H. Baruah, J.@mdashHeard Mr. C. Lalramzauva, learned Counsel for the Petitioners as well as Mr. N. Sailo, learned Addl. Advocate General, Mizoram for Respondent Nos. 1 and 2. Also heard Mr. M. Guite, learned Standing Counsel for Respondent No. 3, the State Election Commission, Mizoram. None appears for the private Respondents.
2. By this common judgment it is proposed to dispose of both the writ petitions as indicated above inasmuch as the facts involved in both the writ petitions are almost one and the same and the law involved thereto also is similar.
3. For better appreciation, it is proposed to place the facts of each of the writ petitions as under:
W.P.(C) No. 18 of 2010
The Petitioner herein was earlier under the Puankhai Village Council in the District of Lunglei. On the basis of the General Election held on 24.02.2009 Sh. Dulal Chandro, Sh. Surjyo Lal, Sh. Chitto Ronjon and Sh. Amor Singh were elected as members of Puankhai Village Council. The term of the office of the Village Council members is 3 years from the date of the 1st meeting of executive body of the said Village Council as provided u/s 5 of the Lushai Hills District (Village Council) Act, 1953 and the term of the said Village Council is to expire in the month of February, 2011 unless sooner dissolved. In the meantime, in exercise of powers conferred by the Section 3(1) of the Lushai Hills District (Village Councils) Act, 1953 as amended from time to time, the Governor of Mizoram was pleased to create 7 (seven) new Village Councils including Malsury Village Council from Puankhai Village Council vide Notification No. B. 14016/8/09-LAD/V.C. (A) dt. 17.12.2009 (Annexure-1). Vide Notification No. B. 14016/1/07-LAD/VC dt. 4th March, 2010 (Annexure-2), the Governor of Mizoram decided to conduct midterm election in the 2 dissolved Village Councils, namely. Zuangtui Village Council and Thlengang Village Council and 7(seven) newly constituted Village Councils, namely, Tuivamit Village Council, Rotlang ''W'' Village Council, Sailen Village Council, Malsury Village Council. Serchhip-V Village Council, Champhai Dinthar Village Council, Project Veng, Kolasib Village Council to have their term till such time to the next General Election to all Village Councils in all the districts are held. By the same Notification, the Governor of Mizoram was also pleased to order that the existing seat allocations of the present Village Councils out of which the new Village Councils are created will remain same even though the number of the household in the present villages have decreased due to creation of new Village Councils. Further, it was decided that the existing Village Council member(s) and who are duly enrolled in the new electoral roll of the new Village Council (s) shall continue to remain Village Council member(s) of concerned new Village Council. The number of seats allocated in the new Village Council of Malsury Village Council in the district of Kolasib is 3(three). Thereafter, the Respondent No. 3, the State Election Commission, Mizoram, Aizawl took steps for holding election in the newly created Village Councils including Malsury Village Council to elect members for the said new Village Councils fixing 15.03.2010 as the last date for filing nomination, 16.03.2010 as the date of scrutiny for the nomination and 17.03.2010 as the date of withdrawal of nomination. On 18.03.2010, the State Election Commission, Mizoram also allotted the symbols to the candidates. 7th of April, 2010 was fixed as date of poll while the same date had also been fixed as the date for counting of votes. The entire process of election was to be completed by 15.04.2010. Respondent No. 3 by letter No. B. 12011/11/2008-SEC(M)/VC/Vol-II dated 5.03.2010 (Annexure-5) addressed to the District Election Officer & Deputy Commissioner, Lunglei/Kolasib District indicated the number of seats allocated to the newly created Malsury Village Council as 3(three), however, the number of seats required to be filled up by election had been shown as 1 (one) since the private Respondent Nos. 4 and 5 had been allowed to continue as Village Council member of the newly created Village Council of Malsury. The Respondent No. 3 for the purpose also published electoral roll on 3.03.2010 for the purpose of holding election in the newly created Village Councils.
4. The decision of the Respondent Nos. 1 to 3 for allowing the existing Village Council members(s) of the parent Village Councils to be the Village Council members of the newly created Village Council including the Village Council of Malsury was complained by the General Secretary-in-charge, Village Council, MNF headquarter and Secretary Mizoram People Conference by submitting a joint representation. The Petitioner and various other members of the Malsury Village Council were awaiting for a positive response from the official Respondents (Respondent Nos. 1 to 3) since they were unable to accept the Respondent Nos. 4 and 5 who were not elected as Village Council members of the newly created Village Councils. No positive response was received by them. It is contended that as per Section 4 of the Lushai Hills District (Village Councils) Act, 1953 a person shall be disqualified for being elected as and for being a member of the Village Council if he is not a voter where he seeks election or he is a member of any other Village Council. The Respondent Nos. 4 and 5 having been elected as members of Puankhai Village Council for a term of 3 years had been continuing their membership in the said Village Council till date and therefore, they are legally barred from being members of the newly created Malsury Village Council and as such, the impugned Notification issued by Respondent No. 2 and the decisions taken by Respondent Nos. 1 to 3 are liable to be set aside and quashed in view of the provisions of Section 4 of the Lushai Hills District (Village Council) Act, 1953. It is also contended that since the number of seats allocated to the newly created Malsury Village is 3, the electorates of the said Village Council are entitled to elect the 3 members of the Village Council instead of 1. Thus, the decision of the Respondent Nos. 1 to 3 for holding election for one seat only is wrong and illegal.
Prior to the amendment of the Lushai Hills District (Village Councils) Act, 1953 there was a provision for nomination of members which stands abolished when the Lushai Hills District (Village Councils) Amendment Act, 1999 came into force w.e.f. 23.11.1999. Per provision of the amended Act, no person can claim to be a member of the Village Council unless he/she is elected by adult suffrage in accordance with Village Council Rules framed by the Government under the Village Council Act, 1953 as amended from time to time. In view of the above, the Respondent Nos. 1 to 3 are legally debarred from allowing Respondent Nos. 4 and 5 to be the members of the newly created Malsury Village Council before any election is held for the Village Council and as such, the impugned decision of the Respondent Nos. 1 to 3 as notified in the impugned Notification dated 4.03.2010 with all subsequent actions taken for holding election of the said Village Council on 7.04.2010 is contrary to the provisions of the law. The Petitioner, therefore, in view of the facts and circumstances of the case and the provisions contained in the Act has approached this Court for setting aside the Notification dated 3rd March, 2010.
W.P.(C) No. 19 of 2010
The Petitioner herein was earlier under the Kolasib Village Council-II, Kolasib. On the basis of the general election held on 24.02.2009 Sh. Laldingliana, Sh. R.K. Kunga, Sh. H. Lalengsanga, Sh. R. Lalngura, Sh. F. Lalhmuakliana and Sh. Rolianpuia were elected as members of Kolasib Village Council-II, Kolasib for a term of 3 years from the date of first meeting of the executive body of the said Village Council as provided u/s 5 of the Lushai Hills District (Village Councils) Act, 1953 and the term of the said Village Council is to expire in the month of February, 2011 unless sooner dissolved. In the meantime, in exercise of powers conferred by the Section 3(1) of the Lushai Hills District (Village Councils) Act, 1953 as amended from time to time, the Governor of Mizoram was pleased to create 7(seven) new Village Councils including Project Veng, Kolasib from Kolasib Village Council-II vide Notification No. B.14016/8/09-LAD/V.C. (A) dt. 17.12.2009 (Annexure-1). Vide Notification No. B.14016/1/07-LAD/VC dt. 4th March, 2010 (Annexure-2), the Governor of Mizoram decided to conduct midterm election in the 2 dissolved Village Councils, namely, Zuangtui Village Council and Thlengang Village Council and 7(seven) newly constituted Village Councils, namely, Tuivamit Village Council, Rotlang ''W'' Village Council, Sailen Village Council, Malsury Village Council, Serchhip-V Village Council, Champhai Dinthar Village Council, Project Veng, Kolasib Village Council to have their term till such time to the next general election to all Village Councils in all the districts are held. By the same Notification, the Governor of Mizoram was also pleased to order the existing seat allocation of the present Village Councils out of which the new Village Councils are created will remain same even though the number of the household in the present villages have decreased due to creation of new Village Councils. Further, it was decided that the existing Village Council member(s) who are duly enrolled in the new electoral roll of the new Village Council(s) shall continue to remain the Village Council member(s) of concerned new Village Council. The number of seats allocated in the new Village Council of Project Veng, Kolasib is 4(four). Thereafter, the Respondent No. 3, the State Election Commission, Mizoram, Aizawl took steps for holding election in the newly created Village Councils including Project Veng to elect members for the said new Village Councils fixing 15.03.2010 as the last date for filing nomination, 16.03.2010 as the date of scrutiny for the nomination and 17.03.2010 as the date of withdrawal of nomination. On 18.03.2010, the State Election Commission, Mizoram also allotted the symbols to the candidates. 7th of April, 2010 was fixed as date of poll while the same date had also been fixed as the date for counting of votes. The entire process of election was to be completed by 15.04.2010. Respondent No. 3 by letter No. B. 12011/11/2008-SEC(M)/VC/Vol-II dated 5.03.2010 (Annexure-5) addressed to the District Election Officer & Deputy Commissioner, Lunglei/Kolasib District indicated the number of seats allocated to the newly created Project Veng, Kolasib as 4(four), however, the number of seats required to be filled up by election had been shown as 3(three) since the private Respondent No. 4 had been allowed to continue as Village Council member of the newly created Village Council of Project Veng. The Respondent No. 3 for the purpose also published electoral roll on 3.03.2010 for the purpose of holding election in the newly created Village Councils.
5. The decision of the Respondent Nos. 1 to 3 for allowing the existing Village Council member(s) of the parent Village Councils to be the Village Council members of the newly created Village Council including the Village Council of Project Veng was complained of by the General Secretary-in-charge, Village Council, MNF headquarter and Secretary Mizoram People Conference by submitting a joint representation. The Petitioner and various other/members of the Project Veng Village Council were awaiting for a positive response from the official Respondents since they were unable to accept the Respondent No. 4 who was not elected as Village Council member of the newly created Village Council. No positive response was received by them. It is contended that as per Section 4 of the Lushai Hills District (Village Councils) Act, 1953 a person shall be disqualified for being elected as and for being a member of the Village Council if he is not a voter where he seeks election or he is a member of any other Village Council. The Respondent No. 4 having been elected as member of Kolasib Village Council-II for a term of 3 years had been continuing their membership in the said Village Council till date and therefore, he is legally barred from being a member of the newly created Project Veng Council and as such, the impugned Notification issued by Respondent No. 2 and the decisions taken by Respondent Nos. 1 to 3 are liable to be set aside and quashed in view of the provisions of Section 4 of the Lushai Hills District (Village Councils) Act, 1953. It is also contended that since the number of seats allocated to the newly created Project Veng Village is 4, the electorates of the said Village Council are entitled to elect the 4 members of the Village Council instead of 3. Thus, the decision of the Respondent Nos. 1 to 3 for holding election for one seat only is wrong and illegal.
Prior to the amendment of the Lushai Hills District (Village Councils) Act, 1953 there was a provision for nomination of members which stands abolished when the Lushai Hills District (Village Councils) Amendment Act, 1999 came into force w.e.f. 23.11.1999. Per provision of the amended Act, no person can claim to be a member of the Village Council unless he/she is elected by adult suffrage in accordance with Village Council Rules framed by the Government under the Village Council Act, 1953 as amended from time to time. In view of the above, the Respondent Nos. 1 to 3 are legally debarred from allowing Respondent Nos. 4 and 5 to be the members of the newly created Malsury Village Council before any election is held for the Village Council and as such, the impugned decision of the Respondent Nos. 1 to 3 as notified in the impugned Notification dated 4.03.2010 with all subsequent actions taken for holding election of the said Village Council on 7.04.2010 is contrary to the provisions of the law. The Petitioner, therefore, in view of the facts and circumstances of the case and the provisions contained in the Act has approached this Court for setting aside the Notification dated 3rd March, 2010.
6. Both the writ petitions are resisted by the Respondent Nos. 1 to 3 by filing counter affidavit. Respondent No. 3 in his counter affidavit contended that pursuant to the decision of the Government it notified the newly created Village Council where election is to be held and since there is no express provision authorizing the State Election Commission to determine allocation of seats there seems no reason for the State Election Commission to disregard the action taken by the State Government for determination of seats in respect of Village Council for midterm/general election. It also contended that there is no illegality or infirmity in issuing Notification (Annexure-3) calling upon the electors to elect members of new Village Councils and in the same manner no illegality or infirmity can also be attributed to the Notification (Annexure-4 to the writ petition) for holding midterm election to the dissolved and newly created Village Councils. Respondent Nos. 1 and 2 in their counter affidavit in response to the statement made in paragraph 10 of the writ petition contended that Section 4 of the Village Council Act provides for the grounds for disqualification of members and amongst such grounds there is no provision for disqualification of a popularly elected representative based solely on administrative convenience. They also contended that continuance of the present members/member is based on precondition that member(s) is still enrolled in the electoral roll of the parent of the new Village Council. The elected Village Council members thus continue to be the Village Council members of the Village Council where they are enrolled as voters. The State Government within its right has expanded the membership of the newly created Village Council so that the new members fill in the vacancies arising due to bifurcation. It is also contended that the popularly elected representative cannot be deprived of his seat due to change in the name of his constituency and its bifurcation. Therefore, the question of elected members of Village Council seeking re-election does not arise unless their term expired. Such an intention has been employed rather expressed in the Notification dated 4.03.2010. It is also contended that the Notification has clearly mentioned continuance of the Village Council members if he is a voter in the Village Council area. From the reading of the entire counter affidavit it appears that the Notification (Annexure-2) by which the private Respondents are allowed to continue as member of the new Village Councils is not erroneous and illegal since all the private Respondents are the electors of the newly created Village Councils. It is further contended that the provision of Section 4 of the Village Act, 1955 would be misconceived in respect of the private Respondents. The Respondents in view of the averments made in the counter affidavit pray for dismissal of the writ petitions.
7. From the Notification (Annexure-1) it would appear that the Governor of Mizoram in exercise of powers conferred under Chapter 2 and Section 3(1) of the Lushai Hills District (Village Council) Act, 1953 as amended from time to time was pleased to create new Village Councils for the villages as indicated therein. It would also appear that from the parent Village Councils the new Village Councils have been created. Malsury Village Council and Kolasib Project Veng are new Village Councils created from the parent Village Council namely, Puankhai Village Council and Kolasib-II Village Council in the district of Lunglei and Kolasib respectively. From Notification (Annexure-2) it is also noticed that the existing Village Council member(s) residing in the newly created Village Council(s) and who are duly enrolled in the new electoral roll of the new villages shall continue to remain Village Council member in the concerned Village Council until the next general election to all the 6 (six) districts of the State is held. From the facts and circumstances involved in both the writ petitions, it is seen that private Respondent Nos. 4 and 5 (W.P.(C) No. 8 of 2010) and private Respondent No. 4 (W.P.(C) No. 19 of 2010) were elected members of the parent Village Council namely, Puankhai Village Council and Kolasib-II Village Council. After creation of the new Village Councils admittedly no election was held to elect the members as indicated in the Notification (Annexure-2). By virtue of Notification (Annexure-2) the existing Village Council members, the private Respondents in both the writ petitions are taken over as elected members of the newly created Village Councils namely, Malsury Village Council and Kolasib Project Veng Village Council. In view of the above, it is submitted by Mr. C. Lalramzauva, the learned Counsel appearing for the Petitioners that unless the member is elected by the electorate of the particular Village Council, his/their transposition to the Village Councils from different Village Councils is not permissible in view of the provision of Section 4 of the Lushai Hills District (Village Council) Act, 1953 wherein it has been provided as under:
4. Qualification of Members--A person shall be disqualified for being elected as and for being a Member of the Village Council, if:
(a) he is not a Member of a Scheduled Tribe;
(b) he has not attained the age of 25 years;
(c) he is not Voter where he seeks election;
(d) he is a member of any other Village Council;
(e).....................................
(f)....................................."
Mr. C. Lalramzauva, therefore, taking assistance of the provisions of the Clause (d) in particular submits that the private Respondents being the existing members) of the parent Village Councils cannot be member(s) of the newly created Village Councils, namely, Malsury Village Council and Kolasib Project Veng. It is true that the private Respondents as indicated in the Notification (Annexure-2) are the existing Village Council members namely, Puankhai Village Council and Kolasib Village Council-II. This being the position in the face of the record the private Respondents ordinarily cannot be a member of any other Village Council even if his/their name appear/appears in the electoral roll of the concerned Village Council. It is not disputed that the private Respondents are not the electorates of the newly created Malsury Village Council and Kolasib Project Veng Village Council. This can be noticed from the electoral roll (Annexure-6 to the writ petitions). It is submitted by Mr. C. Lalramzauva that the Notification (Annexure-2) has been issued in disobedience/disregard of the provisions of Section 4 of the Lushai Hills District (Village Councils) Act, 1953 and therefore, the same cannot exist.
8. In the Lushai Hills District (Village Councils) Act, 1953 it is nowhere provided the provisions for dual membership. Therefore, an existing member of a particular Village Council cannot be a member of a different Village Council unless he is elected in the different Village Council by its electorates or he relinquishes the membership in the parent Village Council. From the Notification (Annexure-2) it can be noticed that the private Respondents are holding dual membership in both the Village Councils, in one of course without being elected. When there is no provision in the Act for retention of dual membership in the Village Council such retention would be illegal and against the provisions of the Act, Section 4 in particular. Further, it is nowhere indicated in Annexure-2 regarding relinquishment of the membership of the private Respondents in their parent Village Council. After amendment of the Act, the provisions for nominations has been abolished. Therefore, it would also be wrong to say that by Notification (Annexure-2) the private Respondents were nominated as members of the newly created Village Councils. Mr. C. Lalramzauva, therefore, in view of the provisions of Section 4 very strenuously argues that the Notification (Annexure-2) by which the private Respondents are allowed to continue as member of the newly created Village Council is illegal and against the intention of the Lushai Hills District (Village Council) Act, 1953.
9. Controverting the submissions advanced by Mr. Lalramzauva, Mr. N. Sailo, the learned Addl. Advocate General, Mizoram representing the State Respondent Nos. 1 and 2 submits that nothing wrong has been committed by issuing the Notification (Annexure-2) whereby and where under the private Respondents are allowed to continue as member of the newly created Village Councils or to remain as such until next general election of the districts of the State is held. It is submitted by him that as soon as they are allowed to continue as member of the newly created Village Councils, their membership in the parent Village Council stood automatically ceased and therefore, they cannot be branded as members of the parent Village Councils. Further, in the roll of electors, their names do not appear in the parent Village Councils. But in order to substantiate Mr. Sailo''s argument, we do not find anything in the Notification (Annexure-2) that their membership in the parent Village Councils ceased to exist. Nothing has been indicated in the Notification (Annexure-2) to that effect. The language employed in the Notification in respect of continuance of their membership in the newly created Village Councils is very clear and opaque which if interpreted would give a meaning that they are also holding the membership in the parent Village Councils. Mr. Sailo also admits that the Village Council Act does not provide the provisions of dual membership. It is submitted by him that on account of transposition of the membership held by the private Respondents to the newly created Village Councils their membership in the parent Village Council would automatically cease. This piece of argument would not be tenable unless the Notification (Annexure-2) is specific in this regard. Admittedly, the private Respondents are not elected members of the newly created Village Councils by its electorates. They are the elected members of the parent Village Councils. Unless and until a person is elected in accordance with the provisions of the law, he cannot be said to be a member of the Village Council. Under unamended Act, there was a provision for nomination and this provision has been deleted by amendment Act of 1999.
10. From the facts and circumstances of the case and the Notification (Annexure-2) it has become apparent that the private Respondents of both the writ petitions are holding dual membership in the parent as well as newly created Village Councils which offends the provisions of Section 4 of the Lushai Hills District (Village Councils) Act, 1953 amended upto date. I find no force in the argument advanced by Mr. N. Sailo, the learned Addl. Advocate General, Mizoram appearing for the Respondent Nos. 1 and 2 that the continuance of private Respondents as elected members of the newly created Village Councils, namely, Malsury Village Council and Kolasib Project Veng Village Council is legal and per provisions of the Act. Notification dated 4th March, 2010 (Annexure-2) is liable to be set aside and quashed and it is accordingly done so. Resultantly, the letter No. B. 12011/11/2008-SEC(M)/VC/Vol-II dated 5th March, 2010 is also set aside and quashed. State Respondents would however, conduct the election for all the seats allocated for newly created Village Councils, namely, Malsury Village Council and Kolasib Project Veng Village Council numbering 3 and 4 respectively, if in the meantime election is held for some seats allocated therefore, election may be held for the rest.
11. In the result, both the writ petitions are allowed. No cost.
