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2019 DIGILAW 745 (GAU)

Sabeituo Mechulho v. State of Nagaland

2019-06-13

MIR ALFAZ ALI

body2019
JUDGMENT : Mir Alfaz Ali, J. 1. Heard Mr. N. Mozhui, learned counsel for the petitioners and Ms. S. Mere, learned Government Advocate for the State respondent as well as Mr. N.M. Jamir, learned counsel for the respondent No. 6. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioners have challenged the letter bearing No. DCK/SDR/VC/CHE/03/2016(Pt)/1374 dated 18.06.2018 issued by the respondent No. 5, directing the respondent No. 6 to convene meeting of the village council and also for direction in the form of appropriate writ to the Deputy. Commissioner (respondent No. 3) to convene a special session of the Chedema Village Council. 3. The petitioners herein are the members of the Chedema Village Council as well as the Gaonburhas who are also ex-officio members of the village council having voting right. The case of the petitioners is that the petitioner No. 1, 2, 3 & 4 filed a representation before the respondent No. 4, SDO (S), Kohima on 15.09.2017 bringing some allegations against the respondent No. 6, being the Chairman of the Chedema Village Council and also asking for summoning a special sessions of the village council in order to enable them to move a no-confidence motion against the Chairman (respondent No. 6). As no action was taken by the respondent, the petitioners submitted a representation on 18.11.2017, whereby, a special session of the Chedema Village Council was sought to be convened in order to facilitate the council members to move a no-confidence motion against the Chairman. However, the respondent No. 3 or 4 did not summon any special session of the village council as required by Section 9 (3) (c) of the Nagaland Village Council Act, 1978 as amended by Act No. 2 of 2010 (for short 'the Act'), rather, by the impugned letter dated 18.06.2018, the respondent No. 5 directed the respondent No. 6 to convene the meeting of the village council. 4. Aggrieved by the above action, the petitioners have filed the instant writ petition. 5. The State respondents No. 1, 2, 3, 4 & 5 filed a common affidavit-in-opposition. The respondent No. 6 also filed two affidavit-in-oppositions. 4. Aggrieved by the above action, the petitioners have filed the instant writ petition. 5. The State respondents No. 1, 2, 3, 4 & 5 filed a common affidavit-in-opposition. The respondent No. 6 also filed two affidavit-in-oppositions. The contention raised by the State respondents in their affidavit-in-opposition, in a nutshell is that an enquiry was conducted as to the ground realities by the respondent No. 5 and a report was submitted to that effect, which has been annexed with the affidavit-in-opposition as Annexure-F. In the said Annexure-F report, the respondent No. 5 observed as under: "The present Village Council Members and Village Council Chairman were all respectively elected by their respective khels and selected VCMs knowing full well their history and place of residence and as such it may not amount for cause of impeachment requiring Deputy Commissioner to call for a special session of village council." 6. The respondent No. 5 also directed the respondent No. 6 to convene the meeting of the council. The respondent No. 6 stated in his affidavit-in-opposition that the petitioner No. 5 was not competent to be a member of the village council, but his membership was approved by the Government. The respondent No. 6 further stated in the affidavit-in-opposition that the petitioner No. 7, Gaoburha was unfairly appointed and therefore his appointment has been challenged in WP (C) No. 55(K)/2018, wherein this Court vide order dated 29.05.2018 had directed that the appointment of the petitioner No. 7 as Gaonburha of Chedema Village shall be subject to the outcome of the writ petition. The contention of the respondent No. 6 precisely is that the competence of the petitioner No. 5 as members of the village council as well as petitioner No. 7 as Gaonburha and their voting right are in dispute, and as such, the members requisitioning the special session are not in majority and that the allegations brought against the respondent No. 6 were not correct. 7. 7. It is undisputed position that the Chedema Village Council comprises of 13 members, which includes the ex-officio members, Learned counsel for the petitioners submits, that when 7 out of the 13 members comprising the village council made a representation asking for summoning a special session of the village council expressing their no confidence on the respondent No. 6 as Chairman, the Deputy Commissioner did not have any other option but to summon the special sessions as per the mandate of Section 9(3) (c) of the Nagaland Village Council Act, 1978. The Deputy Commissioner could not exercise his discretion, not to summon such special session, nor the Deputy Commissioner could direct such a special session to be convened by the Chairman of the council against whom, no-confidence motion was contemplated, submits Mr. Mozhui. 8. Learned State Counsel contends that although, as per Section 9(3) (c), the Deputy Commissioner is required to summon the special session in order to enable the members to move a no-confidence motion, the Deputy Commissioner has to look into the ground realities and the bonafide of such requisition and having considered the ground realities as mentioned in Annexure-F to the affidavit-in-opposition of the State respondents, the special session was not convened, rather, the Chairman was asked to convene the meeting of the council. 9. In view of the above factual matrix and submission, the question falls for consideration in this writ petition is, when majority members of the council ask for summoning a special session expressing no-confidence against the Chairman of the village council in order to enable to move a no-confidence motion, whether the Deputy Commissioner has a discretion not to convene such special session and/or to direct the Chairman to convene the meeting of the council. 10. Before answering the question, posed, it would be appropriate to reproduce herein Section 4, 5, 6, 7 and 9 of the Nagaland Village Council Act, 1978 for better appreciation of the matter. "4. A Village Council shall consist of members chosen by villagers in accordance with the prevailing customary practices and usages, the same being approved by the State Government, provided that hereditary Village Chief, GBs and Angs shall be Ex-officio members of such council and shall have voting right. 5. "4. A Village Council shall consist of members chosen by villagers in accordance with the prevailing customary practices and usages, the same being approved by the State Government, provided that hereditary Village Chief, GBs and Angs shall be Ex-officio members of such council and shall have voting right. 5. A person shall not be qualified to chosen as a member of the Village council unless, he:- (a) is a citizen of India and (b) has attained the age 25 years. 6. (a) Every Village Council unless otherwise dissolved by the State Government, shall continue for five years from the date of appointment. Provided that the said period may be extended by the State Government by a notification in the Gazette for a period not exceeding one year at a time. (b) All members shall hold office during the life of the Village Council. Provided that a member chosen to fill in a casual vacancy shall hold office for the remainder of the term of office of the member whom he replaced. Provided further that the Village constitutions which were traditionally established like the 'putu Menden" in Ao area and recognized as Village Council shall continue to function as Village Council according to respective custom and usage. 7. (1) The Village council will choose a member as Chairman of the council. (2) During the absence of the Chairman from any sitting of the Village Council a member of the Council nominated by the Chairman shall act as Chairman. 9. (1) The State Government remove any member of a Village Council from his office:- (a) who is convicted of any offence involving moral turpitude by a Court of law, or (b) who refuses to act, or become incapable of acting or (c) who is declared to be insolvent, or (d) Who has been declared by notification in the Gazette to be disqualified for employment in the Public Service, or (e) Who without an excuse or sufficient ground in an opinion of the State Government absents himself from the majority of meeting in the year of Village Council, or (f) Who has been guilty of misconduct in discharge of his duties or of any disgraceful conduct, and two third of the total members of the village council at the meeting recommended his removal. (2) No person who has been removed from his office under clause (a) or clause (d) of sub-section (1) shall be eligible for re-election except with the previous permission of the State Government obtained by such person in the prescribed manner. (3) The State Government may remove any Chairman of a village council from his office. (a) if he ceases to be a member of the village council. (b) if he resigns from chairmanship of the village council on his own volition by submitting a written resignation letter addressed to the Secretary of the village council, who shall forward it to the State Government through the Deputy Commissioner concerned. (c) When a "no-confidence motion" is moved and passed by the majority of the village council members present and voting, in a special session for the purpose that may be summoned by the Deputy Commissioner, and to be presided by an administrative officer nor below the rank of EAC, duly authorized in this behalf by the Deputy Commissioner of the district concerned." 11. As per Section 4 of the Act, the members of the village council are to be chosen by the villagers in accordance with the prevailing customary practice and usages and is required to be approved by the State Government. Besides such members of the village council chosen by the villagers and approved by the State Government, the hereditary village chiefs, Gaonburha and Angs are also ex-officio members of the village council having voting right. Section 6 (b) provides that all the members shall hold office during the lifetime of the council. Section 9 provides the power of the State Government to remove the members and the Chairman of the village council. 12. Section 7(1) provides that the Village Council will choose a member as Chairman of the council. Sub-section (2) of section 7 provides that during the absence of the Chairman from any sitting of the Village Council, a member of the council nominated by the Chairman shall act as Chairman. A plain reading of the provision of Section 7 would show that a Chairman of the Village Council is chosen by the will of the members of the council. A plain reading of the provision of Section 7 would show that a Chairman of the Village Council is chosen by the will of the members of the council. Invariably in a democratic set up such Chairman has to be chosen or elected by majority member and therefore, when a Chairman is to be chosen by the will of the members, the members would certainly have the right and privilege to bring a No Confidence Motion to express their No Confidence on a Chairman. Section 9 (3), which provides the power of the Government to remove a Chairman, lays down three circumstances under which the State Government may remove the Chairman of a village council. Clause (C) of sub-section (3) provides that a Chairman of a council may be removed when there is No Confidence Motion moved and passed by majority of Village Council members present and voting in a special session, which is required to be summoned by the Deputy Commissioner. Though the usual session of the Village Council is to be chaired by the Chairman chosen by the members, the special session intended for the purpose of moving a No Confidence Motion has to be presided over by an executive officer not below the rank of an EAC, to be duly authorized by the Deputy Commissioner. Therefore, the provision makes it abundantly clear that the special session which is intended to be convened for the purpose of moving a No Confidence Motion, can, under no circumstances be presided over by the Chairman against whom No Confidence Motion is contemplated and such special session shall be summoned by the Deputy Commissioner. 13. A harmonious reading of Section 7 (1) and Section 93(c) makes it abundantly clear that a Chairman enjoys the right and privilege as Chairman of the village council as per the will and choice of the member of the Council. It is pertinent to mention that though, Section 4 of the Act provides that selection/election of a member of the village council is required to be approved by the State Government, no such requirement of approval is provided by Section 7 in respect of the Chairman. A Division Bench of this court in Writ Appeal No. 34(K)/2007 (W.C. Mui Vs. State of Nagaland & Ors.) observed that no approval is contemplated under the Act with respect to the election of the village council Chairman. A Division Bench of this court in Writ Appeal No. 34(K)/2007 (W.C. Mui Vs. State of Nagaland & Ors.) observed that no approval is contemplated under the Act with respect to the election of the village council Chairman. Therefore, when the Chairman of the village council is elected/chosen by the will of the members of the village council, which is a democratic institution and such will or choice of the members of the council has not been subjected to any approval of the Government, unlike the member of the council, such will of the members to choose or not to choose a Chairman cannot be suppressed or rendered ineffective by the executive wisdom. 14. When the law provides that a no-confidence motion against the Chairman is required to be passed by majority of the Council members present and voting in a special session and such session is required to be summoned by the Deputy Commissioner and when more than half of the council members sought for requisitioning a special session to move a No Confidence Motion, in my considered view, the Deputy Commissioner do not have the discretion to consider the merit of such no-confidence, which is to be judged by the special session of the village council only. 15. The question of summoning a special session came before this Court in WP(C) 53(K)/2000 (Ammo Gemo Vs. State of Nagaland & Ors.). The court having observed, that a village council is a democratic institution and that the members of the village council cannot be rendered helpless in the matter of summoning a session for the purpose of exercising the right of the council members to test the confidence in the leadership and to uphold the democratic institution, directed that a special session of the village council be convened to discuss the issue of confidence in the leadership. 16. In the present case, admittedly the Village Council consisted of 13 members which included the ex-officio members. When 7 (seven) of the council members made a representation before the Deputy Commissioner asking to summon a special session to test the confidence on the Chairman, the Deputy Commissioner ought not to have ordered for an inquiry as to the ground reality, or otherwise, inasmuch as, the statute has not vested such a discretion on the Deputy Commissioner to undo or suppress the democratic exercise, which is necessary to uphold the democratic institution. 17. 17. It is however contended by the learned counsel for respondent No. 6 that the petitioner No. 5, the Village Council member was not competent to be a member and as such, his voting right is under doubt. However, the fact remain is that the petitioner No. 5 is a Village Council member chosen by the villagers and was approved by the Government as per section 4 and he is still continuing as such. Therefore, when the petitioner No. 5 is still continuing as a council member and has not been removed as per law, there could not be any reason to hold that he might not have any right to vote. Similarly, in respect of petitioner No. 7, it is submitted that his appointment has been challenged in a writ petition wherein this Court ordered that the appointment of petitioner No. 7 as Gaonbura shall be subject to the outcome of the writ petition (W.P.(C) No. 55(K)/2018). It is therefore, clear that the petitioner No. 7 is also an ex-officio member of the Village Council being the Gaonbura and his appointment as Gaonbura is still holding the field and not set aside or removed by any competent authority or Court. This being the position, there could not be any reasonable ground to hold that the petitioner No. 5 and 7 who were also the petitioners in the representation, requiring the Deputy Commissioner to summon the special session did not have voting right or their voting right was in doubt. That apart, whether there is majority or the no-confidence motion could be passed, would be decided by the members of the Council present in the special session and not by the Deputy Commissioner. Therefore, the Deputy Commissioner cannot form an opinion in his wisdom, that there may not be majority to pass the no-confidence motion for refusing to summon the special session, when occasion arises for summoning a special session. 18. Therefore, the Deputy Commissioner cannot form an opinion in his wisdom, that there may not be majority to pass the no-confidence motion for refusing to summon the special session, when occasion arises for summoning a special session. 18. When intendment of the statue is loud and clear that the Chairman will be chosen by the will of the council members and the council members have the right to test the confidence on the Chairman at any time and apparently 7 (seven) out of 13 (thirteen) members sought for summoning a special session to test the confidence in the leadership, the Deputy Commissioner under the scheme of statute could not have turn down such prayer or take another course to direct an inquiry or to direct the Chairman to convene meeting. Therefore, the impugned letter issued by the respondent No. 5 directing the Chairman (respondent No. 6) to convene the meeting of the Council, on the aforementioned facts, appears to be without authority or sanction of law. When the statue provides that No Confidence Motion can be brought and passed by a majority of the member of the council present in a meeting and apparently 7 out of 13 members of the village council required the Deputy Commissioner to convene a special session of the Council as per the scheme of the statue, the Deputy Commissioner is under obligation to convene such meeting in the interest of democratic institution. 19. In view of what have been discussed herein above, I find there is merit in this writ petition and a direction deserves to be given, as sought for. Accordingly, it is directed that the Deputy Commissioner shall convene a special session of Chedema Village Council within a period of 2 (two) months from this date as per the provision of Section 9(3)(c) of the Act. 20. The writ petition is disposed of in terms of the above direction.