WP(C) 1656/2011 BEFORE HON’BLE MR.JUSTICE P.K.MUSAHARY JUDGMENT AND ORDER(CAV) There are some indigenous Hills Tribes known as Hmar, Kuki, Mizo, Khasia, Riang, Naga, Paite, Simte, Vaiphei, Gangte, Chakma, Karbi, Hrangkh ol and Chiru living in the districts of Cachar, Karimganj and Hailakandi of Bara k Velley in Assam , who are backward in all spheres. These people had been agi tating for quite some time demanding redressal of their grievances which culmina ted into signing of a Memorandum of Settlement on 18.3.1996 between the Presiden t of Cachar Hill People Federation and Deputy Secretary to the Government of Ass am, W.P.T.& B.C.Department in presence of Chief Minister of Assam . The said Mem orandum of Agreement primarily provides for constitution of a council known as Barak Valley(Hill Tribes) Development Council which would consist of 5(five) mem bers elected by the electors of ’tribal settlement jhum permission areas’ and t wo other members to be nominated by the Government to give representation to gro ups/communities which are not otherwise represented in the council. The terms of the council shall be five years and the Government of Assam shall constitute an Interim Council by nomination which shall continue till the council is constitu ted by election. 2. The Government of Assam constituted the first Interim Bara k Valley (Hills Tribes) Development Council, Silchar (hereinafter in short refer red to ’Council’) with 15 non official members and two ex-officio members vide N otification dated 14.9.2006 which was re-constituted by including /or excluding some or all members from the council. The council was ultimately re-constitute d with 23 members including 2 officials vide Notification No.TAD/BC/491/07 dated 16.2.2011 issued by the Commissioner & secretary to the Govt. of Assam, Welfare of Plain Tribes & Backward Classes Department, Dispur. 3. In the contemporary period Government of Assam at different p oints of time signed several Memoranda of Agreement with agitating leadership o f different tribal communities in the Brahmaputra Valley of Assam like Bodo, Mis hing, Tiwa (Lalung), Rabha, Deuri, Sonawal Kachari, Tengal Kachari, Sarania Kach ari etc. for providing administrative autonomy and ensuring development of resp ective communities. In respect of Bodo, Mishing, Rabha, Tiwa and Deuri, Governme nt of Assam have already enacted legislations providing provisions for election of popular council, powers and functions of the Executive Council etc. The erstw hile Bodoland Autonomous Council area has now been included in the 6th Schedule to the Constitution of India which is now known as Bodoland Territorial Autonom ous District (in short BTAD). The State Government is yet to enact legislation f or election and constitution of Hills development council, in the Barak Valley . 4. In the first Interim Council constituted in 2006 with 17 memb ers vide Notification dated 4.9.2006, all the petitioners were appointed/nominat ed as members of the Council. Petitioner No.2, Mr. Ngur Sungthang and Petitione r No.3, Mr. Warles Suchiang were appointed as Chairman and Vice Charirman respec tively of the aforesaid 2006 Interim Council. As Chairman of the Interim Counci l of 2006, the petitioner No.2 wrote a letter dated 20.1.2011 to the Minister of W.P.T. & B.C., Assam informing him that one member has resigned from the counci l and requested him to expand the council by inclusion of 12 members. The names of members to be included were shown in the said letter. The names of the presen t petitioners were recommended for inclusion as members as they belong to vario us tribal communities of Barak Valley . After such recommendation Government of Assam issued Notification dated 27.1.2011 allowing restructuring and strengthe ning of council with 25 members including two Government officers covering the various tribes of Karimganj, Hailakandi and Cachar Districts for providing maxim um participation of communities within the framework of the Constitution of Ind ia for social, economic, educational, cultural and ethnic advancement. In the sa id Notification the names of 25 members have not been mentioned /furnished. Purs uant to the Notification dated 21.1.2011 and on the basis of recommendation made by the Cabinet Sub-Committee, the Government of Assam reconstituted the Council by appointing 23 members including two officials, vide Notification dated 16.2. 2011. In the said Notification it is provided that the post of Chairman and Vice Chairman of the Council would be elected by the members within 15 days. Two oth er members were appointed/ included in the said council vide Government Order da ted 25.2.2011 issued under No.TAD/BC/491/2007. Only three petitioners namely pet itioners No.2,3 and 5 have been included as members in the newly reconstituted council and other petitioners No. 1, 4, 6, 7, 8, 9, 10, 11, 12 and 13 have been left out while reconstituting the council vide Notification dated 16.2.2011. Th e petitioners are aggrieved by non inclusion of the aforesaid members in the cou ncil and therefore they are seeking quashment of the impugned Notification dated 16.2.2011 (Annexure-VI to the writ petition). 5. While issuing notice of motion on 31.3.2011, it was observed that learned State counsel was unable to obtain proper instruction within 31.3.2 011 to throw light on the issue raised by the petitioners and as such an interim order was passed to the effect that till returnable date i.e. 25.4.2011 the im pugned order dated 16.2.2011shall not be given effect to. The State Respondents have not come forward for vacation/modification of the aforesaid interim order. However, the private respondents No.8 to 25 filed an application on 27.4.2011 fo r cancellation/vacation /suitable modification of the said Interim order dated 3 1.3.2011. The said application has been registered as Misc.Case No.1254 of 2011. No order has been passed in the aforesaid Misc. Application but as desired by t he learned counsel for the parties, the writ petition has been taken up for hea ring and disposal. At the time of hearing the learned counsel for the private re spondents submitted that the Misc.Application filed by the private respondents f or cancellation/modification of the Interim Order be treated as an affidavit- in-opposition inasmuch as the necessary pleadings have been made therein. The S tate-Respondents have not filed any response to the writ petition. 6. I have heard Mr. P K Roychoudhury, learned counsel for the pe titioners and Mr. B J Talukdar, learned counsel for the State-Respondents and Mr . S.S.Dey, learned counsel for the private respondents No. 8 to 25. Mr. Roychoud hury, learned counsel for the petitioners submits that re-constitution of the co uncil without nominating petitioners No.1 and 4 to 13 is illegal, arbitrary and in clear violation of the Govt. objectives and guidelines inasmuch as all the i ndigenous tribes living in the Barak Valley have not been represented. There wo uld have been fair representation of all the tribes if the persons who have been recommended by the then Chairman vide his letter dated 20.1.2011, were nominate d as members of the council in place of the present private respondents. He furt her submits that the private respondents have been nominated as members with ve sted interest and the impugned order dated 16.2.2011 constituting the council i s liable to be set aside inasmuch as the council was constituted in violation of the Government guidelines, direction and norms for constitution of the council. Moreover, according to him, the doctrine of pleasure in removing the petitioner s from the membership of the council by way of constituting a new council vide i mpugned order dated 16.2.2011 is of no avail somuch so the doctrine of pleasure is not applicable to the present case as a major change has taken place in the a pplication of doctrine of pleasure in India after judicial pronouncement of Supr eme Court in B.P.Singhal -Vs- Union of India, reported in (2010) 6 SCC 331. 7. Mr. S.S.Dey, countered the above submission contending mainly that the doctrine of pleasure is applicable to the present case in removing the petitioners and constituting a new interim council inasmuch as this court in se veral cases has held that the members of the council in respect of other ethnic development councils like Bodoland Autonomous Council (before its inclusion in t he 6th Schedule to the constitution in India) Rabha Hasong, Tiwa (Lalung), Deuri and Mishing Autonomous Councils, in which similar questions arose after removal of Chairman and Members, was decided that the doctrine of pleasure is applicabl e. According to him, the legal position in this regard has been re-affirmed in v arious judgements of the Apex Court as well as this court rendered in State of A ssam-Vs- Makhan Chandra Pegu, reported in 2006(1) GLT 472(DB) and Mahesh Doley -Vs- State of Assam, reported 2006 (3) GLT 832 (DB). He has referred to a recen t order dated 2.5.2011 passed in Rabha Hasong, Tiwa (Lalung), Deuri and Mishing Autonomous Council, in which similar questions arose due to removal of Chairma n and Members, wherein the issue was decided in the affirmative. According to h im, the legal position in this regard has been re-affirmed by various judgements of the Apex Court as well as this court rendered in State of Assam-Vs- Makhan C handa Pegu, reported in 2006(1) GLT 472 (DB) and order dated 18.9.2007 passed in W.P(C)No.1534/11 H.Meraton Singha & 4 ors-Vs-State of Assam . The said case rela tes to constitution of development of Interim Council of Manipuries consisting of 25 members, wherein the petitioners of the said writ petition were not includ ed. This court in the said case was not inclined to interfere with the Notificat ion constituting Manipuri Development Council and directed the State Government to make an endeavour to do away with the interim development council by way of c onstitution of regular council in due course. Expectation was expressed that suc h regular council would be constituted as expeditiously as possible. 8. Besides, the maintainability of the writ petition has been q uestioned by the private respondents on the ground that the council is not a st atutory body and its members do not have any statutory right to continue in the council since their appointments are governed merely by doctrine of pleasure of the sovereign authority and as such the petitioners have no enforceable legal ri ght far less the fundamental and other constitutional rights to be inducted as m embers of the council or to claim constitution of the council by including any p articular person. 9. The petitioners, according to the learned counsel for the pri vate respondents, have suppressed certain material facts which are relevant for the purpose of deciding this case. In this regard he has referred to averments m ade in paragraph 3(i) to (v) of the aforesaid Misc. application, which are repro duced hereunder- i. Admittedly writ petitioners No.2 and 3 were already members of the Counc il constituted vide the impugned order dated 16-02-2011. Further by another orde r contained in No. TAD/ BC/ 491/ 2007/07 dated 25-02-2011 the writ petitioner N o.5 was also included in the re-constituted Council. ii. That it is known to the writ petitioners that on 21.02.2011 the members of the re-constituted council held their meeting electing Shri Babul Rongmei as a Chairman of the Council. In terms of the election the erstwhile Ch airman Shri Ngur Sungthang (Writ Petitioner No.2) had handed over the charge of the office of the Chairman to the newly elected Chairman Shri Babul Rongmei on 2 8.02.2011 by executing a Charge Hand Over Memo. iii. It is very much within the knowledge of the writ petitioners t hat the Commissioner and Secretary to the Government of Assam W.P.T. & B.C. Depa rtment had issued an order No.TAD/BC/450/2008 dated 01-03-2011 inter alia direct ing the Joint Secretary of the Department to convene a meeting for oath taking p rogramme for the Chairman, Vice-Chariman and members of the newly created Counci l on 02-03-2011 in the office of the Directorate of the W.P.T & B.C. at 11.30 AM . iv. That in compliance of the aforesaid order dated 01-03-2011 all the members of the newly re-constituted council including the Writ Petitioner N o.1,2,& 5 took oath on 02-03-2011 as members of the Council. v. That it is thus apparent that on 14-03-2011, i.e. the date w hen the writ petitioner No.1 had sworn the affidavit appended to the writ petiti on, the re-constituted Council ordered vide the Notification dated 16-02-2011 (A nnexure-VI to the Writ Petition) had already become functional and the order d ated 16.2.2011 had already been given effect to. 10. I have closely examined the pleadings and considered the argume nts advanced by the learned counsel for the parties. Several cases on removal of members and re-constitution of Interim Council, mostly in respect of Mishing Au tonomous Council, had been adjudicated by this court on several occasions. A Si ngle Bench of this Court in Mahesh Doley - Vs- State of Assam & ors. reported i n 2003 (1) GLT 33 held that Interim Council is an entity, distinct and separate from its member and as such cannot be replaced or re-constituted. It was also he ld therein that though re-constitution or re-placement of interim council is imp ermissible but since members of the Interim Council can be removed, the removab le or replacement of the members constituting the Interim Council has the effect of reconstituting the council itself. However, it was held therein that there i s no right of hearing when one is removed as the holding of such office depends on the pleasure of the Govt. unless the removal is stigmatic. Makhan Pegu (supr a) relates to removal of vice Chairman and Executive Members of Interim Mishing Autonomous Council on the request of the Chief Executive Member on the ground o f their unsatisfactory works. Under such circumstances in the said case it was h eld that removal of said Vice Chairman and Members were stigmatic and so the imp ugned removal orders was set aside with liberty to Govt. to take action in accor dance with law. 11. But the above decision of the learned Single Bench of this cour t in Makhan Pegu (supra) and Mohesh Doley (supra) have been set aside by a Divis ion Bench of this court in the State of Assam & ors. -Vs- Makhan Pegu and ors re ported in 2006(1)GLT 472 which was re-affirmed by another Division Bench in Mah esh Doley & ors-Vs- State of Assam reported in 2006(3) GLT 832. The learned Divi sion Bench in the State of Assam & ors -Vs- Makhan Pegu & ors(supra) discussed the issue in paragraph 6 of the judgment and held as follows: 6.A bare reading of the provisions makes it clear that the Government is duty b ound, as soon as possible, to take steps for constitution of an Interim General Council by nominating and to nominate Executive Council therefrom to perform dut ies till the General Council is constituted in accordance with the provisions of the Act. The whole thing is transitional in nature. The nomination so made to t he Interim General Council or to the Executive Council is not for any particular period; it does not assure any tenure as such. They obviously hold the office during the pleasure of the State Government. Precisely, for that reason, the pro viso confers unfettered discretion upon the Government to remove any or all of t he members of such Interim General Council or the Executive Council, as the case may be, being replaced by any other persons of the Government’s choice. The pro viso does not admit any other interpretation. The individuals nominated as membe rs to the Interim General Council and as well as Executive Council as a tempora ry measure till the General Council is constituted in accordance with the provis ions of the Act are liable to be removed or replaced by the Government at any ti me without assigning any reason whatsoever. 12. Following the above decisions, the other Division Bench in Mahe sh Doley and other (supra) held in paragraph 10 as under: In our considered opinion the expression ’removed and replaced’ employed in pr oviso to Section 80 may have to be understood in proper context. Both the words used convey the same manning of replacement of nominated members at pleasure. Th e word ’removed’ may perhaps gave rise to an unnecessary debate and had the legi slature not used said word it would not have resulted in this litigation. It is not any removal as is commonly understood which is always stigmatic and what th e legislature intended is only replacement. 13. In the context, the submissions of Mr. P K Roychoudhury, learn ed counsel for the petitioners that the decisions of the Division Bench of this court in the aforesaid cases are not a good law and not applicable to present ca se in view of the latest decision of the Supreme Court in B.P.Singhal (supra), i t is necessary to refer to the facts and circumstances of the aforesaid case. Th e case of B.P.Singhal relates to removal of four Governors before completion of their terms of five years and issuance of a Writ of Certiorari quashing the ord er of removal of Governors. In the said case scope of doctrine of pleasure, its origin and application in English and Indian Law have been discussed elaboratel y. Reference has been made by the learned counsel for the petitioners to the obs ervations made by the Supreme Court in paragraph 34 of the judgement which is re produced below: The doctrine of pleasure, however, is not a licence to act with unfettered di scretion to act arbitrarily, whimsically, or capriciously. It does not dispense with the need for a cause for withdrawal of the pleasure. In other words, at p leasure doctrine enables the removal of a person holding office at the pleasure of an authority, summarily, without any obligation to give any notice or hearin g to the person removed, and without any obligation to assign any reasons or dis close any cause or the removal, or withdrawal of pleasure. The withdrawal of ple asure cannot be at the sweet will, whim and fancy of the authority, but can only be for valid reasons. 14. Emphasis has been made by the learned counsel for the petition er that ours is a democratic form of Govt.governed by Rule of Law and as such do ctrine of pleasure cannot be used or applied to in the manner it has been done by the respondent-authorities. The post of Governor is known as gubernatorial post provided under Article 156 of the Constitution of India. Under Article 156 (1), the Governor holds office during the pleasure of the President and under pr oviso to Article 156 (3) the Governor may hold office after expiration of his te rms until his successor enters upon his office. It was, therefore, held by the A pex Court that under Article 156 (1), the Governor holds office during pleasure of the President of India and the President can remove the Governor from office at any time without assigning any reason and without giving any opportunity to s how cause. However, it has been held that no reason needs be assigned for discon tinuance of the pleasure resulting in removal; the power under Article 156 (1) c annot be exercised in an arbitrary, capricious or unreasonable manner. The power will have to be exercised in rare and exceptional circumstances for valid and c ompelling reason. The question arises as to whether the above doctrine of pleasu re as pronounced by the Supreme Court could be applied to the present case keepi ng in view the surrounding facts and circumstances of the case. It may be notice d that the Barak Valley Hills Tribe Development Council is not provided under an y constitutional provisions of law. It is not even a creation of any legislation . It was /is constituted as a matter of Govt. policy on/with approval of the St ate cabinet. In other words, it is a creation of a public policy of the State Go vt. without any legislative sanction. It is only an administrative arrangement w hich may be allowed to continue or abolished by the Govt. at any point of time. The post of Chairman or Vice Chairman or members of the council cannot be equat ed with any constitutional post or post created under the provision of any law a nd as such in my opinion the principle of doctrine of pleasure could easily be a pplied to in removing the Chairman or Vice Chairman or members of the council. S imilarly the Government at its pleasure may include or drop all or any of the me mbers and reconstitute the council. 15. There is another aspect to be noticed. As stated earlier, the M ishing Autonomous Council was constituted under the provisions of the Mishing Au tonomous Council Act. Section 80 of the said Act provides for constitution of a n interim council till regular general council is constituted by election. The c ases dealt with by the Single Bench as well as the Division Bench of this court , as referred earlier, are connected with removal of some members of the interim Mishing Council thereof by excluding some earlier members and including some ne w members. The learned Division Bench of this Court clearly held that doctrine o f pleasure is applicable. In the case at hand the facts and circumstances are d ifferent from the ones in those cases of Mishing Autonomous Council. The materi als placed before this court establish that petitioners No.2, 3 and 5 have been included as members in the reconstituted interim council vide impugned Notificat ion dated 16.2.2011. These three petitioners should not have any grievance again st the impugned Notification. It must be noted that petitioner no.3 was the vic e Chairman of the council constituted earlier by Notification dated 4.9.2006. T here is a demand from the other petitioners i.e. petitioners No.1, 4 to 13 for t heir inclusion in the present reconstituted interim Council. The basis for such demand for inclusion is a purported recommendation made by a letter dated 20.1. 2011 written by former President of the Council constituted in 2006, who has be en nominated again as a member in the present council constituted on 16.2.2011. Since there is no case of removal or exclusion of member(s) there is no questio n of application of doctrine doctrine of pleasure. The decisions on doctrine of pleasure as pronounced by the Apex Court as well as learned Division Bench of t his Court cannot be pressed into service of the present case. To make this poin t clear, I would like to refer to relief sought by the petitioner which are - (i) to set aside and quash the impugned Notification dated 16.2.2 011 (Annexure-VI), or (ii) to issue Writ in the nature of Mandamus or like nature directing the respondent-authorities to recall, rescind or otherwise fore bear from giving effect to the impugned Notification dated 16.2.2011, or (iii) to direct the respondent-authorities to reconstitute the council by i ncluding the names of all the petitioners 16. For granting the above reliefs the petitioners must show to the satisfaction of the court that the council constituted vide impugned Notificat ion failed to give fair, due and proper representation to all the Hills Tribes inhabiting the Barak Valley. The petitioners have not indicated which of the H ills Tribes have not been given due representation in the Council or is left u nrepresented. This court cannot undertake an exercise to enquire into the said a spect of the matter. It is to be left to the executive. There should be an enqui ry to find out if any of the Hills Tribes has been deprived of proper and due re presentation to the Council and if it is found that there is some lapse in this regard, the executive must take remedial steps by way of