JUDGMENT
P.P. Naolekar, C.J.
1. The question involved in both these appeals are analogous and, therefore, are decided together.
Facts in brief relevant for the purposes of adjudication of the question in both these cases are :
The Mara Autonomous District Council (hereinafter shall be referred to as ‘MADC’) has been constituted as per the provisions of Paragraph 20B of the Sixth Schedule to the Constitution of India (hereinafter referred to as the Sixth Schedule) and is a body corporate. The MADC consisted of 19 elected members elected through adult franchise and a maximum of four nominated members to be appointed by the Governor of Mizoram for a term of five years with effect from the first sitting of the Council. After the election of the members of MADC held on 9.2.2000, (1) Mrs. Lalbaiaktluangi Sailo, (2) Mr. Myllai Hiychho, (3) Mr. C. Lawbel and (4) Mr. S. Lalremthanga, were appointed as nominated members of MADC by the Governor of Mizoram on 8.8.2000, in exercise of the powers conferred under sub-para (1) of Paragraph 2 of the Sixth Schedule read with sub-rule (1) of Rule 7 of the Mizoram Autonomous District Councils (Constitution and Conduct of Business of the District Councils) Rule, 1974 (hereinafter referred to as ‘the 1974 Rules’) as amended from time to time.
Shri K Chiama, one of the elected members of the MADC, had submitted a notice of No Confidence Motion to the Secretary, MADC, against the then Executive Committee of MADC on 4.12.2001. the Chairman had granted leave for the No Confidence Motion and the No Confidence Motion was to be discussed and voted on 6.12.2001 as fixed by the Chairman.
On 5.12.2001 the appointment/nomination of the members appointed on 8.8.2001 was terminated by Notification issued under Memo No. DCA/E-108/88 dated 5.12.2001. The termination order was issued in exercise of the powers conferred under sub-paragraph (6A) of Paragraph 2 of the Sixth Schedule read with sub-rule (2) of Rule 8 of the 1974 Rules.
Thereafter another Notification under Memo No. DCA/E-108/88
dated 6.12.2001, was issued by the Respondent No; 2, Secretary to the Government of Mozbram, District Council Affairs Department, nominating (1) Mr. Nolua, (2) M Rs. Lalbaiaktluangi Sailo, (3) Mr. Chialo and (4) Mr. H. Valali as members of the MADC in place of the previously nominated members whose membership was terminated. The date fixed for discussion and voting of the No Confidence Motion was postponed from 6.1-2.2001 to 7.12.2001.
2. Being aggrieved by the order of termination and nomination of new members, the appellant in WA No. 181 of 2002 filed a writ petition, which was registered as Writ Petition (C) No. 109/2001 before the Aizawl bench of the Gauhati High Court. By order dated 12.12.2001 the High Court has suspended the Notification dated 6.12.2001 whereunder new members of MADC were appointed, till the disposal of the writ petition. Aggrieved by the order of suspension, the State of Mizoram and its Secretary preferred an appeal before the Division Bench, being Writ Appeal No. 518/2001. The Division Bench by order dated 21.12.2001 passed an ex parte order and stayed the order dated 12.12.2001 passed by the learned Single Judge. Ultimately, the Division Bench by its order dated 31.1.2002 disposed of the writ appeal with a direction that the entire matter be heard by the learned Single Judge.
3. The learned Single Judge by its order dated 18.4.2002 partly allowed the writ petition quashing the Notification dated 6.12.2001, whereunder new members have been nominated so far its relates to (1) Mr. Chalia, (2) Mr. Nolua and (3) Mr. H. Valali and upheld the notification dated 5.12.2001 whereby the membership of (1) Mr. C. Lawbel, (2) Mr. S. Lalliremthanga. (3) Mr. Myllai Hlychho and (4) Mrs. Liaibiaktluangi Sailo was terminated. Writ Appeal No. 181/2002 is filed by the appellant challenging that part of the order of the learned Single Judge whereby the Notification dated 5.12.2001 terminating their appointment/nomination was upheld, whereas the State of Mizoram and the Secretary to the Government have filed the Writ Appeal No. 182/2002 challenging that part of the order of the learned Single Judge whereby the Notification dated 6.12.2001 appointing four new members of the MADC has been quashed.
4. The learned Single Judge on appreciation of the material placed on record has arrived at the conclusion that both the Notifications dated 5.12.2001 terminating the appointment/nomination of the four nominated members and the Notification dated 6.12.2001 appointing/nominating new members of the MADC, have been issued by the Governor on the basis of the aid and advice given by the Council of Ministers. The learned Single Judge, on consideration of sub-paras (1) and (6A) of paragraph 2 read with paragraph 20BB of the Sixth
Schedule, which has been inserted in its application to the States of Tripura and Mizoram by the Sixth Schedule to the Constitution (Amendment) Act, 1988 (67 of 1988), arrived at the conclusion that while exercising the powers to nominate members under sub-para (!) of paragraph 2 of the Sixth Schedule to the Constitution of India, the Governor has to reach the conclusion independently on his own and cannot act on the aid and advice given by the Council of Ministers, whereas while terminating the appointment/nomination of a nominated member in exercise of powers under sub-para (6A) of paragraph 2 of the Sixth Schedule, the Governor has to act on the basis of the aid and advice given by the Council of Ministers. The Notification dated 6.12.2001 was quashed as the learned Single Judge came to the conclusion that the Governor has not acted independently while issuing the Notification appointing the members which is in breach of sub-para (1) of paragraph 2 read with paragraph 20BB of the Sixth Schedule, whereas the Governor’s action in terminating the appointment/nomination of the nominated members on the basis of the aid and advice given by the Council of Ministers is in accordance with the constitutional requirement as is being provided under sub-para (6A) of paragraph 2 of the Sixth Schedule to the Constitution of India.
5. It is submitted by the counsel for the appellants in W.A. No. 181/ 2002, Sri K.P. Pathak, that the order of the learned Single Judge dismissing the petition in regard to the termination of nomination/ appointment of the appellants is contrary to the provisions of sub-para (6A) of paragraph 2 of the Sixth Schedule to the Constitution of India. The pleasure of the Governor is to be exercised by the Governor independently without there being any aid or advice of the Council of Ministers. On the other hand, the learned Advocate General, Mizoram, Mr. P. Pathak, has submitted that the order passed by the learned Single Judge is in accordance with law. The pleasure of the Governor means the decision taken by the Governor on the basis of aid and advice given by the Council of Ministers. It is submitted by the learned Advocate General that by upholding the Notification dated 5.12.2001 the learned Single Judge has acted in accordance with law, whereas while issuing the orders for quashing the Notification dated 6.12.2001 for appointment/nomination of members, the learned Single Judge erred in holding that the Governor should not have acted on the basis of the aid and advice given by the Council of Ministers.
6. To better appreciate the arguments advanced by the counsel appearing for the respective parties, it would be fruitful to reproduce the relevant provisions. Sub-paragraphs (1) and (6A) of paragraph 2
and paragraph 20BB of the Sixth Schedule to the Constitution of India reads as under :
“2. Consitution of District Councils and Regional Councils –
(!) There shall be a District Council for each autonomous
district consisting of not more than thirty members, of whom
not more than four persons shall be nominated by the Governor
and the rest shall be elected on the basis of adult suffrage.
** ** **
(6A) The elected members of the district council shall hold office for a terms of five years from the date appointed for the first meeting of the District Council after the general elections to the Council, unless the District Council is sooner dissolved under paragraph 16 and a nominated member shall hold office at the pleasure of the Governor :
Provided that the said period of five years may, while a Proclamation of Emergency is in operation or if circumstances exist which, in the opinion of the Governor, render the holding of elections impracticable, be extended by the Governor for a period nor exceeding one year at a time and in any case where a Proclamation 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 office only for the remainder of the term of office of the member who he replaces.”
“20BB. 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, sub-paragraph (4) of paragraph 4, paragraph 5, sub-paragraph (1) of paragraph 6, sub-paragraph (2) of paragraph 7, sub-paragraph (3) of paragraph 9, sub-paragraph (1) of paragraph 14, sub-paragraph (1) of paragraph 15 and sub-paragraph (1) and (2) of paragraph 16 of this Schedule, shall, after consulting the Council of Ministers, and if he thinks it necessary, the District Council or the Regional Council concerned, take such action as he considers necessary in this discretion.”
7. Under sub-paragraph (1) of paragraph 2 of the Sixth Schedule of the Constitution of India, there shall be a District Council for each autonomous district consisting of not more than thirty members, out of them not more than 4 (four) person shall be
nominated by the Governor and the rest shall be elected. The term of the elected members of the District Council is for a period of 5 (five) years from the date the meeting of the District Council is fixed after general election and the nominated members shall hold the office at the pleasure of the Governor. The term of the nominated members by the Governor to the District Council is not fixed as is being provided for the elected members of the Autonomous District Council under sub-paragraph (6A) of Paragraph 2. In the present case, when the Governor has terminated the membership of nominated members by the Notification issued on 5.12.2001, he has acted on the advice of the Council of Ministers, while approving the recommendations made by Council of Ministers. Constitution envisage parliamentary system of governance, which guides and controls the jurisdiction and powers of the Governor, except where the Constitution refers the Governor to exercise powers on his individual discretion personally, the discretion exercised by the Governor shall be on the basis of aid and advice of Council of Ministers. The Governor being Constitutional head of the executive his decision would be in conformity with the aid and advice given by the Council of Ministers. Nominated members hold office at the pleasure of the Governor under sub-para (6A) of paragraph 2 of the Sixth Schedule. The pleasure of the Governor shall be the pleasure of Council of Ministers on whose aid and advice the Governor has to act while deciding the continuation of tenure of the nominated members in the Autonomous District Council.
8. The question now arises whether while nominating the members to the Autonomous District Council exercising the powers under sub-paragraph (1) of paragraph 2 of the Sixth Schedule read with paragraph 20BB, the Governor could have acted on the aid and advice of the Council of Ministers or whether he is to act independently without there being any aid or advice from the Council of Ministers. Under sub-paragraph (1) of Paragraph 2 of the Sixth Schedule of the Constitution of India, not more than 4 members shall be nominated by the Governor to the Autonomous District Douncil. Paragraph 20BB of the Sixth Schedule of the Constitution speaks of exercise of discretionary powers by the Governor in discharge of his functions. In discharge of his discretionary power under sub-paragraph (1) of paragraph 2 of the Sixth Schedule of the Constitution to nominate the member. Governor shall exercise his discretion after consulting the Council of Ministers and if it think necessary, the District Council or the Regional Council concerned. Plain reading of paragraph 20BB with sub-paragraph (1) of paragraph 2 of the Sixth Schedule it is manifest that while nominating the members the Governor has to
consult the Council of Ministers and then it is left to the discretion of the Governor if he thinks it necessary to consult the District Council or the Regional Council concerned as the case may be. It is only after such consultation the Governor shall take decision to nominate the member to Autonomous District Council. Power to exercise the discretion by the Governor under sub-paragraph (1) of paragraph 2 of the Sixth Schedule of the Constitution to nominate the member is controlled by paragraph 20BB of the Sixth Schedule of the Constitution. The expression used, “shall after consulting the Council of Ministers” is significant. The power to nominate is to be exercised by the Governor after consulting the Council of Ministers. It is not the independent individual power which can be exercised by the Governor in nominating the members. Thus, it cannot be said that the Governor cannot rely upon the aid and advice given by the Council of Ministers and if he has acted on the basis of aid and advice given by the Council of Ministers, he has acted in breach of the provisions of sub-paragraph (1) of paragraph 2 of the Sixth Schedule of the Constitution read with paragraph 20BB of Sixth Schedule. The decision of the Governor to nominate the member and such nomination by notification dated 6.12.2001 acting on the aid and advice given by the Council of Ministers is in accordance with the Constitutional requirement. We do not agree with the reasoning adopted by the learned Single Judge while quashing the Notification dated 6.12.2001 whereunder the members were nominated to the Mara Autonomous District Council.
9. For the aforesaid reasons, we set aside that part of the order passed by the learned Single Judge whereby the nomination made by the Governor to the Autonomous District Council by Notification dated 6.12.2001 was quashed and allow the appeal filed by the State of Mizoram whereas the Writ Appeal No. 181/2002 filed by the Ex-nominated Members is dismissed.
There shall, however, be no order as to costs.