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1981 DIGILAW 133 (GAU)

Girija Prasad Pandey & Ors. v. Jayanta Kumar Das & Ors.

1981-11-24

B.L.HANSARIA

body1981
Hansaria, J.- Opposite party No. 1 is the President of Wangirbond Gaon Panchayat. During the course of his hol­ding the aforesaid office, he came to face a no confidence motion. This was on 10.3.80 according to the petitioners. Nine votes were cast in favour of the motion and five against. In all 15 members had attended the meeting, one vote was declared invalid. A question regarding the invalid vote was raised and the President of the meeting did not finalise the same but left it for the decision of the Sub-Divisional Officer. When the matter came up to be examined by the Government under section 153 of the Assam Panchayati Raj Act, 1972 (hereinafter to be referred to as the Act) this action of the President was regarded as not legal and so the proceeding of the aforesaid meeting was rescinded. This was by an order passed on 26.3.81. Thereafter a fresh notice of no confidence was given by the petitioners on 30.3.81. On the failure of the President to convene a meeting as required by section 25(2)(a) of the Act, the Additional Deputy Commissioner con­vened a meeting on 9.6.81 as authorised by the second pro­viso to the aforesaid section. In the mean time the opposite party No. 1 moved the Government who stayed the holding of the meeting by a message dated 8.6.81. That stay order was withdrawn on 15.6.81. Thereafter the Additional Deputy commi­ssioner convened a meeting to be held on 29.6.81 to discuss the said no confidence motion. The opposite party No. 1 approa­ched the learned Munsiff, Karimganj on 24.6.81 who directed the parties to maintain status quo till further orders. An appeal was preferred against this order in the court of the learned Assistant District Judge, who admitted the appeal but refused the prayer for stay, whose effect is that the opera­tion of the order of the learned Munsiff passed on 24.6.81 continued. Feeling aggrieved, the defendants 4-12 here preferred this petition by invoking the revisional jurisdiction of this Court. 2. The main submission of Shri Laskar is that in view of section 151 of the Act the learned Civil Court had no jurisdiction to pass the impugned order. Section 151 states: "151. Feeling aggrieved, the defendants 4-12 here preferred this petition by invoking the revisional jurisdiction of this Court. 2. The main submission of Shri Laskar is that in view of section 151 of the Act the learned Civil Court had no jurisdiction to pass the impugned order. Section 151 states: "151. Exclusion of civil jurisdiction-No civil court shall take cognizance of any order passed or action taken by a competent authority under the provision of this Act, or Rules under this Act and also issue any stay order or injunction." 3. It is contended by Shri Laskar that the Act is a com­plete Code in so far as matters relating to the institutions covered by the Act are concerned. In particular, my attention is invited to section 138, sub-clause (1) of which has conferred power of appeal against any order of a Gaon Panchayat or Mahkuma Parishad. Sub-section (2) has provided for the revisional power to vest in the State Government. Besides this, section 153 has made the State Government the final authority in case of any dispute or difficulty. I am reminded by Shri laskar that the Government had itself dealt with the matter arising out of the meeting held on 10.3.80 under the power conferred by section 153. 4. The submission of Shri De on the other hand is that section 151 has no operation if the action taken itself be without jurisdiction. He has referred in this connection to Dhulabhai vs. State of M. P. AIR 1969 SC 78 , wherein it has been stated inter alia that exclusion of jurisdiction of civil court is not readily to be inferred. It was also stated in the aforesaid decision that a provision excluding jurisdic­tion of the civil court would not apply where the provisions of the particular Act have not been complied with. The purpose of drawing my attention to this aspect of the matter is that according to Shri Da the convening of the meeting by the Additional Deputy Commissioner on 29.6.81 was in violation of section 25 (2)(b) of the Act. To appreciate the contention, we may read the provision. "25. Removal of Chairman or Chief Executive Coun­cillor or Councillor of a Mohkuma Parishad, President, Vice-President or Member of a Gaon Penchayat. (1) * * * (2) No confidence motion against Chairman, Chief Executive Councillor or a Mohkuma Parishad, President Vice-President of a Gaon Panchayat. To appreciate the contention, we may read the provision. "25. Removal of Chairman or Chief Executive Coun­cillor or Councillor of a Mohkuma Parishad, President, Vice-President or Member of a Gaon Penchayat. (1) * * * (2) No confidence motion against Chairman, Chief Executive Councillor or a Mohkuma Parishad, President Vice-President of a Gaon Panchayat. (a) * * * (b) No motion of no confidence shall be brought against a Chairman or Chief Executive Councillor or Deputy Chief Executive Councillor or President of Stan­ding Committee of a Mohkuma Parishad or President or Vice-President of a Gaon Panchayat within a period of one hundred and eighty days from the date on which a motion of no confidence against such person, on the same ground was lost in a meeting held for such pur­pose under clause (a) of this sub-section." 5. A perusal of the provision shows that it has created an embargo on bringing a motion of no confidence against the persons named in the sub-section which includes the oppo­site party No. 1 "within a period of one hundred and eighty days from the date on which a motion of no confidence against such person on the same ground was lost". It has threfore to be seen what was the dale on which the first motion of no confidence was taken. This date was given as 10.3.80 in the plaint in some places and 10.3.81 in some other. To know for definite this date, the case was adjourned when it was taken up for hearing on 3.11.81, after which as ordered on that day the petitioners have filed fresh affidavit enclosing a certi­fied copy of the resolution passed in the aforesaid meeting. The resolution clearly shows that the date was 10.3.80. There is no counter to this affidavit. I have therefore to accept on the materials before me that the first meeting of no confidence was held on 10.3.80. Shri De submits that even if the date of the meeting be taken to be 10.3.80, requirement of section 25(2)(b) was violated inasmuch as the matter was pending with the Government as would appear from Annexure-IV dt. 26.3.81 by which the proceeding of the meeting was rescinded and the subsequent stay order passed on 6.2.81 which was vacated on 15.6,81. I am unable to concede the submission of Shri De. 26.3.81 by which the proceeding of the meeting was rescinded and the subsequent stay order passed on 6.2.81 which was vacated on 15.6,81. I am unable to concede the submission of Shri De. Because of these orders being passed by the Government it cannot be said that the embargo created by the aforesaid section continued inasmuch as section 25(2)(b) speaks of lapse of 180 days from the date on which motion of no confidence wax lost. This date has to be accepted as 10.3.80 on the basis of the materials on record. 1 do not think that merely because the Government rescin­ded the proceeding of that meeting by an order passed on 26.3.81, the period of 180 days has to be counted from that date, or for that matter from the stay order passed on 6.2.81, or vacation of the same on 15.681 According to me, the action of the Additional Deputy Commissioner in convening the meeting cannot be said to be in violation of section 25(2)(b) of the Act. This being the position and the language of section 151 of the Act being clear so as to include even passing of an order of injunction, I would hold that the learned trial court had no jurisdiction to pass the impugned order. 6. In view of the above, I would set aside the order of status quo as passed by the learned Munsiff on 24.6.81. 7. The petition stands allowed. Parties are however left to bear their own costs.