GAHC040004962021

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

Case No. : WP(C) 150/2021

1:Jotam Toko Papu S/o late Toko Peri, resident of Tash village, PO/PS Yazali, Lower Subansiri District, AP

VERSUS

1:The State Election Commission of Arunachal Pradesh represented by the Secretary, Itanagar

2:The Deputy Commissioner Lower Subansiri District Ziro Arunachal Pradesh

3:The Member Secretary 04-Pistana Gram Panchayat Constituency Lower Subansiri District AP

4:Shri Tania Tajing Mandal President Bharitiya Janata Party 16th Yachuli Assembly constituency Lower Subansiri District A

Advocate for the Petitioner : Ninnong Ratan

Advocate for the Respondent : Ajin Apang, Sr. Advocate

BEFORE HONBLE MR. JUSTICE NANI TAGIA

ORDER

Date : 20-05-2021

Heard Mr. N. Ratan, learned counsel for the petitioner. Also heard Mr. K. Ete, learned Senior Additional Advocate General, assisted by Mr. I. Riram, learned Additional Senior Government Advocate for the respondent Nos. 2 & 3.

This writ petition is directed against the Order dated 18.03.2021, issued by the Deputy Commissioner, Lower Subansiri District, Ziro, vide Memo No. ZRO/DPDO/APA/2020/229, whereby, the petitioner has been disqualified for being a member of 4/2/5-Tash Gram Panchayat Segment under Section 3 (1) (b) of the Arunachal Pradesh Local Authorities (Prohibition of Defection) Act, 2003.

Though the order impugned is dated 18.03.2021, the petitioner contends that the said order was not served upon the petitioner and the petitioner had come to know of the existence of that order only sometime in the 1st week of May, 2021.

The petitioner, who was elected to the 4/2-Shally Gram Panchayat from 4/2/5-Tash Gram Panchayat Constituency vide the Certificate of Election issued by the Returning Officer, 04-Pistana & 05-Deed Zilla Parishad Constituency, dated 07.12.2020, under Form-25 Rules 60 (4), contends that 4/2-Shally Gram Panchayat in the District of Lower Subansiri comprises of altogether 5 (five) Gram Panchayat Members. In the Panchayat Election held in the month of December, 2020, all the 5 (five) Gram Panchayat Members of 4/2-Shally Gram Panchayat, including the petitioner, were elected on a party ticket issued by the Bharatiya Janata Party (BJP). As the party ticket for election of the Gram Chairperson of 4/2-Shally Gram Panchayat was not issued to the candidate proposed by the petitioner by the BJP, the petitioner along with 3 (three) other elected Gram Panchayat Members merged with the Janata Dal United [JD (U)] Political Party. The fact that the 4 (four) BJP Gram Panchayat Members including the petitioner of 4/2-Shally Gram Panchayat have joined JD (U) was intimated to the Returning Officer (PR), Yachuli, Lower Subansiri District, by the State President JD (U), Arunachal Pradesh, on 13.01.2021, vide Ref. No. SJDU/PR/LSD/RO-3.

Accordingly, in an election held for Chairperson of 4/2-Shally Gram Panchayat on 15.01.2021, Shri Toko Teki, one of the Gram Panchayat Member who had joined JD (U) from the BJP along with the petitioner, was declared elected as Chairperson of 4/2-Shally Gram Panchayat vide Form of Declaration of Result, dated 15.01.2021, issued by the Member Secretary, 04-Pistana Gram Panchayat Constituency, in Form-26 as prescribed under Rule 67 (4) and Rule 68 (annexed as Annexure 5 to the writ petition).

In the meanwhile, a disqualification petition, dated 15.01.2021, against the petitioner and other 3 (three) Gram Panchayat Members, was filed by the Mandal President, 16th Yachuli, Bharatiya Janata Party, to the Member Secretary, 04-Pistana Gram Panchayat Constituency, Lower Subansiri District, seeking disqualification of the petitioner along with other 3 (three) Gram Panchayat Members of the 4/2-Shally Gram Panchayat under Section 3 (b) of the Arunachal Pradesh Local Authorities (Prohibition of Defection) Act, 2003. It is on the aforesaid application, dated 15.01.2021, filed by the Mandal President, 16th Yachuli, Bharatiya Janata Party, that the impugned order dated 18.03.2021 has been issued by the Deputy Commissioner, Lower Subansiri District, Ziro, holding that the petitioner along with other 3 (three) Gram Panchayat Members, who were elected on a BJP Party Ticket, had joined JD (U) without resigning from BJP on 13.01.2021 after issuance of party whips from BJP and voted against the BJP nominated candidate during the Gram Chairperson election and, therefore, the petitioner along with 3 (three) other Gram Panchayat Members are liable to be disqualified from being a member of 4/2-Shally Gram Panchayat under Section 3 (1) (b) of the Arunachal Pradesh Local Authorities (Prohibition of Defection) Act, 2003.

The petitioner contends that disqualification provision under Section 3 of the Arunachal Pradesh Local Authorities (Prohibition of Defection) Act, 2003, is subject to Section 5 of the Arunachal Pradesh Local Authorities (Prohibition of Defection) Act, 2003, which provides that Section 3 shall not be applicable in the case of merger of the political party or a member to another political party with not less than two-thirds of the members of the political party. The petitioner in that light contends that as the 4/2-Shally Gram Panchayat comprises of altogether 5 (five) Gram Panchayat Members, the petitioner along with 3 (three) other Gram Panchayat Members when they had chosen to merge with the JD (U) political party comprised of not less than two-third Gram Panchayat Members of the 4/2-Shally Gram Panchayat and, therefore, the disqualification provision under Section 3 of the Arunachal Pradesh Local Authorities (Prohibition of Defection) Act, 2003, would not be applicable to the petitioner by virtue of Section 5 (2) (a), in the facts of the present case.

Having considered the contentions raised by the petitioner, as above, let notice of motion be issued, returnable in 6 (six) weeks.

As Mr. I. Riram, learned Additional Senior Government Advocate, accepts notice on behalf of respondent Nos. 2 & 3, no formal notice need be issued to the said respondents. However, requisite extra-copies of the writ petition be furnished to Mr. Riram, learned Additional Senior Government Advocate, within 2 (two) days.

The petitioner shall take steps for service of notice on respondent Nos. 1 & 4 by registered post with A/D as well as by usual process within a week.

On consideration of the contention raised by the petitioner, as highlighted hereinabove, the impugned order dated 18.03.2021, issued by the Deputy Commissioner, Lower Subansiri District, Ziro, vide Memo No. ZRO/DPDO/APA/2020/229, shall remain stayed in the meanwhile.

List it after 6 (six) weeks.

JUDGE

Comparing Assistant