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2003 DIGILAW 411 (GAU)

Basanti Das v. State of Assam

2003-09-03

AMITAVA ROY

body2003
JUDGMENT Amitava Roy, J. 1. The Petitioner has approached this Court being aggrieved by what she perceives to be a contravention of the precepts of Section 15 of the Assam Panchayat Act, 1994 (hereinafter referred to as the 'Act') in carrying the no confidence motion against her as the President of No. 117 Batarhat Gaon Panchayat (hereinafter referred to as the 'Panchayat') and the consequential order dated 5.5.2003 passed by the learned Deputy Commissioner, Dhubri permitting the Vice-President of the Gaon Panchayat to discharge and function of the President thereof till fresh elections are held for the office of President. 2. I have heard Mr. A. Sharif, learned Counsel for the Petitioner, Mr. P. Roy, learned State Counsel for the official Respondents as well as Agamoni Anchalik Panchayat (hereinafter referred to as the 'Anchalik Panchayat') and Mr. A.M. Mazumdar, learned Senior Counsel assisted by Mr. Islam, Advocate for the Respondent Nos. 7 to 13. 3. The primary facts have to be noticed to resolve the controversy. The case of the Petitioner as set out in the writ petition is that she belongs to scheduled caste community and she was duly elected as the President of the Gaon Panchayat in the election held in the year 2001. The private Respondent No. 7 is the Vice President and the private Respondent Nos. 8 to 13 are the other members of the Panchayat. On 17.2.2003, 7 members submitted a requisition before the Petitioner for convening a meeting for no confidence motion for her removal from the office of the President. As no action was taken thereon, the Secretary of the Panchayat under Section 15 of the Act referred the matter to the President of the Anchalik Panchayat on 4.3.2003. The President of the Anchalik Panchayat by letter dated 11.3.2003 asked the Petitioner to submit an explanation in respect of the proposed no confidence motion. The Petitioner has contended that the notice did not bear any mention about the proposed no confidence motion against her. The Petitioner, however, submitted her explanation on 12.3.2003. In the meantime, however on 11.3.2003 the Executive Officer, Anchalik Panchayat issued a notice convening a special meeting of the Gaon Panchayat for moving the no confidence motion against her on 17.3.2003. The meeting was, thereafter held in which the Petitioner. Vice President of the Panchayat and all members thereof participated. The Petitioner, however, submitted her explanation on 12.3.2003. In the meantime, however on 11.3.2003 the Executive Officer, Anchalik Panchayat issued a notice convening a special meeting of the Gaon Panchayat for moving the no confidence motion against her on 17.3.2003. The meeting was, thereafter held in which the Petitioner. Vice President of the Panchayat and all members thereof participated. The meeting was also attended by several members of the various other Gaon Panchayats as well as the Vice President of the Anchalik Panchayat. The meeting was presided over by the President of the Anchalik Panchayat. In the said meeting, the proposed no confidence motion was carried by secret ballots by a majority of 7 votes in favour of the motion and 3 against. 4. This Court by order dated 29.4.2003 issued Rule, but declined to grant interim relief as prayed for to stall further action on the basis of the no confidence motion. Thereafter, a communication dated 5.5.2003 was issued by the Deputy Commissioner, Dhubri permitting the Vice President of the Gaon Panchayat to discharge the duties and functions of the President thereof pending fresh elections. 5. In the counter filed by the Respondent Nos. 7 to 13, it has been strongly contended that the meeting for moving the no confidence motion against the Petitioner held on 17.3.2003 was as per the requirements of Section 15(1) and 45(4) of the Act and that as the Petitioner had lost the confidence of the majority of the members of the Gaon Panchayat, the same was carried against her. According to the answering Respondents, the communication addressed by the Secretary of the Gaon Panchayat to the President of the Anchalik Panchayat on the failure to convene the meeting was received by the President of the Anchalik Panchayat on 5.3.2003 and within a week there form a notice was issued on 11.3.2003 requiring the petitioner to submit her explanation by 13.3.2003. Eventually, the especial meeting was held on 17.3.2003 within 7 days from 11.3.2003. According to them, there had been no violation of the requirements prescribed by Section 15 of the Act. 6. Though no affidavit has been filed on behalf of the State Respondents as well as the Anchalik Panchayat, the learned Counsel appearing for the said Respondents, in course of the hearing has produced the relevant records. 7. Mr. According to them, there had been no violation of the requirements prescribed by Section 15 of the Act. 6. Though no affidavit has been filed on behalf of the State Respondents as well as the Anchalik Panchayat, the learned Counsel appearing for the said Respondents, in course of the hearing has produced the relevant records. 7. Mr. Sharif has argued that admittedly on the requisition notice submitted by the 7 members of the Gaon Panchayat, no meeting was convened by the Secretary thereof within a period of 15 days there from and therefore, the Secretary of the Gaon Panchayat referred the matter to the president of the Anchalik Panchayat and the relevant communication was received by the later on 5.3.2003. The learned Counsel has, therefore argued that in keeping with the requirements of Section 15(1) of the Act the meeting to move the no confidence motion ought to have been convened within 7 days therefrom i.e. on 5.3.2003. No such meeting having been held within the period so prescribed, the proceeding of the meeting held on 17.3.2003 is vitiated by a patent illegality for which the resolution accepting the no confidence motion has been rendered ex facie illegal and no-nest in law. He has further argued that the notice issued on 11.3.2003 by the Executive Officer of the Anchalik Panchayat is per se without jurisdiction inasmuch the Act does not contemplate any such notice by the Executive Officer and on this count alone, the proceedings of the meeting held on 17.3.2003 are liable to be adjudged illegal, null and void. Mr. Sharif has further argued that the proceeding of the meeting held on 17.3.2003 is also vitiated by the fact that, though the same was convened to test the no confidence motion against the President of the Gaon Panchayat, it was attended by outsiders as well, whose presence apparently had influenced the proceeding and the final decision on the issue, and on that count as well, the proceedings of the meeting and the resolution in favour of the no confidence motion are liable to struck down as not sustainable in law. According to the learned Counsel, the prescriptions of Section 15 are mandatory in nature and any departure there from is not permissible. According to the learned Counsel, the prescriptions of Section 15 are mandatory in nature and any departure there from is not permissible. As in the instant case, the same has not been complied with, the inescapable conclusion has to be that the proceedings of the meeting and the resolution carrying the no confidence motion against the Petitioner are illegal and liable to be set aside out and quashed. 8. Mr. Roy has submitted that on receipt of the communication from the Secretary of the Gaon Panchayat, the President of the Anchalik Panchayat had issued a notice on 11.3.2003 asking the Petitioner to submit an explanation and as the notice was issued within 7 days from the receipt of the communication, it could not be said that there has been no compliance of Section 15 of the Act. He, however, concluded that no further notice was issued by the President of the Anchalik Panchayat to convene the meeting as in the meantime, the Executive Officer of thereof had issued a notice convening a meeting on 17.3.2003. Mr. Roy has, however submitted that the Executive Officer as such, had no authority to issue such notice and on that count has drawn the attention of this Court to the unamended Section 15 of the Act which permitted the president of the Anchalik Panchayat to arrange (emphasis supplied) to convene a meeting in similar circumstance. According to him, with the amendment introduced in the year 1997 and the language used in Section 15 of the Act, it is the President of the Anchalik Panchayat alone who has to convene a meeting and therefore, prima facie the Executive Officer of the Anchalik Panchayat had no authority to issue such notice. He also submitted that the meeting held on 17.3.2003 could not have been attended by the persons beyond the members of the Gaon Panchayat and this too, is a factor which has vitiated the proceedings thereof. 9. Refuting the above contentions, Mr. Mazumdar, has strongly argued that the word 'convene' used in Section 15 of the Act, does not suggest to 'hold' the meetings contemplates therein. 9. Refuting the above contentions, Mr. Mazumdar, has strongly argued that the word 'convene' used in Section 15 of the Act, does not suggest to 'hold' the meetings contemplates therein. According to him, if steps are taken for the purpose of holding the meeting within the period prescribed by the said provision, it would be sufficient of compliance thereof and merely because, there might be some delay in the actual holding of a meeting beyond the time frame fixed, the proceedings thereof cannot be said to be vitiated due to compliance of the mandates of Section 15 of the Act. hi this connection, he has also drawn the attention of the Court to the definition of the words 'convene' and 'hold' as provided in the Black's Law Dictionary. To buttress his arguments, Mr. Mazumdar has also taken this Court to Section 45(4) of the Act which provides: the manner of convening the ordinary and special meetings of the Anchalik Panchayat. The learned Senior Counsel has argued that as for convening an ordinary meeting ten days clear notice and for a special meeting seven days clear notice as specified in Sub-section 4 of Section 45 of the Act is necessary it would be wholly inconsistent to conclude that it would be a mandatory requirement for the Anchalik Panchayat to convene and hold the meeting of the members of the Gaon Panchayat as required under Section 15(1) within a period of 7 days from the date of the receipt of the communication by the Secretary of the Gaon Panchayat. He, therefore argued that on a harmonious construction of the two provisions of the Act, it has to be construed that it would be a substantial compliance of Section 15, if steps are taken by the President of the Anchalik Panchayat for convening the meeting within 7 days of the receipt of the information from the Secretary of the Gaon Panchayat and even if the actual meeting is held thereafter, the same would not vitiate the proceedings thereof Mr. Mazumdar has maintained that admittedly in the present case the Petitioner has lost her majority in the Gaon Panchayat and therefore, a slight deviation here and there in the procedure would not be sufficient to allow her to continue in the office of the President an office which can be held by an elected representative of the people enjoying the confidence of the majority of the House. 10. As would be apparent from the above, the basic facts are admitted. Pursuant to the requisition notice no meeting was held by the Secretary of the Gaon Panchayat. He thereafter referred the matter within the prescribed period to the President of the Anchalik Panchayat who received the same on 5.3.2003. Admittedly again, no meeting had been held with 7 days of the receipt of the said notice. The notice of the meeting had been issued on 11.3.2003 by the Executive Officer of the Anchalik Panchayat though the requirement of Section 15 is that the same has to be done by the President of the Anchalik Panchayat. The parties are not at issue that the Executive Officer of the Anchalik Panchayat is not the President of the Anchalik Panchayat. Per se, therefore, the notice dated 11.3.2003 could not have been issued by the Executive Officer of the Anchalik Panchayat. If that be so, the initiation of the process for holding the meeting is without the jurisdiction. 11. Section 15 of the Act deals with the topic of no confidence motion against the President and Vice President of the Gaon Panchayat. The moment a resolution expressing want of confidence against the President or a Vice President is passed, the President or the Vice President concerned would be deemed to have vacated his office thereafter. The requirement is that the resolution of no confidence has to be passed by a majority of two third of the total number of members of the Gaon Panchayat. The law does not contemplate participation of any other person in the process. To have a clear idea about the scheme providing for the meetings for such purpose, it would be apposite to set out the relevant extract of Section 15 of the Act as under. Such a meeting shall be specially convened by the Secretary of the Gaon Panchayat with approval of the President of the Gaon Panchayat. To have a clear idea about the scheme providing for the meetings for such purpose, it would be apposite to set out the relevant extract of Section 15 of the Act as under. 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 within three days, refer the matter to the President of the concerned Anchalik Panchayat, who shall convene the meeting within seven days from the date of receipt of the information from the Secretary of the Gaon Panchayat and president over such meeting. In case the President of the Anchalik Panchayat does not take action as above, within the specified seven days time, the concerned Gaon Panchayat Secretary shall inform the matter to the Deputy Commissioner/Sub-Divisional Officer (Civil) as the case may be within three days after the expiry of the stipulated seven days time and the concerned Deputy Commissioner/Sub-Divisional Officer (C) shall convene the meeting within seven days from the date of the receipt of the information with intimation to the Zilla Parishad and the Anchalik Panchayat and preside over the meeting so convened: Provided that the concerned Deputy Commissioner/Sub-Divisional Officer (C) as the case may be, in case of his inability to preside over the meeting, may depute one Gazetted Officer under him not below the rank of Class I Gazetted Officer to preside over such meeting: Provided further that when a no-confidence motion is lost, no such motion shall be allowed in the next six months. 12. It is clear from the above that on receipt of the requisition for no confidence motion, the meeting has to be convened by the Secretary of the Gaon Panchayat with the approval of the President thereof within a period of fifteen days from the date of receipt of such notice/requisition. 12. It is clear from the above that on receipt of the requisition for no confidence motion, the meeting has to be convened by the Secretary of the Gaon Panchayat with the approval of the President thereof within a period of fifteen days from the date of receipt of such notice/requisition. In case, it is not done, the Secretary of the Gaon Panchayat shall within three days refer the matter to the President of the concerned Anchalik Panchayat, who in turn has to convene the meeting within 7 days from the date of receipt of the information from the Secretary of the Gaon Panchayat and has to preside over the meeting. In case, however, the President of the Anchalik Panchayat fails to act accordingly, the Secretary of the Gaon Panchayat has to inform the matter to the Deputy Commissioner/Sub-Divisional Officer (Civil) as the case may be within three days after expiry of the period of seven days time and then the concerned Deputy Commissioner/Sub-Divisional Officer (Civil) shall convene the meeting within seven days from the date of receipt of such information with intimation to the Zilla Parishad and the Anchalik Panchayat and shall preside over the meeting. The law makers, therefore have provides a tight schedule to be adhered to by the authorities referred to in the above provision of the Act. Having regard to the adverse consequences that would follow, in case, the meeting is held and a resolution expressing no confidence motion against the President or the Vice President is passed, it is difficult to subscribe to the view that any flexibility m such matters is permissible. Any departure at any stage would have the potential of dislocating the scheme of things envisaged by Section 15 of the Act. This would lead to chaos and uncertainty. It is, therefore, not possible to concur with the learned Senior Counsel for the private Respondents that a strict adherence to the requirement of Section 15 is not called for and that a substantial compliance thereof would be sufficient. The language used in peremptory in tenor and content and the rigour thereof cannot be relaxed in any view. 13. It is, therefore, not possible to concur with the learned Senior Counsel for the private Respondents that a strict adherence to the requirement of Section 15 is not called for and that a substantial compliance thereof would be sufficient. The language used in peremptory in tenor and content and the rigour thereof cannot be relaxed in any view. 13. Coming to the aspect as to whether the word 'convene' used in Section 15 of the Act could be construed differently from holding of the meeting, I am of the view that the interpretation as sought to be provided on behalf of the private Respondents if accepted would frustrate the very purpose of the provision. 14. The words 'convene' and 'hold' have been defined in Black's Law Dictionary as hereunder. 'Convene', To call together, to cause of assemble, to convoke. 'Hold'... To administer, to conduct or preside at, to convoke, open. A bare perusal of the word 'convene' disclose an exercise to call together or to cause to assemble or convoke and, the word 'hold' inter alia means to administer or conduct or preside at or convoke as well. 15. It is the settled principle of interpretation that a word used in any enactment has to be provided the meaning which suits it having regard to the context in which the same appears. Considering the purpose of enacting Section 15 of the Act, I cannot persuade myself to hold that the word 'convene' can be given a meaning different from 'hold'. As alluded above the subtle difference sought to be portrayed by the learned Senior Counsel for the private Respondents, in my view would up set the underlying object of the Act. The requirement of convening a meeting in Section 15 essentially conveys the edict of actually holding the meeting. I am therefore, unable to uphold the contention of Mr. Mazumdar on this count as well. 16. The argument of Mr. Mazumdar with regard to Section 45(4) of the Act can be easily met. Section 15 contemplates a meeting of the Gaon Panchayat and that too for the no confidence motion against the President or the Vice President thereof The President of the Anchalik Panchayat steps into the scene only on the failure of the Secretary of the Gaon Panchayat to convene the meeting within 15 days of the requisition therefor. Section 15 contemplates a meeting of the Gaon Panchayat and that too for the no confidence motion against the President or the Vice President thereof The President of the Anchalik Panchayat steps into the scene only on the failure of the Secretary of the Gaon Panchayat to convene the meeting within 15 days of the requisition therefor. The meeting to be presided over by the President of the Anchalik Panchayat nevertheless would remain a meeting of the Gaon Panchayat and therefore, the requirements of Section 45(4) are not attracted in such a situation. 17. As has been held above, the Executive Officer of the Anchalik Panchayat had no authority under the law to convene the meeting. This cuts at the root of the case of the private Respondents. In that view of the matter as well, the proceedings of the meeting cannot be sustained. The significant feature of the meeting which comes to the notice is that persons beyond the members of the Gaon Panchayat had also attended the meeting. There is no requirement of the Act to that effect. It has been complained by the Petitioner that the presence of others was secured by the requisitioning members to gamer support in favour of the no confidence motion. In absence of sufficient materials on record, to that effect, this Court is not inclined to make any observation thereon. 18. Considering the totality of the facts and circumstances of the case and the conclusions arrived at as above, it is thus not possible to sustain the impugned resolution of no confidence motion against the Petitioner. For the reasons stated hereinabove, the proceedings of the meeting held on 17.3.2003 also cannot be approved. Consequently the decision of the Deputy Commissioner, Dhubri convened by the communication dated 5.5.2003 cannot he upheld. 19. In the result, petition succeeds. The proceedings of the impugned meeting held on 17.3.2003, the resolution dated 17.3.2003 passing the no confidence motion against the Petitioner and the communication dated 5.5.2003 issued by the Deputy Commissioner, Dhubri are hereby set aside and quashed. The Misc. Case No. (N) 15/2003 also stands disposed. In the facts and circumstances of the case, there would be no order as to costs. Petition allowed