High Court
Case Details
WP(C) 6024/2013 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA THE HON’BLE MR. JUSTICE M.R. PATHAK JUDGEMENT AND ORDER (CAV) B.K. Sharma, J The 3 (three) petitioners are the elected members of 3 (three) autonomou s district councils in the State of Mizoram, namely, Mara Autonomous District C ouncil ; Lai Autonomous District Council and Chakma Autonomous District Council, constituted under Para 2 of the 6th Schedule to the Constitution of India. They were elected as such pursuant to the elections held in May, 2012; December, 201 0 and April, 2013 respectively. As members of the respective district councils, they have further been elected as Chairman, Chief Executive Member and Chief Exe cutive Member respectively of the said district councils. 2. The question for determination in this writ petition is as to whether th e petitioners hold any office of profit rendering them in-eligible or disqualifi ed from contesting the ensuing Assembly election in the State of Mizoram.
Decision
3. As per the rules framed under para 2 of the 6th Schedule to the Constitu tion of India, the district councils are body corporate having perpetual success ion and common seal. The members consisting of the said councils are required to be elected on the basis of adult suffrage with a provision of few members to be nominated by the Governor of the State. Under the rules, the elected members ar e not removable either by the Govt. of India or the Govt. of Mizoram. As stated in the writ petition, neither the Govt. of India nor the Govt. of Mizoram is hav ing any power to control the manner in which the duties of the members of the di strict council are to be performed nor there is any power vested with the Govern ment to given direction in that behalf. 4. The State of Mizoram obtained the state-hood on 20/02/1987 by way of ena ctment of the State of Mizoram Act, 1986. Prior to that, Mizoram was a Union Ter ritory. The Mizoram Legislative Assembly enacted the legislation for removal of certain disqualification for being chosen as and for being a member of the Mizor am Legislative Assembly which is called the Mizoram Union Territory Legislative Members (Removable of Disqualification) Act, 1975. Schedule 4 of the Act provide d that the office of the Chief Executive Member, Executive Member, Chairman, Vic e Chairman or Member of any Autonomous District Councils and the President, Vide President or Member of any Village Council constituted in Mizoram under any exi sting law or regulation shall not be treated as disqualification for being chose n as and for being a member of the Mizoram legislative Assembly. However, by a s ubsequent amendment called the Mizoram State Legislature Members (Removal of Dis qualification) (Amendment) Act, 2006, Schedule 4 stood deleted. For a ready refe rence, the relevant clause (Un-amended) are quoted below :- (cid:28)1. & & & & & &. 2. & & & & & &.. 3. & & & & & &. 4. The [office of the Chief Executive Member, Executive Member, Chairman], Vice- Chairman or Member of any Autonomous district Councils and the President, Vice-P resident or member of any Village Council constituted in Mizoram under any exist ing law or Regulation. 5. & & & & & & & & 6. & & & & & & & &. 7. & & & & & & & & 8. & & & & & & & & & 9. & & & & & & & & &. 10. & & & & & & & & & & (cid:29) 5. According to the petitioners, deletion of Clause 4 of the schedule to th e Act, of 1975 is un-reasonable, violative of Article 14 of the Constitution of India and also against the basic object and principle underlying in Article 191 (1) of the Constitution of India. It is the further case of the petitioners that they being not holders of any office of profit, they cannot be debarred from co ntesting the ensuing election scheduled to be held in the month of December, 201 3. Agitating their grievance in this respect, they had made Annexure - 6 represe ntation dated 20.9.2013 but the same having replied in the negative vide Anneuxr e-7 communication dated 25/9/2013, they have filed the instant writ petition. 6. According to Mr. Michael Zothankum, appearing along with Mr. A.D. Choudh ury, learned counsel for the petitioners, irrespective of deletion of clause 4 t o the schedule of the Act, the petitioners being not holders of any office of pr ofit contemplated in the context of earning disqualification for being chosen a s and for being a member of the MLA, the petitioners are entitled to contest the election while remaining as Member of the respective district council. In this connection, he has placed reliance on the decisions of the Apex Court reported i n (2001) 2 SCC 19 ( Pradyut Bordoloi Vs. Swapan Roy) ; (2001) 7 SCC 425 (Shibu Soren Vs. Dayanand Sahay and others) and (1986) 4 SCC 78 (Bhagawati Prasad Dixit Ghorewala Vs. Rajeev Gandhi). 7. Opposing the argument advanced by the learned counsel for the petitioner s, Mr. P. Pathak, learned senior counsel on the other hand submitted that clause -4 of the schedule having been deleted by bringing an amendment, the petitioners are not entitled to contest in the ensuing Assembly Election, they being holder s of Office of Profit. Referring to the Annexure-7 clarification issued by the J oint Chief Electoral Officer, Mizoram dated 25/09/2013, he submitted that the am endment having been brought purposefully to debar the candidates holding office of profit, the petitioners, unless they resign as members of the District Counci l, cannot contest the election. 8. Mr. D. Baruah, learned counsel representing the respondent No. 6 i.e. th e Election Commission of India placing reliance on the decision of the Apex Cour t as reported in (1992) 4 SCC 404 (Satrucharla Chandrasekhar Raju Vs. Vyricherla Pradeep Kumar Dev and another) submitted that unless the particular test relati ng to Office of Profit is clear, and / or passed by the petitioners, they cannot contest the election as members of the District Council. 9. We have given our anxious consideration to the submissions made by the l earned counsel for the parties and have also perused the entire materials on rec ord. Although, the writ petition was entertained by order dated 09/10/2013 but n one of the respondents have filed any counter affidavit. In the order dated 09/1 0/2013, the submission made by the learned counsel for the petitioners that in v iew of the Apex Court decision in Pradyut Bordoloi (Supra), a person holding an elected office being not removable by the Government cannot be held to be holdin g the Office of Profit under the Government. In the said decision, the Apex Cour t dealing with the phrase (cid:28)Office of Profit (cid:29) in the context of contesting an ele ction, held that the Government’s power to appoint and remove from the office is the prime test. In the aforesaid case, the respondent holding the post of a Clerk Grade- 10. I in Coal India Ltd., a company having 100% shareholding of the Government, was held to be not holding an Office of Profit and thus did not earn any disqualific ation under Section 10 of the Representation of the People Act, 1951. While answ ering the issue as to whether a person holds an office under the Government and the determinative factor thereof, the Apex Court held that the first and foremos t question to be asked is & & & &.Whether the Government has power to appoint and r emove the person on and from the office & & & & &.? If the answer is in the negativ e, no further inquiry is called for, the basic determinative test having failed. However, if the answer be a positive one, further probe is to go on in respect of the other factors pointed out in its earlier decisions. 11. In the instant case, it is nobody’s case that the petitioners are holder s of Office of Profit being conferred by the Government by appointing them as me mbers of the District Council and thereafter as Chairman and Chief Executive Mem ber. Both the positions earned by them are by virtue of elections, firstly, as m ember of the District Council and secondly as Chairman and Chief Executive Membe r. Thus, the answer to the basic question is in the negative. They have neither been appointed by the Government nor are removable from their offices by any int ervention of the Government. If that be so, they having passed the basic test ir respective of deletion of clause-4 of the schedule to the Act of 1975, in our co nsidered view, they are entitled to contest the election even without resigning from their present office as Member and Chairman /Chief Executive Member of the respective District Councils. 12. In Shibu Soren (Supra), dealing with the term (cid:28)Office of Profit (cid:29) and the interpretation thereof, the Apex Court referring to its earlier decision in (Sa trucharla Chandrasekhar Raju Vs. Vyricherla Pradeep Kumar Dev and another) repor ted in (1992) 4 SCC 404 emphasized on the determining factor on the question as to when can a person be said to be holding an Office of Profit (cid:28)Under the Govern ment (cid:29), in reference to the power of the Government to appoint a person in Office or to revoke his appointment at its discretion. The mere control of the Governm ent over the authority having the power to appoint, dismiss or control the worki ng of the Officer employed by such authority does not disqualify that Officer fr om being a candidate for election as a member of the Legislature. 13. In Rajeev Gandhi (Supra), the plea that a person becomes disqualified fo r membership of either house of Parliament in case he is in receipt of salary an d amongst payable to such member was held to be not tenable. 14. Mr. D. Baruah, learned counsel representing the Election Department has referred to the decision of the Apex Court in Satrucharla Chandrasekhar Raju (Su pra), more particularly, paragraph 18 and 32 thereof. In the said decision, the Apex Court recording the findings that the appellant was holding an Office of Pr ofit and emphasizing the need to bear in mind, the test in reference to Articles 102(1)(a) and 191(1)(a) of the Constitution of India, held that the most import ant requirement is whether the office is under the Government. It was held that while appreciating that aspect of the matter, it will have to be borne in mind t he object, namely, to avoid conflict between duty and interest and to eliminate the misuse of official position to advance private benefit and to avoid likeliho od of interference of the Government to promote personnel advantage. In the inst ant case, it is not the case of any one of the respondents that the petitioners as Members and Chairman /Chief Executive Member of the respective District Counc il are holders of Office under the Government and there is likelihood of conflic t between duty and interest and there is possibility of misuse of official posit ion to advance private benefit. 15. As specifically pleaded in the writ petition, the Rules for constitution and conduct of business of the District Council mandates that the Government ha s nothing to do in the election of the election of its Members. Moreover, being an elected Office, the Government has no power to remove the returned candidate of the District Council from its office nor the District Council Rules provide s uch powers to the Government. Looking the matter from that point of view, the im pugned amendment, if read in the context of debarment of the petitioners from co ntesting the Assembly Election, would be violative of Article 191 (1)(a) of the Constitution of India. 16. In the instant case, neither the Government of India nor the Government of Mizoram is the appointing authority of the petitioners. They are holding thei r respective office only by virtue of election by the electorate of the District Council constituted under Para 2 of the 6th Schedule of the Constitution of Ind ia. Neither the Government of India nor the Govt. of Mizoram is vested with the powers to terminate the office of the petitioners. As stated in the writ petitio n, the Executive, either of the Govt. of India or the State of Mizoram has any a uthority to determine the remuneration of the petitioners and their remuneration s are determined by way of Rules framed under Para 11 of the 6th Schedule of the Constitution of India. 17. During the course of hearing of the writ petition, the learned counsel f or the petitioner has drawn our attention to the Lai Autonomous District Council (Constitution and conduct of Business) Rules, 2001. Rule 11 of the said Rules s pecifically provides that subject to the provision contained in any law made und er Article 191 of the Constitution of India, no person shall be or continued to be simultaneously a Member of the District Council of two or more Autonomous Dis trict Council or a Member of the District Council and of the Mizoram Legislative Assembly (MLA). Referring to this provision, the learned counsel for the petiti oners submitted that once the petitioners are elected to the MLA, they will ceas e to be members of the District Council. Above being the position and not disputed by the official respondents ex 18. cept by the newly impleaded respondent i.e. the respondent No. 7, who is the pre sent Member of the MLA, 37th Lawngtlai, West Constituency, we are of the conside red opinion that irrespective of the amendment brought in 2006 (Annexure-5) to c lause 4 of the Act of 1975, the petitioners are entitled to contest in the ensui ng election and the reasons assigned in the impugned communication dated 25/09/2 013 (Annexure-7) is not sustainable in law. Consequently, the petitioners will b e entitled to contest in the ensuing election slated to be held in the State of Mizoram, for which last date of submission of nomination is 08/11/2013. 19. Writ petition is allowed. There shall be no order as to costs.