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2016 DIGILAW 21 (MEG)

Lamdibok Sumer v. State of Meghalaya

2016-09-08

DINESH MAHESHWARI, VED PRAKASH VAISH

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JUDGMENT AND ORDER : Dinesh Maheshwari, J. 1. These three applications for condonation of delay and the related intra-court appeals, involving similar issues, have been considered together and are taken up for disposal by this common order. 2. Each of these appeals is reportedly time-barred by about 33 days. However, the question of limitation is not put to contention by the learned Government Advocate appearing for the respondent No. 1; and looking to the overall circumstances, while ignoring the delay, these appeals are taken on the regular side. 3. Having heard learned counsel for the appellants and the learned Government Advocate on merits, we are clearly of the view that fundamentally misconceived writ petitions filed by the petitioners/appellants have rightly been dismissed by the learned Single Judge at the admission stage; and no case for interference is made out in these appeals. 4. The sum and substance of the matter and common features of the present appeals could be noticed in the following: In the elections held in the month of February, 2014 for constitution of respective District Councils in the State of Meghalaya, the petitioners/appellants had been the candidates in their respective constituencies, desirous of being elected as Member of District Council ['MDC']. The petitioners/appellants, however, remained unsuccessful in the elections while securing second highest number of votes in their respective constituencies. Obviously, the candidates securing highest number of votes in the respective constituencies were declared elected. It so happened that the elected MDCs of the constituencies of the petitioners/appellants were also holding the position as Members of the State Legislative Assembly ['MLA']. In due course of time, allegedly with imminent amendment of Protection of Disqualification (Members of the Legislative Assembly) Act, 1972, the aforesaid persons holding dual positions as MLA and MDC, chose to give up their position as MDC; and resigned as such in the month of September, 2015. Hence, the seats of MDCs in the constituencies in question fell vacant because of such resignations. 5. It appears that after the events aforesaid, in or about the month of April, 2016, the petitioners/appellants filed their respective writ petitions in this Court, claiming a right to be declared elected in the respective constituencies in place of the earlier elected MDCs who had resigned and the seats had become vacant. Those writ petitions were, however, dismissed as withdrawn on 21.04.2016, with liberty to file afresh. Those writ petitions were, however, dismissed as withdrawn on 21.04.2016, with liberty to file afresh. Thereafter, in the month of August, 2016, the petitioners/appellants chose to file the fresh writ petitions with the submissions that since they had secured the next highest number of votes than the returned candidates (who had resigned), they were entitled to be declared elected as MDCs for the constituencies in question. 6. The learned Single Judge found the proposition as suggested and claim as made by the petitioners/appellants entirely baseless and dismissed the writ petitions while observing that no precedent was shown that upon resignation of an elected member of the District Council, the second person i.e., the person securing the next higher number of votes, may be declared elected. Though the learned Single Judge, thereafter, also observed that the position could not be compared with the process of selection in civil services where, according to the learned Single Judge, the next in merit may seek appointment if the selected person does not join, but in our view, even in such an eventuality of a selected person not joining, the person next to him in the merit does not ipso facto get a right to be appointed in his place. The process would always remain subject to the relevant rules. However, such an aspect is not required to be discussed further because, in any case, so far the present matters are concerned, a bare look at the applicable rules is sufficient to reject the baseless claim sought to be made by the appellants. 7. The learned counsel for the appellants has referred to the presently applicable Assam and Meghalaya Autonomous District(Constitution of District Councils) Rules, 1951 ['the Rules of 1951']; and has end eavoured to argue that in the scheme and spirit of the Rules of 1951, if a seat of MDC becomes vacant because of resignation of the elected MDC, the vacancy is required to be filled up by declaring elected the next candidate, that is, the one who has secured next highest number of valid votes in that constituency. The learned counsel has referred to sub-rule (3) of Rule 16 of the Rules of 1951 and has submitted that in the spirit of these provisions, the petitioners/appellants, being the persons who had secured second highest number of votes, ought to be declared elected as MDCs in their respective constituencies after resignations of the elected MDCs. The submissions remain totally baseless and could only be rejected. 8. Before proceeding further, appropriate it would be to take note of the referred provisions of the Rules of 1951, as placed before us from the year 2011 publication of the Legislative Office of Khasi Hills Autonomous District Council, as under:- "Vacation of seats 16. (1). No person shall be a member of the District Councils of two or more autonomous districts and if a person is so elected a member of two or more District Councils then at expiration of twenty one days from the date of publication in the Gazette of the declaration that he has been so elected or, if such publication has been made on different dates from the latest of such date, that person's seat in the District Councils of all such autonomous districts shall become vacant, unless he has previously resigned his seat in the District Councils of all but one of the autonomous districts. Such a vacancy or vacancies shall be notified by the Governor in the Gazette. (2). If a person is elected to more than one seat in the District Council, then unless within twenty one days from the date of publication in the Gazette of the name of that person as having been so elected or, where such publication has been made on different dates unless within twenty days from the latest of such date, such person resigns all but one of the seats, all the said seats shall become vacant. If he resigns all but one seat, the remaining seat or seats shall become vacant. Such a vacancy or vacancies shall be notified by the Governor in the Gazette. (3). If he resigns all but one seat, the remaining seat or seats shall become vacant. Such a vacancy or vacancies shall be notified by the Governor in the Gazette. (3). In the event of any vacancy arising in a Constituency under sub-rule (1) or (2), the Returning Officer shall, subject to the provisions of sub-rule (2) of rule 165, declare the candidate following the next highest number of valid votes in that Constituency as shown in the return prescribed under rule 168, to be duly elected to fill up the vacancy, and the name of the candidate so elected shall be reported to the Secretary to the Government of Meghalaya, District Council Affairs Department, and published in the Gazette under the signature of the Returning Officer. (4). If a member of the District Council resigns his seat by writing under his hand addressed to the Chairman, his seat shall become vacant. (5). If for a period of thirty days a member of a District Council is without permission of the Council absent from all meetings thereof, the Council may declare his seat vacant: Provided that in computing the said period of thirty days no account shall be taken of any period during which the Council is prorogued or is adjourned for more than three consecutive days. (6). Where a seat becomes vacant under the provisions of sub rule (4) or (5), the Governor shall, by notification in the Gazette, declare it to be so vacant." 9. A purposeful and comprehensive reading of the aforesaid Rule 16 makes it clear that if a person is elected as a member of two or more District Councils, then, within the time prescribed, he is required to resign from all but one of the seats. Similarly, if a person is elected to more than one seat in the same District Council, he should resign, within the time prescribed, from all but one of the seats. As per the mandate of sub-rules (1) and (2) of Rule 16, if the person so elected to multiple seats does not resign from all but one seat, all the seats to which he is elected become vacant. However, if such a person, who has been so elected on multiple seats, retains one seat and resigns from the others within time, the vacancy/vacancies would arise in such constituency/constituencies wherefrom he has resigned. However, if such a person, who has been so elected on multiple seats, retains one seat and resigns from the others within time, the vacancy/vacancies would arise in such constituency/constituencies wherefrom he has resigned. It is only upon occurrence of a vacancy because of sub-rule (1) and/or sub-rule (2) of Rule 16 that sub-rule (3) of Rule 16 ibid. comes into operation whereby and where under, in relation to such a vacancy, the Returning Officer is to declare the candidate with the next highest number of valid votes in that constituency to be the duly elected MDC, subject to the provisions of Rule 165 (2) [relating to draw of lots in case of equal number of votes]. In other words, the events envisaged by sub-rule (3) of Rule 16 are only those where a person gets elected to more than one District Council or to more than one seat of the same District Council; and, either all such seats become vacant (if he does not resign as per stipulations) or all but one seat become vacant, if he retains only one seat while resigning from other/others. A bare look at sub-rule (3) of Rule 16 puts it beyond the pale of doubt that only in relation to such eventualities as are referred to in sub-rule (1) and sub-rule (2) of Rule 16 that the Returning Officer would declare the candidate following with the next highest number of votes in that constituency as the elected one; and not in every case of vacancy on a seat in a District Council. Apparent it is that this provision of sub-rule (3) ibid. operates only when a person is elected to multiple seats and when the seats become vacant by operation of law or because of compulsive resignation from all but one seat by the person so elected to multiple seats. Obviously, the course envisaged by sub-rule (3) of Rule 16 of the Rules of 1951 is to be adopted only for the particular and peculiar contingencies referred therein; and such a course cannot be considered available for every occurrence of vacancy in a District Council. Obviously, the course envisaged by sub-rule (3) of Rule 16 of the Rules of 1951 is to be adopted only for the particular and peculiar contingencies referred therein; and such a course cannot be considered available for every occurrence of vacancy in a District Council. It needs hardly any elaboration that sub-rule (3) of Rule 16 takes care of an eventuality, where the seat/s become vacant because of the singular reason of one person getting elected to more than one seat, in the manner that such an elected person is treated out of fray in relation to the seat becoming vacant and the next person with highest number of valid votes is declared elected so as to respect the will of electors and to avoid unnecessary re-elections. 10. The course envisaged and permitted by sub-rule (3) of Rule 16 of the Rules of 1951 is not available to be petitioner/appellants for the simple reason that resignations of elected MDCs in the present cases had not been under the force of sub-rule (1) or sub-rule (2) of Rule 16 nor their seats have become vacant by operation of the said provisions. Admittedly, the elections to the District Councils were held in the month of February, 2014 and the aforesaid MDCs resigned in the month September, 2015. None of them is alleged to have been elected to more than one seat. Thus, their resignations are in no way co-related that sub-rule (1) or sub-rule (2) of Rule 16. Neither the letters of sub rule (3) of Rule 16 nor even the conceivable spirit thereof could be applied to the present cases. 11. The ordinary resignations of the MDCs in the present cases [in contrast to the compulsive resignations under sub-rules (1) and (2) of Rule 16 ibid.] are clearly referable to sub-rule (4) of Rule 16 whereby, a seat becomes vacant upon resignation; and, as per sub-rule (6) of Rule 16, the Hon'ble governor is required to declare it to be so vacant by notification in the Gazette. Moreover, a bare look at Chapter I of Part IV of the Rules of 1951 makes it clear that such an eventuality (i.e, occurrence of vacancy due to ordinary resignation of an elected MDC) is to be dealt with as per Rule 126, which reads as under: "126. Moreover, a bare look at Chapter I of Part IV of the Rules of 1951 makes it clear that such an eventuality (i.e, occurrence of vacancy due to ordinary resignation of an elected MDC) is to be dealt with as per Rule 126, which reads as under: "126. Casual Vacancies (1) When the seat of a member of the District Council become vacant or the election of a member is declared void, the Governor shall, by notification in Gazette, call upon the constituency to elect a person to fill the vacancy within such time as may be specified in the notification, and these Rules shall apply, as far as may be, to the procedure for the election of a member to fill such a vacancy. (2) If a vacancy occurs in the case of a nominated member, the Governor shall nominate to the vacancy a person having the necessary qualification under these Rules." 12. In the present cases, where the referred elected Members of District Council have resigned and their resignations have been accepted, the obvious result is that the seats have become vacant and further course of action shall follow in accordance with law. By no stretch of imagination, the petitioners/appellants could be considered having any legal right to be declared elected as MDCs for the constituencies in question. 13. Thus, the baseless writ petitions have rightly been dismissed by the learned Single Judge; and no case for interference is made out. 14. Therefore, these appeals stand dismissed.