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2020 Supreme(Gau) 329
IN THE HIGH COURT of GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Achintya Malla Bujor Barua, J.
Barak Valley Hills Tribes Development Council - Petitioner
Versus
State of Assam And Ors. - Respondents
WP(C) 647 of 2020, WP(C) 8278 of 2018
Decided On : 24-06-2020
For the Petitioner: Mr. D.P. Borah
For the Respondent: Ga, Assa
The main legal point established in the judgment is that the Development Councils shall function at the pleasure of the Government of Assam, subject to the restrictions provided by the Supreme Court in B.P. Singhal vs Union Of India & Anr.
Headnote:
Doctrine of Pleasure - Development Councils - Notification No.TAD/BC/477/2011/75 - Term of Office: (i) The Development Councils shall function at the pleasure of the Government of Assam. (ii) The Chairman/Vice-Chairman and members of the Councils shall hold their position in the Councils at the pleasure of the State Government. The State Government may remove/replace the Chairman/Vice Chairman or any member of any Council at anytime.
Fact of the Case:
The Sarania Kachari Development Council and the Gorkha Development Council, along with the Barak Valley Hills Tribes Development Council, challenged the amendment to Clause 3 of the Notification No.TAD/BC/477/2011/56-B, which changed the tenure of the Development Councils to function at the pleasure of the Government of Assam.
Finding of the Court:
The court found that the requirement of Article 166(1) and 166(2) of the Constitution had been complied with in issuing the amendment. The court also held that the amendment would be prospective in nature and that the Development Councils would be governed by the modified Clause 3 from the date of the amendment.
Issues: The issues involved were the compliance with constitutional requirements in issuing the amendment, the prospective nature of the amendment, and the applicability of the modified Clause 3 to the Development Councils.
Ratio Decidendi: The court upheld the amendment and held that the Development Councils would function at the pleasure of the Government of Assam. The court also provided that the exercise of the doctrine of pleasure for the purpose of removal or determining the tenure of the Development Councils shall be subjected to the restrictions provided by the Supreme Court in B.P. Singhal vs Union Of India & Anr.
Final Decision: The writ petition was dismissed, subject to the observation on the manner in which the doctrine of pleasure may be exercised by the State Government in respect of the Development Councils.
JUDGMENT :
Heard Mr. M Nath, learned counsel for the petitioners in WP(C)No.8278/2018 and Mr. DP Borah, learned counsel for the petitioner in WP(C)No.647/2020. Also heard Mr. D Mazumdar, learned senior counsel assisted by Mr. R Dhar, learned Government Advocate for the respondent authorities.
2. The Sarania Kachari Development Council (for short, SKDC) and the Gorkha Development Council (for short, GDC) being the two writ petitioners in WP(C)No.8278/2018 were constituted (reconstituted) respectively, by the Notification dated 14.01.2016 of the Additional Chief Secretary to the Government of Assam in the WPT & BC Department in respect of the SKDC and by the Notification dated 07.01.2016 in respect of the GDC. In fact the SKDC was initially constituted by the Departmental Notification No.TAD/BC/491/07/122 dated 20.10.2010, whereas the GDC was constituted by the Departmental Notification No.TAD/BC/491/07/120 dated 11.10.2010 and by the Notification No.TAD/BC/718/2015/13 dated 14.01.2016 and Notification No.TAD/BC/728/2015/10 dated 07.01.2016, respectively, they were reconstituted. On the other hand, the Barak Valley Hills Tribes Development Council (for short, BVHTDC) which is the petitioner in WP(C)647/2020 was initially constituted by the Notification No. TAD/BC/491/07/103 dated 22.02.2011 and was reconstituted by the Notification No. TAD/BC/802/2015/9 dated 13.02.2016.
3. The two writ petitions are being taken up together inasmuch as, the issues involved in both the writ petitions are same and can be adjudicated by a common judgment and order. In both the writ petitions, the petitioners are aggrieved by the Notification No.TAD/BC/477/2011/75 dated 12.07.2018 of the Additional Chief Secretary to the Government of Assam in the WPT & BC Department by which the Clause 3 of the earlier Notification No.TAD/BC/477/2011/56-B dated 21.05.2014 stood amended and the modified Clause 3 as provided therein was brought in force.
4. Clause 3 in original as appeared in the Notification No.TAD/BC/477/2011/56-B dated 21.05.2014 is extracted as below:
“Clause 3 (in original)
Term of Office:
(i) The term of office of the Council shall be as the Government of Assam may decide from time to time, but shall not exceed five years. The term of office shall be reckoned from the date of notification constituting the Council.
Provided that, if the Government is of the opinion that circumstance exist, whereby the orderly conduct of business in the Council is not possible, the Government may by notification dissolve the Council.
Provided further that Govt. may if it is satisfied that circumstances exist which
render reconstitution of the Council, as provided, impracticable, extend the term for a period not exceeding one year.
(ii) The Chairman and the Vice Chairman of the Council shall cease to hold their office forthwith, if he/she, for any reason, ceases to be a member.
(iii) The Chairman, Vice Chairman or a Member shall also cease to be a member in the event of his/her death.”
5. By the Notification No.TAD/BC/477/2011/75 dated 12.07.2018, the earlier Clause 3 stood deleted and the modified Clause 3 was brought in which is extracted as under:
“Clause 3 (as modified) Term of Office
(i) The Development Councils shall function at the pleasure of the Government of Assam.
(ii) The Chairman/Vice-Chairman and members of the Councils shall hold their position in the Councils at the pleasure of the State Government. The State Government may remove/replace the Chairman/Vice Chairman or any member of any Council at anytime.”
6. A reading of the Clause 3 in original as found in the Notification of 21.05.2014, makes it discernible that the term of office of the Development Councils shall be as the Government of Assam may decide from time to time, but shall not exceed 5(five) years, with a proviso that if the Government is of the opinion that circumstance exist whereby the orderly conduct of business in the Councils is not possible, the Government may by Notification dissolve a Council.
