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Gauhati High Court · body

1999 DIGILAW 97 (GAU)

Chawngliana v. State of Mizoram and Ors.

1999-03-24

D.BISWAS

body1999
This application under Article 226 of the Constitution has been filed by Shri C. Chawngliana assailing the notifications issued by the Governor on 14.7.1997 a and 25.7,1997 on the ground of being ultra virus of the provisions of sections 7 and 15 of the Lushai Hills District (Village Councils) Act, 1953 (for short the Act of 1953). 2.1 have heard Mr. H. Lalrinthanga, learned counsel for the .petitioner as well as Mr. KP Pathak, learned Advocate General assisted by Mr. N. Sailo, learned Govt Advocate, Mizoram. The factual back ground which culminated in this writ petition may be summarised in the following words. 3. The election to the post of Acting President of Pangzawl Village was held on 6.5.1997. All the 5 (five) elected members of the Village Council cast their votes and the petitioner who was one of the candidates pulled 3 (three) votes against 2 (two) votes pulled by the respondent No. 3. But the State Govt nominated one Shri Lianzuava as a member of the Village Council and, thereafter, issued the notification dated 14th July, 1997 (Annexure III) appointing Shri R. Rothangpuia as the President although he had pulled only 2 (two) votes. According to the writ petitioner, the said notification purportedly issued, under section 7 and section 15 of the Act of 1953 is in gross violation of the provisions embodied in section 7 itself, and as such the said notification cannot be sustained. 4. The grounds under which the aforesaid notification has been challenged are available in paras 3 and 4 of the writ petition which have not been in specific and unambiguous term denied by the respondents in their affidavit-in-opposition. Therefore, the fact that the petitioner had pulled 3 (three) votes as against 2 (two) votes pulled by the respondent No. 3 stands accepted. 5. The provisions relating to the election of the President is available in section 7 of the Act of 1953. For better appreciation, the relevant provision incorporated in sub-section (1) of section 7 is reproduced below : “The President and the Vice President of the Village Council shall be elected by the members of the Village Council from among themselves by a majority of votes.” 6. For better appreciation, the relevant provision incorporated in sub-section (1) of section 7 is reproduced below : “The President and the Vice President of the Village Council shall be elected by the members of the Village Council from among themselves by a majority of votes.” 6. It is clear from the aforesaid provisions that the election to the post of President and Vice President is complete if a member of the Milage Council secures majority of the votes pulled in the election. The provision relating to nomination of members are available in sub-section (3) of section 3 of the Act of 1953. The provision incorporated in this sub-section permits nomination of one fourth of the total number of the members by the Govt and this is also subject to the provisions which contemplates such nomination only when election cannot be held due to any reason considered unavoidable by the Govt. In the instant case, the election having being held, there was no necessity to nominate a member to the Village Council and thereby to imbalance the result of the election. In my opinion, in the given circumstances of the case, the exercise undertaken by the respondents to nominate Shri F. Lianzuava was redundant so far the .election to the post of President is concerned. The writ petitioner having pulled 3 (three) votes out of 5 (five), ought to have been declared elected as President of the Village Council. In the considered opinion of the case, the provisions of law as reflected above lead to the inevitable conclusion that the notification issued by a the Governor on 14th July, 1997 (Annexure HI) appointing respondent No.3 who had pulled only 2 (two) votes out of 5 (five) cannot be sustained being ultra virus of the provisions of sub-section (1) of section 7 of the Act of 1953. 7. It is needless to reiterate that the Returning Officer committed gross miscarriage of justice in not declaring the writ petitioner as elected to the post of President after the election held on 6.5.1997. Consequently, the impugned notification dated 14th July, 1997 and the subsequent notification issued on 25th July, 1997 cannot be sustained for being violative of the provision of section 7(1) of the Act of 1953. 8. In the result, the writ petition is allowed. The notification dated 14th July, 1997 (Annexure HI) and 25th July, 1997 (Annexure IV) are hereby quashed. Consequently, the impugned notification dated 14th July, 1997 and the subsequent notification issued on 25th July, 1997 cannot be sustained for being violative of the provision of section 7(1) of the Act of 1953. 8. In the result, the writ petition is allowed. The notification dated 14th July, 1997 (Annexure HI) and 25th July, 1997 (Annexure IV) are hereby quashed. The petitioner having pulled majority of votes cast on 6.5.1997 shall have to be I appointed as President by the respondent Govt. The writ petitioner is directed to place a copy of this judgment and order before the respondent Govt for taking action in accordance with law. No order as to costs.