B.K. Sharma, J.
1. The issue raised in this writ petition is as to whether the nominated members of the particular District Council in the State of Mizoram are entitled to vote relating to vote of confidence to be secured by the Chief Executive Member of the District Council.
2. The election for the District Council viz. Mara Autonomous District Council (MADC) in the State of Mizoram was held on April, 2005 in which 22 members were elected with the following party wise break-up:
Mizo National Front (MNF) - 10
Indian National Congress(INC) - 04
Maraland Democratic Front (MDF) - 07
Independent (Mr. N. Viakhu) - 01
3. Mr. Viakhu, the independent member on being supported by the members belonging to INC and MDF was appointed as the Chief Executive Member (CEM) vide notification dated 27.04.2005 (Annexure-A) issued in the name of the Governor. After such appointment of the CEM, the Executive Committee of the Council was formed with the approval of the Governor and notification to that effect was issued on 12.05.2005. Be it stated here that the MADC consists of 26 members of whom 22 are elected members and remaining 4 are nominated by the Governor. Such nomination is as per the recommendation of the CEM from amongst the persons having requisite qualification for being a member of the District Council. One of the 4 members so nominated by the Governor is the petitioner. Their nomination and appointment was notified vide notification dated 11.11.2005.
4. After the aforesaid position relating to the District Council, the members of MDF and INC withdrew their support to the CEM, but he remained as such with the support of 10 members of MNF and the 4 nominated members. It is these 4 members in respect of whom, the whole controversy has arisen. As per the provisions of the rules holding the field about which discussions have made below, the earlier executive committee members were removed by the CEM and a new executive committee was formed which was approved by the Governor. Such approval was accorded by notification dated 21.11.2005 issued in the name of the Governor with the rider that the CEM would secure vote of confidence in the District Council House by 15.12.2005.
5. One Mr. K. Hrahmo an elected member of the District Council preferred a writ petition being WP(C) No. 139/2005 challenging the aforesaid notification dated 21.11.12005 and prayed for dissolution of the District Council. It was also prayed that the Government of Mizoram be restrained from going ahead with the vote of confidence scheduled to be held on 15.12.2005 allowing the nominated members of the District Council to participate in the vote of confidence. According to the petitioner, the 4 nominated members were not entitled to vote. An interim prayer was also made for restraining the 4 nominated members from participating in the no confidence motion and for that matter from casting their votes. The interim prayer was rejected by order dated 09.12.2005. However, the writ petition was withdrawn on 10.08.2006 with liberty to approach the Court again. It was recorded in the order dated 10.08.2006 that the prayer for withdrawal was made because of subsequent development.
6. After the aforesaid development, the Annexure-E notification dated 14.12.2005 was issued deferring the no confidence motion till disposal of the writ petition. Thereafter, The Government of Mizoram in the District Council Affairs Department issued the Annexure-F letter dated 17.03.2006 requesting the CEM to seek the vote of confidence of the House immediately either before or after the Budget Session scheduled for 29.06.2006. Accordingly, on 29.03.2006 the matter was taken up and the confidence of the House was passed in favour of the CEM wherein the nominated members were allowed to cast their votes. When the matter rested thus, the Annexure-G impugned notification dated 28.11.2006 was issued directing the CEM to secure a vote of confidence of the House in a special session on 08.01.2007. In the notification it has been provided that the vote of confidence shall be secured through a motion in which only the elected members shall vote. Thus, the nominated members have been excluded from the purview of casting their votes.
7. It is in the aforesaid backdrop the petitioner, one of the nominated members has invoked the writ jurisdiction of this Court questioning the property, legality and validity of the impugned notification dated 28.11.2006.
8. Before proceeding further with the matter in reference to the arguments advanced by the learned Counsel for the parties, it will be apposite to refer to the relevant provisions of the rules holding the field viz., Mara Autonomous District Council (Constitution, Conduct of Business etc.) Rules, 2002.
Rule 2
Definition: In these rules, unless the context otherwise requires:
(b) “Chief Executive Member' means a leader of the majority party in the House of the District Council, and includes even a person not elected as a member for the time being to the District Council, but so appointed by the Governor under these Rules.
(g) 'District Council' means the District Council of the Mara Autonomous District constituted in accordance with the [provisions laid down in paragraph 2 and 20 B of the Sixth Schedule to the Constitution of India.
(k) 'Executive Committee' means the executive Committee of the District Council of the Mara Autonomous District as formed under these Rules.
(o) 'Member' means of the member of the District Council of the Mara Autonomous District.
Rule 6
Constitution of the District Council
(1) Subject to the provisions contained in paragraph 2 of the Sixth Schedule there shall be District Council for the Mara Autonomous District comprised of the tribal areas of Mara District specified in part III of the Table appended to para 20 of the Sixth Schedule, to be known as the District Council of the Lai Autonomous District, and shall by the said name only sue and be used.
(2) The District Council shall continue to be a body corporate and shall have perpetual succession and a common seal.
(3) Subject to the provisions of the Sixth Schedule, the administration of the Mara Autonomous District shall be deemed to have vested in the Mara Autonomous District Council.
Rule 7
Composition of the District Council
(1) The District Council shall consist of such number of members chosen by direct election from territorial constituencies in the Autonomous District and also nominated as specified in sub-paragraph (1) of paragraph 2 of the Sixth Schedule.
(2) The composition of the District Council and the allocation of seats therein as between elected and nominated members shall be such as the Governor may, by notification in the official Gazette, determine from time to time.
(3) The constituencies for election of the District Council shall be territorial while the constituencies, respective extends thereof and the number of seats to be filled form such constituencies shall be such as may be determined by the Governor in the manner hereinafter prescribed.
(4) The members to be nominated by the Governor under these Rules, subject to the provisions contained in subparagraph (1) of paragraph 2 of the Sixth Schedule, shall be as recommended by the Chief Executive Member from amongst the persons having requisite qualification for being a member of the District Council. Provided that while recommending the names, the Chief Executive Member shall recommend at least three names including the name of one women, against each seat for nominated members and furnish all documentary proofs in support of their qualification for such appointment.
Rule 22
Formation of Executive Committee
(1) There shall be an executive Committee of the District Council with a Chief Executive Member at the head and seven other members of the Executive Committee to exercise the functions hereinafter specified.
(2) The Executive Committee shall be formed by the largest legislature party having a majority of elected members in the District Council. The leader elected by such legislature party shall be appointed as the Chief Executive Member:
Provided that in case he is not an elected member, then unless such leader is elected as a member of the District Council within six months from the date of his appointment as such, he shall cease to be the Chief Executive member and to continue as such.
(3) Subject to Sub-rule (2), the Chief Executive Member shall be appointed by the Governor, and other members shall be appointed by the Governor on the recommendation of the Chief Executive Member through the Secretary to the Government.
(4) There shall be a Secretary to the Executive Committee, who shall be designated as the Executive Secretary and such other Deputy and Under Secretaries as may be determined by the Executive Committee, with prior approval of the Governor. Provided that notwithstanding anything contained in these Rules, the Governor may, for the sake of better administration of the Mara Autonomous District and in consultation with of the Chief Executive Member, depute any officer of the State Government, not below the rank of Joint Secretary, to the District Council as the Executive Secretary.
(5) The Governor may, if he considers necessary, cause the District Council to take up vote of confidence in the newly formed Executive Committee within thirty days from the date of its formation.
(6) There shall be paid to the Chief Executive Member and the Executive Members of the District Council such Salaries, allowances and pension as may be fixed by the District Council by law subject to approval of the Governor.
Rule 24
Vacation of Office by members of Executive Committee
(1) A member holding office as Chief Executive Member or a member of the Executive Committee.
(a) shall vacate his office if he ceases to be a member of the District Council, subject to the proviso to Sub-rule (2):
(b) may, at any time by writing under his hand submit his resignation, if such member is the Chief Executive Member, to the Governor through the Chairman who shall forward such resignation within 48 hours from the time of receipt of the same, and if such member is a member of the Executive Committee, to the Chief Executive Member. On his resignation being accepted by the Governor or the Chief Executive Member, as the case may be, such Chief Executive member or other Executive Member, as the case may shall be deemed to have vacated the office as such.
(2) When the Chief Executive Member vacates or resigns his office under Sub-rule (1) , the other members of the Executive Committee shall also ceases to hold office as such an a new Executive Committee shall be constituted on accordance with provisions of Rules 22 and 23.
Provided that until a new Chief Executive Member has been appointed and the Executive Committee reconstituted, the Governor may, notwithstanding anything contained in Sub-rule (1) of Rule 24 authorize any one member or more than one member of the District Council to carry on the duties of the Executive Committee, or may make such other arrangements as he may think proper for carrying on the executive functions of the District Council
Rule 25
Removal etc. of members of Executive Committee
(1) The Executive Committee shall be collectively responsible to the District Council and may be removed on a vote of no-confidence passed by a majority of the Members of the District Council present at a meeting specially convened for the purpose under Rule 84 of these Rules;
Provided that subject to Sub-paragraph (2) of Paragraph 16 of the Sixth Schedule to the Constitution, the Governor may assume to himself all the powers of the Executive Committee by placing it under suspension, in case the Chief Executive Member or any Member of the Executive Committee commits violation of any direction or order given under Rule 5 of these Rules.
(2) In case of removal of the Executive Committee, the Chairman shall forthwith submit a report to the Governor through the Secretary to the Government, and the Governor thereupon shall appoint the Chief Executive Member immediately in consonance with Rule 22.
(3) Member or Members of the Executive Committee shall hold office during the pleasure of the Chief Executive Member and may be removed by an order of the Chief Executive Member, with intimation to the Governor. The Governor, shall, on the recommendation of the Chief Executive Member communicated through the Secretary to the Government, appoint new Executive Member or Members to fill up the vacancy or vacancies, subject to the condition that a removed Member shall not be entitled to re-appointment as such.
Rule 38
Voting in the District Council
(1) Save as otherwise provided in these Rules, all questions at any sitting of the District Council shall be determined by a majority of votes of the members present and voting other than the Chairman, or person acting as such.
(2) The Chairman or the person acting as such shall not vote in the first instance, but shall have and exercise a casting vote it in the case of quality of votes.
Rule 84
Motion of no-confidence in the Executive Committee
(1) A motion expressing want of confidence in the Executive Committee or a motion disapproving the policy of the Executive Committee in regard to abt particular matter may be made with the consent of the Chairman and subject to the restriction that the member making the motion shall present to the Secretary a written notice of the motion before the commencement of the sitting of the day.
(2) If the Chairman is of opinion that the motion is in order, he shall read the motion to the Council and shall request those members who are in favour of leave being granted, to rise in their places, and if not less than one-fourth of the members present rise accordingly, the Chairman shall intimate that the leave is granted and that the motion will be taken on such day, not being more than two days and not less than twenty four hours from the time at which leave is asked for, as he may appoint. Provided that if exigencies of business require, the Chairman shall have the power to relax the rule and take up the motion earlier than twenty-four hours.
(3) If less than one-fourth of the members present rise, the Chairman shall inform the member that he has not the leave of the Council.
9. In reference to the aforesaid provisions of the rules, while it is the case of the petitioner that the impugned notification dated 28.11.2006 has deprived the nominated members of their valuable right to vote in the vote of confidence, it is the case of the respondents that the nominated members are not entitled to cast their vote and accordingly, there is nothing wrong in the impugned notification. The petitioner, in reference to the provisions of the sixth schedule to the Constitution of India, has also contended that the impugned notification has made discrimination between the elected and nominated members and is against the said provisions of the Constitution.
10. Sixth Schedule to the Constitution has made provisions as to the administration of tribal areas in the States of Assam, Meghalaya, Tripura and Mizoram. Para 2 of the schedule provides that there shall be a District Council for each autonomous district consisting of not more than 30 members of whom not more than 4 members shall be nominated by the Governor and the rests shall be elected on the basis of adult suffrage. Each District Council shall be a body corporate by the name of 'the District Council (name of District)' and shall have perpetual succession and a common seal and shall by the said name sue and be sued. While the elected members to the District Council shall have a fixed term of 5 years from the date appointed for the first meeting of the council after the genera) election to the council, unless the District Council is sooner dissolved, the nominated members shall hold office during the pleaser of the Governor.
11. The respondent No. 3 i.e. United Legislature Party (ULP) an alliance of MDF and INC consisting of 11 members have filed counter affidavit. In the affidavit, it has been contended that the CEM recommended for nomination of members having close nexus with MNF. It has been stated that the ULP in its meeting held on 14.11.2005 withdrew support to the CEM and made a declaration wherein all the 11 members of ULP elected one Mr. S. Khipo as its leader. Upon being informed of the same to the CEM, he submitted his resignation from the leadership of the ULP vide Annexure-8 letter with copies to the respondent No. 2 and the Secretary to the governor among others. According to the respondent No. 3, the notification dated 21.11.2005 (Annexure-C to the writ petition) directing the CEM to secure the vote of confidence in the House by 15th December, 2005 was uncalled for, inasmuch as, he was no longer the leader of the largest legislature party and therefore could not have remained as the CEM and consequently could not have made any recommendation towards formation of the new Executive Committee.
12. The respondent No. 3 has further contended that after withdrawal of support to the CEM by the members of ULP and when he did not remain the leader of the largest legislature party, he could not have remained as the CEM and that he has also not been appointed till date as the CEM after withdrawal of support by the 11 ULP members and his resignation as the leader of the ULP. Thus, according to the respondent the notification dated 08.12.2005 (Annexure-12 to the affidavit) allowing the CEM to continue as such is illegal and nonest in the eye of law. According to this respondent as per the provisions of Rule 22(2) of the rules it is only the elected members who can vote in a vote of confidence and thus the provision for securing the vote of confidence by 15.12.2005 vide Annexure-C notification dated 21.11.2005 was illegal and was so issued only to by pass Rule 22(2) of the rules. They have contended that neither Rule 84 nor Rule 86 of the rules is applicable in the instant case.
13. As regards the earlier writ petition being W.P.(C) No. 139/2005, the respondent No. 3 has contended that the interim prayer was rejected only on the ground that the petitioner therein failed to show any provisions in the rules debarring the nominated members from casting their votes in a vote of confidence. As regards the withdrawal of the writ petition, it has been contended that there was an assurance from the Governor to look into the grievance of the respondent No. 3 and that their representation dated 28.07.2006 would be looked into.
14. As regards the Annexure-F notification dated 17.03.2006 directing the CEM to seek vote of confidence of the House and purported securing of the same in the House on 29.03.2006, the respondent No. 3 has contended that the vote of confidence was taken surreptitiously behind their back wherein 13 members including the nominated members from MNF participated and that the members of the ULP were not present as they did not have any prior notice of the same. It has also been contended that the vote of confidence was secured during the budget session in violation of the direction of the Governor to secure the same either before or after the budget session. It has further been contended that the vote of confidence could not have been taken in violation of Rule 85 of the rules in terms of which no motion pertaining to any matter, which is subjudice can be taken up in the House. Being aggrieved, they submitted representation dated 30.06.2006 to the Governor highlighting their grievance.
15. In the counter affidavit filed by the respondent No. 3, supporting the impugned notification dated 28.11.2006, it has been stated that the same has been issued by the Governor after due consultation of the Chief Minister of the State and in exercise of his powers under paragraph 20 BB of the Sixth Schedule to the Constitution of India read with Rule 4 of the Rules of 2002. Be it stated here that Rule 4 of the rules provides for removal of difficulties in respect of functioning of District Council. In this connection the respondent has referred to the judgment of the Apex Court dated 11.01.2005 in Civil Appeal Nos. 661-662 of 2003 (Pu Myllai Hlychho and Ors. v. State of Mizoram and Ors.)
16. Para 20 BB of the Sixth schedule to the Constitution of which recourse has been taken in the impugned notification dated 28.11.2006 and in reference to which the learned Counsel for the parties made their submissions is quoted below:
20 BB. Exercise of discretionary powers by the Governor in the discharge of his functions. - The Governor in the discharge of his functions under sub-paragraphs (2) and (3) of paragraph 1, sub-paragraphs (1) and (7) of paragraph 2, sub-paragraph (3) of paragraph 3, subparagraph (4) of paragraph 4, Paragraph 5, subparagraph (1) of paragraph 6, sub-paragraph (2) of paragraph 7, sub-paragraph (3) of paragraph 9, sub-paragraph (1) of paragraph 14, subparagraph (1) of paragraph 15 and subparagraph (1) and (2) of paragraph 16 of this Schedule, shall, after consulting the Council of Minister, and if he thinks it necessary, the District Council or the Regional Council concerned, take such action as he considers necessary in his discretion.
17. Mr. B.C. Das, learned Sr. Counsel assisted by Mr. DN Bhattacharyya, learned Counsel for the petitioner and Mr. N. Dutta, learned Sr. Counsel assisted by Mr. DR Gogoi, learned Counsel for the respondent No. 3, extensively argued in support of their respective case in reference to the pleadings and the provisions of the aforesaid Rules and the Constitution of India. While Mr. Das, has placed reliance on the decisions reported in : (2005)2SCC92 (Pu Myllai Hlychho and Ors. v. State of Mizoram and Ors.); (D. Uphing Maslai v. State of Assam) and (2006) 7 SCC 01 (KuldipNayar v. Union of India and Ors.), Mr. Dutta has placed reliance on the decision reported in : AIR2004SC2258 Ramesh Mehta v. Sanwal Chand Singhvi. Mr. P. Pathak, learned Advocate General, State of Mizoram, assisted by learned State Counsel made his submissions in reference to the records produced by the learned State Counsel. He submitted that the impugned notification will speak for itself and its validity or otherwise will have to be tested in the touchstone of the Constitutional provisions as well as the provisions of the rules and the facts as reflected in the records.
18. According to Mr. Das there being no express provision in the rules debarring the nominated members from casting their votes, the impugned notification could not have been issued depriving the petitioner of his valuable right of casting vote in the vote of confidence. He further submitted that the impugned notification having not been issued by the Governor in consultation the Council of Minister as envisaged under para 20 BB of the Sixth Schedule, the notification is bad in law. With the aid of the decision in Pu Myllai (Supra) Mr. Das submitted that the Governor could not have issued the notification exercising his discretionary power in violation of the mandates of para 20 BB of the Sixth Schedule. According to him, the debarment of the 4 nominated members from casting their votes amounts to their removal from being members of the District Council and thus the course of action adopted by the Governor amounts to their removal as members.
19. Mr. N. Dutta, learned Sr. Counsel representing the respondent No. 3 referring to the provisions of the rules and the provisions of the Sixth Schedule to the Constitution and also making a comparison with the earlier rules in the field i.e. the Mizoram Autonomous District Council (Constitution and Conduct of Business) Rules, 1974, submitted that there is nothing wrong in the impugned notification. According to him on a total reading of the rules and interpreting the term Member in the context in which the same will have to be read, leads to the irresistible conclusion that the nominated members are not entitled to vote in the vote of confidence. In this connection, he has referred to the amendment of 2003 (w.e.f. 07.09.2003) in respect of para 2 of the Sixth Schedule providing same right and privilege including voting rights to the nominated members to the Bodoland Territorial Council (BTC). Apart from arguing the matter on merit, he also submitted on the very maintainability of the writ petition on grounds of non-joinder of necessary party and suppression of material fact. As regards the non-joinder of necessary party, he submitted that the CEM the most vitially affected party being not a party to this proceeding, the writ petition is not maintainable. He also submitted that the other elected and nominated members ought to have been made parties for full and final adjudication of the issue raised.
20. As regards the plea of suppression of material fact, he submitted that the very fact of tendering resignation by the CEM as the leader of ULP vide Annexure-8 letter dated 15.11.2005 having been suppressed and withdrawn from the Writ Court while filling the writ petition, although has a bearing in the matter, would debar the petitioner from getting any relief from the writ Court. He further submitted that the petitioner is guilty of suppression of material fact having not disclosed the matters incidental to the issue raised in the writ petition, more particularly the fact that the Annexure-E and F order and letter dated 14.12.2005 and 17.03.2006 respectively, on which the writ petition has placed reliance have been superceded by Annexure 19 order dated 30.03.2006 annexed to the counter affidavit. He has also questioned the very locus standi of the writ petitioner in filing the writ petition, which according to him is virtually on behalf of the CEM.
21. In reply to the aforesaid submissions made by Mr. Dutta, learned Counsel for the respondent No. 3, Mr. Das, learned Counsel for the petitioner submitted that every omission may not lead to the inference of suppression. He submitted that the suppression about which the learned Counsel for the respondent No. 3 has emphasized is at best can be said to be omission. He pointed out that by such omission the petitioner is not to get anything. As regards the letter of resignation dated 15.11.2005, he submitted that the fact of withdrawal of support by the ULP having been mentioned in paragraph 5 of the writ petition, the omission to mention about the resignation letter will not be fatal so as to bring the writ petition within the purview of the writ petition with material suppression of fact. As regards the suppression of Annexure-E and F order and letter referred to above, Mr. Das submitted that the same cannot be said to be a suppression, more so, when the petitioner has invoked the writ jurisdiction to assert his right to vote in the vote of confidence.
22. As regards the express voting right to the nominated members to the BTC, Mr. Das submitted that such right has been conferred having regard to the special feature of the case and that by itself cannot lead to the inference that the nominated members of the MADC are debarred from casting their votes in the vote of confidence. He also distinguished the decision on which Mr. Dutta has placed reliance.
23. I have given my anxious consideration to the submissions made by the learned Counsel for the parties as well as on the materials on record including the records produced by the learned State Counsel led by learned Advocate General, Mizoram. Amidst the pleadings and arguments, the real controversy is as to whether the nominated members are entitled to vote in the vote of confidence. In the impugned notification dated 28.11.2006 that the vote of confidence shall be secured through a motion in which only the elected MDCS shall vote, meaning thereby that the nominated members will not be entitled to vote. The notification has been issued in exercise of the powers conferred under Rule 33(6), 24(2) and 22(5) read with Rule of 2002 and also under para 22 BB of the Sixth Schedule to the Constitution.
24. Learned Counsel for the petitioner has not raised any objection relating to the exercise of the power by the Governor invoking the provisions of the rules as indicated in the impugned notification. However, an objection has been raised in respect of such exercise of power under para 20 BB of the Sixth Schedule to the Constitution. Rule 33(6) empowers the Governor, irrespective of anything contained in the rule to summon a meeting of the District Council at any time as he may think fit in public interest. Rule 24(2) empowers the Governor to authorize anyone member or more than one member of the District Council to carry on the duties of the Executive Committee or such other arrangements as he may think proper for carrying on the executive functions of the District Council in the kind of situation as envisaged under Rule 24(1). Rule 24(1), in terms of which the CEM or any member of the Executive Committee shall vacate his office if he ceases to be a member of the District Council and the CEM or any other member upon resignation following the procedure laid down therein shall be deemed to have vacated the office as such. 25. Rule 22(5) empowers the Governor, if considers necessary, to cause the District Council to take up vote of confidence in the newly formed Executive Committee within 30 days from the date of its formation. Rule 4 is the provision for removal of difficulties. It provides that if any difficulty arises as to the functioning of the District Council, the Governor may, by order, do anything not inconsistent with the rules of any provisions of the Constitution or any order made thereunder or an act of parliament or of the legislature of the State of Mizoram, which appears to him to be necessary for the proper functioning of or holding the elections to the District Council, as the case may be. Para 20 BB relates to exercise of discretionary powers by the Governor in the discharge of his functions under the provisions indicated therein, which shall be after consulting the Council of Ministers. It is in this context, it was argued that no such consultation was carried out while issuing the impugned notification dated 28.11.2006.
26. I have gone through the records produced by the learned State Counsel. On perusal of the same what has revealed is that, the matter relating to the District Council after the situation which had emerged due to the withdrawal of support to the CEM by the members of the ULP and the filing of the writ petition being WP(C) No. 139/2005, was discussed at various levels. As noticed above, after withdrawal of support to the CEM by the members of ULP, he claimed to have support of the members of the MNF and majority support of total number of members, which include the nominated members and advised the Governor towards formation of the new Executive Committee by way of appointing the 7 members as the members of the Executive Committee vide Annexure-C notification dated 21.11.2005, against which, as indicated in the counter affidavit representation were submitted contending interalia that the new Executive Committee has not been formed in accordance with Rule 24(2) of the rules.
27. In the above, context a detailed note was put up by the Secretary to the Government of Mizoram in the Department of District Council Affairs on 22.09.2006. The file was routed through the Chief Secretary and the Minister, District Council Affairs (DCA) and the Chief Minister (CM). After the CMs note the matter was put up before the Governor, who in turn made certain queries. Thereafter the matter was again routed through the CM and the Minister, DCA and the Governor finally decided that to arrive at an appropriate solution and to establish a constitutional body as the Executive Committee in the MADC and to ensure the people's trust in the MADC administration, upon consultation with the Chief Minister representing the council of Ministers decided that the CEM should secure a vote of confidence in a special session of the MADC through a motion in which only elected MDC should vote. It was ordered that a meeting of the MADC be accordingly summoned for the purpose in exercise of the Governor's powers conferred under the provisions indicated in the impugned notification. This is how the impugned notification came to be issued.
28. Rule 22 of the rules dealing with the formation of the Executive Committee provides that it shall be formed by the largest legislature party having a majority of elected members in the District Council and the leader elected by such legislature party shall be appointed as CEM (emphasis supplied). At the first instance, the CEM was elected by the members of the ULP i.e. the members of the MDF and INC forming the largest legislature party having a majority of elected members in the District Council. The CEM as the leader of the ULP was elected as such and the same was notified vide Annexure-A notification dated 27.04.2005. It was after about 7 months thereafter, the 4 members were nominated vide Annexure-B notification dated 11.11.2005. Immediately, after withdrawal of support by the members of the ULP and even after resignation tendered by the CEM as the leader of the ULP by his letter dated 15.11.2005, the Annexure-C notification dated 21.11.2005 was issued reconstituting the Executive Committee with the 7 members indicated therein. This was done by the Governor on the advise of the CEM. 29. The question, which arises for consideration at this stage, is as to whether the CEM could have continued as such after withdrawal of support to him by the ULP members and his resignation as the leader of the ULP by his letter dated 15.11.2005. Rule 22(2) provides for formation of the Executive Commitee by the largest legislature party having a majority of elected members in the District Council and the leader elected by such legislature party shall be appointed as the CEM. At the time when the CEM was elected as the leader of the ULP, the ULP consisting of 11 elected candidates with the independent candidate i.e. the CEM was the largest legislature party having majority of elected members in the House consisting of 22 members. On withdrawal of support by all the 11 members of the ULP, by operation of the rules, the CEM could not have continued as such, unless the largest legislature party having a majority of elected members elected him as the leader. However, it appears that the CEM with the support of 10 elected members of MNF and 4 nominated members continued as the CEM and after removal of the earlier Executive Committee members by him, the new Executive Committee was formed with the 7 members as per his Advise. As per Rule 25(3) the members of the Executive Committee hold their office during the pleasure of the CEM and it is under this provision the CEM removed the earlier Executive Committee members and thereafter reconstituted the same with the members of the MNF of which party, he has support.
30. As noticed above, the legislature party of MNF consists of 10 members, whereas the legislature party of ULP (MDF and INC) consists of 11 members. As per the requirement of Rule 22(2), the largest legislature party having a majority of elected members in the District Council shall form the Executive Committee and the leader elected by such legislature party shall be the CEM. Thus, unless the present CEM gains the support of the 4 nominated members alongwith the 10 MNF elected members, it cannot be said that he has a majority support in a House consisting of 26 (22 elected and 4 nominated) members. However, the whole controversy is as to whether the 4 nominated members can be included for the purpose. A plain reading of Rule 22(2) makes no room for doubt that it is the elected leader of the largest legislature party having a majority of elected members in the District Council shall be appointed as the CEM. Thus, in the matter of electing the CEM, the nominated members cannot have any say. It is only the elected members who hold the key towards electing the CEM. If that be so, can it be said that after withdrawal of support by the elected members of the ULP having 11 members, the CEM could continue as such with the support of the other group of elected members and the nominated members, which is admittedly not the majority party of elected members in terms of Rule 2(b) and 22(2). The answer is bound to be in the negative in view of the unambiguous and clear provisions of Rule 22(2).
31. Much has been emphasized on the definition member under Rule 2(o), It is true that member means member of the District Council. However, for the purpose of deciding the issue at hand, this definition of member will have to be understood in the context. It is in this connection, learned Counsel for the respondent No. 3 emphasized on the words appearing in Rule 2 (definitions), under which definitions have been given. The words are 'unless the context otherwise requires.' Thus, according to him, the definition of member is not wholesome and unqualified. In the context of the other provisions of the rules, more particularly Rule 22(2) it is only the elected members who can be called members for the purpose of voting in the vote of confidence. Otherwise, if the nominated members are also allowed to vote in the vote of confidence same will be antithesis to the express provisions of Rule 22(2) under which it is only the elected members forming the largest majority group who can elect the CEM.
32. After the withdrawal of support by the largest legislature party members i.e. the ULP with total 11 elected members, the CEM also resigned as the leader of the said party and thus at the time of issuance of the notification dated 21.11.2005, he was not the leader of the largest legislature party. He had only the support of 10 elected members MNF members in the District Council. The term Chief Executive member as defined in Rule 2(b) of the rules means a leader of the majority party in the House of the District Council and this majority party certainly refers to the majority party as envisaged in Rule 22(2). If that be so, the CEM will have to be the leader of the elected majority party members of the House and not the leader of the party comprising of both the elected and nominated members.
33. Rule 24 deals with vacation of office by members of Executive Committee. Although the CEM has neither vacated nor resigned his office but he ceased to be the leader of the largest majority party i.e. the ULP and he has also resigned as such. If he does not master the support of the largest majority party of the House, by operation of the rules about which discussions have been made above, he cannot be the CEM and if he remains so, same will be in violation of the rules. While it is true that the Sixth Schedule to the Constitution (para 2) while providing for constitution of District Council consisting of not more than 30 members of whom not more than 4 persons shall be nominated by the Governor and the rests shall be elected on the basis of adult suffrage and does not expressly debar the nominated members from the right to vote, but on a reference to the amendment of 2003 brought to para 2 on its application to the State of Assam, it is seen that while providing for constitution of the Bodoland Territorial Council (BTC) with the requisite number of members, in respect of 6 nominated members, it has been specifically provided that they shall have same rights and privileges as other member including voting rights. Had it been the intention of providing the same voting right atleast in the matter of no confidence motion, adequate provisions would have been made with clear indication.
34. Mr. Das, learned Counsel for the petitioner argued that such express provision for the 6 nominated members of the BTC has been made having regard to the diversities in the area comprising the territorial council with the representation of diverse communities. In this connection, he has referred to para 10 of the Sixth Schedule, which deals with the power of District Council to make regulations for the control of money lending and trading by non-tribals. Under para 10, the District Council may make regulations for the regulation and control of money lending or trading within the district by persons other than Scheduled Tribes resident in the district. As per the proviso to para 10(2) no regulations may be made unless they are passed by a majority of not less than three-fourths of the total membership of the District Council. Para 10 has been amended in 2003 providing that the same shall not apply to BTC. From this, it was emphasized that no inference can be drawn from the fact that the nominated members have not been given the voting right with express provision.
35. Above aspect of the matter need not detain on the issue in view of the findings arrived at in respect of the position, which has emerged on a reading of the relevant provisions of the rules. The decision on which Mr. Dutta, learned Counsel for the respondent No. 3 has placed reliance i.e. Ramesh Mehta (Supra) is in respect of the interpretation to the meaning of 'whole number of elected members' in reference to the Rajasthan Municipalities (Motion of No-confidence against Chairman or Vice Chairman) Rules, 1974. In that case, the appellant was elected as the Chairperson of the Municipal Board, which consisted of 20 elected members and 2 nominated members and one MLA (ex officio). Thus, the total number of members was 23. A no-confidence motion was moved against the Chairperson in which 15 members voted for the motion. The motion was conducted by the SDO according to whom the same stood carried out as the number of members of the Board, excluding the nominated members was 21 and 2/3 of 21 was 14, against which 15 members voted for the motion. According to the appellant the decision of the SDO was erroneous as the whole of number of members of the Board was 23 and not 21 as determined by the SDO and 2/3 of 23 being 15.33 the motion stood defeated. On a challenge to the decision the learned Single Judge of the Rajasthan High Court held that in counting the whole number of members, nominated members have also to be taken into account even though they had no right to vote. On appeal the Division Bench reversed the decision confirming the decision of the SDO and held that whole number of members would exclude nominated members.
36. Before the Apex Court, it was argued that the High Court erred in holding that the words whole number of members must be construed as whole number of elected members, while the contrary was argued on behalf of the respondents. The Apex Court upon a reference to the relevant provisions of the Act and Rules and Article 243R of the Constitution of India held that the expression whole number or total number connotes the total number of elected members. Although it was argued on behalf of the petitioner that this decision has no bearing with the case in hand in view of the fact that the proviso to Article 243R(2)(a) itself excludes the right to vote in respect of the persons nominated to the Municipality, it is the interpretation of the term whole number of members and the finding of the Apex Court that the same must be construed as whole number of elected members, which is material for the purpose of the issue involved in this case and the interpretation of the term Member in the context. On the basis of the discussions made above in reference to the rules, there is no escape from the interpretation that the nominated members do not have the voting right in the vote of confidence.
37. The decisions in Pu Myllai (Supra) and D. Uphing Meslai (Supra) have been pressed into service to bring home the point of argument that the Governor acted in variation of the mandates of para 20 BB of the Sixth Schedule to the Constitution in terms of which the Governor is entitled to discharge his functions envisaged therein only after consulting the Council of Ministers. The records have revealed that the Governor has issued the impugned notification after due consultation with the Minister of the concerned Department as well as the Chief Minister. In this connection, Mr. Dutta, learned Counsel for the respondent No. 3 has also referred to Article 163, 166 and 361 of the Constitution of India, to put emphasis that the procedure was duly followed.
38. The decision in Kuldip Nayar (Supra) has been pressed into service to put emphasis that there is no distinction between the elected and nominated members. This case has no application to the instant case. In this decision it has been pointed out that there is no difference in status between elected and nominated members of the Rajya Sabha except that the elected members can participate in the election of the President, whereas the nominated members cannot do so.
39. The impugned notification has been issued in reference to the rules indicated therein and also under para 20BB of the Sixth Schedule to the Constitution of India. From the materials on record and what has transpired from the file produced by the learned State Counsel, what has emerged is that after the withdrawal of support to the CEM by all the members of the ULP, although the Governor allowed him to continue as such and he also reconstituted the Executive Committee and claimed to have the support of the majority members which include the nominated members, a serious objection was raised to the same by the members of the ULP by submitting representations. This led to a threadbare discussion about the issue raised by moving the file with detail notes and eventually after routing the matter through the Minister of the concerned Department and the Chief Minister, the Governor took the impugned decision to remove the deadlock and that was also required of in the democratic setup. In the decision taken by the Governor, he has mentioned about the course of action for an appropriate solution and to establish, a constitutional body as the Executive Committee and to ensure the peoples trust in the MADC administration. In the course of such action adopted by him, he also consulted the Chief Minister heading the Council of Ministers.
40. In view of the above, I do not find any infirmity in the decision making process adopted by the Governor towards issuance of the impugned notification dated 28.11.2006. Even leaving aside the exercise of powers under para 20BB of the Sixth Schedule to the Constitution, even otherwise also the Governor is empowered under the rules to issue the impugned notification and for that matter to take the decision. Neither the CEM, nor the other nominated members have raised any grievance against the impugned notification. It is only the petitioner, one of the nominated members has raised the issue. This is precisely the reason as to why the learned Counsel for the respondent No. 3 expressed his doubt about the very purpose of filing the writ petition.
41. In view of the above findings, the objection relating to non-joinder of necessary party and/or suppression of material fact need not be gone into, although, such objections may have a bearing in adjudicating a writ petition. However, in the instant case, such objections need not detain us, having regard to the real controversy and the importance of the issue involved. The submissions made by the learned Counsel for the petitioner that the purported suppression can at best be omission and that the parties whom the learned Counsel for the respondent No. 3 projected as necessary parties can at best be proper parties is also worthy of consideration. However, all these, have given way to the real issue involved, and the same having been answered in the above manner need not be gone into in detail so as to return any finding.
42. This now leads us to the argument advanced that this Court once having held that there is nothing in the rules to indicate that the nominated members are debarred from voting, such finding is binding on this Court. At the first instance, the order passed in Misc. Case No. 264/2005 in WP(C) No. 139/2005 was an interim order and secondly, the Court itself did not arrive at any conclusive finding that the nominated members are entitled to vote in the vote of confidence. What was observed is that the learned Counsel for the petitioner in that case failed to show any provision in the rules debarring the nominated members from casting their Vote in the no-confidence motion. In the instant case, a finding has been arrived at upon a reference to the relevant rules on the basis of which the learned Counsel for the parties extensively argued. Thus I am of the considered opinion that the said interim order does not have any binding effect on this Court.
43. For all the aforesaid reasons, findings and conclusions, I am of the considered opinion that no interference is called for with the impugned notification dated 28.11.2006 and consequently the writ petition merits dismissal, which I accordingly do.
Writ petition is dismissed, leaving the parties to bear their own costs.