DEBABRATA KOLOI Vs. STATE OF TRIPURA

JUDGEMENT

(1.) Tripura Tribal Areas Autonomous District Council (for short, 'the District Council') is a constitutional body formed under Sixth Schedule of the constitution of India with a view to provide local self rule for the tribals. Under sub para (6) of Para 2 of the said Schedule, the Tripura Tribal Areas Autonomous District Council (Constitution, Election and Conduct of Business) Rules, 1985 (for short, rules) have been framed and election to the District Council under the said Rules is held every five years. The last election was held in May, 2000 and the first meeting of the District Council following that election was held on 19th May, 2000. Therefore, its term of 5 years shall expire on 18.5.05 before which fresh election to the District Council is to be conducted to install an elected body. All the 15 petitioner's are the elected Members of the District Council and by this writ petition, they have challenged the impugned notification issued by the Govrernor on 29.12.04 in exercise of powers under sub para (2) of Para 16 of the Sixth Schedule assuming to himself all the powers and functions vested in or exereisable by the District Council.

(2.) BRIEF FACTS : The short facts leading to the present writ petition are that the petitioners under the leadership of petitioner No. 1 Sri Debabrata Koloi being 15 in number gained absolute majority on 26th December, 2004 in the house of 29 members. Though the District Council consists of 28 elected and 2 nominated Members, at the relevant time, only 29 Members were in position. After gaining majority they moved a "No Confidence Motion" against the Executive Body headed by Sri Budhu Debbarma who was the Chief Executive Member and they also met the Governor apprising him of this development and demanding that an opportunity should be given to them to form an Executive committee headed by the petitioner No. 1. All the Members assembled before the Raj Bhavan on 27.12.04 and submitted an application along with the letter of No Confidence and the Governor after due consideration decided that the No Confidence Motion should be tested on the floor of the Council after convening a meeting as per provisions of the Rules and this decision of the Governor was Communicated by issuing a Press Release on 27.12.04. The grievance of the petitioners is that on 29.12.04, the Council of Ministers held a Cabinet meeting and on the basis of the Cabinet decision, the Governor surprisingly, without giving them opportunity to form Executive committee acted on the same date under sub para (2) of Para 16 read with Para 20 BB of the Sixth Schedule assuming to himself all the powers of the District Council. According to the petitioners, this action of the Governor was not taken in his discretion but at the behest of the State Government, which is contrary to the principle of autonomy and democracy. Their further grievance is that the Governor had actually acted in his discretion on 27.12.04 when he decided that the "No Confidence Motion" would be tested on the floor of the House, but the decision to assume the powers of the District Council taken on 29.12.04 was not in his discretion and, therefore, is not sustainable in law. They have prayed for quashing the impugned notification dated 29.12.04 and a direction to respondents Nos. 4 and 5, the Chairman and Secretary of the Council to convene a meeting of the Council for consideration of the No Confidence Motion.

(3.) STAND OF RESPONDENTS : Respondent No. 3 is the Secretary to the Governor who filed the counter affidavit contending that the Governor acted in his discretion after consulting the Council of Ministers as is required by Para 20 BB of the Sixth Schedule of the Constitution. Explaining the action of the Governor under Para 16 (2) it is contended that Sri Rabindra Debbarma, MLA, General Secretary, INPT (the party in opposition) and Vinay Debbarma, Member of the District Council (MDC) who is the petitioner No. 4 herein submitted a memorandum to the Governor on 2.12.04 (Annexure R/2) expressing serious concern over the ongoing impasse in the administration of the District Council, rampant corruption including serious economic offences by the Chief Executive Member Sri Budhu Debbarma (respondent No. 7) and Sri Hirendra Kumar Tripura, MDC, petitioner No. 15 herein and urged that a situation had arisen in which the administration of the District Council could not be carried on in accordance with the provisions of the Sixth Schedule. They demanded that the Executive committee should be dismissed immediately and powers of the District Council should be taken over by the Governor under Para 16 (2). Again, on 9.12.04, another letter was issued to the Governor by the petitioner No. 1 Sri Debabrata Koloi and the petitioner No. 4 Sri Vinay Debbarma bringing specific charge against the Members of the Executive committee including Sri Hirendra Kumar Tripura (petitioner No. 15) demanding that a situation had arisen which calls for immediate action by the Governor for dissolving the District Council and directing fresh election in view of the serious corruption and economic offences. As both these communications came from very responsible persons like Leader of the Opposition and General Secretary of the INPT and elected Member of the District Council, the Governor thought it appropriate to consult the Council of Ministers and sent both the communications to the State Government. While the matters were in the process of consultation, the petitioners gained majority on 26.12.04 by winning over Sri Upendra Reang (petitioner No. 2), Sri Sri Chairanjoy Reang, (petitioner No. 3), Sri Mulukchand Debbarma (petitioner No. 5) and Sri Hirendra Kumar Tripura (petitioner No.15) against whom serious charges of corruption were raised in the aforesaid two communications. After gaining strength of majority, the petitioners met the Governor on 27.12.04 demanding that the No Confidence Motion should be tested in the House and they should be given an opportunity itp constitute Executive committee. The Governor expressed the view that the "No Confidence Motion" should be tested on the floor of the House in accordance with the provisions of the Rules. But, thereafter, on 29.12.04 when the Governor received the views of the State Government on the circumstances involving serious corruption and economic offences decided to take over the administration of the District Council under Para 16(2) of the Sixth Schedule. This action of the Governor being in his discretion after consulting the Council of Ministers cannot in any way be assailed in a court of law. The allegation of mala fide against the Governor is nothing but a personal mala fide which is prohibited under Article 361 of the Constitution. This apart, "Article 163 (2) of the Constitution clearly provides that the decision of the Governor in his discretion cannot be challenged before the court". Almost in the same tune, the State respondents No. 1 and 8 and the respondent Nos. 2, 4 5 and 6 being officials of the District Council have raised same contention that a situation had arisen in which the administration of the District Council could not be carried on in accordance with the Sixth Schedule because of high corruption involving economic offences and therefore the Governor after consulting the State Government had acted legally by assuming to himself all the powers of the District Council. Further contention is on the same line that the discretionary powers of the Governor cannot be questioned in a court being unassailable by provisions of Articles 163 (2) (3) and 361 of the Constitution.