Geeta Bairagi vs Deepak Kr. Das and Others

R.S. Mongia, Actg. C.J.

Heard Mr. K.N. Choudhury, learned Counsel for the Appellant and Mr. M.H. Choudhury, learned Counsel and Mr. M.A. Sheikh, learned Counsel for the Respondents and Ms. A. Hazarika, learned State counsel for Respondents Nos. 3,4 and 5.

Fourteen Commissioners of Bilasipara Town Committee (hereinafter referred to as the Board) were elected on 16.6.1997. u/s 26 of the Assam Municipal Act, 1956 (hereinafter referred to as the Act), the tenure of the Commissioners of a Board is five years. Section 33 of the Act provides the manner of appointment or election of Chairman and Vice-Chairman of the Board. It inter alia provides that from amongst the Commissioners, Chairman and Vice-Chairman shall be elected. Sub-section (4) of Section 33 provides that when the Commissioners fail to elect a Chairman or a Vice-Chairman u/s 33, the State Government shall appoint by name one of the Commissioners to be the Chairman, or Vice-Chairman, as the case may be. On 1.9.97, one Smt. Sumitra Biswas and Shri Ganeshmal Sethia, were elected as Chairman and Vice-Chairman, respectively. However, both of them were removed from the office of Chairman and Vice-Chairman on 13.1.99. It is not necessary to go into the question of their removal as that is not the subject matter of challenge.

On 30.1.99, the concerned Deputy Commissioner issued a notification for election of Chairman and Vice-Chairman. Elections did take place on 10.2.1999. The Appellant and Respondent No. 1 were the candidates for Chairmanship, whereas Respondent No. 2, that is, Yusuf Ali Ahmed, was a candidate for the office of Vice-Chairman, along with Respondent No. 6, Shri Ajoy Ghosh. Both the candidates for the office of Chairman as well as for Vice-Chairman got 7 (seven) votes each. In other words, there was an impasse.

Exercising the powers u/s 33(4) of the Act, the Appellant was appointed as Chairman of the Board on 12.4.99, whereas one Shri Anowar Hussain was appointed as Vice-Chairman.

The Deputy Commissioner recommended to the State Government for dissolution of the Board. Respondents Nos. 1 and 2 filed a writ petition in this Court, being WP(C) No. 862 of 1999 (they were the candidates for Chairmanship and Vice-Chairmanship, respectively) challenging the action of the Deputy Commissioner in recommending to the State Government dissolution of the Board. The further prayer was that either the result of the election be declared as per the provisions of Section 45(c) of the Act, or re-election be ordered. The Appellant was a Respondent in the writ petition, though it is his case that he was not served with the notice of the writ petition. Be that as it may, the learned Single Judge vide judgment dated 3.6.99 ordered re-election for the office of Chairman/Vice-Chairman of the Board. The Appellant is aggrieved by the said judgment.

One Anowar Hussain, who was also a candidate for the office of Vice-Chairmanship, filed a review petition before the learned Single Judge (Review Petition No. 43 of 1999). Initially the learned Single Judge passed an order in the review petition for maintaining status quo. The Appellant filed a Misc. Case No. 42 of 2000, praying for keeping of status quo, as had earlier been ordered in the review petition. Status quo was continued. On 27.7.2000 the review petition was withdrawn. Thereafter the Appellant filed the present appeal.

The primary argument of the learned Counsel for the Appellant is that the learned Single Judge went wrong in ordering reelection of the office of the Chairman/Vice-Chairman, inasmuch as, there is a specific provision under the Act as to what is to be done in case of a tie. The learned Counsel referred to Sub-section (c) of Section 45 of the Act, which reads as under:

Manner of deciding questions. Save as otherwise provided in or under this Act,-

(a) . . .

(b). . .

(c) In the case of equality of votes in the election of Chairman, Vice-Chairman or President, the determination shall be by the drawal of lots:

Provided that an official appointed as Chairman u/s 33 shall not have the right to vote save for the purpose of giving a casting vote under this Section.

Explanation - To decide the issue by "drawal of lot" the President shall draw lots amongst them by writing the names of the candidates in two sheets of paper, rolling up the papers into balls and getting one of the balls picked up by some disinterested person, who has not seen the writing of the names in the papers, from a receptacle where both the papers (rolled up into balls) have been placed.

It is not disputed, and rather, is admitted that both the candidates for the office of Chairman as well as for the office of Vice-Chairman had polled seven votes each. In presence of the provision directly dealing with this situation, i.e., Section 45(c) of the Act, we are of the view that the learned Single Judge was not correct in ordering repoll. The only way to tide over the situation was to resort to Section 45(c) of the Act (supra). We are further of the view that in the face of specific provision under the Act dealing with the situation in hand, the learned Single Judge could not deviate from the same by ordering repoll.

For the foregoing reasons, we allow this appeal, set aside the judgment of the learned Single Judge and hold that the only way to elect the Chairman and Vice-Chairman in this case was to resort to the provisions of Section 45(c) of the Act. In the explanation to Section 45(c) (supra), the procedure as to how the draw of lots is to be made is given. The word ''President'' has been mentioned, who is supposed to draw the lots. Here the President means the person who is incharge of conducting the election. Since the election in this case was held way back in February, 1999, we are of the view that let the Deputy Commissioner, Dhubri carry out the mandate of Section 45(c) of the Act read with the Explanation by drawing lots of the candidates who had polled equal number of votes for the office of Chairman and Vice-Chairman, and after drawing the lots, declare the result. Let this exercise be done within a fortnight of the receipt of the copy of this judgment and order. Needless to mention that till the aforesaid directions are carried out, status quo as it exists today shall continue.

Copies of this judgment and order, attested by the Bench Assistant, be given to the counsel for the parties. The learned State counsel shall immediately transmit the same to the Deputy Commissioner, Dhubri, who would within a fortnight thereof carry out the directions as above, after informing the four candidates for the office of Chairman/Vice-Chairman, who had polled equal number of votes.

The notices to the four candidates as above would be sent by Regd. Post by the Deputy Commissioner, Dhubri. These notices be also sent by Regd. Post or by hand to their learned Counsel, as mentioned below, which shall be treated as sufficient service on the parties.

(1) Mr Arup Kumar Sarma, Advocate, Gauhati High Court, Guwahati-1, Assam. - (For the Appellant Smt. Geeta Bairagi).

(2) Mr. M.H. Choudhury, Advocate, Gauhati High Court, Guwahati-1, Assam - (for Respondents Nos. 1 and 2, namely, Shri Dipak Kumar Das and Shri Yusuf Ali Ahmed).

(3) Mr. M.A. Sheikh, Advocate, Gauhati High Court, Guwahati-1, Assam - (for Respondent No. 6, Shri Ajoy Ghosh).