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2021 DIGILAW 39 (MAN)

P. Nengkhanchin v. State of Manipur

2021-09-03

KH.NOBIN SINGH

body2021
JUDGMENT [1] Heard Shri D. Julius Riamei, learned Advocate appearing for the petitioners; Shri S. Thoi Thoi Meitei, learned Advocate appearing for the private respondents and Shri N. Kumarjit, learned AG appearing for the State respondents. [2] Since the above two writ petitions have arisen out of similar set of facts, both are jointly considered and disposed of by this common judgment and order. [3.1] Facts and circumstances as narrated in the writ petition are, in short, that the Vengnuam South Village was recognised as the Machete (Hamlet) of Vengnuam village in Churachandpur vide order dated 28-03-2018 issued by the Sub-Divisional Officer, Churachandpur. The Vengnuam South Village Authority vide a memorandum dated 01-04-2018 was constituted with the respondent No.4 and respondent No.5 being the Chairman and the Secretary respectively. The Vengnuam South Village Authority in its meeting held on 20-09-2020 passed a resolution to remove the respondent No.4 from being the Chairman and to appoint the petitioner No.1 as the new Chairman of the village authority. The minutes of the meeting were forwarded to respondent No.3 who accorded his approval to reshuffle twelve members of the village authority vide its order dated 09-10-2020. [3.2] The respondent No. 5 made a representation dated 19-10-2020 to the respondent No.2 praying for cancellation of the order dated 09-10- 2020 passed by the respondent No.3 whereon the respondent No.2 passed an order dated 03-12-2020 to the effect that the proper procedure needed to be followed for removal of the member/ Chairman of the village authority as per the provisions of the Manipur (Village Authorities in Hill Areas) Act, 1956 (hereinafter referred to as “the Act, 1956”). Thereafter, the respondent No.2 wrote a letter dated 27-01-2021 to depute an official to conduct the election to ensure impartiality and fair election. Pursuant to the order dated 03-12-2020 of the respondent No.2, the respondent No.3 issued a notice dated 06-02-2021 informing all the office bearers/ members of the village authority for holding the election. As many as nine members of the village authority furnished a written consent vide letter dated 08-02-2021 for the election of the petitioner No.1 as the Chairman of the village authority and Shri K. Pauzagin, proforma respondent No.6 herein as the Secretary of the village authority. The respondent No.2 vide its order dated 17-02-2021 upheld the election of the petitioner No.1 as the Chairman and the respondent No. 6 as the Secretary. The respondent No.2 vide its order dated 17-02-2021 upheld the election of the petitioner No.1 as the Chairman and the respondent No. 6 as the Secretary. [3.3] However, the office of the respondent No.1 vide letter dated 24- 02-2021 erroneously directed that the village authority under the chairmanship of the respondent No.4 and the Secretary ship of the respondent No.5 should remain functional. Being aggrieved by it, the petitioners filed a writ petition being WP(C) No.222 of 2021 wherein this Court vide its order dated 04-03-2021 stayed/ suspended the operation of the letter dated 24-02-2021. When the petitioners were communicating this Court’s order dated 04-03-2021, it was informed that the respondent No.2 had already passed an order dated 27-02-2021 pursuant to the letter dated 24-02-2021. Being aggrieved by the said letter dated 27-02- 2021, the instant writ petition has been filed by the petitioners on the inter-alia grounds that the letter dated 24-02-2021 issued by the office of respondent No.1 was illegal as the same was dehors the provisions of Section 8 of the Act, 1956 and therefore, the impugned order dated 27- 02-2021 issued pursuant to the said letter dated 24-02-2021 was illegal. The provisions of Section 8 of the Act, 1956 are clear and unambiguous that it is the respondent No.2 who has the authority and power to remove a member of the village authority on the grounds enumerated therein. [4.1] In the affidavit-in-opposition filed on behalf of the State Government, it has been stated that on 01-04-2018, the respondent No.4 and 5 were elected as the Chairman and the Secretary of the Vengnuam South Village Authority, the term of which is five years. On 20-09-2020, Shri Thanga Tonsing submitted an application along with a fabricated proceedings of a meeting which was acknowledged by the SDO, Churachandpur vide order dated 09-10-2020. The respondent No.5 brought to the notice of the Deputy Commissioner, Churachandpur vide his application dated 19-10-2020 praying for cancellation of the said order which he did it vide order 03-12-2020 observing that proper procedure needed to be followed for removal of any member/ chairman and accordingly, the Deputy Commissioner vide his letter dated 27-01-2021 instructed the SDO to hold an election. The respondent No.5 submitted an application dated 06-02-2021 to the Addl. The respondent No.5 submitted an application dated 06-02-2021 to the Addl. Chief Secretary and while it was under consideration, the SDO submitted a report of holding the election, on the basis of which the Deputy Commissioner issued an order dated 17-02-2021 declaring the petitioner No.1 as the Chairman. The State Government vide its order dated 24-02-2021 instructed the Deputy Commissioner that the Vengnuam South Village Authority should remain functional under the Chairmanship of the respondent No.4 and accordingly, the Deputy Commissioner vide its order dated 27-02-2021 cancelled the order dated 17-02-2021. According to the State Government, the proceedings of the meeting held on 08-02-2021 were not tenable and therefore, the subsequent order dated 17-02-2021 was in violation of the provisions of the Act, 1956. [4.2] The stand of the respondent No.4 & 5 as indicated in their affidavit, is almost the same as that of the State Government and therefore, the averments made in their affidavit are not repeated here for the sake of brevity. However, it has also been stated that the procedure adopted by the petitioners for removal of the respondent No.4 as the Chairman was not in accordance with law. The grounds for removal of the member/ chairman are specifically provided in Section 8 of the Act, 1956. The proceedings initiated by the SDO for holding the election were the ultravires acts which were not only bad in law but also null and void. Therefore, the State Government directed that the respondent No.4 & 5 be allowed to remain as the Chairman and Secretary of the village authority. Before completion of the term of the village authority, the petitioners by using political, money and muscle power disturbed the smooth functioning of the village authority. Unfortunately, the respondent No.4 was removed from being the Chairman of the village authority in violation of the due process of law as provided in Section 8 of the Act, 1956. [5] The short legal issue which calls for consideration by this Court is as to whether a Chairman of a village authority or for that matter, the Chairman of the Vengnuam South Village Authority, elected by the members of the village authority from amongst them under the provisions of the Act, 1956 can be removed or not. [5] The short legal issue which calls for consideration by this Court is as to whether a Chairman of a village authority or for that matter, the Chairman of the Vengnuam South Village Authority, elected by the members of the village authority from amongst them under the provisions of the Act, 1956 can be removed or not. In other words, the issue is as to whether there is any provision in the Act, 1956 for removal of a Chairman elected by the members of the village authority. The resolution of the said issues would require the interpretation of the provisions of the Act, 1956. Section 3 and 8 thereof read as under: 3. Constitution of Village Authorities.—(1) For every village having twenty or more tax-paying houses there shall be a village Authority consisting of— (a) five members, where the number of tax-paying houses in the village is not less than twenty but is not more than sixty; (b) seven members, where the number of tax-paying houses in the village is more than sixty but is not more than one hundred; (c) ten members, where the number of tax-paying houses in the village is more than one hundred but is not more than one hundred and fifty; (d) twelve members, where the number of tax-paying houses in the village is more than one hundred and fifty. (2) The Chief Commissioner may, having regard to the general interests of the people of any village as also to the demand, if any, from the people of that village for an elected Village Authority, declare, by notification in the Official Gazette, that the village shall have an elected Village Authority, and thereupon the members of the Village Authority of that village shall be elected in accordance with the provisions of this Act and the rules made thereunder. (3) Where no declaration under sub-section (2) has been made in relation to any village the members of the Village Authority of that village shall be nominated by the Chief Commissioner. (4) Where there is a Chief Khulakpa in a village, he shall be the ex officio chairman of the Village Authority of that village; and where there is no such Chief or Khulakpa in the village, the chairman of the village Authority of that village shall be elected by the members of the Village Authority from among themselves. 8. (4) Where there is a Chief Khulakpa in a village, he shall be the ex officio chairman of the Village Authority of that village; and where there is no such Chief or Khulakpa in the village, the chairman of the village Authority of that village shall be elected by the members of the Village Authority from among themselves. 8. Power to remove members of Village Authorities.—(1) The Deputy Commissioner may remove any member of a Village Authority from his office— (a) who is convicted of any non-bailable offence; or (b) who refuses to act, or becomes incapable of acting, or is declared to be insolvent; or (c) who has been declared by notification to be disqualified for employment in the public service; or (d) who, without an excuse sufficient in the opinion of the Deputy Commissioner, absents himself from six consecutive meetings of the Village Authority; or (e) who has been guilty of misconduct in the discharge of his duties, or of any disgraceful conduct, if two-thirds of the total number of the members of the Village Authority at a meeting recommend his removal. (2) No person who has been removed from his office under clause (a) or clause (c) of sub-section (1) shall be eligible for re-nomination or re-election except with the previous permission of the Chief Commissioner obtained by such person in the prescribed manner. [6] The Act, 1956 was enacted by the Parliament for the purpose of establishment of village authorities in the recognized villages of the hill areas of Manipur. Section 3 provides for the constitution of the village authorities. For every village having twenty or more tax-paying houses, there shall be a village authority, for which the Chief Commissioner may declare that the village shall have an elected village authority, the members of which shall be elected in accordance with the provisions of the Act, 1956. In respect of a village where no such declaration has been made, the members of the village authority shall be nominated by the Chief Commissioner. Sub-section (4) provides that where there is a Chief/ Khullakpa in a village, he shall be the ex-officio Chairman of the village authority of that village and where there is no such chief or khullakpa in the village, the Chairman of the village authority of that village shall be elected by the members of the village authority from amongst themselves. Sub-section (4) provides that where there is a Chief/ Khullakpa in a village, he shall be the ex-officio Chairman of the village authority of that village and where there is no such chief or khullakpa in the village, the Chairman of the village authority of that village shall be elected by the members of the village authority from amongst themselves. Section 6 provides that the term of office of members of a village authority shall be five years as amended from the date appointed for its first meeting. Section 8 of the Act, 1956 provides the manner as to how a member of the village authority can be removed. Sub-section (1) thereof empowers the Deputy Commissioners for removal of any member of a village authority from his office on any of the grounds mentioned therein. Sub-section (2) provides that if a member has been removed from his office as aforesaid, he shall not be eligible for re-nomination or re-election except with the previous permission of the Chief Commissioner obtained by such person in the prescribed manner. [7] It is thus seen that Section 8 of the Act, 1956 provides for removal of the member of a village authority on any of the grounds mentioned therein and that too, after the procedure as laid down therein being followed. In fact, the provisions of Section 8 have nothing to do with the removal of the Chairman of the village authority. But it has been submitted by Shri D. Julias Riamei, learned counsel appearing for the petitioners that since the Chairman was elected by the members of the village authority, the power for his removal shall be vested in the members by reading the same into the provisions of Section 8 as the village authority being a democratic institution, otherwise the limited interpretation of the provisions of the Act, 1956 shall render it redundant. In support of his contention, he has relied upon the decision rendered by the Hon’ble Supreme Court in Usha Bharti v. State of Uttar Pradesh & ors, (2014) 7 SCC 663 wherein the Hon’ble Supreme Court held: “45. The whole edifice of the challenge to the constitutionality of Section 28 is built on the status of the petitioner as a member belonging to the reserved category. It has nothing to do with the continuance, stability, dignity and the status of the Panchayat Institutions. The whole edifice of the challenge to the constitutionality of Section 28 is built on the status of the petitioner as a member belonging to the reserved category. It has nothing to do with the continuance, stability, dignity and the status of the Panchayat Institutions. In our opinion, the personal desire, of the petitioner to cling on to the office of Adhyaksha is camouflaged as a constitutional issue. The provision of no-confidence motion, in our opinion, is not only consistent with Part IX of the Constitution, but is also foundational for ensuring transparency and accountability of the elected representatives, including Panchayat Adhyakshas. The provision sends out a clear message that an elected Panchayat Adhyaksha can continue to function as such only so long as he/she enjoys the confidence of the constituents. 53. In our opinion, the provision for removing an elected representative such as Panchayat Adhyaksha is of fundamental importance to ensure the democratic functioning of the Institution as well as to ensure the transparency and accountability in the functions performed by the elected representatives.” On the other hand, Shri N. Kumarjit Singh, the learned Advocate General submitted that there is no any provision in the Act, 1956 for removal of the Chairman and alternatively, it has been submitted by him that even assuming for the sake of argument that the Chairman can be removed under the provisions of Section 8, the procedure prescribed therein was not followed and therefore, the proceedings initiated against the respondent No.4 was improper and illegal. According to him, the decision relied upon by the learned counsel appearing for the petitioner is not applicable to the facts of the present case. Shri Thoi Thoi, learned Advocate appearing for the private respondent No.4 & 5 adopted the argument of the learned Advocate General and in addition thereto, it has been submitted by him that in order to attract the provisions of Section 8 of the Act, 1956, a member must have been guilty of misconduct in the discharge of his duties. There is no such finding given by any authority that the respondent No.4 as the Chairman of the village authority was guilty of misconduct. [8] Our country is considered to be one of the largest democratic countries in the world having a representative form of Government. There is no such finding given by any authority that the respondent No.4 as the Chairman of the village authority was guilty of misconduct. [8] Our country is considered to be one of the largest democratic countries in the world having a representative form of Government. Truly speaking, in a democracy, a country is like a family whose decision is taken through active participation of all members sitting together. When it comes to the case of a country having a large number of population, at the time of taking any decision, it is impossible for all the citizens to come and sit at a particular place and therefore, the representative system has been introduced so that its decision can be taken through the elected representatives of the people. What does the expression “democracy’ mean and what is it about, has been considered and explained by the Hon’ble Supreme Court in Pratap Chandra Mehta case and the observations made therein need no repetition for the sake of brevity. However, the Hon’ble Supreme Court further observed that every democracy is based upon the freedom to elect and freedom to remove, in accordance with law. In the context of MP Rules, it has been observed that Rule 122-A contemplates moving of a non confidence motion and upon such motion being passed by the majority of the members, present and voting, the officer bearers against who such a motion is moved, shall be liable to be removed from such office. For successful application of Rule 122-A, the law requires the minimal conditions to be satisfied as mentioned therein. Once the conditions mentioned therein are satisfied, no confidence motion can be passed and upon passing of such motion, the person is liable to be removed from the office he held in the State Bar Council prior to holding of such meeting. The spirit behind this provision is that where a person is elected by following a due process of election to the post of an office in the State Bar Council, he could be removed by following the prescribed procedure in accordance with the rules. [9.1] By way of an amendment of the Constitution of India, Part-IX came to be inserted therein with effect from 24-04-1993 with the objective that the constitutional status of the local self-government be conferred on the panchayats. [9.1] By way of an amendment of the Constitution of India, Part-IX came to be inserted therein with effect from 24-04-1993 with the objective that the constitutional status of the local self-government be conferred on the panchayats. In other words, it confers certain powers on the local self-government with certain promises as regards the duration of five years, free and fair election and representation of SC/ST in the administration of the institutions of local self-government. In tune with the constitutional provisions, the Manipur Panchayati Raj Act, 1994 was enacted by the Parliament with a view to establish two-tier Panchayati Raj System in the State. Section 13 provides for the constitution of the Gram Panchayat, the Pradhan and members of which were elected under secret ballot. The Pradhan can be removed through a procedure of no confidence as prescribed in Section 30 of the said Act by way of a resolution passed in a special meeting. Similar is the case with the Zilla Parishad which is established under Section 48 of the said Act and the Adhyaksha and Up- Adhyaksha thereof were elected by the members of the Zilla Parishad from amongst themselves who can be removed through a procedure prescribed in Section 57 of the said Act. [9.2] Part IX-A of the Constitution of India deals with the constitution of Municipalities including the Municipal Councils and their power and functions. The object of introducing Part IX-A was to provide constitutional status to such local bodies and to ensure regular and fair conduct of elections so that the peoples’ participation in the political administration of the Government and in particular, the local bodies, is well assured to a great extent. In order to achieve the said object, the Manipur Municipalities Act, 1994 was enacted by the Parliament for the constitution of Municipalities namely Nagar Panchayat, Municipal Council, Municipal Corporation in urban areas. Section 3 thereof provides for the constitution of the Municipalities while Section 31 empowers the State government to remove, by notification in the Official Gazette from office, the Chairperson or the Vice-Chairperson in pursuance of a resolution passed by a majority of the total numbers of councilors. Section 3 thereof provides for the constitution of the Municipalities while Section 31 empowers the State government to remove, by notification in the Official Gazette from office, the Chairperson or the Vice-Chairperson in pursuance of a resolution passed by a majority of the total numbers of councilors. [10] The State of Manipur is a unique State with members of different communities living together but it is divided into two parts for the purpose of local administration or for that matter, the local self-Government-one, the hill areas and two, the valley arrears. So far as the valley areas are concerned, the Manipur Panchayati Raj Act, 1994 was enacted for local administration, while the Act, 1956 was enacted for local administration in the hill areas. Unlike Section 30 and 48 of the Manipur Panchayati Raj Act, 1994 by which the Pradhan and the Adhyaksha can be removed by way of a resolution passed in a special meeting, there is no such provision in the Act, 1956 for removal of the Chairman of the village authority. Keeping in mind the fact that where there is no chief/ khullakpa in a village, the Chairman of the village authority of that village is elected by the members from amongst themselves, this Court is of the view that there ought to be such a provision in the Act 1956 for removal of the Chairman of the village authority. Since such a provision is not there in the Act, 1956, it needs to be amended by incorporating a provision which is the exclusive domain of the Legislature. This Court, in the name of interpretation of the provisions of the Act, 1956, cannot read such a provision for removal of the Chairman into the provisions of Section 8, nor can it add a provision in the Act, 1956. [11] As has been observed hereinabove, there is no specific provision in the Act, 1956 for removal of the Chairman elected from amongst the members of the village authority. What was the intent of the Legislature ? Was it an inadvertent omission on the part of the Legislature in not providing such a provision or was it a deliberate omission on the part of the Legislature ? A clue in that regard can be found out from the conjoint reading of the provisions of Section 3 and Section 8 of the Act, 1956. Was it an inadvertent omission on the part of the Legislature in not providing such a provision or was it a deliberate omission on the part of the Legislature ? A clue in that regard can be found out from the conjoint reading of the provisions of Section 3 and Section 8 of the Act, 1956. It may be noted that the rule as provided in Section 3 is that where there is a Chief or Khullakpa of a village, he shall be the ex-officio Chairman of that village. This rule can be said to be a general rule. The idea behind this rule appears to be that in most of the villages in the State, there is a Chief or Khullakpa. An exception has been carved out in Section 3 to the effect that where there is no Chief or Khullakpa in a village, the Chairman of the village authority shall be elected by the members of the village authority. But the fact remains that there are few villages in the State where there is no Chief or Khullakpa, may be, because of which the Legislature may have not looked into or thought about the need of incorporating a provision in the Act, 1956 for removal of the Chairman. In other words, it may have been an inadvertent omission on the part of the Legislature with the idea that such issue relating to removal of the Chairman might not arise at all. Moreover, the Act, 1956 was enacted long before the Chapter-IX came to be inserted in the Constitution of India. [12] The Act, 1956 was enacted with a view to constitute village authorities in the recognized villages of the State of Manipur. The Act, 1956 cannot be said to be exactly the same as that of the Manipur Panchayati Raj Act, 1994 and the Manipur Municipalities Act, 1994 but the object sought to be achieved by the said Acts is almost the same, in the sense that the object sought to be achieved by the said enactments is to provide local self-Government. Since there is no specific provision in the Act, 1956 for removal of the Chairman of the village authority, the consequence is that he cannot be removed at all till the expiry of the term of the village authority, even if he is found to have acted contrary to law or to be guilty of misconduct. Since there is no specific provision in the Act, 1956 for removal of the Chairman of the village authority, the consequence is that he cannot be removed at all till the expiry of the term of the village authority, even if he is found to have acted contrary to law or to be guilty of misconduct. This situation appears to have not been intended by the Legislature to happen. Therefore, a provision for removal of the Chairman of the village authority needs to be incorporated in the Act, 1956, in the absence of which there is a possibility of the Chairman being autocratic or dictator in the discharge of his duties and functions. If such a provision is not incorporated in the Act, 1956, the issue which has arisen in the present case, will continue to arise in other cases as well. One aspect which needs to be considered at this juncture by this Court is that in recent years, the issue relating to the chief ship of a village, the election of the village authority etc. has arisen quite often on account of the fact that the role or importance of the village authority has increased tremendously. Many of the schemes launched by the Central Government or the State Government are to be implemented by the village authorities in the hill areas. A huge amount of money is involved in the implementation of various schemes which tempted the residents of the village to be the members of the village authority. [13] Coming to the facts of the present case, it is true that a village authority was constituted with the members being elected by the residents of the village and that since there was no Chief or Khullakpa of the village, the Chairman of the village authority was elected by the members from amongst themselves. Admittedly, the respondent No.4 was elected as the Chairman of the village authority and for his removal from being the Chairman, a meeting was alleged to have been held on 20-09-2020 and by a resolution passed therein, the respondent No.4 was removed and the petitioner No.1 was elected as the new Chairman. This resolution was accepted by the SDO, Churachandpur. Admittedly, the respondent No.4 was elected as the Chairman of the village authority and for his removal from being the Chairman, a meeting was alleged to have been held on 20-09-2020 and by a resolution passed therein, the respondent No.4 was removed and the petitioner No.1 was elected as the new Chairman. This resolution was accepted by the SDO, Churachandpur. This removal of the respondent No.4 from being the Chairman of the village authority and the steps taken by the Deputy Commissioner, Churachandpur for election of a new Chairman, has created the present controversy or for that matter, a legal issue as to whether the Chairman of the village authority can be removed under the provisions of the Act, 1956. In other words, the issue is as to whether the Act, 1956 provides a procedure for removal of the Chairman of a village authority. In view of the observations made hereinabove in the preceding paragraphs, the answer is in the negative. The only remedy available with the petitioners or for that matter, the members of the village authority under the Act, 1956, is to invoke the provisions of Section 8 for removal of the Chairman indirectly by removing him from being the member first. It may further be noted that the Chairman was elected by the members from amongst the members of the village authority and even if a member is elected as the Chairman, he still continues to be the member. As long as the amendment of the Act, 1956 is not made by the Legislature by inserting a suitable provision therein specifically meant for removal of the Chairman, the procedure as prescribed in Section 8 for removal of a member is to be followed by them. The Chairman can be said to have been removed, if he is removed from being the member for the reason that once he is removed from being the member, he can no longer continue to be the Chairman of the village authority. [14] There can be no any dispute as regards the law laid down by the Hon’ble Supreme Court in Usha Bharti case (supra) which has been relied upon by the learned Counsel appearing for the petitioner. But the facts and circumstances of that case are not identical to that of the present case and therefore, it will have no application to the facts of the present case. But the facts and circumstances of that case are not identical to that of the present case and therefore, it will have no application to the facts of the present case. [15] In view of the above and for the reasons stated hereinabove, this Court is of the opinion that the instant writ petitions are devoid of any merit and are according dismissed with no order as to costs.