ABDUL MAZID Vs. STATE OF ASSAM

JUDGEMENT

(1.) WHAT shall, within the meaning of Section 5 (ix) of the Gauhati Municipal Corporation Act, 1971 (in short, the 'gmc Act'), be construed as the date of election of the Mayor or Deputy Mayor for the purpose of computing their term is the core issue raised in the present writ petition. When the result of the election of a Mayor or Deputy Mayor is directed by the Court not to be given effect to, and in consequence thereof, when the Mayor or Deputy Mayor, as the case may be, has not been able to function as the Mayor or Deputy Mayor, whether the period, during which the Mayor or the Deputy Mayor concerned has not been allowed to function, would be counted towards computing the term of one year, for the purpose of Section 5 (ix) of the GMC Act, is yet another question, which has arisen for determination in the present writ petition. Background Facts:-

(2.) IN exercise of the powers conferred by Clause (1) of Article 213 of the Constitution of India, the Governor of Assam promulgated the Guwahati Municipal Corporation (Amendment) Ordinance, 2004, vesting in the Members of the House of People and the Members of the Assam Legislative Assembly, representing the constituencies, which comprise fully or partly the Corporation area, the right to attend and speak at all meetings of the Corporation and also the right to vote. A Notification, in this regard, was accordingly published, on 29. 12. 2004, in the Assam Gazette (Extra-Ordinary) by the Government of Assam, Legislative Department, for general information. A notice, under Section 15 of the GMC Act, was, then, issued, on 06. 01. 2005, notifying 11. 01. 2005 as the date of election for the offices of Mayor and Deputy Mayor of the Guwahati Municipal Corporation (hereinafter referred to as "the GMC" ). Polls for election of Mayor and Deputy Mayor of the GMC were to be accordingly held on 11. 01. 2005. However, on 11. 01. 2005 itself, a writ petition, under Article 226 of the Constitution of India, was filed by some of the elected Councillors of the GMC challenging the constitutionality and validity of the Notification, dated 29. 12. 2004, aforementioned. This writ petition gave rise to W. P. (C) No. 254/2005. When the writ application was moved, on 11. 01. 2005, the Court, while ordering issuance of notice of motion, passed also an interim order directing that the election to the offices of Mayor/deputy Mayor may be proceeded with and the Ex-Officio members may be allowed to vote, but their votes should be kept separately and no result of the election scheduled to be held shall be announced without prior leave of the Court. On the same day, i. e. , 11. 01. 2005, a mention was made before the Court, at 3. 35 PM, by Mr. P. K. Goswami, learned Senior counsel, appearing for the writ petitioners, to the effect that though the order was passed at 12. 05 PM and an attempt was made by the counsel for the petitioners to inform the person concerned about the interim directions of the Court and though the directions had been verbally communicated, the election process was allowed to go through and that according to the information received, the result had also been announced. Responding to the submissions so made on behalf of the writ petitioner in WP (C) No. 254/05, Mr. K. N. Choudhury, learned Additional Advocate General, Assam, however, submitted to the Court that before the interim directions passed by the Court could be communicated to the person concerned, the counting was already over. At this stage, the Court passed an order directing that the results of the election shall be kept in abeyance and no Gazette Notification shall be issued and the result shall not be acted upon without prior approval of the Court. However, while so passing the interim direction, the Court made it clear that it was passing the order without entering into the correctness or otherwise of the rival submissions, which had been made before it.

(3.) THEREAFTER, on 13. 04. 2005, the Guwahati Municipal Corporation (Amendment) Act, 2005, (in short, the GMC (Amendment) Act, 2005) was enacted repealing the Guwahati Municipal Corporation (Amendment) Ordinance, 2004. Clause (a) of Sub-Section (1) of Section 5 was, in terms of the GMC (Amendment) Act, 2005, amended conferring on the members of the House of the People and the members of the Assam Legislative Assembly representing the constituencies, which comprise fully or partly, of the Corporation area, the right to attend and speak at all meetings of the Corporation and to case vote. The GMC (Amendment) Act, 2005, was accordingly published in the Assam Gazette (Extra-Ordinary) by the Government of Assam, Legislative Department, for general information.