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1994 DIGILAW 221 (GAU)

Md. Harun Ali Rashid v. State of Assam and others

1994-12-12

B.N.SINGH NEELAM, V.K.KHANNA

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Judgement KHANNA,C.J.:-The present civil rule has been filed by Md. Harun Al Rashid praying for a writ of certiorari quashing the directions contained in W.T. Message dated 11-10-1994 (Annexure-XII) issued by the Deputy Commissioner, Marigaon District and notice dated 11-10-1994 (AnnexureXVIII) issued by the Executive Officer, Moirabari Development Block (respondent-3). It has also been prayed that the notice of motion of no confidence should be set aside and quashed and that the respondents be restrained from holding motion of no confidence. 2. We have heard Mr. D. N. Choudhury, Senior counsel appearing for the petitioner Md Harun Ali Rashid; and Mr. A.R. Barthakur, Senior counsel appearing for the contesing respondents. 3. Mr. D. N. Choudhury, counsel appearing for the petitioner has urged that under Section 43 of the Assam Panchayati Raj Act, 1994 (for brevity, the Act), the Deputy Commissioner has got no authority to convene a meeting of no confidence as being sought to be done in pursuance of the impugned W.T. message. It has not been disputed before us that requisite motion of no confidence signed by the requisite members has been given against the petitioner who happens to be the President of the concerned Anchalik Panchayat and it has also been conceded that uptil now the President has not given his approval for holding the aforesaid meeting as is contemplated under Section 43 of the Act. 4. For the purposes of adjudication of the disputes raised in the present writ petition, it will be of some importance to have the relevant provisions of section 43(1) of the Act, which reads as follows : "43.( 1) Every President and Vice President of the Anchalik Panchayat shall be deemed to have vacated his office forthwith if by a resolution express vote of confidence in him is passed by a majority of two-third of total number of the members of the Anchalik Panchayat. Such a meeting shall be specially convened with the approval of the President of the Anchalik Panchayat. Such meeting shall be presided over by the President if the motion is against Vice President and the Vice President if the motion is against the President. Such a meeting shall be specially convened with the approval of the President of the Anchalik Panchayat. Such meeting shall be presided over by the President if the motion is against Vice President and the Vice President if the motion is against the President. In case such a meeting is not convened in the Anchalik Panchayat within a period of fifteen days from the date of receipt of the notice, the Secretary of the Anchalik Panchayat shall refer the matter to the President of the Zilla Parishad with intimation to the Deputy Comissioner. The President of the Zilla Parishad shall then arrange for convening the meeting within fifteen days from the date of receipt of intimation. " 5. A bare perusal of the aforesaid Section 43(1) of the Act would make it clear that the intention of the legislature is that when a motion of no confidence is tabled against the President of the Anchalik Panchayat, a meeting shall be specially convened with the approval of the President of the Anchalik Panchayat and such a meeting is not to be presided over by him but by the Vice President of the Anchalik Panchayat. 6. Mr. D. N. Choudhury, learned counsel appearing for the petitioner while urging that the Deputy Commissioner has got no power to call the meeting, has frankly made a statement before this Court that the petitioner is prepared to give his approval for holding the meeting on 28-12-1994. It has, however, been strenuously urged that the motion of no confidence has been tabled against the petitioner because of political influence meaning thereby that the members who have tabled motion of no confidence are not interested in ousting the petitioner from the post of President of the Anchalik Panchayat. 7. As far as the aforesaid question is concerned, it will not fall within the domain of this Court to adjudicate on this question inasmuch as the Anchalik Panchayat is a Local Self Government and the Panchayat has been constituted by duly elected members under the Act and they have specific right under Section 43 of the Act to table motion of no confidence against the President in accordance with the provisions of Section 43 of the Act. It will be for the members to consider the vote on motion of no confidence and a decision on motion of no confidence will be taken in accordance with the provisions underlying section 43 of the Act, that is, in case 2 / 3rd of the members voting in favour of the motion of no confidence it will be deemed to be carried. Apprehension has also been expressed by the learned counsel for the petitioner that the meeting will not be held in free and fair atmosphere so that the members may deliberate on motion of no confidence. 8. Mr. Barthakur, Senior counsel appearing on behalf of the contesting respondent, has agreed that the meeting be held on 28-12-l994 regarding which approval has been given by the President(petitioner in this Civil Rule). The Secretary of the Anchalik Panchayat will therefore issue notice forthwith for holding the meeting on 28-12-1994 at 10.30 a.m. 9. A certified copy of our order will also be sent to the District Judge, Morigaon by the Registry of this Court within 48 hours by Speed Post so that he may nominate one of his officers to be present in the meeting as an observer. A certified copy of our order will also be sent to the District Magistrate / Deputy Commissioner Morigaon by the Registry of this Court within 48 hours who will ensure proper security arrangements and will also nominate a responsible officer who will also be present as an observer. The observers present in the meeting will independently prepare their respective reports which will form part of the proceedings of the motion of confidence. At the time the meeting is held, it is being made clear that except the two observers --- one nominated by the District Judge, Morigaon and the other nominated by the Deputy Commissioner, Morigaon, nobody else will be present in the meeting and the Vice President of the Anchalik Panchayat will preside over the meeting and after holding discussions on the motion of no confidence will table the same for the purpose of recording the votes of the members present in the meeting. 10. 10. As the petitioner who happens to be the President of the Anchalik Panchayat has signified his approval for holding the meeting on 28-12-1994 at 10.30 a.m., the question as to whether the Deputy Commissioner has power to get a meeting summoned under Section 43 of the Act for the purpose of discussions on motion of no confidence loses significance and requires no adjudication by this Court on the facts and in the circumstances of this case. 11. The present Civil Rule is being finally disposed of subject to the observations made above. However, looking to the entire facts and circumstances of the case, we make no order as to costs. Certified copy/copies of this order shall be given to the learned counsel for the parties on payment of usual charges within 24 hours. Order accordingly.