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1973 Supreme(Gau) 36
GAUHATI HIGH COURT
P. K. GOSWAMI, C.J. AND D. M. SEN, JJ.
Satyeswar Daolagupu and others -Appellant
Versus
Secretary to the Govt.of Assam and others -Respondent
Civil Rules Nos. 876, 882 and 883 of 1972
Decided On : 29-06-1973
N.M. Lahiri, A.G. Meghalava; J.P. Bhattacharjee. B.M. Mahanta. and U.C. Nath, Dr. J.C. Medhi A.G. Assam; G.K. Talukdar, Sr. Govt. Advocate and J.N. Goswami
The Governor's functions under the Sixth Schedule, except in those matters where he is required to act in his discretion, must be exercised with the aid and advice of his Council of Ministers.
Headnote:
SIXTH SCHEDULE - AUTONOMOUS DISTRICTS - EXECUTIVE POWER OF THE STATE - EXTENT OF - GOVERNOR - EXERCISE OF FUNCTIONS - DISCRETIONARY OR WITH AID AND ADVICE OF COUNCIL OF MINISTERS - PLEASURE OF THE GOVERNOR - DELEGATION OF - RULES OF BUSINESS - VALIDITY OF ORDERS - BIAS - NATURAL JUSTICE.
Fact of the Case:
The petitioners, nominated members of the Mikir Hills District Council, challenged the termination of their membership by the Governor of Assam under sub-paragraph (6-A) of paragraph 2 of the Sixth Schedule to the Constitution. They contended that the Governor's pleasure could not be delegated to any other person or exercised on his behalf, and that the matter should have been submitted to the Governor for his orders before issuing the termination order.
Finding of the Court:
The court held that the Governor's functions under the Sixth Schedule, except in those matters where he is required to act in his discretion, must be exercised with the aid and advice of his Council of Ministers. The power to terminate the tenure of a nominated member of the District Council is not a matter within the Governor's discretionary power and, therefore, he must act only with the aid and advice of his council of ministers. The court also held that the Governor's pleasure can be exercised according to any procedure laid down and by the authority prescribed in that behalf, and that the Assam Rules of Executive Business do not require submission of the papers relating to the exercise of the Governor's pleasure with regard to the tenure of a nominated member of a District Council to the Governor.
Issues: 1. Whether the Governor's functions under the Sixth Schedule are to be exercised in his discretion or with the aid and advice of his council of ministers. 2. Whether the Governor's pleasure under paragraph 2(6-A) of the Sixth Schedule can be delegated to some other person or exercised on his behalf by some other authority. 3. Whether the matter of termination of the tenure of a nominated member of the District Council should have been submitted to the Governor for his orders before issuing the termination order.
Ratio Decidendi: 1. The Governor's functions under the Sixth Schedule, except in those matters where he is required to act in his discretion, must be exercised with the aid and advice of his Council of Ministers. 2. The Governor's pleasure under paragraph 2(6-A) of the Sixth Schedule can be exercised according to any procedure laid down and by the authority prescribed in that behalf. 3. The Assam Rules of Executive Business do not require submission of the papers relating to the exercise of the Governor's pleasure with regard to the tenure of a nominated member of a District Council to the Governor.
Final Decision: The court dismissed the petitions, holding that the impugned Notifications do not suffer from any infirmity on any of the grounds urged by the petitioners.
SEN, J. :- These are three applications under Article 226, of the Constitution of India, directed, inter alia; against Assam Government Notification No. TAD/R/215/72 dated 6th December 1972 terminating the membership of the petitioners who were nominated members of the Mikir Hills District Council. The notification reads as under:
"The 6th December, 1972.
No. TAD/R/215/72 - In exercise of the powers conferred by sub-paragraph (6-A) of para. 2 of the Sixth Schedule to the Constitution read with sub-rule (3) of Rule 6 of the Assam Autonomous Districts (Constitution of District Councils) Rules, 1951, the Governor of Assam is pleased to order that the following Members of the Mikir Hills District Council who were nominated as Members vide this Departments Notification No. TAD/R/49/71 dated the 19th March 1971 shall cease to be Members of the said District Council with immediate effect.
1. Shri Satveswar Daolagupu
2. Shri Pitor Tubit
3. Shri Fulsing Lalung
4. Shri K. Rengma."
Satyeswar Daolagupu is petitioner in Civil Rule No. 876 of 1972. Pitor Tubit is petitioner in Civil Rule 882 of 1972 and Khuembe Rengma is petitioner in Civil Rule No. 883 of 1972. Pulsing Lalung was petitioner in Civil Rule No. 881 of 1972, which has been disposed of by this Court by a separate order.
2. Sub-rule (3) of Rule 6 of the Assam Autonomous Districts (Constitution of District Councils) Rules, 1951 provides -
"The nominated members shall be appointed by the Governor, and a member so appointed shall hold Office during the pleasure of the Governor."
The applications also challenge another notification No. TAD/R215/72 dated 6th December, 1972 nominating respondents Nos. 6, 7, 8 and 9 as members District Council in places of the petitioners and Fulsing Lalung, and a notice dated 10-11-1972 issued by the Chairman. Mikir Hills District Council fixing 12th December 1972 for holding election of the Chief Executive Member of the Council.
3. Since the points of law urged in Civil Rule Nos. 876. 882 and 883 of 1972 are all common, we propose to dispose of all these three applications by this one common judgement.
4. This notification at Annexure VI in Civil Rules No. 876 of 1972, terminating the tenure of the four nominated members, is being challenged on several grounds. The first ground taken is that the aforesaid notification before issue was never placed before the Governor of Assam and that it was passed at the instance of respondent No. 4 Chatra Singh Teron, Minister for Tribal Affairs Department Government of Assam, Shillong, without laving the matter before the Governor. Under sub-paragraph (6-A) of Paragraph 2 of the Sixth Schedule to the Constitution (here- in-after called the Schedule) a nominated member of the District Council holds office at the pleasure of the Governor. It has been urged that such pleasure is to be exercised by the Governor himself and cannot be delegated by him to any other person or be exercised by any one also on his behalf. Further, the power to remove a nominated member under sub-para. (6-A) of paragraph 2 vests not in the State Government, but in the Governor in his discretion and, accordingly. If the matter is not submitted to the Governor for his order, such order will not be a valid one.
5. We shall, therefore, first examine whether the power of the Governor under sub-paragraph (6-A) of paragraph 2 of the Schedule is to be exercised in his discretion or has to be exercised by him, as a constitutional head of the State of Assam, acting with the aid and, advice of his council of ministers.
6. Mr. N.M. Lahiri, the learned Advocate General for Meghalaya, has very strenuously submitted that in so far as the Schedule is concerned, the Governor is not to exercise his functions specified therein as the constitutional head of the State, but must exercise the same in his discretion. He submits that the entice object and scheme of the Schedule is to provide for the administration of the autonomous districts and autonomous regions with
