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2015 DIGILAW 1028 (GAU)

Hage Kobing v. State of Arunachal Pradesh

2015-08-14

M.R.PATHAK

body2015
JUDGMENT : Heard Mr. P. D. Nair, along with Mr. D. Lazi, learned counsels for the Petitioner. Also heard Mr. R. H. Nabam, learned Addl. Advocate General, Arunachal Pradesh, assisted by Ms. Pubi Pangu, learned Govt. Advocate for the State Respondent Nos. 1 to 6 and Mr. Tony Pertin with Mr. P. Bui, Mr. K. Saxena & other learned counsels for the private Respondent Nos. 8 to 17. 2) The petitioner is one of the elected Zilla Parishad Member (ZPM, in short) out of 14 (fourteen) ZPMs of Lower Subansiri District of Arunachal Pradesh, elected through democratic process in April 2013 and on being elected he is serving as Chairperson of Zilla Parishad of Lower Subansiri District of Arunachal Pradesh. 3) A group of 10 (ten) ZPMs of Lower Subansiri District on 10-07-2015 served a written notice under Section 63 (1) of the Arunachal Pradesh Panchayat Raj Act 1997 on the Member Secretary of the said Zilla Parishad with the intention to move ‘No Confidence Motion’ against the petitioner i.e. the Chairperson of the Zilla Parishad of Lower Subansiri District on the ground of his incapability and loss of support from two third majority of present ZPMs and by the said notice, they requested the said the Member Secretary to call for a meeting of the ZPMs of Lower Subansiri Districts within a period of 7 (seven) days from the date of the said notice for discussion and to move such ‘No Confidence Motion’ against the petitioner. 4) The Member Secretary of Lower Subansiri Zilla Parishad himself issued a Notice of No-Confidence Motion under Memo No. ZRO/ZP-NCM/2015 dated 10-07-2015 and convened a Zilla Parishad meeting of Lower Subansiri District on 20th July 2015 at 11:00 AM in the Conference Hall, Hapoli to take up the ‘Motion of No confidence’ and by the same requested the ZPMs of the Lower Subansiri District to attend the meeting on the said date, time and venue positively. 5) The petitioner, the Chairperson of Lower Subansiri Zilla Parishad on 13.07.2015 wrote a letter to the Member Secretary of the said Zilla Parishad, respondent No. 7, requesting him to recall the said notification dated 10.07.2015 in the interest of Justice as the same being illegal and immature at that junction. 5) The petitioner, the Chairperson of Lower Subansiri Zilla Parishad on 13.07.2015 wrote a letter to the Member Secretary of the said Zilla Parishad, respondent No. 7, requesting him to recall the said notification dated 10.07.2015 in the interest of Justice as the same being illegal and immature at that junction. The petitioner on 13.07.2015 also submitted a complaint against the respondent No. 7, the Member Secretary of the said Zilla Parishad before the Chief Secretary of the State in issuing the impugned Notice dated 10.07.2015 and the petitioner submitted that the same is yet to be considered. 6) On receipt of the same, the respondent No. 7, Member Secretary of Lower Subansiri Zilla Parishad vide letter under Memo No. ZRO/ZP-NCM/2015 dated 15.07.2015 informed the petitioner that there is no illegality or immaturity in serving the Notice for conduct of No-Confidence Motion against the Chairperson of Lower Subansiri Zilla Parishad, as 10 (ten) ZPMs of the said Zilla Parishad on 10.07.2015 submitted a petition to move No-Confidence Motion under Section 63 (1) of the Arunachal Pradesh Panchayat Raj Act 1997 and there is no provision under the said Act to recall the same. 7) Being aggrieved with said the said action of the respondent No. 7, Member Secretary of Lower Subansiri Zilla Parishad in issuing the impugned Notice dated 10.07.2015, the petitioner has preferred this petition. 8) Mr. P. D. Nair, learned counsel for the petitioner submitted that the Member Secretary of the said Zilla Parishad issued the impugned notice in question dated 10.07.2015 convening the meeting unilaterally in his capacity as Member Secretary of the Zilla Parishad, without any authority in law and in violation of the provisions of Section 96 of the Arunachal Pradesh Panchayat Raj Act, 1997 (1997 Act, in short) without placing the same before the Chairperson of the Zilla Parishad for convening the meeting, usurping the power and authority of the petitioner as Chairperson. 9) Mr. Nair urged that the action on the part of the Member Secretary of the said Zilla Parishad in issuing the impugned Notice dated 10.07.2015 is illegal, malafide, with ulterior motive and on extraneous consideration, not in exercise of his official duty but with personal and vested interest. 10) Mr. Nair also placed from the impugned Notice that it did not specify the exact venue of the meeting in question as there are three conference Halls at Hapoli. 11) Mr. 10) Mr. Nair also placed from the impugned Notice that it did not specify the exact venue of the meeting in question as there are three conference Halls at Hapoli. 11) Mr. Nair on behalf of the petitioner relied upon the Judgments reported in (2011) 3 GLT 297, (2004) Supp GLT 717, (2004) Suppl GLT 720, (2006) 2 GLT 14 and (2008) Suppl GLT 725. 12) Mr. R. H. Nabam, learned Additional Advocate General, Arunachal Pradesh on behalf of the official respondents submitted that the Member Secretary of the said Zilla Parishad did not commit any wrong or illegality in issuing the impugned Notice dated 10.07.2015 intimating all the Zilla Parishad Members about the meeting to be held on 20.07.2015 at 11:00 AM in the Conference Hall at Hapoli to take up the Motion of No-Confidence against the petitioner, the Chairperson of Lower Subansiri Zilla Parishad; since 10 (ten) ZPMs of the panel accordingly the extent as who have a to move No-Confidence Motion against the petitioner. 13) Mr. Tony Pertin, learned counsel on behalf of the private respondent Nos. 8 to 17, the ten ZPMs who submitted the written notice under Section 63(1) of the 1997 Act before the Member Secretary of the Zilla Parishad on 10.07.2015 stated that the applicants have the majority of two- third of the total members of the Lower Subansiri Zilla Parishad against the petitioner, Chairperson of the said Zilla Parishad and accordingly no-confidence was fixed on 20.07.2015 at Hapoli. 14) Both Mr. Nabam & Mr. Pertin submitted that under the 1997 Act, the process of no-confidence motion/impeachment is governed by Section 63 of the Act and Section 95 of the said Act deals with relates to no-confidence motion of Zilla Parishad, whereas Section 96 of the Act relates to Meeting of Zilla Parishad & whereas Section 97 of the said Act provides for list of business transacted at a meeting and since moving of a no-confidence motion is not a mere normal call of a meeting of the Zilla Parishads, provisions of Section 96 of the Act is not applicable in the present case as projected by the petitioner. 15) Chapter-V of the 1997 Act, contains Sections 85 to 103 and it deals with provisions of Zilla Parishad. Section 95 of the Act deals with motion of No-Confidence with regard to Zilla Parishad and it reads as – “95. 15) Chapter-V of the 1997 Act, contains Sections 85 to 103 and it deals with provisions of Zilla Parishad. Section 95 of the Act deals with motion of No-Confidence with regard to Zilla Parishad and it reads as – “95. Motion of No-Confidence– A motion of no-confidence shall be moved and decided in the same manner as provided under Section 63 of this Act”. 16) Chapter-IV of the 1997 Act contains Sections 53 to 84 and it deals with Anchal Samiti and Section 63 of the Act deals with motion of No-Confidence and it reads as – “63. Motion of No-Confidence – (1) A motion of no-confidence may be moved by one third of the total number of members of a Gram Panchayat or an Anchal Samiti or Zilla Parishad against its Chairperson after giving at least 7 (seven) days notice in writing to the Member Secretary or any other prescribed authority of Gram Panchayat or an Anchal Samiti or Zilla Parishad of his intention to move such a motion. (2) If the motion is carried by a majority of not less than two-thirds of the total number of members of the Gram Panchayat or an Anchal Samiti or Zilla Parishad the chairperson shall cease to hold the office. (3) Notwithstanding anything contained in this Act, the Chairperson of a Gram Panchayat or an Anchal Samiti or Zilla Parishad shall not preside at a meeting in which a motion of no-confidence against him is under discussion, but he shall have the right to speak or otherwise take part in the proceedings of such meeting.” 17) Section 96 of the Act deals with meeting of Zilla Parishad and it reads as – “96. Meeting of Zilla Parishad– (1) Every Zilla Parishad shall hold meeting in its office at list in every three month on such date and such hour as the Zilla Parishad may fix as the immediately preceding meeting: Provided that the first meeting of a newly constituted Zilla Parishad shall be held at such time and such place within the local limits of the district concerned as the prescribed authority may fix; Provided further that the Chairperson, when required in writing by one fifth of the members of a Zilla Parishad to call a meeting, shall do so, fixing the date and hour of the meeting within fifteen days after giving intimation to the prescribed authority and seven clear days notice to the members of the Zilla Parishad falling which the members aforesaid may call a meeting within thirty days after giving intimation to the prescribed authority and seven days, notice to the Chairperson and other members of the Zilla Parishad. Such meeting shall be held at such place or such date and at such hour as the members calling the meeting may decide. The prescribed authority may appoint an observer for such meeting who shall submit to the prescribed authority a report in writing duly signed by him, within three days of the meeting, on the proceeding. The prescribed authority shall on the receipt of the report take such action thereon as it may deem fit. (2) One-third of the total number of members of a Zilla Parishad shall form the quorum for a meeting of the Zilla Parishad; Provided that no quorum shall be necessary for an adjourned meeting. (3) The Chairperson, or in his absence one of the member chosen by members present, shall preside at the meeting of the Zilla Parishad. (4) All questions coming before a Zilla Parishad shall be decided by a majority of votes: Provided that in case of equality of votes the Chairperson of the member presiding shall have a second or casting vote. (5) The Member Secretary of a Zilla Parishad shall attend a meeting of the Zilla Parishad and shall participate in the deliberations thereof. (4) All questions coming before a Zilla Parishad shall be decided by a majority of votes: Provided that in case of equality of votes the Chairperson of the member presiding shall have a second or casting vote. (5) The Member Secretary of a Zilla Parishad shall attend a meeting of the Zilla Parishad and shall participate in the deliberations thereof. (6) Seven clear days’ notice for an ordinary meeting and seven clear days’ notice of a special meeting, specifying the time at which such meeting is to be held and business to be transacted there at, shall be sent to the members and pasted at the office of the Zilla Parishad. Such notice shall include, in case of special meeting, any motion or proposition mentioned in the written request made for such meeting.” 18) Section 97 of the Act deals with list of business to be transacted at a meeting and it reads as – “97 List of business to be transacted at a meeting– (1) A list of business to be transacted at every meeting or the Zilla Parishad, except at adjourned meeting, shall be sent to each member of the Zilla Parishad in the member prescribed at least five days before the prime fixed for such meeting and no business shall be brought before or transacted at any meeting at the than business of which notice has been given except the approval of the majority of the members present at such meeting: Provided that if the Chairperson thinks that a situation has arisen for which an emergent meeting of the Zilla Parishad should be called, he may call such meeting after giving three days’ notice to the members: Provided further that not more than one business shall be included in the list of business to be transacted at such emergent meeting. 19) For a motion of no-confidence against Chairperson of Zilla Parishad as provided under Section 95 of the 1997 Act provisions of Section 63 of the said Act is required to be followed. 19) For a motion of no-confidence against Chairperson of Zilla Parishad as provided under Section 95 of the 1997 Act provisions of Section 63 of the said Act is required to be followed. As per Section 63 of the Act for moving a motion of no-confidence against the Chairperson of the Zilla Parishad, it has to be moved (i) by the minimum of one-third of the total number of members of the Zilla Parishad, with (ii) seven days clear notice in writing to the Member Secretary or any other prescribed authority of the Zilla Parishad of its intention to move such a motion. When the motion is carried by a majority of not less than two thirds of the total number of members of the Zilla Parishad, the Chairperson shall cease to hold office and but in such meeting, where a motion of no-confidence against him is under discussion, the Chairperson of the Zilla Parishad shall not preside at the meeting; but he shall have the right to speak or otherwise take part in the proceedings of such meeting so that he can defend the allegations made against him and explain the same to the members of the Parishad. (20) List of business to be transacted at a meeting of Zilla Parishad has been prescribed under Section 97 of the Act and except the provisions of Section 96 of the said 1997 Act; there are no other provisions in the Act for meeting of Zilla Parishad. Going through the provisions of the said 1997 Act, it is seen that for the purpose of moving a no-confidence motion against the Chairperson of the Zilla Parishad, as provided under Section 63 of the Act, requisite members of the Zilla Parishad are required to give a written notice to the Member Secretary of the said Parishad and after clear seven days time such meeting for no-confidence is required to be convene. (21) Since Section 63 the said 1997 Act specifically dealts with the motion of no confidence against the Chairperson of the Zilla Parishad, the provisions of Section 96, with regard to the meeting of Zilla Parishad or Section 97, with regard to the list of business to be transacted at a meeting of Zilla Parishad, shall not come in to play as the provisions of Section 95 & 63 and Sections 96 & 97 cannot be equated for the purpose of motion of no confidence and meeting of Zilla Parishad. (22) I have gone through the judgments cited on behalf of the petitioners and considered them. Those judgments relate to the Assam Panchayat Act, 1994 as amended, where there are specific provisions under the Assam Panchayat Act, 1994 as amended. As such said judgments are not applicable in the present case. (23) From the reading of Section 95 & 63 of the Act, it is seen that to move a no-confidence motion against the Chairperson of the Parishad, there has to be a meeting and in the said meeting, the Chairperson though cannot preside in it; but he has the right to speak or otherwise take part in the proceedings of such meeting. (24) On receipt of the proper written notice from the requisite numbers of ZPMs to move no confidence against the Chairperson of the Zilla Parishad as provided under Section 63 of the Act, the Member Secretary of the Zilla Parishad becomes empowered to convene the meeting to take up the said motion of no confidence. (25) For the reasons aforesaid, the Court is of the view that for the purpose of moving a no-confidence motion against the Chairperson of the Zilla Parishad under the said 1997 Act, the Member Secretary of the Zilla Parishad upon receipt of the written notice from the requisite numbers of ZPMs, he is empowered to convene the meeting of no confidence against the Chairperson of the Zilla Parishad in terms of Section 63 of the Arunachal Pradesh Panchayat Raj Act, 1997. (26) Accordingly, no illegality has been found with regard to the impugned Notice of No-Confidence Motion issued by the Member Secretary of Lower Subansiri Zilla Parishad under Memo No. ZRO/ZP-NCM/2015 dated 10-07-2015 convening Zilla Parishad meeting of Lower Subansiri District. (27) In view of the above, this petition being devoid of merit stands dismissed. (26) Accordingly, no illegality has been found with regard to the impugned Notice of No-Confidence Motion issued by the Member Secretary of Lower Subansiri Zilla Parishad under Memo No. ZRO/ZP-NCM/2015 dated 10-07-2015 convening Zilla Parishad meeting of Lower Subansiri District. (27) In view of the above, this petition being devoid of merit stands dismissed. Consequently the interim order passed on 16.07.2015 stands vacated. (28) No order as to costs.