Dismissed

Mantu Basumatary v. the State of Assam and 5 Ors.

Gauhati HC8 Dec 2020WP(C)/5014/2020

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a writ petition challenging the candidature in Bodoland Territorial Council elections. The Court held that election disputes must be challenged via election petitions under Rule 78 and earlier precedents, dismissing the Writ on withdrawal with liberty to approach the District Judge.

What did the court decide?

Writ petition dismissed on withdrawal with liberty to approach the concerned District Judge under Rule 78 of the BTC (Election) Rules 2004.

Mantu Basumatary Vs the State of Assam and 5 Ors. — Election Law | Gauhati HC (2020)

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GAHC010169202020

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/5014/2020

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MANTU BASUMATARY

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S/O DHILU BASUMATARY, R/O AUNAJULI, P.O. AND P.S. ORANG, DISTUDALGURI, BTAD, PIN-784114

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VERSUS

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THE STATE OF ASSAM AND 5 ORS.

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REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM, DISPUR, GHY-6

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2:THE STATE ELECTION COMMISSION

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REP. BY STATE ELECTION COMMISSIONER HOUSEFED COMPLEX DISPUR GHY-6

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3:THE DY. COMMISSIONER

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DISTRICT UDALGURI

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4:SUB-DIVISIONAL OFFICER UDALGURI SADAR SUB DIVISION DIST- UDALGURI

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5:THE PRINCIPAL KALAGURU BISHNU RABHA COLLEGE ORANG DIST- UDALGURI PIN-784114

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6:DR. NILUT SWARGIARY

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ASSISTANT PROFESSOR KALAGURU BISHNU RABHA COLLEGE

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ORANG DIST- UDALGURI PIN-78411

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Advocate for the Petitioner : J ROY Advocate for the Respondent : GA, ASSAM

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BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

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ORDER

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08-12-2020

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Heard Shri J. Roy, learned counsel for the petitioner. Also heard Shri N. Bora, learned Standing Counsel, Assam State Election Commission as well as Ms. K. Phukan, learned State Counsel. This matter pertains to a challenge with regard to the candidature of the private respondent in the ensuing elections for the Bodoland Territorial Council (BTC).

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On the last occasion i.e. 03.12.2020 when the matter was taken up, Shri Bora, learned Standing Counsel had raised a preliminary objection on the maintainability of a writ petition and in support of his contention he had relied upon the judgment of the Hon’ble Supreme Court in the case of Manda Jaganath Vs. K.S. Rathnam and Ors. reported in (2004) 7 SCC 492.

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Shri J. Roy, learned counsel for the petitioner was granted some time to take instructions in this regard.

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Today Shri Roy, has fairly submitted that under Chapter X of the Bodoland Territorial Council (BTC) (Election) Rules 2004. In connection with disputes regarding elections under Rule 78, there is a bar to question any election except by an election petition and such petition can be presented before the District Judge of the concerned district.

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The learned counsel at the same time also draws the attention of this Court to a Judgment and Order dated 28.11.2018 passed by this Court in a bunch of writ petitions including WP(C) No. 8065/2018. In the said case this Court was dealing with a pari materia provision under Section 129(b) of the Assam Panchayat Act which also provides for filing of an Election Petition for

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any dispute regarding election.

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In the said judgment, this Court however provided that in the event such a petition is filed, the Election Tribunal (District Judge) would expeditiously hear and decide the petition, if necessary on day to day basis.

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For ready reference, the relevant part of the aforesaid Judgment & Order dated 28.11.2018 is quoted here in below:-

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“47. In that view of the matter, Court is not inclined to entertain the writ petitions. However, petitioners would have their remedy under Section 129(b) of the Panchayat Act which provides for filing of election petition within 60 days from the date of declaration of result. As noticed above, election results are scheduled to be declared on 12.12.2018. Petitioners may avail their remedy under Section 129(b) of the Panchayat Act within 60 days from 12.12.2018 and if such election petitions are filed, concerned Panchayat Election Tribunals shall expeditiously hear and decide the election petitions if necessary on day-to-day basis. It may be pointed out that under Section 86(7) of the Representation of the People Act, 1951, every election petition is required to be tried as expeditiously as possible and endeavour should be made to conclude the trial within six months from the date on which election petition is presented.”

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Shri N. Bora, learned Standing Counsel, State Election Commission as well as Ms. K. Phukan, learned Standing Counsel do not have any objection to the aforesaid submission of the learned counsel for the petitioner.

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In view of the above, the present writ petition is dismissed on withdrawal with a liberty to approach the concerned District Judge under Rule 78 of the aforesaid Rules and in terms of the earlier judgment of this Court mentioned above. In the event such an election petition is filed, the same shall be heard expeditiously and if necessary on a day to day basis so that the entire object of making a challenge does not get frustrated.

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The writ petition is accordingly disposed of.

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JUDGE

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Comparing Assistant

Mantu Basumatary v. the State of Assam and 5 Ors.

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Mantu Basumatary v. the State of Assam and 5 Ors.

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