the ter m of office of the district council for a period extending not more than 1 year at a time driving the satisfaction that holding of elections is impracticable. S imilarly, Rule 7 (1) of the aforesaid rules of 1951 also empowers the Governor t o extend the period of terms of the office of the District Council not exceeding 1 year at a time. The question that has arisen for this Court is as to whether the grounds assigned in the impugned notification can be said to be the good and sufficient towards deriving the satisfaction to extend the term of the office of the distr ict Council as indicated in the impugned notification. Be it stated here that th e respondents have already indicated the different phases to hold the election. As per the said schedule, the election notification shall be issued in the month of February, 2013 and the election will be held on 18.04.2013, followed by coun ting of votes on 28.04.2013 and declaration of results as soon as the counting i s over. From the above, it is seen that the Government has already decided to ho ld the election as per the programmes that has been indicated in the counter aff idavit. Mr. Saikia, learned Addl. Advocate General, Assam, during the course of his submission has made it clear that the Government is alive to the right and a spirations of the people of the district and that election will be held as per t he said programme. On perusal of the file in question, it is seen that the political depart ment of the Government took the decision to notify the election in the month of February, 2013 and hold the election in the month of April 2013. Apart of the re asons / grounds assigned in the impugned notification another ground discernible from the note in file is that pursuant to the MoS with certain banned militant organisations, as per the said note, although the expectation for the disbanding of the out- fit was by November/December 2012, however, the police/army operati on will have to continue for complete disarming of the cadre. This is one of the major issues which fell for consideration of the authority towards extending th e term of office of the Council which, in my considered view cannot be said to b e arbitrary or extraneous. Mr. Chanda, learned counsel for the petitioner has expressed his apprehension th at the respondents may not hold the election even in the month of April, 2013 an d may further extend the term of the office of the Council. In this connection, he also referred to the Annexure-3 letter dated 24.11.2012 addressed to the Gove rnor of Assam by the MLA hailing from the district. The Government was requested to hold the election to the district Council and not to extend the term of the present Council. Mr. Chanda has also referred to the Annexure-4, newspaper repor t also, in which the purported corruption in the office of the district council was highlighted. According to him if the term of office of the district Council is further extended, it will commit, further, financial irregularities and thus it is for the interest of the people of the district, the election is hold to el ect the representatives to the district Council. I have given my anxious consideration to the submissions made by the lea rned counsel for the parties including the aforesaid submission made by Mr. Chan da, learned counsel representing the petitioners involved in WP(C) No. 6265 of 2 012. As stated above one of the major grounds, towards extending the term of the office of the council is the task ahead towards continued CI operation for comp lete disarming of the cadres. It is an admitted position that very recently MoS has been signed by 2 factions of the particular militants’ organisation. Disband ing was to continue up to November/ December, 2012 and thereafter the CI operati ons will have to be under taken towards disarming of the cadres. Coupled with th e said major factors, the authority has also taken into account the various fact ors as indicated in the impugned notification. While it can be argued that those other factors may not be the valid grounds for extending the terms of the offic e of the Council and postpone the election, but at the same time, it will have t o be born in mind that this Court cannot sit on appeal over such political decis ion, more particularly, when the aforesaid CI operation will have to be continue d for completing disarming of the militant cadres. In view of the above, I am not inclined to interfere with the impugned d ecision exercising the power of judicial review under Article 226 of the Constit ution of India. At the same time direction is hereby issued to meticulously foll ow the time schedule of the programme that has already been finalised by the aut hority and hold the election within the time schedule. Whatever necessary prepar ation in this regard is required to be carried out, the same shall be carried ou t by the authorities. With all its earnestness so that there may not be any occa sion for postponement of the election any further. With the above directions, both the writ petitions are disposed of.