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2005(1) Supreme 177
Supreme Court of India
(From Gauhati High Court)
R.C. Lahoti, CJI, Shivaraj V. Patil, K.G. Balakrishnan, B.N. Srikrishna and G.P. Mathur, JJ.
Pu Myllai Hlychho and Ors. —Appellants
versus
State of Mizoram and Ors. —Respondents
Civil Appeal Nos. 661-662 of 2003
Decided on 11-1-2005
Counsel for the Parties :
For the Appellant : Anil Nauriya, Ms. Beena Madhavan, Ms. Sumita Hazarika, Advocates.
For the Respondents : U.U. Lalit, Sr. Advocate, Prasenjit Keswani, Ms. Hemantika Wahi, Ajay Choudhary, Advocate (NP), Advocates.
Held : Under sub-rule (1) of Paragraph 2, the Governor of Mizoram is competent to nominate four members to MADC. Sub-paragraph 6A of Paragraph 2 further shows that the members thus nominated shall hold office at the pleasure of the Governor. The Governor is given powers to terminate the membership of the Council under sub-paragraph 6A of Paragraph 2. The Governor is not given any discretion under Paragraph 20BB, in respect of powers to be exercised under sub paragraph (6A) of Paragraph 2. Under the discretionary powers of the Governor in discharge of his functions, the power to be exercised under sub paragraph (6A) of Paragraph 2 is not included, whereas it is specifically mentioned that the power of the Governor to be exercised under sub paragraph (1) of Paragraph 2 could be exercised in his discretion in the mode prescribed under paragraph 20-BB of the Sixth Schedule. Thus, these provisions would show that as regards the nomination of four members to the MADC, the Governor can exercise the discretionary powers whereas the power of termination of the members under sub paragraph (6A) of Paragraph 2 is not left to the discretion of the Governor, but he shall exercise the same as envisaged under the Constitutional provisions in a democratic form of Government which is explicitly made clear by various provisions of the Constitution, especially Article 163. (Paras 10 and 11)
There are several powers and duties for the Governor and some of these powers are to be exercised in his discretion and some other powers are to be exercised by him with the aid and advice of the Council of Ministers. The executive powers of the State are vested in the Governor under Article 154(1). Article 163(1) states that there shall be a Council of Ministers with the Chief Minister as the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution, required to exercise his functions or any of them in his discretion. Article 163(2) states that if any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion. Article 143 in the Draft Constitution became Article 163 in the Constitution. The draft Constitution in Article 144(6) said that the functions of the Governor under that Article with respect to the appointment and dismissal of Ministers shall be exercised by him in his discretion. This draft article was omitted when it became Article 164 in the Constitution. There are certain powers and functions of the Governor which speak of the special responsibilities of the Governor. These articles are 371A(1)(b), 371A(1)(d), 371A(2)(b) and 371A(2)(f). Similarly, there are certain provisions in the Sixth Schedule, where the words “in his discretion” are used in relation to certain powers to be exercised by the Governor. (Paras 12 and 13)
In the instant case, the members held office during the pleasure of the Governor and the Council of Ministers advised the Governor to terminate the membership of these appellants and all relevant records were placed before the Governor. The relevant papers show that the contents of all the relevant files were brought to the knowledge of the Governor and he accepted the advice of his Council of Ministers. As the Governor was not left any discretionary power, he was bound by the advice given by the Council of Ministers. The termination of the members from Council has rightly been upheld by the High Court. (Para 19)
Judgment
K.G. Balakrishnan, J.—The provisions of the Sixth Schedule to the Constitution have evolved a separate scheme for the administration of the tribal areas in Assam, Meghalaya, Mizoram and Tripura through the institution of District Councils or Regional Councils. These councils are vested with legislative power on specified subjects, allotted sources of taxation and given powers to set up and administer their system of justice and maintain administrative and welfare services in respect of land, revenue, forests, education, public health etc.
2. The Mara Autonomous District Council, hereinafter to be referred as “MADC” has thus been constituted as per the provisions of Paragraph 2(1) read with Paragraph 20 of the Sixth Schedule to the Constitution of India. The MADC consists of 19 elected members and the election is through adult franchise and 4 members are nominated by the Governor of Mizoram by virtue of the powers conferred on him under Paragraph 2(1) read with Paragraph 20BB of the Sixth Schedule to the Constitution. The term of the elected members is for a period of five years from the date appointed for the first meeting of the Council after the General Election to the Council and the four nominated members would hold office at the pleasure of the Governor. The first sitting of the Council after the General Election was held on 9.2.2000 and on 8.8.2000 four members, namely, Mrs. Lalbiakluangi Sailo; Mr. Myllai Hiychho, Mr. C. Lawbei and Mr. S. Lalremthanga were nominated by the Governor of Mizoram as members of MADC in exercise of the powers conferred under sub-para (1) of Paragraph 2 read with Paragraph 20BB of the Sixth Schedule, and read with sub-rule (1) of Rule 7 of the Mizoram Autonomous District Councils (Constitution and Conduct of Business of the District Councils) Rules, 1974.
3. The Governor of Mizoram by a Notification issued on 5.12.2001 terminated the appointment/nomination of the four members who were nominated on 8.8.2000. Thereafter, another Notification was issued on 6.12.2001 whereby four members were nominated to MADC. It may also be pointed out that one member, namely, K. Chiama had submitted a No Confidence Motion to the Secretary, MADC, against the Executive Committee on 4.12.2001. The Chairman granted leave for the No Confidence Motion and it was to be discussed and be voted on 6.12.2001. The date for discussion and voting of the No Confidence Motion was postponed from 6.12.2001 to 7.12.2001. The termination of the membership of four members and the nomination of new members were challenged in a Writ Petition filed before the Aizawl Bench of the Gauhati High Court. The High Court, by an interim order, suspended the Notification dated 6.12.2001 whereby new members were nominated to MADC. Aggrieved by the order of suspension of the nomination to MADC, the State of Mizoram filed an appeal before the Division Bench, being Writ Appeal No. 518 of 2001. Initially, the Division Bench granted an ex-parte stay of the order of suspension of Notification granted by the learned Single Judge, but thereafter directed that the Writ Petition be heard and disposed of by the learned Single Judge.
4. The learned Single Judge by his order dated 18.4.2002 partly allowed the Writ Petition. The nomination of three out of the four members was set aside by the learned Single Judge. However, the Notification dated 5.12.2001 whereby the membership of the four members was terminated was upheld by the learned Single Judge. In the Writ Appeal preferred by the State, the quashing of the Notification dated 6.12.2001 was challenged and the petitioners in the Writ Petition by a separate Writ Appeal challenged the order of the learned Single Judge whereby the Notification dated 5.12.2001 was upheld. The Division Bench of the High Court of Gauhati upheld the validity of both the Notifications and aggrieved by the same, the present appeals have been filed.
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