Krishna Konwar @ Krishna Melang v. The Election Commision of India and 4 Ors

ORDER Date : 09/08/2023

Heard Mr. K.P. Pathak, learned senior counsel assisted by Mr. B. Das, learned counsel for the writ petitioner. I have also heard Mr. A.I. Ali, learned Standing Counsel, Election Commission of India, appearing on behalf of the respondent nos. 1 and 2. Ms. S. Baruah, learned CGC, is present on behalf of the respondent nos. 3 and 4. Mr. D. Nath, learned Senior Government Advocate, Assam, has appeared on behalf of the respondent no. 5. The writ petitioner herein belongs to the Tiwa Community, which is a recognized Scheduled Tribe in Assam. He is also a voter of the No. 54 Morigaon Legislative Assembly Constituency (LAC). Being aggrieved by the projection made in draft proposal dated 20/06/2023 prepared by the Election Commission of India (ECI) in connection with delimitation of assembly constituencies in the State of Assam, the petitioner has approached this Court, inter alia, contending that as per the projection made in the draft proposal, there is strong possibility that the No, 54 Morigaon LAC, which has a sizeable population of Scheduled Tribes, will not be included in one of the 9(nine) reserved Page No.# 3/4 constituencies in the State of Assam although the population pattern demands so. Mr. Pathak, learned senior counsel for the writ petitioner has also invited the attention of this Court to the representation dated 06/07/2023 submitted before the ECI by the petitioner and several other voters of the constituency with a request to include the No. 54 Morigaon LAC as a reserved constituency for the Scheduled Tribes to submit that despite receipt of such representation, no action has been taken in the matter till today. It is also the submission of the learned senior counsel for the writ petitioner that having regard to the population pattern and number of persons belonging to the ST category who are the permanent residents of Morigaon district of Assam, the proposed move on the part of the ECI not to declare one of the constituencies in Morigaon as reserved for ST, is not only in contravention of the mandate of Article 332(3) of the Constitution of India but the same also runs counter to the letter and spirit of section 9(a) of the Delimitation Act, 2002. Under such circumstances, the petitioner has prayed for an interim order from this Court staying the process of delimitation with regard to the Assembly constituencies falling in Morigaon District, till resolution of the controversy. Mr. A.I. Ali, learned Standing Counsel, ECI, on the other hand, has opposed the prayer made in the writ petition by contending that in view of the order dated 24/07/2023 passed by the Hon'ble Supreme Court of India in Writ Petition (Civil) No. 51/2023 (Hirendranath Gohain Vs. Union of India and others), no interference in the delimitation process would be permissible at this stage. Mr. Ali further submits that the stand of the petitioner is merely based on the draft proposal, which is yet to be finalized. As such, the writ petition is pre-mature. After going through the materials available on record and on hearing the submissions of the learned counsel for the parties, it appears that the case projected by the petitioner also finds due support from the request made by the Chief Secretary, Assam, vide communication dated 06/07/2023 addressed to the Deputy Election Commissioner of India whereby, it has been pointed out that the Tiwa Tribes residing in Assam, is an indigenous Tribe and constitute a sizeable community in Morigaon Constituency. Taking note of the same, the Assam Cabinet has also resolved to request the ECI to examine as to whether the No. 54 Morigaon LAC can be considered for reservation as a Scheduled Tribe Constituency. However, the fact remains that till date no final decision has been taken by the ECI with regard to delimitation of constituencies and reservation of Assembly constituencies in the State of Assam and the process of delimitation is still under progress. Therefore, at this stage, this Court is not inclined to interfere in the matter. However, having regard to the facts and circumstances of the case and the Page No.# 4/4 submissions made at the Bar, it is provided that before finalizing the draft proposal, the respondent no. 1 may examine the grievance of the petitioner, in the light of the provisions of Article 332(3) of the Constitution of India read with section 9(a) of the Delimitation Act, 2002 as well as the Cabinet resolution of the State Government of Assam and take appropriate decision in the matter, as may be warranted, in law as well as in the facts and circumstances of the case. With the above observation, the writ petition stands disposed of.

JUDGE

sukhamay Comparing Assistant

PageoNo.#o1/4 GAHC010171162023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/4554/2023o KRISHNAoKONWARo@oKRISHNAoMELANGo SONoOFoLATEoRANUBORoKONWAR,o RESIDENToOFoVILLAGE-oMALPUTA,o PO-oUDARI,o DISTRICT-oMORIGAON,oASSAM,o PIN-o782105. VERSUSo THEoELECTIONoCOMMISIONoOFoINDIAoANDo4oORS.o REPRESENTEDoBYoTHEoPRINCIPALoSECRETARYoANDoHAVINGoITSoOFFICEo AToNIRVACHANoSADAN,oASHOKAoROAD,o NEWoDELHI-o11001. 2:THEoCHIEFoELECTIONoCOMMISSIONER oELECTIONoCOMMISSIONoOFoINDIA oNIRVACHANoSADAN oASHOKAoROAD o NEWoDELHI-o11001. 3:UNIONoOFoINDIA oTHOUGHoTHEoSECRETARY o MINISTRYoOFoLAWoANDoJUSTICE o GOVERNMENToOFoINDIAo ANDoHAVINGoITSoOFFICEoAToSHASHTRIoBHAWAN oNEWoDELHI-o11001. 4:MINISTRYoOFoHOMEoAFFAIRS oGOVERNMENToOFoINDIA Page No.# 2/4 REPRESENTED BY ITS SECRETARY AND HAVING ITS OFFICE AT NORTH BLOCK CENTRAL SECRETARIAT NEW DELHI- 11001. 5:THE STATE OF ASSAM REPRESENTED BY ITS PRINCIPAL SECRETARY HEALTH AND FAMILY WELFARE DEPARTMENT GOVERNMENT OF ASSAM DISPUR GUWAHATI- 781006 ASSAM Advocate for the Petitioner : MR K P PATHAK Advocate for the Respondent : SC, ECI BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM