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2021 Supreme(Gau) 76

IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH AT AIZAWL BENCH
Songkhupchung Serto, Nelson Sailo, JJ.
Sh. Onish Moy Chakma, S/o Sonadhan Chakma and ors. – Petitioners
Versus
The State of Mizoram, represented by the Chief Secretary and ors. – Respondents
W.P(C) No. 65 of 2020
Decided On : 26-03-2021

Advocates:
Advocate Appeared:
For the Petitioner: Mr. A.K. Rokhum, Mr. Samuel L. Pachuau
For the Respondent:Mrs. H. Lalmalsawmi, Govt. Advocate Mr. Lalchhanliana Khiangte, Mr. Vanlalfela, Ms. Vanlalmuanpuii, Ms. C. Lalpekhlui, Ms. Vanlalsawmi

Point of law: The preamble of the impugned Act no doubt does speak of the necessity to make provisions with respect to "transfer, allotment, occupation or use of land for any purpose likely to promote the interests of the inhabitants thereof" but the subject of transfer is clearly beyond the scope of the law-making power conferred on the District Council by the Constitution and to that extent, therefore, the impugned Act which means Section 3 thereof is void being beyond the jurisdiction of the District Council

Headnote:
Constitution of India – Claim of compensation – Trial court - Whether a member of the district Council has become subject of any of the disqualifications mentioned in rule 12, 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 - It has been submitted by that sub-rule (5) & (6) of Rule 12 of the Rules of 2002 are repugnant to the provisions of Sub-Para (6-A) of Para 2 of the Sixth Schedule of Constitution of India because these sub rules provide for disqualification of members of the Council even before the term provided for in the Sixth Schedule expires. The learned counsel also submitted that the disqualification provisions have been added into Rules of 2002 without the District Council having the legislative competency to do so and therefore, they are ultra the Sixth Schedule of the Constitution –
Finding of the Court:
Proviso to merely serves to ensure that no law made by the Regional and District Councils with respect to allotment, occupation or use or setting apart, of land, as mentioned in that Clause, shall have the effect of preventing compulsory acquisition of land for public purposes, by the Government of Assam in accordance with the law in force authorizing such acquisition. This proviso by no means enlarges the scope of the power conferred on the Regional and District Councils by Clause (a) and indeed it has not been so claimed by the learned Attorney General. A proviso may undoubtedly be sometimes inserted to allay fears considered by some to be unfounded. But the question must ultimately come back to the point whether or not power to make laws conferred by Clause (a) includes the power to do so with respect to transfer of land and this must turn upon the exact language and its primary meaning. The simple words used in Clause (a) are incapable of bearing the construction suggested by the learned Attorney-General and the provision found in the proviso does not in any way alter the operative effect of this Clause - Preamble of the impugned Act no doubt does speak of the necessity to make provisions with respect to "transfer, allotment, occupation or use of land for any purpose likely to promote the interests of the inhabitants thereof" but the subject of transfer is clearly beyond the scope of the law-making power conferred on the District Council by the Constitution and to that extent, therefore, the impugned Act which means Section 3 thereof is void being beyond the jurisdiction of the District Council –
Result: Petition is allowed

JUDGMENT :

S. Serto, J

Heard Mr. A.K. Rokhum, learned counsel for the petitioners and also heard Mr. Lalchhanliana Khiangte, learned counsel appearing for the respondent Nos. 5 to 10 and Mrs. H. Lalmalsawmi, learned Government Advocate appearing for the State respondents.

2. On 20.04.2018, election to the 10th Chakma Autonomous District Council was held. When the result was declared on 24.04.2018, the Indian National Congress (INC) won 7 seats, Bharatya Janata Party (BJP) 5 Seats and Mizo National Front (MNF) 8 seats. The INC and BJP formed a joint legislative party and formed the Government or the Executive Committee of the Chakma Autonomous District Council (the Government of Autonomous District Council). However, on 29.10.2018 all the elected members of the INC in a meeting resolved to withdraw their support following the advice of the then Chief Minister of Mizoram and the President of Mizoram Pradesh Congress Committee. After their withdrawal, out of the 7 members of INC 4 members formed a front namely, the Mizoram Chakma National Front and joined hands with the MNF which had 8 members and formed a new Executive Committee of the Chakma Autonomous District Council (the Government of Autonomous District Council). After the formation of the new Executive Council the remaining 3 members of the INC who are the petitioner Nos. 1, 2 & 4 in this writ petition submitted their resignation letters to the party and merged with the BJP. Following the above events, the Chairman of the Chakma Autonomous District Council (the respondent No.5), issued show cause notice to the 3(three) writ petitioners No. 1, 2 & 4 asking them to show cause as to why they should not be disqualified from their membership to the Chakma Autonomous District Council under Rule 12 sub-rule (5)(a) of the Chakma Autonomous District Council (Constitution, Conduct of Business, Etc.) Rules, 2002 (hereafter referred to as the Rules of 2002), on the ground of their resignation from their original party i.e. the INC who sponsored their candidature in the 10th General Election to the Chakma Autonomous District Council. Being aggrieved by the show cause notice issued to them and also being apprehensive that they may be disqualified from their membership to the Chakma Autonomous District Council, the petitioners are before this Court challenging the show cause notice and at the same time challenging the provisions of sub-rule (5) & (6) of Rule 12 of the Rules of 2002 on the ground that they are repugnant to and ultra vires the provisions of the Sixth Schedule of the Constitution of India.

3. It has been submitted by Mr. Rokhum that sub-rule (5) & (6) of Rule 12 of the Rules of 2002 are repugnant to the provisions of Sub-Para (6-A) of Para 2 of the Sixth Schedule of Constitution of India because these sub rules provide for disqualification of members of the Council even before the term provided for in the Sixth Schedule expires. The learned counsel also submitted that the disqualification provisions have been added into the Rules of 2002 without the District Council having the legislative competency to do so and therefore, they are ultra vires the Sixth Schedule of the Constitution. Elaborating his submission, the learned counsel submits that under sub para (6-A) of para-2 of Sixth Schedule of the Constitution, it is provided that elected members of the District Council shall hold Office for a term of 5(five) years from the date appointed for the first meeting of the Council after the General Election to the Council, unless the District Council is sooner dissolved. Therefore, the provision of sub-rule (5) & (6) of Rule 12 of the Rules of 2002 which provides for removal or disqualification of any elected member of a District Council is repugnant to the former.

4. The learned counsel also submitted that the legislative powers of the District Council as given under the sub-para (7) read with sub para (6) of para 2 of the Sixth Schedule of the Constitution does not extend to making

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2021 Supreme(Gau) 76

Cases Referred (1)