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1994 DIGILAW 213 (GAU)

Pabitra Mohan Daloct v. State of Assam and Ors.

1994-11-29

J.N.SARMA

body1994
This application under Article 226 of the Constitution of India has been filed challenging the legality and validity of the removal of the petitioner as the President of the Gaon Panchayat and also challenging the appointment of respondent No. 5, Vice President to be the President of the Gaon Panehayat. 2. The Gaon Panchayat in question is No.4 Derapathat Gaon Panchayat in the district of Nagaon. There is no dispute that this case is covered by the New Act, i.e. the Assam Panchayat Act, 1994 which came into force on 5th May, 1994. The President of the Gaon Panchayat according to section 6 (1) (b) of the Assam Panchayat Act, 1994 is elected directly by the voters of the territorial constituencies of the Gaon Panchayat in the manner prescribed. There is no dispute that the present petitioner was elected as the President of the Gaon Panchayat in accordance with law. The Vice-President is elected from amongst the elected members of the Gaon Panchayat and respondent No.5 was elected as the Vice President of the aforesaid Gaon Panchayat. 3. Section 13 (2) (a), (b) and (c) defines the powers and duties of the Vice President. Section 13 (2) (a), (b) and (c) are quoted below : "13. (2) The Vice-President shall, (a) exercise such of the powers, perform such of the functions and discharge such of the duties of President as the President may, from time to time, subject to rules made in this behalf by the Government, delegate to him by order in writing; Provided that the President may at any time withdraw all or any of the powers, function and duties so delegated to the Vice-President. (b) during the absence of the President, exercise all the powers, perform all the function and discharge all the duties of the President with the approval of the President of the Gaon Panchayat. (c) exercise such other powers, perform such other functions and discharge such other duties as the Gaon Panchayat may, by general or special resolution, direct or as the Government may, by rules made in this behalf, prescribe." 4. Section 13 (a) will show that the Vice President can exercise such powers and it is subject to Rules made in this behalf by the Government and delegated to him by order in writing. 5. The admitted position is that as on today no Rules have been framed 8 under this Act. Section 13 (a) will show that the Vice President can exercise such powers and it is subject to Rules made in this behalf by the Government and delegated to him by order in writing. 5. The admitted position is that as on today no Rules have been framed 8 under this Act. Section 13 (2) (b) provides that during the absence of the President he can exercise all the powers of the President with the approval of the President of the Gaon Panchayat. Section 13 (2) (c) provides that he may exercise such other powers and perform other functions as the Gaon Panchayat may by, general or special resolution, direct or as the Government may, by rules made in this behalf, prescribe. As there is no Rule in exercising the power the question of prescribing the powers of the Vice President by the Govt. does not arise. Section 15. of the Act provides for no confidence motion against the President and Vice-President. Section 15(1), (2), (3) and (4) are quoted below : "15. No confidence motion against the President and Vice President-(1) Every President or Vice-President shall be deemed to have vacated his office forthwith when resolution expressing want of confidence in him is passed by a majority of two-third of the total number of members of the Gaon Panchayat. Such a meeting shall be specially convened by the Secretary of the Gaon Panchayat with approval of the President of the Gaon Panchayat. Such meeting shall be presided over by the President if the motion is against the Vice-President, and by the Vice-President if the motion is against the President. In case such a meeting is not convened within a period of fifteen days from the date of receipt of notice, the Secretary of the Gaon Panchayat shall refer the matter to the President of the concerned Anchalik Panchayat who shall arrange to convene the meeting within fifteen days from the receipt of intimation from the Secretary of the Gaon Panchayat and preside over such meeting. In case the President of the Anchalik Panchayat does not take action as above within the specified days time the concerned Deputy Commissioner may refer the matter to the Zilla Parishad for necessary action. In case the President of the Anchalik Panchayat does not take action as above within the specified days time the concerned Deputy Commissioner may refer the matter to the Zilla Parishad for necessary action. (2) The requisition for such a special meeting under sub-section (1) shall be signed by not less than one third of the total number of members of the Gaon Panchayat and shall be delivered to the President or Vice-President as the case may be, of the concerned Anchalik Panchayat with intimation to the Deputy Commissioner of the District. (3) Without prejudice to the provision under this Act a President or-a Vice-President of a Gaon Panchayat may be removed from office by the concerned Anchalik Panchayat with the approval of the Zilla Parishd for misconduct of his/her duties or neglects or incapacity to perform his/her duties or being persistently remiss in the discharge of or guilty of any disgraceful conduct and President or Vice-President so removed shall not be eligible for re-election as President or Vice-President 'during the remaining term of office either as President or Vice-President of such Gaon Panchayat. Provided that no such President or Vice-President of a Gaon Panchayat shall be removed from office unless he is given reasonable opportunity to furnish explanation to the Anchalik Panchayat. (4) A Vice-President so removed from his office under sub-section (3) may also be removed from membership of the Gaon Panchayat by the Government after the giving member a reasonable opportunity to furnish his explanation." 6. In the instant case Annexure A will show that the Vice-President wrote to the Additional Deputy Commissioner, Shankardev Nagar, Hojai, Nagaon stating therein that a meeting of the Gaon Panchayat was held on 6.5.94 and in that meeting no confidence resolution was passed as against the President, the present petitioner. 7. Annexure B is the proceeding of that meeting. Thereafter on 11.5.94 by Annexure C Block Development convened a meeting of the Panchayat on 18.5.94 in the office of the Lumding Development Block at 11 AM. 7. Annexure B is the proceeding of that meeting. Thereafter on 11.5.94 by Annexure C Block Development convened a meeting of the Panchayat on 18.5.94 in the office of the Lumding Development Block at 11 AM. The President vide Annexure D dated 16.5.94 wrote to the Block Development Officer, Lumding Development Block to hold the meeting after 7 days but the meeting was held on 18.5.94 vide Annexure E and the so called no confidence motion/resolution was passed and the proceeding was sent to the Additional Deputy Commissioner, Shankardev Nagar and by Annexure H an order was passed on 21st of May, 1 994 as per section 24(1)(c) of the Panchayati Raj Act, 1986 but curiously enough the elected members as well as the Addl. Deputy Commissioner forgot that on 18th February, 1994, the Assam Panchayat Ordinance, 1994 was published in the Gazette and by section 131 of this Ordinance, the Panchayati Raj Act, 1986 was repealed. So, no action can be taken under that Act. If actions are to be taken it must be taken according to the provisions of the Ordinance i.e. the Assam Panchayat Ordinance, 1 994 and thereafter on 5th May, 1 994 the Assam Panchayat Act, 1994 came into force. So, the order which was passed by the Secretary of the Mahakuma Parishad, Hojai, Shankardev Nagar is absolutely without jurisdiction and Annexure H as such stands quashed. 8. I have also perused the so called no confidence proceeding initiated as against the petitioner and it appears that they are also not in conformity with the provisions of the Act. Accordingly that proceeding also stands quashed. As all these things have been quashed, the petitioner shall be deemed to be the President of the Gaon Panchayat but it is made clear that this shall not be a bar for the members to initiate no confidence resolution/motion against the petitioner in accordance with the laws and rules. 9. One thing which must be taken note by the authority is that the post of the President is an elected post and it cannot be filled up by the State Government by exercising the power under section 1 32 of the Act for an indefinite period. Section 1 32 is with regard to the removal of difficulties and that section is quoted below : "132. Section 1 32 is with regard to the removal of difficulties and that section is quoted below : "132. Removal of difficulties - If any difficulty arises in giving effect to the provisions of this Act, the Government may take such necessary action so long as these are not repugnant to the main objectives and provision of this Act." 10. So, the Govt. can take such necessary action so long these are not repugnant to the main objectives and the provisions of the Act. Allowing the Vice-President to be the President for a long period shall certainly be repugnant to the main objectives and provision of the Act inasmuch as the Act provides that the post of President is an elective post. How Govt. will sort out that problems is left to the wisdom of the authority but I am only indicating the difficulties that the authority will face in allowing the Vice-President to be the President for a long period. 11. As there are serious allegations against the President, the present writ petitioner, in the interest of justice and equity, I direct that for a period of 3(three) weeks from today the President shall not exercise the financial power but he will be entitled to exercise all other powers and after expiry of 3 (three) week, the financial power may be exercised by the President. This disposes of the writ application.