WP(C) 1154/2008 BEFORE THE HON’BLE MR. JUSTICE IA ANSARI The facts, which are material for effective disposal of the present writ petitio n, may, in brief, be set out as under: (i) The Dhemaji Zilla Parishad consists of 7 elected members. The petitioner was elected to Dhemaji Zilla Parishad, as a member thereof, from No. 4 Sissibor gaon Zilla Parishad constituency, in the Panchayat elections, held in the months of December, 2007 and January, 2008. Pursuant to a WT Message, dated 03-02-2008 , issued by the Commissioner and Secretary to the Government of Assam, Panchayat and Rural Development Department, the ’first meeting’ of Dhemaji Zilla Parishad was decided to be held, on 20-03-2008, at the office of the said Zilla Parishad . An order was accordingly published, on 07-03-2008, by the Deputy Commissioner , Dhemaji, scheduling the ’first meeting’ of Dhemaji Zilla Parishad, on 20-03-20 08, at 10 a.m., at the office of the said Zilla Parishad, with Shri BN Doley, Ch ief Executive Officer, Dhemaji Zilla Parishad, having been empowered to conduct the said meeting for the purpose of constitution of the said Zilla Parishad. On the scheduled date, i.e., 20-03-2008, the Chief Executive Officer, Dhemaji Zill a Parishad, chaired the ’first meeting’ of the said Zilla Parishad in his capaci ty as the authorized officer. In terms of the scheme of the Assam Panchayat Act, 1994, (in short, ’the said Act’) and the Assam Panchayat (Constitution) Rules, 1995, (in short, ’the said Rules’) the elected members of Dhemaji Zilla Parishad took oath of the office from the authorized officer. Before the oath was so ad ministered, Shri Bholanath Doley, while welcoming the members of the Zilla Paris had, explained to them the rules for election to the office of the President and also to the office the Vice-President under the said Act and the Rules making i t clear to the members present there that the President and Vice-President of th e Zilla Parishad would be elected from amongst the elected members of the Zilla Parishad. (ii) After the oath ceremony of the newly elected members of the said Zilla P arishad was over, when the authorized officer requested the members, present in the meeting, to mention the name of the person whom they proposed to elect as Pr esident of the said Zilla Parishad, Sri Deba Gogoi, a member of the said Zilla P arishad, proposed the name of Sri Deben Dutta, another member of the said Zilla Parishad, for the office of the President of the said Zilla Parishad and Smti. A marawati Gohain, another member of the said Zilla Parishad, supported the said p roposal. Immediately thereafter, Sri Atul Pegu, another member of the said Zilla Parishad, proposed the name of Sri Nagendra Nath Chutia, (i.e., the present pet itioner), for the office of the President of the said Zilla Parishad and his can didature was supported by Smti. Suniti Basumatary, a member of the said Zilla Pa rishad. As the names of two elected members of the said Zilla Parishad were prop osed and supported for the office of the President of the said Zilla Parishad, t he authorized officer made arrangements for holding election to the office of th e President of the said Zilla Parishad and conducted, accordingly, the election. In the voting, which so took place, the newly elected seven members of the said Panchayat had cast their votes. The counting of the votes revealed that that th e present petitioner, Sri Nagendra Nath Chutia, had received as many as four vot es; whereas Sri Deben Dutta had received three votes. This was followed by a dec laration made by the authorized officer that the present petitioner, namely, Sri Nagendra Nath Chutia, stood elected to the office of the President of the said Zilla Parishad. (iii) What transpired in the said meeting after the declaration of the result of the present petitioner, as President of the said Zilla Parishad, are reflecte d in the minutes of the proceeding of the said Zilla Parishad held on 20-03-2008 . For the sake of clarity, the relevant portion of the minutes of the proceedin g as to what transpired after the declaration of the result of the election to t he office of the President of the said Zilla Parishad is reproduced below: DHEMAJI ZILLA PARISHAD Swearing in Ceremony: Venue: Conference Hall of Dhemaji Zilla Parishad. Date: 20.03.08 Today, on 20.03.08, the sitting of the first meeting of the Dhemaji Zilla Parish ad for election of President and Vice-President took place in conference Hall of Dhemaji Zilla Parishad. The meeting was conducted by the Chief Executive Offic er of Dhemaji Zilla Parishad Sri Bholanath Doley as the authorized officer in pr esence of undersigned members. Sri Bholanath Doley while narrating the purpose of the meeting welcomed all the members present in the meeting and also explained the relevant rule for election of President and Vice President under the Assam Panchayat Act,1994 and Assam Pa nchayat Rules, 1995. In case of election of President and Vice-President of Zill a Parishad, election will be made from the elected members of the Zilla Parishad and only those members will have the right to vote further, one elected member of Zilla Parishad will be allowed to contest for one post and the consent of the proposed and supported candidate should have its own consent. Thereafter, as per the request of the authorized officer the elected members of the different constituency of Dhemaji Zilla Parishad introduced themselves indiv idually. After introduction the authorized official conducted the oath taking of newly el ected members of the Dhemaji Zilla Parishad. After taking the oath he requested members present of the Zilla Parishad to propose and support the candidate for the post of President. As per the request of the authorized officer the member of the Dhemaji Zilla Parishad Sri Deba Gogoi proposed the name of Sri Deben Dutt a, member of the Dhemaji Zilla Parishad for the post of President and another me mber of Zilla Parishad Smti Amarawati Borgohain supported the said proposal and immediately another member of the Zilla Parishad Sri Atul Pegu proposed the name of Sri Nagendra Nath Chutia for the post of President and Smti Suniti Basumatar i members of the Zilla Parishad supported the said proposal. There having been two names proposed and supported for the post of Dhemaji Zilla Parishad, the authorized officer made arrangement for secret voting. In the sa id voting process, the 7 newly elected members of the Dhemaji Zilla Parishad ha d cast their secret votes. After counting of votes Sri Nagendra Nath Chutia obtained 4 votes and Deben Dutt a received 3 votes. Accordingly Sri Nagendra Nath Chutia was declared by the au thorized officer as elected President of Dhemaji Zilla Parishad. After completi on of the election of the President the authorized officer informed that the pos t of Vice-President is reserved for Scheduled Tribe Woman and requested them to propose candidates from Scheduled Caste woman. Accordingly, the member of Dhem aji Zilla Parishad Shri Nagendra Nath Chutia proposed the name of Smti Suniti Ba sumatary for the post of Vice-President thereafter another member of the Dhemaji Zilla Parishad Smt Amarawati Borgohain proposed the name of Smt Kamalabati Dole y Pegu, member of Dhemaji Zilla Parishad for the post of Vice-President and Deba Gogoi, member of the Dhemaji Zilla Parishad supported. When the authorized officer asked Smt Kamalawati Doley Pegu whether she has cons ent or not for the post of Vice-President, she remained silent for long time. T he authorized officer having repeatedly sought her opinion Smt Kamalawai Doley P egu gave her consent to be a candidate for the post of Vice-President. Immediat ely after the expression of consent by Smt. Kamalawati Doley Pegu, the member o f the Dhemaji Zilla Parishad, Member of Jonai Legislative Assembly Sri Bhuban P egu, who was present in the meeting, went to Smt Kamalawati Doley Pegu and sayin g come outside we have a talk tried to drag her out by holding her hand, pan demonium broke out in the meeting and there having been chaos the MLA of the Jo nai Legislative Assembly Sri Bhuben Pegu left the conference hall. The majority of the members present in the meeting condemned the actions of the MLA and alle ged that both Smt Kamalawati Doley Pegu and Smt Suniti Basumatary were forced to vote for one party for the post of the President of the Dhemaji Zilla Parishad. When Smt Suniti Basumatary was asked about the allegation, she stated that she had received threat in respect of voting for election of the President and that the election to the post of President was not transparent. Smti. Suniti Basumata ry though had accepted the proposal and support for the post of Vice-President b ut at last she refused the said proposal and support. Smt Kamalawati Doley Pegu also refused to accept the post of the Vice- President and observed the re-elec tion for the post of President, Zilla Parishad should be held. Immediately ther eafter the situation became more complex and chaotic with heated exchange of wor ds between the members present in the meeting. After hearing the versions of the candidates who have refused the post of Vice-President the majority of the elec ted members and the meeting held that the process of election for the post of Pr esident was not transparent and resolved for re-election. Accordingly the autho rized officer adjourned the meeting and informed the members present in the meet ing that he has requested the Deputy Commissioner, Dhemaji, to fix the date, pla ce and time of the next meeting and while offering vote of thanks the authorized officer declared the meeting to be ended. (iv) As the minutes of the proceedings of the ’first meeting’ of the Zilla Pa rishad, held on 20.03.08, reproduced herein-above, reflect, the Authorised Offic er submitted a report, dated 20.03.08, to the Deputy Commissioner, Dhemaji, as r egard what had transpired in the ’first meeting’. This was followed by an order , dated 20.03.08, issued by the office of the Deputy Commissioner, Dhemaji, canc elling the proceedings of the said ’first meeting’ of the Zilla Parishad so far as the same relate to the elections of the President and Vice-President with fur ther direction to hold the election to the offices of the President and Vice-Pre sident, Dhemaji Zilla Parishad, on 24.03.2008. This order reads as under: GOVERNMENT OF ASSAM OFFICE OF THE DEPUTY COMMISSIONER: DHEMAJI DISTRICT:DHEMAJI No. DCL 10/2008/40 Dated, Dhemaji the 20th March’2008 ORDER Whereas, the date of the first meeting of Zilla Parishad, Dhemaji was fixed on 2 0th March, 2008 and the Chief Executive Officer, Zilla Parishad, Dhemaji was aut horized to preside over the meeting for Oath taking and Election of President an d Vice-President of Zilla Parishad, Dhemaji vide letter No. DPE-52/2008/8 dtd. 0 7/03/2008. Perused the petition submitted by Shri Deba Gogoi, Shri Deban Dutta, Smti Aamraw ati Dihingia, Smti Suniti Basumatary and Smti Kamalwati Doley Pegu, members of Z illa Parishad and also perused the report on the first meeting of Dhemaji Zilla Parishad submitted by Shri B. N. Doley, ACS, Chief Executive Officer, Zilla Pari shad, Dhemaji, vide letter No. DZP-203/2005-06/1570 dtd. 20/03/2008. Whereas, it has been brought to my notice that the majority of the members of Zi lla Parishad, Dhemaji, who took oath on 20th March, 2008 have demanded re-fixati on of date of Election of President and Vice-President of Zilla Parishad, Dhemaj i, on the grounds of threatening of candidates by some miscreants to compel them to cast their votes in favour of candidates against their will, which is also h as been provoked by the action of the Hon’ble MLA, Jonai, Shri Bhuban Chandra Pe gu, who tried to forcibly drag Smti Kamalawati Doley Pegu from her chair to forc e her to cast her vote against her will during the election process and it appea rs that there was some foul play or at least no free and fair atmosphere for ele ction of President and Vice-President of Zilla Parishad, Dhemaji. This is again st the very basic of democracy no one can be allowed to force anyone to cast vot e against one’s will. Whereas it is very clear from the report of the Chief Executive Officer, Zilla P arishad, Dhemaji, that there are procedural lapses in the conduct of election of President and Vice-President of Zilla Parishad, Dhemaji, conducted on 20th Marc h,2008 under Section 50 (1), (2), (3), (4), (5), (6), (7), (8) of Assam Panchaya t Rules, 1995 as the conduct of election for the post of President and Vice-Pres ident of Zilla Parishad, Dhemaji, was not done simultaneously as explained in th e Assam Panchayat Rules, 1995 under Section 50 (1), (2), (3), (4), (5), (6), (7) , (8). The election of President of Zilla Parishad, Dhemaji was done first and only after the declaration of the result of the President of Zilla Parishad, Dhe maji, the nomination of Vice-President of Zilla Parishad was called for which is clear violation of the procedures mentioned in Section 50 (4) of Assam Panchaya t Rules, 1995. Whereas, the first meeting of election for the post of President and Vice-Presid ent of Zilla Parishad, Dhemaji, could not completed and was adjourned by the Chi ef Executive Officer, Zilla Parishad, Dhemaji, and as per the Chief Executive Of ficer’s report all the members have demanded for re-election for both the posts of President and Vice-President of Zilla Parishad, Dhemaji, and Hon’ble MLA, Jon ai, Shri Bhuban Chandra Pegu tried to force one member, namely, Smti Kamalawati Doley Pegu to cast her vote against her will and there are procedural lapses in the conduct of election of President and Vice-President of Zilla Parishad, Dhema ji, I am satisfied that there are sufficient grounds to cancel the proceedings o f election of President and Vice-President of Zilla Parishad, Dhemaji, held on 2 0th March, 2008. Therefore, I, D. N. Mishra, IAS, Deputy Commissioner, Dhemaji, do hereby cancel the proceedings of the election of President and Vice-President of Zilla Parisha d, Dhemaji, which was held on 20th March, 2008 and refix the meeting of Zilla Pa rishad, Dhemaji, for holding the election of President and Vice-President of Zil la Parishad, Dhemaji, on 24th Day of March, 2008 as follows. TIME VENUE 10-00 A.M. Zilla Parishad Office, Dhemaji (Separate notification will be issued) However, the oath taken by members on 20th March, 2008 will be valid. Sd/- D.N. Mishra,IAS Deputy Commissioner, Dhemaji. Memo No. DCL-10/2008/40-A Copy for information and necessary action to:- 1. The Commissioner & Secretary to the Govt. of Assam, Panchayat & Rural De velopment Department, Dispur. 2. The Commissioner, North Assam Division, Tezpur. 3. Shri B. N. Doley, ACS, Chief Executive Officer, Zilla Parishad, Dhemaji. 4. All members of Zilla Parishad, Dhemaji. Sd/- Deputy Commissioner, Dhemaji. (v) In tune with the directions given by the order, dated 20.03.08, passed b y the Deputy Commissioner, Dhemaji, a notification was published, on 20.03.08, b y the office of the Deputy Commissioner, Dhemaji, scheduling the ’second meeting ’ of the said Zilla Parishad, on 24.03.08, at 10-00 a.m., in the office of the s aid Zilla Parishad, for election of the President and Vice-President of the said Zilla Parishad with the Chief Executive Officer, Dhemaji Zilla Parishad, as the Authorised Officer. (vi) In terms of the notification, dated 20.03.08, aforementioned, a meeting of the said Zilla Parishad was held, on 24.03.08, and, in this meeting, responde nt No.5 herein, namely, Smti Kamalwati Doley Pegu was declared elected as Presid ent of the said Panchayat and Smti Suniti Basumatary was declared elected as Vic e-President of the said Zilla Parishad, these declarations having been made, in the said ’special meeting’ of the Zilla Parishad, held on 24.03.2008. 2. By making this writ application under Article 226 of the Constitution of India, which was filed by the petitioner, on 25.03.08, the petitioner has put t o challenge, inter alia, the legality of the decision of the Deputy Commissioner , Dhemaji, to cancel the proceedings of the election of the present petitioner, as President of the said Zilla Parishad, in the ’first meeting’ of the said Zill a Parishad, which had been held on 20.03.08. The reliefs, which the writ petitio ner has sought for, are as under: A. For a writ of certiorari to set aside and quash the election of responde nt No. 5 as President of Dhemaji Zilla Parishad in meeting held on 24-03-2008. B. For a writ of mandamus forbearing the respondent No. 5 from holding the post of President of the Dhemaji Zilla Parishad. C. Writ of mandamus allowing the writ petitioner to function as President o f the Dhemaji Zilla Parishad. 3. At the stage of motion hearing, as the order, dated 25.03.08, passed, in this writ petition, reflects, the High Court had suspended the proceedings of t he ’second meeting’ of the said Zilla Parishad, held on 24.03.08, in so far as t he said proceedings relate to the election to the office of the President of the said Zilla Parishad. This interim order has been continued till date. 4. The respondents have resisted the writ petition by filing their affidavi t-in-opposition, their case being, in brief, thus: (i) The Authorised Officer ought to have held, in the ’first meeting’ of the Zilla Parishad, on 20.03.2008, the elections to the offices of the President an d Vice-President simultaneously inasmuch as the scheme, as embodied in Rule 50 o f the said Rules, envisages that if the election to the office of the President is not unopposed, then, the Deputy Commissioner, or his delegatee, as the case m ay be, shall invite proposals from amongst the elected members, present in the m eeting of the Zilla Parishad, to elect the Vice-President and, if, for the offic e of the Vice-President, more than one name is proposed, then, the election for the office of the Vice-President, too, shall be held along with election to the office of the President. In the present case, however, the Authorised Officer, in the ’first meeting’ of the Zilla Parishad, held the election to the office of the President, first, on 20.03.2008, and, having declared the present petitione r as elected to the office of the President of the said Zilla Parishad, the nomi nation to the office of the Vice-President was called for, which is in violation of the procedure as contemplated by Rule 50. (ii) Another ground of challenge to the election of the present petitioner as President of the said Zilla Parishad is that the election to the office of the President, held in the ’first meeting’, on 20.03.2008, (which stands already can celled by the Deputy Commissioner, Dhemaji, by the impugned order, dated 20.03.2 008) was not transparent and such election cannot be said to be a free and fair election. On these two grounds, the Deputy Commissioner had cancelled the proce edings of the election of the President and Vice-President of the said Zilla Par ishad in the meeting, held on 20.03.08. (iii) Yet another ground, on which the writ petition has been resisted, is tha t a person’s election to the office of the President of a Zilla Parishad can be challenged, in the light of the provisions of Rule 50 of the Act, by way of an e lection petition to the Panchayat Election Tribunal constituted under Section 12 7 of the Act and that in such circumstances, no other Court, in the light of the provisions of Section 129 of the Act, can interfere with the result of the elec tion of the President. Hence, this Court, according to the respondents, has no jurisdiction to interfere, in exercise of its powers under Article 226, with the result of the election of the respondent No.5 as President of the said Zilla Pa rishad. 5. I have heard Mr. N. Dutta, learned Senior counsel, appearing on behalf o f the petitioner, and Mr. A. K. Phookan, learned Advocate General, Assam. I hav e also heard Mr. A. M. Mazumdar, learned Senior counsel, appearing on behalf of respondent No. 5. 6. Before entering into the merit of the present writ petition, it may be p ointed out that Rule 50 of the Rules mentions the Deputy Commissioner as the per son, who shall convene the ’first meeting’ of a Zilla Parishad and preside over such meeting and, it is he, who, if required, shall conduct the elections to th e offices of the President and Vice-President and also make declaration of the r esults thereof and such a declaration shall, in the light of the provisions of R ule 50(10), be final and dispute, if any, arises as regards such an election, it can be dealt with by the Panchyat Election Tribunal only, which may be constitu ted in terms of Section 127 of the Act. 7. However, the learned Advocate General has drawn attention of this Court to Section 138(3) of the Act and contended that the Deputy Commissioner can dele gate all or any of his powers, under the Act and the Rules, to any officer of th e Gazetted rank and, in this case, since the Deputy Commissioner, Dhemaji, had d uly authorised the Chief Executive Officer, Dhemaji Zilla Parishad, to conduct t he ’first meeting’ of the said Zilla Parishad, on 20.03.08, the Authorised Offic er was competent not only to administer oath to the elected members, as is requi red by Sub-Rule (2) of Rule 50, but also to conduct elections to the offices of the President and the Vice-President of the said Zilla Parishad and declare the results thereof. 8. It is also worth pointing out that it is not in dispute that in the ’sec ond meeting’ of the said Zilla Parishad, held on 24.03.08, wherein the responden t No. 5 stood declared elected as President, the election was conducted by the A uthorised Officer and declaration of the result of the election was also made by him. For the sake of clarity, Section 138 is reproduced herein-below: 138. Delegation of powers to the Dy. Commissioner, Sub-Divisional Officer or any other Gazetted Officer. - (1) The State Government may delegate any of their powers under this Act or rules framed thereunder except where expressly provide d to the contrary to any Government Officer of Gazetted rank. (2) Except where expressly provided to the contrary, the Government may dele gate all or any of the powers of the Deputy Commissioner or the Sub-Divisional O fficer under this Act or Rules framed thereunder this Act to any Government Offi cer of Gazetted rank. (3) Except where expressly provided to the contrary, the Deputy Commissioner or the Sub-Divisional Officer as the case may be, may delegate all or any of th eir powers under this Act or Rules framed under this Act to any Government Offic er of Gazetted rank. (4) The delegation of power under sub-sections (1), (2) and (3) shall be an order in writing and shall order may be modified or withdrawn at any time. 9. A careful reading, as a whole, of the provisions, contained in Section 1 38, reveals that unless it is provided to the contrary, a Deputy Commissioner ma y delegate all or any of his powers, under the Act and the Rules, to any Governm ent officer of Gazetted rank. Such delegation of power would, admittedly, includ e the power to conduct elections to the offices of the President and Vice Presid ent of a Zilla Parishad and to declare the results thereof. The Authorised Offi cer, in the present case, was, undisputedly, a Government officer of Gazetted ra nk and since he was duly appointed by the order, dated 07.03.2008, of the Deputy Commissioner to conduct the ’first meeting’ of the said Zilla Parishad, his app ointment has to be treated as an appointment