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2015 DIGILAW 1064 (GAU)

HIGIO ARUNI v. STATE OF ARUNACHAL PRADESH

2015-08-20

K.SREEDHAR RAO, P.K.SAIKIA

body2015
JUDGMENT : P.K. SAIKIA, J. 1. This appeal is directed against the judgment dated 28.05.2015, rendered by the learned Single Judge in WP(C) 215 (AP)/2015. 2. By the said judgment, learned Single Judge while staying the order dated 25.05.2015 as well as the notification dated 26.05.2015, issued by the Chief Municipal Executive Officer (in short, CMOE), Naharlagun and Deputy Commissioner, Itanagar, Capital Complex respectively also gave direction to the Official respondents therein to put on vote "No Confidence Motion" afresh in accordance with law and same was ordered to be done on 29.05.2015. 3. We have heard Mr. K. N. Choudhury, learned senior counsel assisted by Mr. M. Mahanta, learned counsel for the appellant and Ms. M. Bora, learned Government Advocate for the State of Arunachal Pradesh as well as Mr. P. D. Nair, Mr. R. Sonar, Mr. G. Alam, and Mr. G. Nag, learned counsel appearing for the private respondents. 4. It may be stated herein that the appellant as petitioner in WP(C) No. 215(AP)/2015, approached the Itanagar Bench of the Gauhati High Court stating that he was Chief Municipal Councillor, Itanagar Municipal Council which consists of 30 Councillors. It has been alleged that 20 nos. of Councillors had moved a "No Confidence Motion" against the petitioner submitting a written letter to CMOE on 21.05.2015. Accordingly, the CMOE had issued notice dated 22.05.2015 notifying that a special session would be held on 25.05.2015 to discuss "No Confidence Motion" against the petitioner. 5. As per the notice dated 22.05.2015, all the 20 nos. of Councillors had attended the meeting on 25.05.2015, discussed "No Confidence Motion" and allegedly carried the said Motion against the petitioner since 22 councillors, out of total 30 councillors, cast their votes against the petitioner. However, such motion was passed, not by secret ballot as required under Rule 2 (IV) of the No Confidence Motion (Methods and Conduct of Procedures) Rules 2014 (for short, the Rules of 2014) and instead it was passed by raising of hands which was not permissible in law. 6. However, such motion was passed, not by secret ballot as required under Rule 2 (IV) of the No Confidence Motion (Methods and Conduct of Procedures) Rules 2014 (for short, the Rules of 2014) and instead it was passed by raising of hands which was not permissible in law. 6. However, instead of quashing the order dated 25.05.2015 and notification dated 26.05.2015 as required under the law, the learned Single Judge while staying the order and Notification aforementioned, was also pleased to direct the respondent authorities to convey Special meeting on 29.05.2015 in order to discuss the "No Confidence Motion" afresh in accordance with law, vide order dated 28.05.2015, rendered by the learned Single Judge in WP(C) 215 (AP)/2015. 7. Contending that such an order rendered by the learned Single Judge is illegal and without jurisdiction, it has been stated that the Rule 2(IV) of the Rules of 2014 requires that "No Confidence Motion" shall be put to vote by the presiding member by secret ballot on the same day when motion is discussed and thereafter the result thereof shall be declared. It has been contended that such provision, incorporated in Rule 2(IV) is mandatory in nature and therefore, non observance of the same would necessarily render entire resolution illegal. 8. It has further been submitted that when a "No Confidence Motion" is conducted in violation of provision of mandatory provisions in Rule 2 (IV) of the Rules of 2014, it also needs to be concluded that such a motion "was not carried by a majority of the total number of councillors" as contemplated in proviso to Section 25 (3) of the Act of 2007. In other words, in the event of violation of provision of the Rule 2 (IV) of the Rules of 2014, such a conclusion is required to be taken regardless of the result of such motion. A combine reading of Rule 2 (IV) of the Rules of 2014 and the proviso to Section 25 (3) of the Act of 2007 makes such a conclusion inevitable contends Mr. K.N. Choudhury. 9. A combine reading of Rule 2 (IV) of the Rules of 2014 and the proviso to Section 25 (3) of the Act of 2007 makes such a conclusion inevitable contends Mr. K.N. Choudhury. 9. Referring to proviso to section 25 (3) of the Act, it has also been submitted that when a "motion is not carried out by a majority of the total number of conciliators", no further resolution for the same purpose shall be moved before the expiry of six months from the date on which the former resolution was moved. But then, despite resolution was "not carried by a majority of the total members of the councillors" on 25.05.2015 and in spite of there being bar in holding another resolution of similar kind within six months from such date, the learned Single Judge was pleased to direct the authority concerned to conduct another special meeting for the same purpose on 29.05.2015 which, according to learned Sr. Counsel appearing for the appellant, was wholly illegal and without jurisdiction and therefore, said order is required to be quashed and set aside contends learned counsel for the petitioner/appellant. 10. In support of such contention, our attention was drawn to proviso to Section 25(3) of the Act of 2007 as well as the Rule 2(IV) of the Rules of 2014 and also the decision of this court in Forhana Begum Laskar v. State of Assam and Ors., reported in 2009 (3) GLT 575. For ready reference, proviso to Section 25 (3) of the Act of 2007 as well as Rule 2 (IV) of the Rules of 2014 are reproduced below. Proviso to Section 25(3) of the Act of 2007 reads as follows: "S. 25 (3) The Chief Councillor may be removed from office by a resolution carried out by a majority of the total number of councillors holding office for the time being at a special meeting to be called for this purpose in the manner as prescribed, upon a requisition made in writing by not less than one - third of the total number of councillors, and the procedure for the conduct of business in the special meeting shall be such as may be prescribed. Provided that no such resolution shall be moved before the expiry of six months from the date of entering office by the Chief Councillor, and if such resolution is not carried by a majority of the total number of councillors, no further resolution for such purpose shall be moved before the expiry of a period of six months from the date on which the former resolution was moved. Rule 2(IV) of the Rule of 2014 reads as follows: 2 (IV) As soon as the special meeting called for, commences, the presiding member at the meeting shall read out the motion on which the meeting has been called before the members present and declare it open for discussion. During discussion, opportunity shall be given to the Chief Councillor against whom no confidence motion is moved to defend himself. The motion shall be put to vote by the presiding member by secret ballot on the same day after discussion and thereafter the result shall be declared." 11. It is worth noting that Mr. P.D. Nair did not dispute the contention of learned counsel for petitioner that the Rule 2 (IV) of the Rules of 2014 is mandatory. However, the contention of learned counsel for the appellant that no fresh "No confidence Motion" can be moved within six months from the date on which aforesaid "No Confidence Motion" was moved, same being 25.05.2015, for such resolution coming within the mischief of Section 25(3) of the Act of 2007, was hotly disputed by learned counsel for private respondent. 12. According to him, "No Confidence Motion", moved on 25.05.2015 was initiated by 20 members, out of 30 membered Council and same was supported by 22 Councillors out of aforesaid 30 Councillors when the said resolution was put to vote on 25.05.2015. This clearly shows that the resolution was approved by ? majority of the total members of the Council, although same was not done by secret ballot as required under Section 25 (3) of the Act of 2007. But under no circumstances, such a resolution can be said "is not carried" as contemplated in the aforesaid provisions of law. 13. This clearly shows that the resolution was approved by ? majority of the total members of the Council, although same was not done by secret ballot as required under Section 25 (3) of the Act of 2007. But under no circumstances, such a resolution can be said "is not carried" as contemplated in the aforesaid provisions of law. 13. In that connection, he contended that a "No Confidence Motion", can be said "is not carried", as contemplated in proviso to Section 25 (3) of the Act of 2007, only when a "No Confidence Motion" was rejected on merit following due deliberations in a meeting convened and held in accordance with prescription of law. The group of words "if such resolution is not carried by a majority of the total number of councillors" makes such a conclusion inevitable. 14. Situation being such, by no stretch of imagination, the Resolution adopted on 25.05.2015, can be said to be a Resolution "is not carried by a majority of the total number of councillors" as contemplated in proviso to Section 25 (3) of the Act of 2007 ---only for----- same not being done by the way of secret ballot in order to bring such a resolution within the mischief of proviso to Section 25 (3) which prohibits moving of another " No Confidence Motion", for same purpose within a period of six months from the date when such resolution "is not carried out" ---- argues learned counsel for private respondents. 15. He further submits that in terms of order passed by learned Single Judge on 25.05.2015, a special meeting was convened on 29.05.2015 and in such a meeting, a resolution was adopted by 23 councillors out of 30 councillors signifying that the petitioner no longer enjoys the confidence of more than two third of the total councillors. It has been informed that said resolution was adopted by secret ballot. In that view of the matter, the present appeal is required to be dismissed----contends Mr. PD Nair, learned counsel for the private respondent. 16. Mr. R. Sonar adopting the arguments, advanced by Mr. It has been informed that said resolution was adopted by secret ballot. In that view of the matter, the present appeal is required to be dismissed----contends Mr. PD Nair, learned counsel for the private respondent. 16. Mr. R. Sonar adopting the arguments, advanced by Mr. Nair, further submits that all the irregularities, committed in adopting the resolution in special meeting to discuss "No Confidence Motion" cannot be regarded as fatal enough to invite the consequences as specified in proviso to Section 25 (3) of the Act of 2007 preventing discussion of a fresh "No Confidence Motion" on the same matter before expiry of six months from the date of former resolution. In support of their contentions, learned counsel for private respondent too relies on the decision in Forhana Begum Laskar (Supra). 17. We have considered the rival submissions, having regard to the materials on record. Before we proceed further, we find it necessary to look at the decision in Forhana Begum (Supra). The relevant part is reproduced below:- "(22). The word "lost" appearing in the 2nd proviso to Section 15(1), in deference to the fundamental principles of statutory interpretation, has to be essentially comprehended in the text and the context in which it appears. When so construed and interpreted, it to start with, seems to signify a rejection of a no-confidence motion on merits following due deliberations in a meeting convened and held in accordance with the procedure prescribed in Section 15(1). It cannot be conceived of as inevitable consequences of any infringement of the prescribed procedural rigour either by a breach of the time frame or unwarranted interference of any authority at any stage of the process or reasons akin thereto. Though, such outrages depending on the nature and extent of the consequential vitiation may render the process illegal, the same per se, would not imply the loss of the no-confidence motion as is contemplated in the 2nd proviso to Section 15 (1) of the Act. A demonstrably conscious act or omission on the part of those supporting the motion resulting in the rejection of the motion on merits or testifying the abandonment of the pursuit would be essential to conclude such a consequence. The bar against the permissibility on initiation of such a motion within next six months after it is lost in the first venture, in our opinion is decisively redolent of this view. The bar against the permissibility on initiation of such a motion within next six months after it is lost in the first venture, in our opinion is decisively redolent of this view. The quintessence of the proviso, according to us, is to sanction a temporary reprieve to the President or the Vice President of the Gaon Panchayat, in case the no-confidence motion brought against him/her stands defeated on merit so as to relieve him/her of a fresh ordeal of suffering the same exercise in quick successions. The legislative intendment as discernible is thus that a no-confidence motion brought against the President or the Vice President of the Gaon Panchayat is lost within the meaning of 2nd proviso to Section 15(1) of the Act, if either it is rejected on due deliberations in a meeting duly convened as enjoined therein or if the motion fails for cause or causes other than procedural defects or irregularities in convening the meeting be it for the violation of the time frame or uncalled for or unauthorised intervention of any authority not contemplated in the scheme statutory delineated for adherence. Whereas, such an infringement of the time schedule prescribed for the successive stages, or interference of authorities not envisaged depending on the extent and the nature of the impairment caused thereby, may render an ongoing process vitiated thereby, the inescapable consequence thereof need not necessarily be that the motion would be lost as comprehended in the 2nd proviso to Section 15(1). We, thus, cannot lend our concurrence to the plea that each and every non-compliance of the procedural essentials for prosecuting the process of no-confidence motion would, inexorably imply that it (motion of no-confidence) would be lost. In that facts and circumstances of the case, having regard to the nature of the contraventions, we are of the unhesitant opinion that though the proceedings of the meeting dated 12.03.2009 are invalid in view of the un authorized intrusion of the Anchalik Panchayat in the process, it would not connote that the no-confidence motion thereby, had been lost so as to attract the bar against initiation of a fresh pursuit with the same objective within six months thereafter. The process, in our view subsists and is capable of being furthered from the stage of the receipt of the requisition dated 19.02.2009 expressing the no-confidence against the appellant." 18. The process, in our view subsists and is capable of being furthered from the stage of the receipt of the requisition dated 19.02.2009 expressing the no-confidence against the appellant." 18. Coming back to our case, we have found that in the case in hand, disputes herein revolve around the following question:- (a) Whether a "No Confidence Motion" adopted by raising of hands (and not by the way of secret ballot) comes within the preview of "if such resolution is not carried by a majority of the total number of councillors" as contemplated in proviso to Section 25(3) of the Act of 2007. 19. Mr. K N Choudhury, learned Senior Counsel vehemently submits that there is no dispute over the fact that the provisions of Rule 2 (IV) was violated and such violation certainly brings the resolution adopted on 25.05.2015 within the mischief of the proviso to Section 25(3) of the Act of 2007 as stated above which was disputed tooth and nail by the learned counsel for private respondent. 20. A perusal of the proviso to Section 25(3) of the Act of 2007 reveals that it prohibits fresh resolution within six months from the date of former resolution if the former resolution "is not carried by a majority of the total number of councillors". On a careful reading of proviso to Section 25(3) of the Act of 2007, one would find that a "No Confidence Motion" can be said "is not carried" only when same was rejected by vote against the motion on due deliberations in a meeting held in accordance with law. 21. A careful and cautious reading of the Section 25(3), more particularly, the group of words, "is not carried by a majority of the total number of councillors" makes such a conclusion inevitable. Being so, the argument that the adoption of "No Confidence Motion" by more than two third majority of total number of Councillors but not by secret ballot, comes within the mischief of aforesaid provisions of law is found to be without any substance. 22. Being so, the argument that the adoption of "No Confidence Motion" by more than two third majority of total number of Councillors but not by secret ballot, comes within the mischief of aforesaid provisions of law is found to be without any substance. 22. Thus, we have found that the resolution was approved by 22 councillors out of total 30 councillors but not by secret ballot as required under the law but by raising of hands, never comes under the mischief of proviso to Section 25 (3) of the Act of 2007 which prevents conveying a "No Confidence Motion" for the same purpose within a period of six months there-from. 23. Since, in our instant case, we have already found that infringement, committed in adopting the resolution on 25.05.2015, cannot bring such a resolution within the mischief of the phrase "is not carried by a majority of the total number of councillors" so stated in proviso to Section 25 (3), therefore, the prohibition in aforesaid provision of law has no application in conducting another "No Confidence motion" for the same purpose within the period so specified in proviso to Section 25(3) of the Act of 2007. 24. We have been told that in terms of order dated 28.05.2015, a special meeting in accordance with law was held on 29.05.2015 to conduct the no confidence motion and same was approved by 23 councillors out of 30 councillors by secret ballot and in the meantime, one Ms. Kipa Kaku was elected as new Chief Municipal Councillor who was, however, debarred from taking any policy decision till the disposal of present appeal vide order dated 17.06.2015 rendered in this appeal. This too makes the present appeal redundant. 25. In view of above, we find no merit in the present appeal and same is accordingly dismissed. 26. Parties are directed to bear their own cost.