WP(C) 725/2008 BEFORE HON’BLE MR. JUSTICE T.NANDAKUMAR SINGH JUDGMENT & ORDER By this Writ Petition, the petitioner, who received the highest number of votes in the election for Zilla Parishad Membership of 29 No.Uttar Baj ali ZPC held on 14.01.2008, challenges the order of the State Election Commissio ner, Assam, dated 19.02.2008 for declaring candidature of the present petitioner from 29 No.Uttar Bajali Reserved Zilla Parishad Constituency in the District of Barpeta as illegal, null and void and the second highest scorer of votes, namel y, Shri Babul Borah (respondent No.4) to have been elected from the said constit uency and also the notification dated 22.02.2008 issued by the State Election Co mmissioner, Assam declaring Shri Babul Borah (respondent No.4) as duly elected a s an Independent Candidate from 29 No.Uttar Bajali (ST) reserved ZPC within the District of Barpeta, w.e.f. 22.02.2008. The only ground for challenging the impu gned order dated 19.02.2008 and the impugned notification dated 22.02.2008 is th at the State Election Commissioner, Assam, Dispur, Guwahati has no jurisdiction and authority to issue the impugned order and the impugned notification after an nouncement of result of the said election on 29.01.2008. [2] Heard Mr.B Das, learned counsel appearing for the petitioner, Mr .MU Mahmud, learned standing counsel, ASEB for respondent Nos.1, 2 and 3, Mr.A.M .Majumder, learned senior counsel for respondent No.4 and Mr.P.Goswami, learned counsel for respondent No.5. [3] A short fact, in nutshell, leading to the filing of the present writ petition is required to be recapitulated for deciding the core questions: (a) whether the State Election Commissioner, Assam, Dispur has the jurisdiction and authority to issue the impugned order dated 19.02.2008 and the impugned noti fication dated 22.02.2008 or not? (b) whether the petitioner has the statutory alternative remedy for Election Pet ition against the impugned order dated 19.02.2008 and the impugned notification dated 22.02.2008 or not? The petitioner is a registered voter of 128 No.Baghmara Gaon Pan chayat at Sl.No.4, House No.2 under 3 No. Purba Kathalmuri Gaon Panchayat Consti tuency in the District of Barpeta and also of Paschim Rehabari Village of Distri ct, Baska at Sl.No.142, House No.176 under the Bodo Territorial Autonomous Distr ict Council area (hereinafter referred to as BTADC). The respondent No.1 (Assam State Election Commission, Dispur) issued notification dated 27.11.2007 for hold ing Panchayat Election including membership from 29 No.Uttar Bajali reserved ZPC in the District of Barpeta. On 14.12.2007 the petitioner submitted his nominati on as candidate for Jilla Parishad membership of 29 No.Uttar Bajali reserved ZPC . Admittedly, 29 No.Uttar Bajali ZPC is a reserved constituency for ST (plain). The petitioner obtained ST (P) certificate, only on 17.11.2007 issued by the Cha irman, Sub Divisional ST Development Board, Bajali which was countersigned by on e EAC of Bajali, not by the SDO. The election was held on 14.01.2008 and the pet itioner secured highest number of votes as per the announcement of result by the Sub Divisional Officer (C), Bajali on 29.01.2008. It is stated that the result of the election was also published duly in the newspaper. The writ petitioner al so annexed a copy of the result of the election announced on 29.01.2008 by the S ub Divisional Officer (C) Bajali, as Annexure/2 to the writ petition, which read s as follows: Election of ZPC Member from 29 No.Uttar Bazali ZPC Constituency Sl.No. Name of the candidate Total Valid Vote received by the Candidate Party wise description of contesting candidates 1. Kishor Das 3874 INC 2. Dibakar Sarania 1833 BJP 3. Premananda Hazarika 4509 AGP 4. Khanindra Das 2008 IND 5. Babul Boro 4032 IND 6. Munin Swargiary 1207 IND 7. Ranjit Sarania 944 IND 8. 9. [4] It appears from the pleadings of the writ petitioner in the writ petition and reply affidavit filed by the writ petitioner to the affidavit in o pposition filed by respondent No.1 and also the material documents annexed to th e writ petition that the result of the said election was announced on 29.01.2008 by issuing result sheet (Annexure/2) which has been quoted above. It is the cas e of the petitioner that after announcement of result of the election by issuing result sheet on 29.01.2008 by the SDO (C), election process for election of mem bership of 29 No.Uttar Bajali ZPC came to an end, which co-terminous with the po wer, jurisdiction and authority of the State Election Commission, Assam over the election of membership of 29 No.Uttar Bajali, ZPC. After 29.01.2008 respondent No.1 has no power, authority and jurisdiction to issue the impugned order dated 19.02.2008 and the impugned notification dated 22.02.2008. [5] Admittedly, on 08.01.2008 a petition was filed to the Commission er, State Election Commissioner, Assam by one Shri Govinda Boro and a number of people of the locality of the said ZPC constituency and also another petition on 31.01.2008 by respondent No.4, Shri Babul Boro (contesting Candidate, IND) for the said election and respondent No.5, Shri Kishore Das (contesting candidate (I NC)) for the said election alleging that the petitioner, who is not an ST (P), b y scrupulous means obtained forged certificate of ST(P) and filed nomination pap er for the said reserved constituency and also that he managed to get his name e nrolled as voter in two places at the same time i.e. (i) 128 No.Baghmara GP, Sl. No.04, house No.02 under 3 No.Purba Kathalmuri GP constituency (Non BTC area) in the district of Barpeta and (ii) Paschim Rehabari Village under the District, B aksha (BTAD) Sl.No.142, house No.176 BTAD, PS No.36, 150 No.Rehabari LP School A rea under Jalah Revenue Circle in the 42 No.Pathar Kuchi, LAC as per the voter l ist (general election-2005) S 03 Assam. After receiving the said allegations, th e Election Commission, as an interim measure ordered the DC, Barpeta and SDO (C) Bajali at Pathshala on 06.02.2008 not to declare result of the said ZPC constit uency until further order. [6] The SDO (C) Bajali, Barpeta, Pathshala under his letter dated 14 .02.2008 directed the petitioner to meet the State Election Commissioner on 14.0 2.2008, with the Certificate and other documents. In pursuant to the said direct ion the petitioner, along with one Mohan Ch Das, appeared before the respondent No.1 and submitted his written statement along with the supporting documents. Th e respondent No.1, after giving opportunity to the petitioner to put up his case and also after hearing him, passed the impugned order dated 19.02.2008. The imp ugned order is a reasoned order and the relevant portions of the impugned order dated 19.02.2008 are quoted hereunder: Seen the petition dated 31.01.2008 filed by Shri Babul Boro and Kishor D as, the two contested candidates from 29 No.Uttar Bajali Zilla Parishad Constitu ency in the district of Barpeta, Assam. Also seen the petition dated 08.01.2008 filed by Sri Govinda Boro and a large number of people of the locality of the sa id Z.P.C. Constituency out of whom one of the petitioners is Sri Khanindra Das w ho contested as the independent candidate from 29 No.Uttar Bajali Z.P.C during t he last Panchayat Election. 2) The substance of the petitioners contentions are mainly as follows: (i) Sri Premananda Hazarika one of the candidate for the post member of 29 N o.Uttar Bajali ZPC is not a person belonging to scheduled tribe but he obtained false certificate of ST (P) on 17.11.2007 which was issued by the Chairman, Sub- Divisional Scheduled Tribes Development Board, Bajali and it was countersigned b y one EAC of Bajali Sub-Division dated 22.11.2007, which has no value in the eye of law. (ii) Sri Premananda Hazarika got his name recorded as a voter in two places s imultaneously i.e. at 128 No.Baghmara G.P at Sl.04, House No.02 under 3 No.Purba Kathalmuri G.P Constituency in the district of Barpeta and also at Paschim Reha bari village under district of Baska at Sl.142, House No.176 BTAD, where electio n was not held due to lawful restrictions. (iii) By obtaining the manipulated ST certificate, Sri Premananda Hazarika con tested the ongoing Panchayat Election from the 29 No.Uttar Bajali ZPC, which is a reserved Constituency for ST (P) and thereby claimed as won a ZPC member from the S.T. quota. (iv) That Sri Premananda Hazarika obtained certificate from the concerned Gao n Bura as the resident of village Kathalmuri under Patacharkuchi P.S in the dist rict of Barpeta whereas his real birth place and residence is at village Paschim Rehabari Gaon, district: Baska BTAD. His name has been also duly recorded at Vi llage Paschim Rehabari at Sl.No.742, House no.176 in the voter list of 2005 Asse mbly Election at the said village. Since the Assembly voters list is prepared un der direct supervision of the DC, Baska after detailed field verification and th at since Sri Hazarika resides with his family members permanently, he cannot be treated as ordinary resident of village Purba Kathalmuri within Bajali sub-Divis ion of Barptea district. 3) That alleging all these matters, the petitioners have prayed that the el ection of Sri Premananda Bazarika to the 29 No.Uttar Bajali ZPC from the quota o f ST (P) should be kept withheld, proper enquiry about the veracity of ST (P) ce rtificate may be made and also prayed that the 2nd highest vote scorer candidate namely Sri Babul Boro, an independent candidate who contested the election from the said ZPC be declared as elected. .. .. .. .. .. .. .. .. .. .. 7) I have perused the Govt. Notification No.TAD/Pt/565/76, issued by the Go vt. of Assam, department of Welfare of Plains Tribes and Backward Classes Under Rule-3(1) (b) and (2) of the said Notification, I do not find that the EAC who p ut his signature on 22.11.2007 in the caste certificate is authorized to counter signed the same. 8) I have also seen one letter dated 13.02.2008 addressed to State Election Commission by Smti.Pramila Rani Brahma, Minister, WPT & BC and Agriculture, Ass am wherein it is inter-alia stated by the concerned Minister of welfare of Plain s Tribes and Backward Classes that the Chairman of Sub-Divisional ST Development Board, Bajali is not the authorized body to issue ST (P) certificate. 9) In this regard it is worthy to note that a person may be ST but unless p roper and valid certificate to this effect is produced, the State authority cann ot act on it, merely because a person claims to be a person of a particular cast e or a person belonging to that community, more particularly when all such certi ficates are required to be produced by a candidate for scrutiny by the RO during Panchayat Election under the existing Assam Panchayat (Constitution) Rules 1995 and relevant proceedings. I also see that Sri Premananda Hazarika has not taken any step to delete his name from voter list of BTAD area. 10) I have also seen the letter dated 01.02.2008 issued by All Assam Tribal Sangha vide Memo No.AATS/C-3/2007-08/2615 dated 01.02.2008 wherein it is inter-a lia stated that Sri Premananda Hazarika does not belong to ST community, which i s the premier body of Tribal to deal with such matters. 11) That this Commission issued Notification for holding Panchayat Election in the state of Assam excepting BTAD and Karbi Anglong, N.C.Hills Autonomous Cou ncils Area on 27.11.2007 asking the SDO (C) Bajali along with others to issue No tification on 04.02.2008 i.e. for the 2nd phase of election to be held in Assam. Accordingly SDO (C), Bajali issued Notification fixing the date of filing nomin ation papers starting from 12.12.2007. It appears from the ST (P) Certificate of Sri Premananda Hazarika that he collected ST (P) Certificate on 17.11.2007 whic h was countersigned by one EAC on 22.11.2007 which means that he collected ST (P ) certificate with the sole purpose of contesting election from the reserved sea t of ST (for ZPC) and that too from an unauthorized authority and it was counter signed by one officer who has not been authorized to do so under statutory provi sion. 12) That in view of Rule 12(2) of AP(C) Rules, 1995, it appears that the con tested candidate for local bodies like Gaon Panchayat, Anchalik Panchayat, ZPC m ust be a local resident and a voter from such constituency as the case may be. A s per rules, the voter list for Panchayat Election should be prepared on the bas is of Electoral Rolls of last Assembly Election, which is not followed in case o f Sri Premananda Hazarika. Admittedly Sri Premananda Hazarika is the voter of tw o places at the same time, one of which is outside the purview of the ongoing Pa nchayat Election in the district of Baska which is in the BTAD area, which other wise creates a doubt about his candidature. The certificate of SDC has clearly s tated that Sri Premananda Hazarika is a permanent resident of village Paschim Re habari which is within BTAD area. He is the best person to testify the residenti al status of a person within his jurisdiction. 13) That the present issue is a very sensitive and key issue which requires to apply proper judicial mind so that no person in the name of ST can enjoy the benefits provided to real ST people under the Constitution of India and rules fr amed there in a colourable manner and that too at the eleventh hour only to depr ive the aspirants of ST population of the said locality who can actually contest the constituency in their reserved seat. The report of ADC does not fulfill the requirement sought by the State Election Commission regarding residential statu s of Sri Premanda Hazarika rather it appears to be incomplete, misleading and al so confusing. 14) I have also perused the relevant observations of Hon’ble Supreme court r eported in 2005 (8) SCC 696 wherein the Hon’ble Supreme court in para 31 interal ia expressed the view that ’unfortunately a dangerous attitude resulting in doin g institutin damage is developing, that justice is required to be done only by t he courts. Every and any authority working under the statute has to discharge it s duties in a judged manner . 15) I have also perused the relevant provisions of section 114(1)(4) of the Assam Panchayat Act 1994, and rules 3(a) and 54 of the Assam Panchayat (Constitu tion) rules 1995. I have also read the provisions laid down under section 66 of the R.O.P. Act 1951 which gives power to the Commission to provide necessary dir ection to the Returning Officer in respect of declaration of election result. Th e process of election so far the reserved constituency of 29 No.Uttar Bajali ZPC is concerned, is not yet declared, nor any certificate has been issued to any c andidate by the competent authority. 16) Rule 2(C) of the Assam Scheduled Caste/Scheduled Tribes (Reservation of vacancies in services in service and posts) Rules, 1983 says that Candidates be longing to Scheduled caste and scheduled Tribes means the candidates possessing their certificates to that effect issued by the authorities as mentioned in Rul e 3. It means there must be a certificate in respect of ST and at the same ti me, it must be a certificate as per rule 3 of the said Rules. 17) Rule 3(1)(b) of the said Rules say that in case of Scheduled Tribes Cand idates, the scheduled Tribes MLAs Scheduled Tribes M.Ps and Members of the Advis ory Council for the welfare of Scheduled Tribes, Presidents and vide Presidents of the All Assam Tribal Sangha and District Units of the All Assam Tribal Sangha and the Chairman of the Integrated Tribes Development Project Implementation Co mmittees, and the Sub-Divisional Tribal Development Boards are authorized to iss ue caste certificate within the jurisdiction of the Sub-Divisions. 18) Moreover, in view of Rule 2 (C) and Rule 3(1)(b) of the Assam Scheduled Castes/Scheduled Tribes (Reservation of vacancies in services and posts) Rules 1 983 followed by Govt.Circular, issued through Memo. No.TAD/BC/58/2001/247 dated 20.07.2007 by the Commissioner & Secretary Govt of Assam, WPT & BC Deptt., the c ertificate dated 17.11.2007 which was countersigned by an EAC dated 22.11.2007 i s in violation of statutory direction and is an invalid certificate from the ver y beginning and merely because of passing the process of scrutiny of nomination paper by D.C/SDO (C) or any other officer at some point of time, or due to not r aising any objection by any one at the relevant point of time would no way help terming it as legal and valid document, otherwise there would be no value of Act s, Rules, Notifications, Circulars etc. and any body by using faraud or pretendi ng the ignorance of law or rules would take undue benefits and, there would be n o rule of law and administrative justice. 19) As per Rule 12(2) of the Assam Panchayat (C) Rules, 1995, when the Elect oral Roll of the Assam Legislative Assembly prepared under the provision of R.O. P Act, 1951, the same shall be the list of voters for such Gaon Panchayat, Ancha lik Panchayat or Zilla Parishad Constituency as the case may be. In that view, t he enrolment of Sri Premananda Hazarika’s name within the village Pub Kathalmuri in the district of Barpeta is not lawful as his name in the last assembly Elect ion appeared at village Paschim Rehabari in the district of Baska at Sl.No.142, House No.176 within BTAD area. As such, he cannot contest election at a constitu ency, which is located in the district of Barptea in view of Rule 12(2) and 22(1 ) of the Assam Panchayat (Constitution) Rules, 1995. Acceptance of his nominatio n papers by the concerned RO was not correct. 20) The Election Commission, being a constitutional authority cannot close i ts eyes over such key and sensitive issue being an authority under section 114(1 )(4) of Assam Panchayat Act, 1994 and Rule 3(a) and (b) of Assam Panchayat (Cons titution) Rules, 1995 which has total control over election matter with a broade r power in all issues connected with election till the election process is over, which is not yet completed in respect of 29 No.Uttar Bajali reserved Z.P.C. 21) Accordingly the Commission on the perusal of contents of allegations sub mitted by different candidates, public and also on perusal of the written explan ations of Mr.Hazarika and after perusal of all the relevant documents/reports/no tifications/circulars of different authorities as stated above, holds that ST(P) certificate dated 17.11.2007 obtained by Sri Premananda Hazarika which was coun tersigned by an EAC on 22.11.2007 is not a valid document. It has not come from a competent authority as per statutory provisions and as such the same is void a b-initio i.e. illegal from the very beginning. Any seat of holding public office on the basis of such invalid and unacceptable document is void ab-initio and th is Commission by applying its independent judicious mind and also keeping in vie w of the provisions of law, rules etc as discussed above and after hearing the p arties considers the election to the ST (P) reserved constituency of 29 No.Uttar Bajali Z.P.C by Sri Premananda Hazarika I illegal and has no value in the eye of law and as such he is not entitled to get the result declared as elected. 22) Accordingly, I declare the election/candidature of Sri Premananda Hazari ka from 29 No.Uttar Bajali reserved ZPC in the district of Barpeta as illegal, n ull and void; and the second highest scorer of votes, namely Sri Babul Boro, who undisputedly is an ST (P) contesting candidate from the said constituency, is d eclared as elected from the said constituency. I am, being the constitutional au thority under 243 K of the Constitution of India and also being empowered under Section 114(4) of the panchayat Act, 1994, Rule 3 (1) and (b) of Assam Panchayat (Constitution) Rules, 1995, direct the DC, Barpeta and SDO (C), Bajali to publi sh the name of Sri Babul Boro, an independent candidate from 29 No.Uttar Bajali ST reserved ZPC in their notice Board and to provide necessary certificate forth with. Let a certificate in the form of notification be also issued in favour of Sri Babul Boro from this Commission forthwith considering the peculiar facts cir cumstances of the case. 23) Inform all concerned, accordingly. [7] The respondent, in their affidavit-in-opposition, stated that th e announcement of result of the present election on 29.01.2008 by the SDO (C) Ba jali, by publishing the result (Annexure/2) is not the declaration contemplated in Rule 44(7) of the Assam Panchayat (Constitution) Rules, 1995 for declaring th e petitioner to have been duly elected to the membership of 29 No.Uttar Bajali Z PC and as such, respondent No.1 has the power and authority to issue the impugne d order dated 19.02.2008 and also the impugned notification dated 22.02.2008 ina smuch as the process of election was not completed on 29.01.2008. The respondent in their Affidavit-in-opposition further contended that the present writ petiti on is barred by Article 243-O of the Constitution of India and Section 129 of th e Assam Panchayat Act, 1994. [8] By the Constitution (73rd Amendment) Act 1992, part-ix of the Co nstitution had been inserted. Under Article 243 D of the Constitution - seat sha ll be reserved for (a) SC and (b) ST in the manner mentioned in the Article 243 D. Under Article 243 K of the Constitution, superintendence, direction and contr ol of the preparation of electoral rolls for, and conduct of, all elections to t he Panchayat shall be vested in a State Election Commission consisting of a Stat e Election Commissioner to be appointed by the Governor and also Article 243-O c ontemplates the bar to interference by Courts in election matters. For easy refe rence, Article 243 K and 243 O are quoted hereunder: 243 K. Election to the Panchayats.- The superintendence, direction and control of preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commission to be appointed by the Governor. (2) Subject to the provisions of any law made by the Legislature of a State the conditions of service and tenure of office of the State Election Commissione r shall be such as the Governor may by rule determine: Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like ground as a Judge of a High cou rt and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment. (3) The Governor of a State shall, when so requested by the State Election C ommission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Com mission by clause (1). (4) Subject to the provisions of this Constitution, the Legislature of a Sta te may, by law, make provision with respect to all matters to, or in connection with, elections to the Panchayats. 243-O. Bar to interference by courts in electoral matters.- Notwithstanding anyt hing in this Constitution- (a) the validity of any law, relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made u nder article 243K, shall not be called in question in any court; b) no election to any Panchayat shall be called in question except by an el ection petition presented to such authority and in such manner as is provided fo r by or under any Law made by the Legislature of a State] On plain perusal of Article 243-O, it appears that; Once the election process has started, the High court cannot- (a) direct the election officer to stall the proceedings or to conduct