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2019 DIGILAW 897 (GAU)

T. Zakunga v. Lai Autonomous District Council

2019-08-09

NELSON SAILO

body2019
JUDGMENT : Nelson Sailo, J. Heard Mr. A.R. Malhotra, the learned counsel for the petitioners. Also heard Mr. C. Lalramzauva, the learned senior counsel assisted by Ms. Emily L. Chhangte for the respondent Nos. 2 to 16. Mr. B. Lalramenga, the learned counsel appears for respondent No.1, while Mr. C. Zoramchhana, the learned Addl. Advocate General appears for respondent No.17 and they submit that the respondents they represent will not be filing any affidavit-in-opposition. 2. Brief facts of the case may be noticed at the outset. The petitioners are elected members to the Lai Autonomous District Council (LADC) and they belong to the Indian National Congress (INC) political party. The respondent Nos. 4, 5, 6 and 7 are also elected members to the LADC from the INC party while the respondent No. 8, is an elected independent candidate who supported the Congress Legislature Party (CLP) after being elected. The respondent Nos. 9 to 16 are elected members from the Mizo National Front (MNF) party. Be it stated herein that there are 25 seats in the LADC and against which, the petitioners and the private respondents have been elected. In addition to this, 3 members have been nominated by the Governor. The INC party having secured 16 seats and supported by one (1) independent candidate against 8 seats secured by the MNF formed the Executive Committee with the petitioner No. 1 as the Chief Executive Member (CEM). 3. The CLP in view of the change of the Ministry in the State after the General Election to the State Legislative Assembly called a meeting on 24.06.2019 (Annexure-5 and 5A) to discuss the future of the CLP in the LADC. The meeting was attended by as many as 14 members including the Leader and Secretary of CLP. In the said meeting, it was resolved that as the members are elected from the INC, they will stand by the party and under the leadership of the petitioner No. 1. However, two days thereafter on 26.06.2019 (Annexure-4), the respondent Nos. 4 to 8 withdrew their support to the CLP by submitting a written communication to the CEM. Following the withdrawal of support, the petitioners along with the nominated members submitted their representation to the Chairman, LADC (respondent No. 2) on 26.06.2019 (Annexure-6) to disqualify the respondent Nos. 4 to 8, since they have given their support to the MNF Party to form a new Government. Following the withdrawal of support, the petitioners along with the nominated members submitted their representation to the Chairman, LADC (respondent No. 2) on 26.06.2019 (Annexure-6) to disqualify the respondent Nos. 4 to 8, since they have given their support to the MNF Party to form a new Government. It was therefore represented that the respondent Nos. 4 to 8 be disqualified in terms of the provisions of Rule 11 (6) and (7) of the Lai Autonomous District Council (Constitution, Conduct of business etc.,) Rules, 2010 (CCB Rules). A similar communication was made by the petitioner No.1 to the respondent No.2 in his capacity as CEM on the same day i.e., 26.06.2019 (Annexure-7). 4. The Chairman, LADC however vide the impugned Communication dated 27.06.2019 (Annexure-8) informed the CEM that Rule 11 (6) (a)(b)(c) and Sub Rule (7) has no application as was represented, since the respondent Nos. 4 to 8 have not joined any other political party. Further, as there were no genuine documents to prove that the mentioned members joined other political party officially, he as the Chairman of the LADC cannot disqualify them as provided by the Rules. Being aggrieved thus, the petitioners are before this Court. 5. Mr. A.R. Malhotra, the learned counsel submits that the action of the respondent Nos. 4 to 8 clearly attract the provisions of Rules 11 (6) and (7) of the CCB Rules. He submits that a sitting member of the LADC as per the said provisions will be disqualified, if he has voluntarily given up the political party which sponsored him as a candidate on the date of his nomination and joined any other political party after his election or his nomination as a member. Likewise, an independent candidate can be disqualified if he has given support to any political party but later withdraws it and supports another political party. 6. Mr. A.R. Malhotra further submits that under Rule 12 of the CCB Rules, the Governor is empowered to remove any disqualification under Chapter-III of the same Rules except those covered by Clause (h) of Sub-Rule (1) and Sub-Rule (6) of Rule 11. 6. Mr. A.R. Malhotra further submits that under Rule 12 of the CCB Rules, the Governor is empowered to remove any disqualification under Chapter-III of the same Rules except those covered by Clause (h) of Sub-Rule (1) and Sub-Rule (6) of Rule 11. Further, if any question arises as to whether a member of the District Council has become subject of any of the disqualifications mentioned in Rule 11, the question shall be referred through the Secretary to the Government by the Chairman and if it relates to the Chairman, then by the Deputy Chairman for decision to the Governor and whose decision shall be final. In the present case, the Chairman of the LADC has failed to abide by the provisions of Rule 12 of the CCB Rules, 2010 and instead he has refused to disqualify the respondent Nos. 4 to 8, despite having withdrawn the support to the leadership of the CLP. 7. The learned counsel also submits that the Chairman of the LADC himself being one of the 5 persons, who had withdrawn support to the leadership of the CLP, he could not have been the Judge for his own cause. The respondent No. 1 and the respondent No. 17 have also not made any response to the writ petition and therefore, facts not denied only amounts to an admission. As such, the said respondents have only admitted that the respondent Nos. 4 to 8 are liable to be disqualified under the CCB Rules. In this connection, he relies upon the case of Asha Vs. PT.B.D, Sharma University of Health Sciences, (2012) 7 SCC 389 . 8. Mr. A.R. Malhotra, the learned counsel further submits that the respondent Nos. 4 to 8 may not have given their resignation from the INC Party but nevertheless, their withdrawal of support to the CLP and their actions clearly demonstrate that they have voluntarily given up their membership with the INC Party. In fact, a clear inference can be drawn from their conduct in as much as on withdrawing their support to the CLP, they have formed a United Legislature Party (ULP) together with 8 elected MDCs from the MNF party. As such, they are liable to be disqualified from their membership to the LADC in terms of the provisions of the CCB Rules. In support of his submission, he cites the case of Ravi S. Naik Vs. As such, they are liable to be disqualified from their membership to the LADC in terms of the provisions of the CCB Rules. In support of his submission, he cites the case of Ravi S. Naik Vs. Union of India and Ors., (1994) Supp2 SCC 641. 9. Mr. C. Lalramzauva, the learned senior counsel appearing for the respondent No.2 to 16 on the other hand, submits that the writ petition itself is not maintainable, since none of the rights of the petitioners have been violated. He submits that the petitioners themselves are running the administration of the LADC and therefore, they cannot challenge the action of the LADC. By referring to paragraph No. 4 of the affidavit-in-opposition filed by the respondent Nos. 2 to 16, the learned senior counsel submits that the petitioner No. 1 is the CEM while the respondent Nos. 3, 4, 5, 6, 7, 8, 9 and 10 are the Executive Members of the LADC running the administration of the LADC in such capacities. In fact, none of the rights of the petitioners have been infringed upon in any manner and therefore, the writ petition is not maintainable. By referring to the Apex Court decision rendered in Calcutta Gas Company (Proprietary) Ltd. Vs. State of West Bengal and Ors., (1962) AIR SC 1044, the learned senior counsel submits that the powers of the Apex Court and the High Court under Article 32 and 226 of the Constitution of India respectively are very wide but however in order to exercise such powers, the party aggrieved must show that there is an infraction of his or her legal rights which is enforceable. However, in the present case the petitioners have not been able to demonstrate the infringement of any of their legal rights and as such, the writ petition not being maintainable, should be dismissed. 10. The learned senior counsel by drawing the attention of this Court to the impugned Communication dated 27.06.2019 (Annexure-8) submits that it can be very well seen that the Chairman of LADC has not taken any decision till now and therefore, Rule 11 (7) of the CCB Rules, 2010 is not attracted. In fact, the petitioner themselves could have approached the Governor of the State instead of filing a writ petition before this Court. 11. In fact, the petitioner themselves could have approached the Governor of the State instead of filing a writ petition before this Court. 11. The learned senior counsel further submits that under paragraph No. 2 (6) of the 6th Schedule of the Constitution of India, the Governor is empowered to make rules for the first constitution of the District Councils in consultation with the existing tribal Councils or other representative tribal organizations within the Autonomous District or Regions concerned, which includes the composition of District Councils, allocation of seats etc., and also any other matter relating to or connected with the elections or nominations to such Councils. He submits that under Sub-paragraph (7) of paragraph No. 2 of the 6th Schedule of the Constitution of India, the District or Regional Council after its first constitution can make Rules with the approval of the Governor with regard to the matters specified in Sub-paragraph (6). Accordingly, the LADC in exercise of the powers conferred by Sub-paragraph (7) of paragraph No. 2 of the 6th Schedule framed the CCB Rules. He however submits that a Division Bench of this Court in the case of Hispreacheringson Shylla Vs. Khasi Hills Autonomous Council and Ors., (2008) 3 GauLT 433 has held that the District Council has no power to enact the law with regard to prevention of defection under paragraph No. 2(7) and (6) of the 6th Schedule to the Constitution. He therefore submits that in the present case as well, the LADC having no power to frame the rules for disqualifying its members, the petitioners cannot insist on applying Rule 11(6) and (7) as well as Rule 12 of the CCB Rules, 2010 to disqualify the respondent Nos. 4 to 8 from their membership to the LADC. As held by the Division Bench of this Court, the members to the District Council have the right to enjoy a term of 5 years unless the District Council is dissolved under paragraph No. 16 to the 6th Schedule to the Constitution of India. In this connection, the learned senior counsel refers to the decision of the Apex Court rendered in Union of India and Anr. Vs. Tulsiram Patel, (1985) 3 SCC 398 , wherein it was held that there cannot be an exercise of a power unless such power exists in law. In this connection, the learned senior counsel refers to the decision of the Apex Court rendered in Union of India and Anr. Vs. Tulsiram Patel, (1985) 3 SCC 398 , wherein it was held that there cannot be an exercise of a power unless such power exists in law. If such power does not exist in law, the purported exercise of it would be an exercise of a non-existent power and would be void. The learned Senior counsel also refers to the Apex Court decision in Bharat Petroleum Corporation Ltd. Vs. Maddula Ratnavalli and Ors., (2007) 6 SCC 81 , wherein it was held that a statue, however, must be construed justly. An unjust law is no law at all. 12. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. 13. As may be noticed, the main grievance of the petitioners is that the respondent Nos. 4 to 8, who belonged to the INC party having withdrawn their support to the CLP and thereby, forming the ULP with the elected MDCs from the MNF party should be disqualified from their membership to the LADC in terms of Rule 11 (6) and (7) of the CCB Rules. The representations made in this regard have been rejected by the Chairman of the LADC vide the impugned Communication dated 27.06.2019. Although reliance is placed by the learned senior counsel, Mr. C. Lalramzauva on the case of H. Shylla (Supra) rendered by the Division Bench of this Court on the incompetency of the LADC to frame rules with regard to prevention of defection, the fact remains that the CCB Rules is not under challenge or rather, it is nobody's case that Rule 11 and 12 is bad in law/ultra vires etc. Further, in addition to invoking powers under paragraph No. 2 (7) of the 6th Schedule to the Constitution of India, the CCB Rules has been framed by invoking paragraph No. 20 BB of the same Schedule as well. Therefore, the present case is not comparable to the case relied upon by the learned Senior counsel. Since the relevant provisions of the CCB Rules is not under challenged, there is no scope for examining the legality or otherwise of the relevant provisions of the CCB Rules. 14. Therefore, the present case is not comparable to the case relied upon by the learned Senior counsel. Since the relevant provisions of the CCB Rules is not under challenged, there is no scope for examining the legality or otherwise of the relevant provisions of the CCB Rules. 14. Coming to the CCB Rules, it may be seen that Chapter-III of the CCB Rules provides for disqualification for membership to the District Council. Rules 11 (6) and (7) along with Rule 12 may be abstracted below for ready perusal:- "(6) A sitting member of the District Council shall be disqualified if- (a) he has voluntarily given up the political party which sponsored him as a candidate on the date of his nomination and joined any other political party after his election or his nomination as a member; or (b) having been elected to the District Council as an independent candidate has later joined any Political Party; or (c) having been elected as an independent candidate or appointed as a nominated member has once given support to any political party but later withdraws it and supports another political party. (7) All decision regarding disqualification of members as mentioned in clauses (a), (b) and (c) of sub-rule (6) above shall be made by the Chairman and his decision shall be final and binding on the members and the Political Party concerned. 12. (1) The Governor may, for reasons to be recorded, remove any disqualification under this Chapter except under clause (h) of sub-rule (1) and sub-rule (6) of Rule 11. (2) If any question arises as to whether a member of the District Council has become subject of any of the disqualifications mentioned in rule 11, the question shall be referred through the Secretary to the Government, by the Chairman, and if it relates to the Chairman, then by the Deputy Chairman, for decision, to the Governor whose decision shall be final. (3) Before giving any decision on any such issue, the Governor may also take advice of the Advocate General of Mizoram." 15. From the above abstract, it may be seen that a sitting member of the District Council shall be disqualified if he has voluntarily given up the political party, which sponsored him as a candidate on the date of his nomination and the member has joined other political party after his election or nomination as a member. From the above abstract, it may be seen that a sitting member of the District Council shall be disqualified if he has voluntarily given up the political party, which sponsored him as a candidate on the date of his nomination and the member has joined other political party after his election or nomination as a member. Similarly, when an elected independent candidate having given his support to any political party, later on withdraws it and supports another political party, such member will be liable to be disqualified. Rule 12 (2) of the CCB Rules further provides that in case there is any question as to whether a member has become subject to any of the disqualifications mentioned in Rule 11, the same shall be referred to the Secretary to the Government by the Chairman of the District Council and if the same relates to the Chairman, then the matter has to be referred by the Deputy Chairman for decision of the Governor and whose decision shall be final. 16. From the facts presented in the present case, it is seen that the respondent Nos. 4 to 8 vide their Communication dated 26.06.2019, withdrew their support to the CLP in order to form a ULP along with the elected members from the MNF party. Therefore, I am of the considered view that paragraph No. 11 (6) (a) and (c) appears to be attracted. From the impugned Communication dated 27.06.2019, it can be seen that the Chairman of the LADC has declined to invoke Rule 11 (6) (a) (b) (c) and (7) of the CCB Rules on the ground that none of the members who were sought to be disqualified did not join other political party. This in my considered opinion requires to be reconsidered, in view of the withdrawal of support to the existing leadership of the CLP by the 5 MDCs concerned. The Chairman and the Deputy Chairman were amongst the 5 MDCs concerned and therefore, as per Rule 12 (2) of the CCB Rules, neither the Chairman nor the Deputy Chairman will be in a position to refer the matter to the Governor of the State through the Secretary to the Government. At this stage, it may be seen that Chapter-IX of the CCB Rules deals with 'motions'. Rule 85 provides for motion for removal of Chairman or Deputy Chairman. At this stage, it may be seen that Chapter-IX of the CCB Rules deals with 'motions'. Rule 85 provides for motion for removal of Chairman or Deputy Chairman. Rule 85(1) provides that a motion for removal of the Chairman or the Deputy Chairman from office may be made subject to the restriction that the member making the motion shall present to the Secretary, a written notice of the motion before the commencement of the sitting of the day and provided further that if the motion is moved for removal of the Chairman, then the Deputy Chairman or in his absence the member in the serial No. 1 of the panel will preside over the meeting and under no circumstance, the Chairman can preside over such meeting. 17. Having regard to this provision, I am of the view that reference to the Governor of the State through the Secretary to the Government should be made by the MDC in serial No. 1 of the panel. If the MDC at serial No. 1 of the panel happens to be one of the members, who had submitted withdrawal of support of the CLP on 26.06.2019, the next person in line shall make the reference. 18. In the result, the writ petition is disposed of with a direction that the MDC at serial No. 1 of the panel, if not the next member in line shall refer the matter to the Secretary to the Government of Mizoram, District Council and Minority and Affairs Department (respondent No.17), by enclosing a copy of the communication dated 26.06.2019 (Annexure-4) submitted by the 5 MDCs withdrawing their support from the CLP alongwith the two communications both dated 26.06.2019 made by the petitioners and the nominated MDCs to the Chairman, LADC and by the CEM within a period of 1 (one) week from today for the consideration and disposal by the Governor of the State in accordance with the provision of Rule 12 of the CCB Rules. 19. Under the facts and circumstances, there shall be no order as to cost.