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2003 DIGILAW 571 (GAU)

Jiten Saikia v. State of Assam

2003-12-10

AMITAVA ROY

body2003
JUDGMENT Amitava Roy, J. 1. The Petitioner No. 1 herein, the President of Machkhowa Anchalik Panchayat, Dhemaji, and another elected member, the Petitioner No. 2, have approached this Court for restraining the Respondents from passing or giving effect to any resolution of no confidence against the Petitioner No. 1 in a meeting proposed to be held on 27.5.2003. It is submitted at the bar that during the pendency of the proceedings the Petitioner No. 2 has expired. 2. I have heard Mr. K.N. Choudhury, learned Senior counsel for the Petitioner, Mr. R. Chakravorty, learned G.A., Assam as well as Mr. N.C. Das, learned senior counsel and Mr. A.M. Buzarbaruah, Advocate for the Respondent Nos. 4, 5 and 6. 3. The bare facts are that Petitioner No. 1 was elected as the President of the aforesaid Anchalik Panchayat on 24.3.2003. While he was functioning as such the Respondent Nos. 4, 5 and 6 who are also the elected members of the said Anchalik Panchayat, with a view to a bring No Confidence Motion approached the Respondent No. 2, the President, Dhemaji Zila Parishad. Notice was issued on 20.5.2003 by the Executive Officer, Dhemaji Zila Parishad, convening a meeting to consider No Confidence Motion against the Petitioner No. 1 under Section 43(1) of the Assam Panchayat Act, 1994 (hereinafter referred to as the "Act"). The Petitioner No. 1 claims that a meeting was held where the allegations brought against him could not be established. Though the matter ought to have rested there, by WT message No. 23.5.2003 another emergent meeting was convened on 27.5.2003 to discuss the same issue. It was at that stage, that the Petitioners approached this Court. By order dated 27.5.2003, this Court issued Notice of Motion and in the interim directed that the decision, if any, taken in the meeting held on 27.5.2003 should not be given effect to without the leave of this Court. The Petitioner No. 1, therefore, continues in the office of the President till date. 4. By order dated 27.5.2003, this Court issued Notice of Motion and in the interim directed that the decision, if any, taken in the meeting held on 27.5.2003 should not be given effect to without the leave of this Court. The Petitioner No. 1, therefore, continues in the office of the President till date. 4. It has been contended amongst others that the process initiated for discussing the No Confidence Motion against the Petitioner No. 1 is in gross contravention of the mandatory requirements of Section 43(1) of the Act, inasmuch as, the requisition of the meeting was made only by three elected members in a house of five members and, therefore, on that ground alone the impugned WT message dated 23.5.2003 and all actions taken on the basis thereof are liable to be declared illegal, null and void. The Petitioners have also denied the allegations on which the requisition had been made. 5. In the counter filed by the private Respondents it has been contended that the requisition submitted by the Respondent Nos. 4, 5 and 6 was in sufficient compliance of the requirements of Section 43 of the Act and as the allegations levelled against the Petitioner No. 1 had been established in the meeting dated 27.5.2003, the Petitioner No. 1 stands removed from the office of the president of the Anchalik Panchayat. According to them, in the attending facts and circumstances, no case has been made out warranting interference of this Court. 6. The learned Counsel for the parties confined their arguments only to the aspect of required majority for expressing the No Confidence Motion against a President of an Anchalik Panchayat for his removal as contemplated under Section 43 of the Act. There is no dispute that there are five elected members in the concerned Anchalik Panchayat. While Mr. Choudhury contended that 2/3 majority of five would be 3.3, the fraction of 3 should be rounded up to the next higher integer. Therefore, for all intents and purposes the required majority in the instant case should be of 4 elected members, As admittedly, the requisition for the No Confidence Motion had been made by three members, the process initiated on the basis of such requisition was ex facie not sanctioned by Section 43 of the Act and, therefore, is illegal, null and void. The learned Counsel further argued that having regard to the peremptory language of the above provision of the Act, the requirement of majority of 2/3 of the total number of directly elected members has to be strictly construed and, therefore, the figure 3.3 in the facts and circumstances of the case has to be read as 4. In support of his submission, Mr. Choudhury cited a decision of the Punjab and Haryana High Court in Jardar Khan v. State of Haryana and Ors. AIR 1998 p&h 249 . 7. Mr. N.C. Das, on the other hand, has submitted that as in the instant case the fraction of 3 is not above. 5, by applying the basic principles of arithmetic, the fraction should be ignored to compute the required number of members for the purpose of requisitioning a meeting for No Confidence Motion or for carrying out the resolution to that effect. In the instant case, the Respondent Nos. 4, 5 and 6, the directly elected members of the Anchalik Panchayat had requisitioned the meeting which was duly held on 27.5.2003 and the No Confidence Motion was carried against the Petitioner No. 1 and, therefore, it is not a fit case in which this Court should interfere with the above process. 8. Ms. R. Chakravorty, the learned G.A., Assam, on the other hand, has endorsed the view expressed by Mr. Choudhury. 9. Admittedly, in the case in hand, the total number of directly elected members of the concerned Anchalik Panchayat are 5 and 2/3 there of on arithmetical calculation comes to 3.3. The crux of the matter is whether 3 for the purpose of computing 2/3 of total number of elected members be ignored or be rounded up to the next higher integer. 10.The Punjab and Haryana High Court in the case of Jardar Khan (supra) was seized with a situation where the Petitioner therein who was an elected Up-Sarpanch of Utela Gram Panchayat was sought to be removed by a resolution of No Confidence Motion taken by 5 Panchas. There were 7 members of the said Gram Panchayat, one Sarpanch and one Up-Sarpanch. Going by the definition of panch as provided in Haryana Panchayat Raj Act, 1994, the Panch included the Up-Sarpanch thus making the number of panchas 8. Thus, 5 Panch did not constitute the required 2/3 majority for such removal. There were 7 members of the said Gram Panchayat, one Sarpanch and one Up-Sarpanch. Going by the definition of panch as provided in Haryana Panchayat Raj Act, 1994, the Panch included the Up-Sarpanch thus making the number of panchas 8. Thus, 5 Panch did not constitute the required 2/3 majority for such removal. It was held that 5 Panchas out of 8 did not constitute 2/3 majority as 2/3 of 8 was 5.3 and the fraction could not be ignored. It was further held that Section 10 of the Act which provided for removal of a Up Sarpanch, in the very nature of things should be interpreted strictly. 11. I respectfully subscribe to the view taken in the aforementioned decision. 12. Section 43 of the Act prescribes a detailed scheme for removal of a President and a Vice-President of an Anchalik Panchayat. It is self contained. Under Section 43 of the Act a President and a Vice President shall be deemed to have vacated his office forthwith if 2/3 majority of its total elected members by a resolution express want of their confidence in him. It is, therefore, apparent that once a resolution of No Confidence is passed by the required number of directly elected members, the President or the Vice President would be deemed to have vacated his office immediately. Having regard to the language used in Section 43 of the Act and consequences that would follow if such a resolution of No Confidence is passed, the requirements thereof have to be construed stringently. The opinion of the required number of the elected members of the Anchalik Panchayat being the necessary precondition for the removal of the President or Vice President as the case may be, I am of the view that for computing 2/3 majority of the total members, any fraction even if it is less than 5 should be read as 1 and consequently the resultant number would be the next higher integer. Any fraction howsoever small may be, would represent the corresponding opinion also essential for comprising the required majority for unseating the President or the Vice President and thus cannot be ignored. To overlook the fraction would be to emasculate the provision of its rigour and reduce the exercise to a formality. This cannot be the intention of the legislature on an issue of such moment. To overlook the fraction would be to emasculate the provision of its rigour and reduce the exercise to a formality. This cannot be the intention of the legislature on an issue of such moment. In the instant case, the required number elected members of the Anchalik Panchayat to requisition and move a No Confidence Motion against the Petitioner No. 1 thus should have been 4. Admittedly, only three, namely the Respondent Nos. 4, 5 and 6 have participated in the said exercise. This in my view is not in conformity with the mandatory requirement laid down by Section 43 of the Act. To approve the impugned action would tantamount to trivializing the clear edict of the provision. 13. For the foregoing reasons, I am of the view that the process initiated for moving the No Confidence Motion against the Petitioner No. 1 by WT message dated 23.5.2003 issued by the Chief Executive Officer, Dhemaji Zila Parishad, Dhemaji, and all subsequent actions taken pursuant thereto cannot be sustained in law and are declared illegal, null and void. As a corollary, the proceedings and the resolution passed in the meeting held on 27.5.2003 therein carrying the No Confidence Motion against the Petitioner No. 1 is non est in law and on facts and cannot be legally given effect to. The writ petition stands allowed. No costs. Petition allowed.