MAL CHANDRA PEGU Vs. KARUNA DUTTA AND FIVE ORS. AND

JUDGEMENT

(1.) THE Petitioners who are duly enlisted and registered electors of Assembly Constituency No. 99, have challenged the election of Respondent No. 1, Shri Caruna Dutta, to the Assam Legislative Assembly, from 99 Majuli (ST) constituency in the last General Elections, held in April 1996. The Respondent No. 1 having polled the highest vote was declared duly elected to the State Assembly from the aforesaid Constituency.

(2.) THE grounds on which the election is challenged are enumerated in paragraph 5 of the Election Petition, and can well be summarised as (1) Improper acceptance of nomination of Respondent No. 1. The elected candidate, Respondent No. 1, is admittedly a member of the Koch Rajbongshi Tribe, which was not included in the original Constitution (Scheduled Tribes) Order, 1950 for the State of Assam, but was subsequently included in the Order by an Ordinance promulgated by the President of India on 27.1.96, followed by Anr. on 27th March, 1996. It is mainly on this ground that the election of Respondent No. 1 has been called in question. The grounds of challenge as enumerated by the Petitioners in the Petition in paragraph 5 are -

(3.) I take up the first ground relating to inclusion of Koch Rajbongshi Tribe as Scheduled Tribe for the State of Assam, as contained in paragraph 5 of tire Election Petition. Before proceeding further, it would not be out of place to recapitulate the legal position. The President of India in exercise of his powers under Article 123(1) of the Constitution of India promulgated the Constitution (Scheduled Tribes) Order (Amendment) Ordinance, 1996 on 27.1.96 including 'Koch Rajbongshi' in the list of Scheduled Tribes specified in relation to the State of Assam. By the Constitution (Scheduled Tribes)Order (Amendment) Second Ordinance, 1996, promulgated by the President of India on 27.3.96, the effect of the provisions of the earlier Ordinance Promulgated on 27.1.96 was continued to be in force. The Second Ordinance promulgated on 27.3.96 was published in the Gazette of India (Extraordinary), Part II, Section 1, dated 27th March, 1996. Petitioners' contention is that the above Ordinance dated 27th March, 1996 was not available to the Returning Officer, but the fact remains that the Ordinance, was in force on the date of submission of nomination papers, scrutiny thereof and the election and therefore the Respondent No. 1 was fully qualified to contest the election from 99 Majuli (ST) Constituency as a Scheduled Tribe candidate. Enforceability of the Ordinance does not depend on the availability of a copy thereof. It is not in dispute that the Ordinance was published in the Government of India Gazette. Extraordinary, Part II, on 27th March, 1996. What is disputed is the availability of a copy thereof, and that is also not factually correct. A copy was shown to the Petitioners on their own averment, but it was not an attested copy or a certified copy.