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2009 DIGILAW 248 (GAU)

Annayak James Tayeng v. State of Arunachal Pradesh

2009-04-09

BROJENDRA PRASAD KATAKEY

body2009
JUDGMENT B.P. Katakey, J. 1. The Petitioner has filed W.P. (C) No. 69(AP) of 2009 challenging the order dated 09.02.2009 passed by the Commissioner-cum-Secretary (Panchayat Raj), Govt. of Arunachal Pradesh, Itanagar whereby and whereunder all concerned were informed that the tenure of the Chairman/Members of the State Finance Commission was upto 20th May, 2008 and that the Petitioner had completed his tenure as the member of the said Commission and would be paid his dues, as admissible, upto that date. 2. In W.P. (C) No. 87(AP) of 2009, the Petitioner has prayed for a direction to the Respondents not to disturb him in occupying his allotted Govt. Quarter No. 7, Type-V, Vivek Vihar, Itanagar till 22.09.2010 or until he is provided with an alternate accommodation by the Respondent authority. 3. By filing Misc. Case [WP(C)] No. 22 (AP) of 2009 in W.P. (C) No. 87(AP) of 2009, the Petitioner has challenged the order dated 04.03.2009 passed by the Additional District Magistrate cum Estate Officer, Itanagar Complex, Itanagar, directing him to vacate the quarter allotted to him. 4. In W.P. (C) No. 69(AP) of 2009, the Petitioner has contended inter alia that the State Finance Commission has been reconstituted by the Govt. of Arunachal Pradesh with the Petitioner as the lone member, under Section 138 of the Arunachal Pradesh Panchayat Raj Act, 1997 (in short, 1997 Act), vide order dated 22.09.2005 and the tenure of appointment of the Petitioner as the lone member of the said Commission being 5 (five) years, in terms of Section 138(1) of the 1997 Act, he is entitled to continue in the said capacity till 21.09.2010 and therefore the order dated 09.02.2009 passed by the Commissioner cum Secretary (PR), Govt. of Arunachal Pradesh restricting his tenure to 20.05.2008 is contrary to law. The Respondents in the affidavit-in-opposition has contended that the Finance Commission was not reconstituted by the order dated 22.09.2005 and only a casual vacancy of a member occurred in the Commission constituted vide order dated 21.05.2003 has been filled up by the said order dated 22.09.2005 and the period of such Commission having been over on 20.05.2008, the impugned order dated 09.02.2009 has been passed. It has further been contended in the affidavit-in-opposition that in fact under Section 138 of the 1997 Act no tenure of appointment of either the Chairman or the Members of the Finance Commission has been prescribed and the constitution of such Commission stood terminated either on expiry of 6 (six) months period within which the Commission is required to submit its report or on expiry of the extended period granted for that purpose under Sub-rule (3) of Rule 3 of the Arunachal Pradesh Panchayati Raj (Constitution of Finance Commission) Rules, 2003 (in short, 2003 Rules). It has also been contended in the affidavit-in-opposition that in any case, even if it is taken that by order dated 22.09.2005 the Govt. has reconstituted the Commission with the Petitioner as lone member, the period of extension for submission of the recommendation having been over on 31.03.2008, which was granted vide order dated 17.12.2007 issued by the Chief Secretary, the Petitioner cannot continue as the member of the Commission, in the absence of any order, passed thereafter, extending the period for submission of its recommendation to the Governor. 5. I have heard Mr. T. Michi, the learned Counsel for the Petitioner as well as Mr. N. Dutta, learned Advocate General, assisted by Ms. G. Deka, the learned Addl. Sr. Govt. Advocate, appearing on behalf of the Respondents. 6. Mr. Michi, learned Counsel for the Petitioner has submitted that since Section 138 of the 1997 Act provides that the Govt. shall at the expiration of every 5th year is to constitute a Finance Commission to review the financial position of the Zila Parishad etc., the term of the Finance Commission is 5 (five) years from the date of its constitution. According to the learned Counsel, such Finance Commission may be constituted either with one member or more and even if Sub-rule (3) of Rule 3 of 2003 Rules provides that the Finance Commission shall submit its recommendation to the Governor within 6 (six) months of its constitution unless the Governor extends the period for the purpose, the tenure of the Finance Commission continues till it completes 5 (five) years from the date of constitution. Mr. Michi, further submits that it is apparent from the order dated 22.09.2005 passed by the Govt. Mr. Michi, further submits that it is apparent from the order dated 22.09.2005 passed by the Govt. of Arunachal Pradesh that the Finance Commission has been reconstituted with the Petitioner as the lone member, directing the Commission to submit the interim report within 3 (three) months of its constitution and hence such Commission shall continue to exist with the Petitioner as the sole member till the completion of 5 (five) years i.e. 21.09.2010 Mr. Michi, therefore, submits that the impugned order dated 09.02.2009, whereby the tenure of appointment of the Petitioner as the sole member of the State Finance Commission has been restricted to 20.05.2008, is required to be interfered with being contrary to the provisions of 1997 Act. 7. The learned Advocate General, referring to the provisions contained in Section 138 of 1997 Act as well as Sub-rule (3) of Rule 3 of 2003 Rules, has submitted that it is apparent that no tenure of the Finance Commission has been fixed under Section 138 of the 1997 Act and the function of the Finance Commission comes to an end as soon as the recommendation is submitted, which is required to be submitted within 6 (six) months from the date of its constitution or within such period as has been extended by the Governor. According to the learned Advocate General, even if it is assumed that by the order dated 22.09.2005 the Finance Commission has been reconstituted with the Petitioner as the lone member, the period of such Commission comes to an end on 31.03.2008 i.e. the date upto which the authority has extended the period for submission of its recommendations. The learned Advocate General, further submits that in fact the Petitioner has been appointed as the member of the State Finance Commission constituted vide order dated 21.05.2003 to fill up the vacancy caused in the said Commission and as such the Petitioner cannot claim that he should be allowed to continue beyond 20.05.2008, in view of the provisions contained in Sub-section (6) of Section 138 of the 1997 Act, even if the contention of the Petitioner that the tenure is 5 (five) years, is accepted. 8. I have considered the submissions of the learned Counsel for the parties and also perused the pleadings. 9. It appears from the notification dated 21.05.2003 issued by the Secretary, RD and Panchayat, Govt. 8. I have considered the submissions of the learned Counsel for the parties and also perused the pleadings. 9. It appears from the notification dated 21.05.2003 issued by the Secretary, RD and Panchayat, Govt. of Arunachal Pradesh that in exercise of the power conferred under Section 138 of 1997 Act the State Finance Commission has been constituted with one person as Chairman and three others as members, fixing the tenure of office of the members as 5 (five) years. The Petitioner claims that the said Finance Commission has been reconstituted vide Notification dated 22.09.2005 with the Petitioner as the lone member, though the Respondents have claimed that such notification was issued to fill up the casual vacancy created in the said Commission constituted vide notification dated 21.05.2003. It, however, appears from the orders dated 06.08.2007, 06.10.2007 and 17.12.2007 passed by the Chief Secretary, Govt. of Arunachal Pradesh (Annexure-V, VI-A and VII-A to the affidavit-in-opposition filed by the Respondents) that the Govt. has accepted that the State Finance Commission consists of only one member namely the Petitioner, as by the said orders the Govt. has extended the periods for submission of the final recommendations by the Commission with the Petitioner as lone member. From the said act of the Respondents, it is, therefore, clear that by the order dated 22.09.2005 the State Finance Commission has been reconstituted with the Petitioner as the lone member. Moreover, it appears from the said notification dated 22.09.2005 that there is absolutely no indication that only the casual vacancy of the member has been filed up and on the other hand, it has specifically been mentioned in the said notification that the Finance Commission has been reconstituted with the Petitioner as the lone member. The contention of the Respondents that by the notification dated 22.09.2005 the Finance Commission has not been reconstituted and what has been done is filling up of the casual vacancy of the member of the Finance Commission constituted vide order dated 21.05.2003, cannot, therefore, be accepted. 10. The next question which requires consideration is as to the tenure of appointment of the Petitioner. 10. The next question which requires consideration is as to the tenure of appointment of the Petitioner. Section 138(1) of the 1997 Act which received the assent of the President of India on 13.04.2001 and which has been notified on 30.04.2001 and published in the Arunachal Pradesh Gazette on 03.05.2001, requires the Governor to constitute a Finance Commission to review the financial position of the Zila Parishads, Anchal Samities and the Gram Panchayat and to make recommendations to the Governor as to the matters stipulated in Clause (a) thereof within 1 (one) year from the date of commencement of the Act and thereafter, at the expiration of every 5th year. Sub-section (2) of Section 138 provides that the Finance Commission shall consist of one or more members, of whom one shall be the Chairman. In Section 138, the tenure of the Chairman or the members of the Finance Commission has not been stipulated. What has been stipulated is the requirement for constitution of the Finance Commission every 5th year, which does not necessarily mean that the Finance Commission will continue to exist, even after submission of the recommendations by it to the Governor. 11. Sub-rule (3) of Rule 3 of 2003 Rules requires the Finance Commission to submit its recommendation to the Governor within 6 (six) months of its constitution, unless the Governor extends the period for that purpose. It, therefore, appears, keeping in view the purpose for which it is constituted, that the Finance Commission will continue to exist for a period of 6 (six) months from the date of its constitution, in the event period is not extended by the Governor for submission of the recommendations and in case any period is extended, till the expiry of such period. 12. In the instant case, it appears that on the request made by the Petitioner the period for submission of the recommendation was extended upto 30.09.2007 vide order dated 06.08.2007 (Annexure-V to the affidavit-in-opposition). The Petitioner on receipt of the said order dated 06.08.2007 has filed an application dated 28.08.2007 (Annexure-VI to the affidavit-in-opposition) requesting the Respondent authority either to allow him to complete the remaining period or at least to give him time for 1 (one) year for submission of the final recommendations. The Petitioner on receipt of the said order dated 06.08.2007 has filed an application dated 28.08.2007 (Annexure-VI to the affidavit-in-opposition) requesting the Respondent authority either to allow him to complete the remaining period or at least to give him time for 1 (one) year for submission of the final recommendations. The Chief Secretary thereafter vide order dated 06.10.2007 (Annexure-VI-A to the affidavit-in-opposition) has extend the period for submission of the final recommendations till 31.12.2007 and by another order dated 17.12.2007 (Annexure-VII-A to the affidavit-in-opposition), such period has again been extended upto 31.03.2008 for submission of final recommendations. No further period has been extended by the authority for that purpose. 13. As held above, the life of the Finance Commission constituted under Section 138 of the 1997 Act being 6 (six) months or till the period for submission of the recommendations is extended and no tenure of appointment of the Chairman/Members of the Finance Commission having been fixed in Section 138 of 1997, the Petitioner cannot claim that he is entitled to continue upto 21.09.2010, in view of the reconstitution of the Finance Commission with the Petitioner as its lone member vide notification dated 22.09.2005. The requirement of Sub-rule (3) of Rule 3 of 2003 Rules being that the Commission shall submit the recommendations within 6 (six) months unless such period is extended, the life of the Finance Commission with the Petitioner as the lone member came to an end on 31.03.2008, there being no extension granted thereafter, for submission of final recommendations. The authority however, by the impugned order dated 9.02.2009 has decided to give the benefit to the Petitioner upto 20.05.2008, on the incorrect assumption that the Finance Commission constituted vide notification dated 21.05.2003 exists till 20.05.2008. 14. In view of the aforesaid discussion, I do not find any merit in W.P. (C) No. 69(AP) of 2009 and hence it is dismissed. Consequently, the W.P. (C) No. 87 (AP) of 2009 and Misc. Case [WP(C)] No. 22(AP) of 2009 also stand dismissed. No. costs.