IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH) SHILLONG BENCH W.P. (C) No. 330 (SH) of 2010 1. Shri Roynath D Sangma Elected from 18 Batabari GDC Constitutency R/o Village Bangranggre PO Masangpani West Garo Hills, District 2. Shri Boston Ch Marak Elected from 12 Nogorpara GDC Constituency R/o Najing Bazar PO Araimile, Tura West Garo Hills District 3. Shri Ranjit Rabha Elected from 21 Naguapara GDC Constituency R/o Village Odalguri PO Tikrikilla West Garo Hills District 4. Shri Silgra Marak Elected from 6 Barengapara GDC Constituency R/o Village Koinadubi PO Barengapara West Garo Hills District 5. Shri Kredithson Ch Marak Elected from 16-Asanang GDC Constituency R/o Village Goramara PO Garobadha West Garo Hills District 6. Shri Orlendro R Marak Elected from 5-Gasuapara GDC Constituency R/o Village Sempara PO Gasuapara South Garo Hills District 7. Shri Larson N Sangma Elected from 11-Boldamgre GDC Constituency R/o Village Bainapara PO Betasing West Garo Hills District 2 8. Shri Purno K Sangma Elected from 22-Jengjal GDC Constituency R/o GDC Quarter No. 2, Hawakhana, Tura West Garo Hills District 9. Shri Dipul R Marak Elected from 15-Rochonpara GDC Constituency R/o Village and PO Garobadha West Garo Hills District 10. Shri Locksley Robinhood Cheran Momin Elected from 9-Tura GDC Constituency R/o GDC Quarter No. 1 Hawakhana Tura West Garo Hills District 11. Shri Denang T Sangma Elected from 29-Williamnagar GDC Constitutency R/o Balsrigitim PO Williamnagar East Garo Hills District 12. Shri Widnald D Marak Elected from 8-Amongpara GDC Constituency R/o Village Danakgre PO Tura-Araimile West Garo Hills District 13. Shri Willy D Shira Elected from 4-Rongrikkimgre GDC Constituency R/o Village & PO Gangganggre South Garo Hills District 14. Shri Sengbath R Marak Elected from 3-Silkigre GDC Constituency R/o Village & PO Sibbari South Garo Hills District 15. Shri Cherak W Momin Elected from 26-Karkutta GDC Constituency R/o Village Chotcholja PO Karmutta East Garo Hills District 3 16. Shri Sukharam K Sangma Elected from 23-Rongrong GDC Constituency R/o Tura RC Road PO Lower Chandmari Tura , West Garo Hills District 17. Shri Lahitson M Sangma Elected from 27-Samandagre GDC Constituency R/o Village Rongreng-Baija PO Rongrengre East Garo Hills District 18. Shri Freederson N Sangma Elected from 2-Wagesik GDC Constituency R/o Bolsal Ading PO Baghmara South Garo Hills District :: Petitioners Versus 1. State of Meghalaya represented by the Principal Secretary to the Govt. of Meghalaya, District Council Affairs Department, Shillong. 2. Deputy Commissioner, West Garo Hills District and Administrator, Garo Hills Autonomous District Council at Tura 3. Garo Hills Autonomous District Council, represented by its Secretary to the Executive Committee, Tura :::: Respondents BEFORE THE HON’BLE MR JUSTICE T VAIPHEI For the Petitioners ::: Mr AM Mazumdar, Sr Adv Mr SS Dey, Ms SG Momin, Advs For the Respondents ::: Mr KS Kynjing, Addl AG, Megh Mr ND Chullai, Sr GA Megh Mr S Dey, SC, GHADC Date of hearing ::: 25.10.2010 Date of judgment ::: 16.11.2010 4 JUDGMENT AND ORDER The legality of the Notification dated 17-9-2010 issued by the Governor of Meghalaya, in exercise of his powers under sub- paragraph (2) of Paragraph 16 of the Sixth Schedule to the Constitution of India, extending his rule (“Governor’s Rule”) in the Garo Hills Autonomous District Council by another six months w.e.f. 1st October, 2010, unless terminated earlier or extended further. This Notification was preceded by the Notification dated 1-4-2010 whereby the Governor had been satisfied, on the basis of the reports received by him, that changes of allegiance of the Members of Garo Hills District Council (“MDCs” for short) and the non-compliance of his orders, had made the functioning of the Council untenable, which resulted in a situation where the administration of the Garo Hills Autonomous District Council (“the District Council” for short) could not be carried on in accordance with the provisions of the Constitution of India and had, therefore, in exercise of the powers conferred on him by sub-paragraph (2) of Paragraph 16 of the Constitution of India, assumed to himself the administration of the District Council and all the functions and powers vested in or exercisable by the same, etc. The relevant portions of the impugned notifications dated 1st April, 2010 and dated 17-9-2010 run thus: “GOVERNMENT OF MEGHALAYA DISTRICT COUNCIL AFFAIRS DEPARTMENT ORDERS BY THE GOVERNOR NOTIFICATION Dated Shillong the 1st April, 1020. 5 No. DCA.18/2004/Pt/80:- Whereas the Governor of Meghalaya has received reports that changes of allegiance of the Members of the Garo Hills District Council are taking place and Orders of the Governor have not been complied with, which has made the function of the Council untenable and is satisfied that this has resulted in a situation where the administration of the Garo Hills Autonomous District Council cannot be carried on in accordance with the provisions of the Sixth Schedule to the Constitution of India. Now, therefore, the Governor of Meghalaya in exercise of the powers conferred by sub-paragraph (2) of Paragraph 16 of the Sixth Schedule to the Constitution of India is pleased:- a) To assume to himself the administration of the said Autonomous District and all functions and powers vested in or exercisable by the Garo Hills Autonomous District Council; b) To declare that all functions and powers vested in or exercisable by the Executive Committee, Chief Executive Member, Deputy Chief Executive Member, Chairman, Deputy Chairman and Executive Members of the aforesaid District Council under the Sixth Schedule or any law in force in the said District, shall, subject to his superintendence, direction and control, be exercisable by officers of the State Government and/or by such person or authority as the Government may, by notification appoint in this behalf and that the Chairman and the Deputy Chairman, of the said District Council shall during the period of assumption of the administration of the District Council by the Governor to himself under this Order, cease to exercise the functions and powers aforesaid. 6 c) To direct that during the period of operation of this Order:- i.No sitting of the District Council shall unless so directed by the Governor be called, held or convened at any time during the said period; ii.All references to in the Sixth Schedule or in any laws, regulations or orders to the “District Council” shall in relation to the said district in so far as it relates to the functions and powers vested in or exercisable by the District Council be construed, unless the context otherwise requires, as references to the “Governor of Meghalaya” and references in any laws, rules and regulations or orders in force in that District to the “Executive Committee”, “Chief Executive Member”, “Chairman, “Deputy Chief Executive Member”, “Deputy Chairman” and “Executive Member” be construed unless the context otherwise requires as references to such officer, person or authority referred to in paragraph (b) of this order. This order shall take immediate effect and shall, unless terminated or extended further, remain in force for a period of six months. 7 Sd/- C./D. Kynjing Principal Secretary to the Govt. of Meghalaya,District Council Affairs Department. GOVERNMENT OF MEGHALAYA DISTRICT COUNCIL AFFAIRS DEPARTMENT ORDERS BY THE GOVERNOR NOTIFICATION Dated Shillong, the 17th Sept., 2010. No.DCA.18/2004/Pt/141:- Whereas the Governor of Meghalaya, in exercise of the powers conferred by sub- paragraph (2) of Paragraph 16 of the Sixth Schedule to the Constitution of India, has assumed to himself the administration of the Garo Hills Autonomous District vide order published by Government Notification No. DCA.18/2004/Pt/80 dated Shillong, the 1st April, 2010. And, whereas the period of six months that the said order would remain in force will expire on 30th September, 2010; Now, therefore, the Governor of Meghalaya in exercise of the powers conferred by proviso to sub- paragra (2) of paragraph 16 of the Sixth Schedule to the Constitution of India is pleased to extend the operation of the said initial order by a period of six months w.e.f. 1st October, 2010, unless terminated earlier or extended further. Sd/-(F. Kharlyingdoh) Secretary to the Govt. of Meghalaya District Council Affairs Department.” 2. Before proceeding further, the material facts leading to the filing of this writ petition may be briefly noticed. The petitioners numbering 19 of them were elected as Members of the said District 8 Council together with the other MDCs in the election held on 12-2- 2009. The District Council has the total strength of 30 Members out of which 29 are elected Members with one seat to be filled up by a nominated Member, and has a term of five years with effect from the date of the first meeting of the District Council after the general election. The first meeting of the newly constituted House of the District Council was held on 18-2-2009. The genesis of this case starts with the Notification dated 30-3-2010 issued by the Governor, who, in exercise of the powers conferred upon him under Rule 36(5) of the Assam and Meghalaya Autonomous Districts (Constitution of District Councils) Rules, 1951 (“the Rules” for short), summoned a special session of the District Council to meet on 31-3-2010 at 10.30 AM for proving the majority of the Executive Committee on the floor of the House. It is the case of the petitioners that at that particular period of time, the House was already in session as it was discussing and considering the budget proposals, and there was, therefore, absolutely no necessity for convening a special session of the House and that the Notification dated 30-3-2010 is ex facie, arbitrary, unreasonable and is a product of utter non-application of mind. Notwithstanding the unwarranted summons, claims the petitioners, the then Chairman of the Council promptly convened the special session on 30-3-2010 and sent his report to the Governor on 30-3- 2010 revealing therein the support of majority of 16 Members in a House of 30 Members in favour of the Executive Committee headed by Mr. P.K. Sangma vide his letter dated 30-3-2010. 3. It is the further case of the petitioners that the real facts and circumstances working behind the issue of the aforesaid dated 9 30-3-2010 in the name of the Governor became public when a caveat in respect of the aforesaid Notification was lodged in this Court. Thereafter, the Governor issued the said Notification dated 1-4-2010 imposing “Governor’s Rule” in the Council and took over the administration of, and assumed the power of, the District Council by himself. This Notification was followed by another Notification dated 1-4-2010 of the Governor appointing Deputy Commissioner of West Garo Hills District (respondent 2) to exercise all the functions and powers exercisable by the authorities of the District Council as per his directions issued from time to time. By the impugned Notification, the life of the Governor’s Rule came to be extended by another six months w.e.f. 1-10-2010. According to the petitioners, at any given date since the date of the first meeting of the Council, the Members of the District Council owing allegiance to the Nationalist Congress Party (NCP) consisting of the petitioners had enjoyed an overwhelming majority in the District Council, and even on the date of filing of the writ petition, the petitioners have 18 Members in a House of 29 Members: the seat of the nominated Member has become vacant on the withdrawal of the nomination of Smt. Ethel Witty Ch. Marak. Aggrieved by the action of the Governor, the majority Members of the District Council jointly submitted a memorandum to him on 8-5-2010 for revoking the Notification dated 1-4-2010 and for restoring the Executive Committee headed by Shri P.K. Sangma as the Chief Executive Member of the Council. This was followed by their memorandum to the Minister of the District Council Affairs. These together with their other representations to the State-respondents did not evoke positive response. They even claim to have paraded themselves en bloc before the Governor to demonstrate their majority 10 in the House but to no avail. This ultimately promoted them to file this writ petition. 4. The writ petition is contested by the State-respondents, who have now filed their affidavit-in-opposition. They deny that the writ petitioners have the support of majority in the House, but admit that the nomination of Mrs. Ethel Witty Ch. Marak was withdrawn by the Governor. According to them, the State Government, after having examined the petition as submitted by 16 members but only signed 15 Members of the Council, in the best interest of democratic norms and taking into consideration the norm and practices in this regard, recommended to the Governor for convening a special session under Rule 36(5) of the Rules for proving majority by the then Executive Committee on the floor of the House. This was, as already noticed, done by the Governor, who had authorized the Chairman of the Council to preside over the special session. It is further stated by the answering respondents that in response to the said notification, the Chairman of the Council submitted the letter dated 30-3-2010 to the Governor seeking clarification of his order by indicating therein that the Council had already been in session and that 16 Members had been supporting the Executive Committee: the Chairman should have complied with the direction of the Governor to prove majority by the Executive Committee on the floor of the House on 31-3-2010, but he refused to do so. The State-respondents, on receipt of the information that the re-convening of the meeting of the Council, which had earlier been adjourned sine dine on 26-3-2010, was done hurriedly on 20-3- 2010. The order of the Governor, it is further claimed by the answering respondents, was ignored by the Chairman of the Council, 11 and democratic norms had not been followed inasmuch as 4 Members were not allowed to cast their votes, which is in violation of the spirit of the Sixth Schedule and the Rules framed thereunder: this can be seen from the proceedings of the House dated 30-3-2010. It is contended by the answering respondents that the aforesaid circumstances left the Governor with no option but to take over the administration of the Council by invoking the provisions of sub- paragraph 2 of paragraph 16 of the Sixth Schedule to the Constitution of India and to appoint the respondent No. 2 as the administrator of the Council. 5. It is the further case of the answering respondents that they received the petition dated 8-5-2010 from a group of Nationalist Congress Party-led alliance under the leadership of Shri P.K. Sangma and 16 other Members requesting the Governor for installation of a popular rule in the District Council and also to revoke the Notification dated 1-4-2010 and that another petition dated 21-5-2010 was also received from 15 Members of the Indian National Congress-led alliance under the leadership of Besterfield N. Sangma for installation of popular rule in the Council. Subsequently, another petition dated 23-8-2010 was received wherein it was requested to install a popularly elected Executive Committee in the District Council. This group was formed under the leadership of the writ petitioner (?) who claimed to have the majority and also for installing a popular Executive Committee in the District Council. This, according to the answering respondents, imply that there was horse trading for formation of the Executive Committee. In the meantime, they received reports on the irregularities in the District Council, which needs to be 12 investigated. A fair investigation cannot be held unless there is a free and fair environment for holding the same and, more so, where there is claim and counter-claim for popular rule. Considering all these aspects into consideration, the Cabinet recommended the extension of the Governor’s Rule by another 6 months and also that a Commission of Enquiry be constituted under paragraph 14 of the Sixth Schedule to the Constitution. According to the answering respondents, it was brought to their notice that the Council could not pay the salary of their staff for 6 months, and these irregularities have taken place with the consent and approval of the then Executive Committee. It is also alleged by the State-respondents that the Mining & Geology Department released Rs. 5,29,28,241/- during 2009-10 while Forest and Environment Department and the Transport Department released Rs. 1,73,22,867/- and Rs. 49,99,883/- respectively during 2009-10 in their attempts to solve the problems. The Mining & Geology Department has also released Rs. 3 crores being the share of the Garo Hills District Council during the year 2010-11. It is also pointed out by the answering respondents that in exercise of the power conferred under paragraph 14 of the Sixth Schedule to the Constitution, the Governor has constituted a Commission of Inquiry to inquire into and report on the affairs and the prevailing situation in the administration of the Garo Hills District Council. These are the sum and substance of the case of the State-respondents. 6. Unfolding his arguments, Mr. S.S. Dey, the learned counsel for the petitioners, firstly contends that the impugned notification dated 1-4-2010 proclaiming Governor’s Rule in the District Council on the ground of reports of changes of allegiance of 13 Members of the Council taking place, even assuming without admitting such allegations to be true, is bad in law and is not contemplated by, and is a gross abuse of, the constitutional scheme under paragraph 16(2) of the Sixth Schedule to the Constitution: the constitutional scheme does not visualize a purely party based polity. In fact, so submits the learned counsel, the application or extension of the principles of the Tenth Schedule to the Constitution banning defection has been held to be impermissible by the Division Bench of this Court, which was not interfered with by the Apex Court in the special leave petition filed thereagainst. He next contends that the convening of the special session directed by the Governor purportedly in exercise of the power conferred by Rule 36(5) of the Rules when the House was already in session not being sanctioned by, and is unknown to, law, the non-compliance with such an order cannot entail penal consequence and as there was no breach of constitutional system, the invoking of the powers under paragraph 16(2) of the Sixth Schedule is unjustified and unwarranted. He maintains that the impugned orders have been issued to keep MDCs owing allegiance to the NCP out of power and to ensure successful horse trading at the instance and support of the ruling power in the State of Meghalaya: the impugned orders are, therefore, vitiated by mala fides and are evidently a colourable exercise of power, which cannot be sustained in law. He also contends that as the grounds for issuing the first impugned order dated 1-4-2010 were non-existent and/or otherwise untenable in law, the second impugned order dated 17-9-2010 can have no independent reason to survive or continue. It is the further submission of the learned counsel that the discretion of the Governor under paragraph 16(2) has to be based on his subjective satisfaction 14 personally and not on the aid and advice of the Council of Ministers: as he has acted on the dictates of his Council of Ministers, this has rendered the impugned orders illegal and unconstitutional. He, therefore, submits that the facts and circumstances available on record clearly warrant immediate cancellation of the impugned orders and a direction to the respondent No. 2 to convene a special session for floor test to prove majority of the petitioners in the House. He draws the attention of this Court to the decisions of the Apex court in Jagdambika Pal v. Union of India, (1999) 9 SCC 95, Anil Kumar Jha v. Union of India, (2005) 3 SCC 150 and Arun Munda v. Governor of Jharkhand, (2005) 3 SCC 399 in support of his submissions. 7. Countering the submissions of the learned counsel for the petitioners, Mr. K.S. Kynjing, the learned Advocate General of Meghalaya, contends that the shifting loyalties of the Members of the District Council to a particular party has posed serious threat to the proper and effective functioning of the District Council, and the reports received by the Governor revealed a situation whereby the administration of the District Council could not be carried on in accordance with the provisions of the Sixth Schedule to the Constitution warranting the imposition of Governor’s Rule thereon. Moreover, contends the learned Advocate General, the District Council refused to comply with the order of the Governor under sub-rule (5) of Rule 36 of the Rules for convening a special session to prove majority by the then Executive Committee on the floor of the House leaving the Governor with no alternative but hold that the administration of the District Council could not be carried on in accordance with the 15 provisions of the Sixth Schedule: the District Council has the obligation to comply with the direction issued by the Governor under sub-rule (5) of Rule 36 of the Rules on the pain of their suspension under paragraph 16(2) if such direction is defied. It is also the contention of the learned Advocate General that after the administration of the District Council was taken over by the Governor, it has come to light that massive financial irregularities as well as misappropriation of public funds have been committed by the District Council, which resulted in the appointment of a Commission of Enquiry headed by Justice P.G. Agarwal (a retired Judge of Gauhati High Court) to inquire into the same, and, as such, it is imperative that the District Council should continue to be administered by the Governor through the respondent No. 3 so as to facilitate fair and impartial enquiry and smooth conduct of the Commission of Inquiry. He also submits that the State Legislature has already approved the impugned order and once the proclamation of Governor’s Rule has been so approved, the validity of such orders cannot be challenged. Lastly, it is submitted by the learned Advocate General that as the subjective satisfaction of the Governor for invoking sub-paragraph (2) of paragraph 16 was based on objective materials, this Court would be loath to interfere with the impugned orders. 8. In order to appreciate the controversy, it will be apposite to refer to the provisions of paragraph 16 of the Sixth Schedule to the Constitution, which reads thus: “(1) Dissolution of a District or a Regional Council.─ (1) The Governor may on the recommendation of a Commission appointed under 16 paragraph 14 of this Schedule by public notification order the dissolution of a district or a Regional Council, and ─ (a) direct that a fresh general election shall be held immediately for the reconstitution of the Council, or (b) subject to the previous approval of the Legislature of the State assume the administration of the area under the authority of such Council himself or place the administration of such area under the Commission appointed under the said paragraph or any other body considered suitable by him for a period not exceeding twelve months: Provided that when an order under clause (a) of this paragraph has been made, the Governor may take the action referred to in clause (b) of this paragraph with regard to the administration of the area in question pending the reconstitution of the Council on fresh election: Provided further that no action shall be taken under clause (b) of this paragraph without giving the District or Regional Council, as the case may be, an opportunity of placing its views before the Legislature of the State. (2) If at any time the Governor is satisfied that a situation has arisen in which the administration of an autonomous district or region cannot be carried on in accordance with the provisions of this Schedule, he may, by public notification assume to himself all or any of the functions or powers vested in or exercisable by the District Council or, as the case may be, the Regional Council and may declare that such functions or powers shall be exercisable by such person or authority as he may specify in this behalf, for a period not exceeding six months: 17 Provided that the Governor may by a further order or