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2008 DIGILAW 330 (GAU)

Bhuddha Lila v. State of Mizoram

2008-05-07

H.BARUAH

body2008
JUDGMENT H. Baruah, J. 1. Heard Mr. M. Zothankhuma, learned Counsel for the petitioner. Also heard Mr. N. Sailo, learned Additional Advocate General, Mizoram for the State respondent Nos. 1 to 3 and Mr. Ricky Gurung, learned Counsel for the respondent Nos. 4 to 6. 2. At this stage it is made clear that though the writ petitioner challenged the vires of the Chakma Autonomous District Council (Constitution, Conduct or Business, etc.) Rules, 2002, now, he at this stage refuses to insist on that matter. However, the petitioner by this writ petition express his desire to challenge the Notification dated 27.02.2003 issued by the Chairman, Chakma Autonomous District Council vide Memo No. H. 18011/ 28/2003-CADC(L)/2, disqualifying the petitioner from being a Member of the Chakma Autonomous District Council. 3. The briefcase for the writ petitioner is that the Governor of Mizoram in exercise of his power conferred by Sub-rule 1 of Rule 7 of Mizoram Autonomous District Council (Constitution, Conduct of Business) Rules, 1974 was pleased to notify vide notification dated 19.11.2001 that the Chakma Autonomous District Council (for short 'CADC') shall consist of 17 Members of whom 13 shall be elected on the basis of adult franchise and the remaining 4 shall be nominated by the Governor. This notification dated 19.11.2001 was issued in super session of notification dated 07.04.1998. On 28.01.2003 a notice of election to the 7th Chakma Autonomous District Council was issued by the Additional Returning Officer fixing 14.02.2003 as the date of election for 13 seats to be filled up by direct election. 4. The writ petitioner contested the said election as an independent candidate. The MNF party and Indian National Congress also contested the said election. The MNF party had secured 7 seats while Indian National Congress secured 5 seats. The writ petitioner was declared elected as an independent candidate. All the elected members thereafter took oath as Members of Chakma Autonomous District Council on 19.02.2003 before the Deputy Commissioner, Lawngtlai. Respondent No. 3 herein vide notification dated 17.02.2003 notified for election of the Chairman of the Chakma Autonomous District Council fixing 21.02.2003 as the date for such election. That notification was issued in terms of Rule 33 of the Rules 1974. Respondent No. 3 herein vide notification dated 17.02.2003 notified for election of the Chairman of the Chakma Autonomous District Council fixing 21.02.2003 as the date for such election. That notification was issued in terms of Rule 33 of the Rules 1974. For the purpose of election of the Chairman the writ petitioner initially agreed to support the candidates sponsored by the MNF legislature party of the CADC and expressed his solidarity in the matter of election of the Chairman. The attended the meeting so held for that purpose on 18.02.2003 and 19.02.2003. The petitioner being in that situation, the MNF legislature party of Chakma Autonomous District Council was trying to induct him as a Secretary of the MNF legislature party for which the writ petitioner intimated that he was not in a position to accept the post of Secretary for the MNF legislature party. The writ petitioner, thereafter withdrew his support to the MNF sponsored candidate to the office of the Chairman. 5. The respondent No. 2 herein, the Secretary of the Govt. of Mizoram by a notification dated 19.02.2003 brought into force a new set of rules namely "Chakma Autonomous District Council (Constitution, Conduct or Business, etc.) Rules, 2002. Election of the Chairman was deferred vide letter dated 20.02.2003 and deferred till 21.02.2003. The Chairman was accordingly elected and he on 27.02.2003 vide notification under Memo No. H. 18011/28/ 2003-CADC(L)/2 in exercise of powers conferred under Sub-rule 5 of Rule 12 of CADC declared the writ petitioner disqualified from being a Member of the CADC with immediate effect on the ground of joining the MNF legislature party on 18.02.2003. It is further claimed by the petitioner that the notification under Memo No. H. 18011/28/2003-CADC(L)/2 dated 27.02.2003 is contrary to Rule 12(5) of the Rules and the same cannot sustain. It is further contended by the writ petitioner that he contested the election of CADC as an independent candidate and got elected as an independent candidate. He never joined in the MNF legislature party as claimed by the said party rather he thought of supporting the MNF sponsored candidate for a post of Chairman of the CADC. The claim that he joined the MNF in view of the Rule 12(5) of the Rules cannot sustain. 6. Mr. He never joined in the MNF legislature party as claimed by the said party rather he thought of supporting the MNF sponsored candidate for a post of Chairman of the CADC. The claim that he joined the MNF in view of the Rule 12(5) of the Rules cannot sustain. 6. Mr. M. Zothankhuma, learned Counsel for the petitioner referring to the Rule 12(5) of the Rules submitted before this Court that the writ petitioner contested the election as an independent candidate and elected as such. At no point of time he joined the MNF legislature party rather thought appropriate to support the MNF sponsored candidate for the post of Chairman of the CADC by attending the meetings held on 18.02.2003 and 19.02.2003 of the MNF legislature party. An independent candidate cannot be branded as a Member of a MNF legislature party. The action adopted by the elected Chairman of the CADC disqualifying the writ petitioner to be a Member of the CADC is illegal and unconstitutional. 7. The Chakma Autonomous District Council (Constitution, Conduct or Business etc.) Rules, 2002, received the assent of the Government of Mizoram and the same was published in the official gazette vide Notification No. C.11018/1/97-DCA dated 19.02.2003. Therefore, this rule came into force from the date of publication in the official gazette. Chapter-III of the Chakma Autonomous District Council (Constitution, Conduct or Business, etc.) Rules, 2002 deals with the disqualification for membership to the District Council. Sub-rule 5 of the Rule 12 provides the provisions for disqualifying a sitting Member of the District Council which reads asunder: 5. A sitting member of the District Council shall be disqualified if, (a) he has voluntary given up the political party which sponsored him as a candidate on the date of his nomination and joined any other political party after his election or his nomination as a member. Provided that a member shall not be disqualified even if he has left the party which sponsor him, as a result of a split which consists of not less than 1/3 of the elected members of such party in the District Council; (b) having been elected to the District Council as an independent candidate, has later joined any Political Party. 8. 8. Micheal Zothankhuma, learned Counsel for the writ petitioner taking aid of the Sub-rule 5 of Rule 12 has submitted that the writ petitioner contested the election as an independent candidate and he never joined any other political party not to speak of the MNF legislature party. The facts and circumstances appearing in the case also do not suggest that the writ petitioner voluntarily given up the membership as independent candidate and joined the MNF party. Since, the writ petitioner did not file his nomination sponsored by any political party and contested the election as an independent candidate, claim of joining the MNF party by the writ petitioner cannot be said to be appropriate. Therefore, disqualifying the writ petitioner from being a Member of the CADC is not sustainable in law as per the rule's. Further it is argued by Mr. M. Zothankhuma that supporting the candidate sponsored by the MNF legislature party to the post of Chairman of CADC by the writ petitioner, he having been elected as an independent candidate, attending the meetings of the MNF party for that purpose does not necessarily mean that he joined the MNF legislature party. According to Mr. Zothankhuma, neither of the rules will be applicable in respect of the writ petitioner. Notification dated 27.02.2003 issued by the Chairman of the Chakma Autonomous District Council vide Memo No. H. 18011/28/2003-CADC(L)/2 is, therefore, illegal, arbitrary and unconstitutional and violative of natural justice. 9. Mr. Zothankhuma while arguing the case has also brought to the notice of this Court that the Court vide order dated 25.03.2003 put a restrainment to the writ petitioner as under: The writ petitioner shall henceforth be allowed to participate in the proceedings of the Chakma Autonomous District Council, but he shall not be entitled to cast any vote on any any pay or allowances during the interim period. 10. Though the writ petitioner was allowed to participate in the proceedings of the Chakma Autonomous District Council, he was, however, not allowed to cast any vote and receive any pay and allowances during the substance of the membership as a Member of the Chakma Autonomous District Council. The normal longevity of the Chakma Autonomous District Council is five years. Since a fresh election was held, apparently, this writ petition turns to be infructuous. This stand has also been taken by Mr. Ricky Gurung, learned Counsel for the respondent Nos. The normal longevity of the Chakma Autonomous District Council is five years. Since a fresh election was held, apparently, this writ petition turns to be infructuous. This stand has also been taken by Mr. Ricky Gurung, learned Counsel for the respondent Nos. 4 to 6. According to Mr. Gurung this writ petition cannot proceed, the same being infructuous. 11. Since, the writ petitioner was not paid by virtue of the restriction put by this Court vide order dated 25.03.2003 for the relevant period, while was continuing as a Member of the CADC, it is submitted by Mr. Zothankhuma that the writ petition be disposed of on merit. I have already discussed herein before the facts and relevant rules for that purpose. The notification of disqualification issued by the then Chairman of Chakma Autonomous District Council appears to be illegal, arbitrary and unconstitutional. Further, it is violative of natural justice. The said notification, therefore, cannot stand in the eye of law. 12. In the result the Notification No. H. 18011/28/2003-CADC(L)/2 dated 27.02.2003 is accordingly set aside and quashed. It is made clear that the respondents' authority shall pay the remuneration with all benefits to the writ petitioner for the period for which he was holding Membership of the CADC. With the above directions this writ petition is disposed of.