High Court · 2012

ituted, namely:- (cid:28)(1) There shall be a District Council for each autonomous district consisting o f not more than thirty members, of whom not more than four persons shall be nomi nated by the Governor and the rest shall be elected on the basis of adult suffra ge. (cid:29); (ii) (a) ls (cid:29) shall be substituted; (b) In clause (g), after the words (cid:28)conduct of business (cid:28), the brackets and words (cid:28)(including the power to act notwithstanding any vacancy) (cid:29) shall be insert ed; (iii) namely:- (cid:28)(6A) The elected members of the District Council shall hold office for a term o f five years from the date appointed for the first meeting of the Council after the general elections to the Council, unless the District Council is sooner diss olved under paragraph 16 and a nominated member shall hold office at the pleasur after sub-paragraph (6), the following sub-paragraph shall be inserted, e of the Governor: Provided that the said period of five years may, while a Proclamation of Emergen cy is in operation or if circumstances exist which, in the opinion of the Govern or, render the holding of elections impracticable, be extended by the Governor f or a period not exceeding one year at a time and in any case where a Proclamatio n of Emergency is in operation not extending beyond a period of six months after the Proclamation has ceased to operate: Provided further that a member elected to fill a casual vacancy shall hold offic e only for the remainder of the term of office of the member whom he replaces. (cid:29); in sub-paragraph (7) - (iv) (a) after the words (cid:28)make rules (cid:29), where they first occur, the words (cid:28)with th e approval of the Governor (cid:29) shall be inserted, and where they occur a second tim e, the words (cid:28) with like approval (cid:29) shall be inserted; the second proviso shall be omitted. (cid:29) (b)

5. With the omission of the second proviso to sub-paragraph (7) of paragraph 2 of the Sixth Schedule to the Constitution w.e.f. 02.04.1970, the sai d power of the Deputy Commissioner or the Sub-Divisional Officer stands repealed . With the repeal of the said second proviso as stated, the Rule 32(1) of the Rules of 1951 acquired a paramount position. 6. For elucidation, the said Rules 10(1), 10(2), 12(1), 12(2), 32(1 ), 32(4), 32(6), 33(1) and 33(2) of the Rules of 1951 are reproduced hereunder a s those provisions would be in the interplay. (cid:28)10(1) There shall be a Chairman and a Deputy Chairman of the District Council, who shall be elected by the District Council in manner provided in rules 32 and 33. 10(2) The Deputy Commissioner or the Sub-divisional Officer, as the ca se may be of the Mikir Hills and the North Cachar Hills shall be the Chairman ex -officio of the respective District Council as provided in the second proviso to sub-paragraph (7) of paragraph 2 of the Sixth Schedule to the Constitution. (cid:29) (cid:28)12(1) While the office of the Chairman is vacant, the duties of the office sha ll be performed by the Deputy Chairman or, if the office of the Deputy Chairman is also vacant by such member of the District Council as the Governor may appoin t for the purpose. 12(2) During the absence of the Chairman for any sitting of the Distri ct Council the Deputy Chairman or, if he is also absent, a member of the Council nominated for the purpose in accordance with rule 34 shall act as Chairman. (cid:29) When at the beginning of the new District Council or owing to th (cid:28)32(1) e vacancy in the office of the Chairman the election of a Chairman is necessary, the Governor shall fix a date for the holding of the election and the Deputy Co mmissioner or the Secretary of the District Council, as the case may be, shall s end to every member notice of the date so fixed. 32(4) The Deputy Commissioner or any officer authorised by him in this behalf shall preside over the first meeting of the District Council constituted under these rules pending the election of a Chairman and he shall read out to t he Council the names of the members who have been duly nominated for election as Chairman together with those of the proposers and seconders and if only one mem ber has been so nominated, shall declare that member to be elected. If more than one member has been so nominated, the council shall declare that member to be e lected. If more than one member has been so nominated, the Council shall proceed to elect a Chairman by ballot. 32(6) e person presiding shall select the Chairman by drawing lots. (cid:29) (cid:28)33(1) When either at the beginning of the new District Council or owing to the Where two or more candidates obtain an equal number of votes, th existence of any vacancy in the office of the Deputy Chairman at any time durin g the life of the District Council the election of the Deputy Chairman is necess ary, the Chairman shall fix a date for the holding of the election and the Secre tary of the Council shall send to every member notices of the date so fixed. 33(2) The procedure for the election of the Deputy Chairman shall be t he same as that for the election of the Chairman as provided for in rule 32, exc ept that the meeting for the election of the Deputy Chairman shall be presided o ver by the Chairman. (cid:29)

7. On resignation of Sri Depolal Hojai, the erstwhile Chairman of t he Dima Hasao Autonomous Council w.e.f. 28.11.2011, the office of the Chairman f ell vacant. The Govt. of Assam, in the Hill Areas Department (Respondent No. 2) by notification bearing No.HAD.340/2011/8 dated 08.02.2012 in exercise of pow er under Rule 32(1) read with Rule 36(1),(5) of the said Rules of 1951 authorise d the Deputy Commissioner of the Dima Hasao District (Respondent No.5) to conven e the session of the District Council to elect a new Chairman of the said Autono mous District Council, Haflong. As per notification, the date of election was fi xed on 15.02.2012 to elect the new Chairman, as would be apparent from the Notic e under Memo No.L-SS/3/2011-12/5 dated 10.02.2012 as issued by the Secretary, Di ma Hasao Autonomous Council, Haflong. The Secretary of the Dima Hasao Autonomous Council, Haflong, by 8. its Legislative Department requested he Principal Secretary to the Govt. of Assa m, Hill Areas Department, Guwahati (respondent No.2) vide letter No.L-SS/3/2011- 12/3 dated 09.02.2012 to modify the notification dated 08.02.2012 (Annexure-1 to the writ petition) holding that as per Rule 32(4) of the Rules of 1951, the Dep uty Commissioner convenes and conducts/presides the first meeting of the newly e lected Council not for the election of the Chairman when necessitated on resigna tion of the erstwhile Chairman. The said letter of the Autonomous Council dated 09.02.2012 is available at Annexure-2 to the writ petition. 9. In response to the said Annexure-2 letter, the Governor of Assam, throug h the Principal Secretary to the Govt. of Assam, Hill Areas Department, by Notif ication No.HAD.340/2011/9 dated 10.02.2012, apprised the Deputy Chairman, Dima H asao Autonomous Council, Haflong that the Notification dated 08.02.2012 issued b y the Hill Areas Department stood modified to the extent as under : (cid:28)In pursuance of the Governor’s Secretariat, Government of Assam reference No.GS A.92/2011/23 dated 01-02-2012, His Excellency the Governor of Assam is pleased t o fix a date on 14th or 15th of February,2012 to elect the new Chairman of Dima Hasao Autonomous Council, Haflong, in accordance with the rules and provisions o f Assam Autonomous District (Constitution of District Councils) Rules 1951. (cid:29) The said communication dated 10.02.2012 is at Annexure-3 to the writ petition. 10. The impugned letter bearing No.HAD.340.2011/18 dated 10.02.2012 as issued by the Under Secretary to the Govt. of Assam, Hill Areas Department, w as also received by the Secretary, Legislative Department of the said Autonomous Council, wherein the views of the Judicial Department, Govt. of Assam was extra cted with a direction to take necessary action in accordance with the views of t he Judicial Department. The views of the Judicial Department, Govt. of Assam are usefully reproduced hereunder. (cid:28)It appears that as per Rule 10(2) of the Assam Autonomous Districts (Constituti on of District Councils) Rules,1951 as amended, the Deputy Commissioner concerne d is the Ex-officio Chairman of the Dima Hasao Autonomous District Council. Whil e as per Rule 10(1) thereof, the Election of Chairman of a District Council is g overned by Rule 32 of the aforesaid Rules. On a conjoint reading of Rule 32(1), 32(4), 32(6) and Rule 33(2) of the aforesaid 1951 Rules, the intent discernible is that even the meeting, other than the first meeting of the Council, for the p urpose of filling up vacancy of/holding election of Chairman shall be presided o ver by the Deputy Commissioner or any Officer authorized by him. The Department may act accordingly. (cid:29)

11. On receipt of the said communication dated 10.02.2012 (Annexure- 4 to the writ petition), the Secretary of the Autonomous Council addressed the P rincipal Secretary to the Hon’ble Governor of Assam by a communication under No. L-SS/3/2011-12/4 dated 11.02.2012 (Annexure-5 to the writ petition) by giving in terpretation of the Rules of 1951 and illustrating incidence of practice : (cid:28)Further still, during the election of the Chairman of Karbi Anglong owing to th e resignation of the then Chairman, Sri Joyram Engleng, the session of election of Chairman was presided over by the then Deputy Chairman (cid:29). In other words, by the said communication dated 11.02.2012, the power of the Deputy Commissioner after the ’first meeting’ was seriously put under chall enge. Since the petitioner was apprehending that the conflict of opinions betwee n the Govt. of Assam and the Autonomous Council would lead to an impasse jeopard ing the interest of the Autonomous District Council, he filed this writ petition seeking intervention of this court and for holding that the views of the Judici al Department as contained in the communication dated 10.02.2012 (Annexure-4 to the writ petition) is not binding on the Autonomous Council and directing the Di ma Hasao Autonomous Council to forbear from following the said views which stand s de hors the correct position of law. As corollary to the said prayer, an addit ional relief has been sought in the writ petition to the effect that the said De puty Commissioner of the Dima Hasao District shall forbear, refrain, restrain to preside over the session scheduled to be convened on 15.02.2012 for the purpose of electing the Chairman of the said Autonomous Council.

12. Mr. P.K. Goswami, learned senior counsel appearing for the petit ioner submits that the views as expressed by the Judicial Department, Govt. of A ssam cannot have any foothold in view of the repeal as carried out by the Act of 1969 as stated above. The learned senior counsel quite emphatically submitted t hat the Autonomous Council has got the convention to elect a Chairman in a sessi on chaired by the Deputy Chairman in the ’first meeting’. To buttress the said c ontention, he referred to Annexure-6, which is the minutes of the 91st Session o f the North Cachar Hills District held on 27.09.1974, wherein it is found that t he Deputy Chairman, namely Namteubui Jame presided over the Council meeting for electing the Chairman of the District Council. He also referred to another Speci al Session for electing the Chairman of Dima Hasao Autonomous Council as held on 19.05.2010, wherefrom it is found that the Deputy Chairman, namely Donpainon Th aosen had presided over the said meeting and conducted the said session for elec tion of the new Chairman. Learned senior counsel for the petitioner further cont ended that on conjoint reading of both Rule 12(1) and Rule 32(4) of the Rules of 1951 would amply demonstrate that the power vested on the Deputy Commissioner i n terms of Rule 32(4) is limited to conducting the ’first meeting’ only. The ter m ’vacancy’ as occurring in Rule 32(1) is distinct and qualified and not at vari ance with the term ’vacant’ as appearing at Rule 12(1) of the said Rules of 1951 . The provision of Rule 12(1) refers to a short-lived situation and a transition al measure. Rule 32(4) limits the authority of the Deputy Commissioner to presid e over to the first meeting of the Autonomous Council. The said views expressed by the Judicial Department, Govt. of Assam are display of total non-application of mind and as such, such views are required to be discarded by this court to se t the law in its correct position. 13. Mr. Goswami, learned senior counsel, referring to Rules 12(1) an d 12(2) of the Rule of 1951, would contend that while the office of the Chairman falls vacant, the duties of the office shall be performed by the Deputy Chairma n or, if the office of the Deputy Chairman also falls vacant by such member of t he District Council as the Governor may appoint for the purpose; and that during the absence of the Chairman from any sitting of the District Council the Deput y Chairman or, if he is also absent, a member of the Council nominated for the p urpose in accordance with Rule 34 shall act as Chairman. 14. On the springboard of those provisions, Mr. Goswami, learned sen ior counsel for the petitioner made a very serious attempt to illustrate that ’i n absence of the Chairman’ cannot be given a narrow interpretation. ’In absence of the Chairman’ shall also include the vacancy created by resignation, disquali fication or death of the Chairman. As such in the Special Session which would be convened for the purpose of electing a new Chairman for the remaining term of t he Autonomous Council, the Deputy Chairman shall preside the Session as the Chai rman In-charge.

15. Mr. K.R. Surana, learned Standing Counsel for the Dima Hasao Aut onomous Council, supported the submission of Mr. P.K. Goswami, learned senior co unsel appearing for the petitioner. On the other hand, Mr. N. Mohhamad, learned Govt. Advocate appea 16. ring for the State-respondents submits that the Deputy Commissioner of the Auton omous District has got sufficient authority to preside the Special Session of th e Autonomous Council as per provisions of Rule 10(2) read with Rule 32(4) of the Rules of 1951 as amended. The learned Govt. Advocate stoutly defended the views given by the Judicial Department, Govt. of Assam, though he could not provide a ny reasonable explanation in regard to the effect of the repeal of the second pr oviso to sub-paragraph (7) of paragraph 2 of the Sixth Schedule to the Constitut ion. Rather he echoed the impugned views of the Judicial Department, Govt. of As sam on the provision of Rule 32(4), where it has been provided that (cid:28)the Deputy Commissioner or any officer authorised by him in this behalf shall preside over the first meeting of the District Council constituted under these rules pending the election of a Chairman and he shall read out to the Council the names of th e members who have been duly nominated for election as Chairman together with th ose of the proposers and seconders and if only one member has been so nominated, shall declare that member to be elected. (cid:29) The learned Govt. Advocate contended that the ’first meeting’ cannot be given a narrow interpretation. It should be inclusive, pervading all meetings for election of the Chairman. 17. On consensus and on consideration of the urgency attached to the subject matter, this court decided to take up the matter for final disposal.

18. It appeared to the court that the entire controversy centred aro und as to whether the Deputy Commissioner of the District Council has got any au thority to preside over the meeting beyond the ’first meeting’ of the Autonomous Council or not. In this context, it would be apposite to consider what is the m eaning and purport of the ’first meeting’. The legislature consciously grafted the clause ’first meeting’ 19. to restrict the role of the Deputy Commissioner of the Autonomous Council so tha t the Deputy Commissioner of the Autonomous Council can in no manner over-shadow the autonomy of the District Council. For that reason, this court would like to look back at the statement of objects and reasons which prefaced the Act of 196 9. For the purpose of repeal of the second proviso to sub-paragraph (7) of parag raph 2 of the Sixth Schedule to the Constitution, the part which is relevant in the said statement of objects and reasons is available at paragraph-3, which is reproduced hereunder : (cid:28)3. ill contains provisions for the amendment of the Sixth Schedule to the Constitut ion in order to improve the procedures of the District Councils and make them fu nction efficiently. (cid:29) As indicated in the re-organisation scheme, the Fourth Schedule to the B As such, the omission of the said second proviso is purposive to curb the role of the Deputy Commissioner of the said Autonomous District and to make the District Council function efficiently and without any extraneous influ ence, not commensurate to the concept of ’autonomy’ as provided in the Article 2 44 A of the Constitution of India. 20. When the purpose of amendment is apparent on the statement and o bjects, it would be highly improper to travel beyond and any interpretation cont rary thereto would frustrate the very purpose of the said Amendment Act. The aut onomy of the District Council having acquired paramount importance, the role and function of the Deputy Commissioner, Autonomous Council should be relegated to the ’first meeting ’ as convened after the general election of the said District Council and not beyond.

21. Since the provisions of Rule 12(1) of the Rules of 1951 provides without shred of ambiguity that while the office of the Chairman is vacant, ’th e duties of the office’ shall be performed by the Deputy Chairman. ’While the of fice of the Chairman is vacant’ can not be otherwise interpreted save and except what the clause ordinarily means. If the provisions of Rules 12(1) and 34(4) of the Rules of 1951 are conjointly read, no person acquainted with the general ca nons of interpretation would arrive at the views as arrived by the Judicial Depa rtment, Govt. of Assam, as embodied in the communication dated 10.02.2012 (Anneu re-4 to the writ petition). Moreover, it appears that the authority of the Deput y Chairman had fallen for consideration on the previous occasions also and the D eputy Chairman was allowed to preside over the Special Session of the District C ouncil for electing the new Chairman against the vacancy created by resignation of the erstwhile Chairman. Even if the previous incidence of pactice is not cons idered as the convention, this court is of the view that in absence of any expre ss provision in the Rules of 1951 regarding election of new Chairman against the vacancy which falls for resignation of the erstwhile Chairman, the only interpr etation that is harmonious to the object and the scheme of the Sixth Schedule an d to the object of the said Amendment Act of 1969 is that the Deputy Chairman sh all preside over the Special Session for electing the new Chairman. 22. Apart that, a close reading of Rule 32(1) of the Rules of 1951 w ould add further steam to the said interpretation. The clause ’when at the begin ning of the District Council’ is disjointed by ’or’ and thereafter the other cla use ’owing to the vacancy in the office of the Chairman’ is placed and qualified by the clauses ’the Deputy Commissioner or the Secretary of the District Counci l’ as the case may be, shall send to every member notice of the date so fixed. T wo situations have been put together- (1) when at the beginning and (2) when owi ng to the vacancy. In the first situation the Deputy Commissioner shall send to every member notice of the date so fixed by the Governor and in the second situa tion the Secretary of the District Council shall send to every member notice of the date so fixed by the Governor. It is clear negation of the role of the Deput y Commissioner beyond the first meeting ’at the beginning of the District Counci l’. The interim measure as indicated shall operate in the short lived situation where the Deputy Chairman shall perform all the duties of the Chairman including presiding over the special session for electing the new Chairman for the Counci l. Unless this interpretation is embraced, provisions of Rule 12(2) of the Rules of 1951 as extracted herein would be otiose. The said Rule 12(2) without any am biguity provides that ’during absence’ of the Chairman for any sitting of Distri ct Council, the Deputy Chairman ’shall act as the Chairman’ save and except as p rovided in the Rule 13 of the Rules of 1951. 23. Situated thus, the views of the Judicial Department, Govt. of As sam as embodied in the said Notification dated 10.02.2012 (Annexure-4 to the wri t petition) is interfered with and held that those views cannot sustain in law. As such, the Special Council meeting which is scheduled to be held on 15.02.2012 for election of a new Chairman, shall be allowed to be held as per the schedule provided in the Memorandum dated 10.02.2012, which is marked as Annexure-’X ’ a nd kept in the file having been produced by the learned Standing Counsel, Dima H asao Autonomous Council, under the chairmanship of the Deputy Chairman of Dima H asao Autonomous Council, Haflong and the Deputy Commissioner shall forbear from interfering with the said meeting. 24. nd allowed. No order as to costs. With this observation and direction, the writ petition shall sta