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2004 DIGILAW 225 (GAU)

Kanika Choudhury v. State of Assam

2004-03-26

BIPLAB KUMAR SHARMA

body2004
JUDGMENT B.K. Sharma, J. 1. By this writ application, the petitioner has made a challenge to the order dated 6.12.2003 by which No Confidence Notice brought against her has been approved under Section 15(3) of the Assam Panchayat Act, 1994. By the said order of petitioner has been removed from the post of President of No. 33, Panigaon Goan Panchayat. 2. The petitioner contested the election for the post of President of No. 33 Panigaon Gaon Panchayat and was duly elected result of which was declared on 3.1.2002. The term was for five year. On 7.10. 2003, six members of the Goan Panchayat including the Vice President submitted an application to the petitioner expressing no confidence against her. Subsequently on 12.10.2003 and 14.10.2003, three members submitted another application to the petitioner informing her that they had, due to some misunderstanding put their signatures in the former application expressing no confidence against her and that they would like to withdraw from such a move. Before the petitioner could take any action on the notice, on the direction of the President of Pachim Nalbari Anchalik Panchayat, the executive Officer of Anchalik Panchayat by his letter dated 17.10.2003 circulated a notice furnishing the information that meeting for discussing the no confidence motion against the petitioner had been called on 18.10.2003. Accordingly the petitioner alongwith the said three members attended the venue of the meeting. After waiting for some time, they were informed by the Block Development Officer that the meeting could not be held. 3. As per provisions of Section 15(5) of the Assam Panchayat Act, 1994, if it was not possible to hold the meeting for a situation due to non-attendance of the requisite number of members, the No Confidence Motion automatically stood cancel and the No Confidence Motion would be deemed to be lost. It is the case of the petitioner that since the aforesaid meeting could not be held, she was under the genuine believe that the Motion automatically stood cancelled and deemed to have been lost. It is the case of the petitioner that since the aforesaid meeting could not be held, she was under the genuine believe that the Motion automatically stood cancelled and deemed to have been lost. However, she was surprised to receive the impugned order dated 6.12.2003 issued by the respondent No. 5 i.e. The President, Nalbari Zilla Parishad informing the Executive Officer, Pachim Nalbari Anchalik Panchayat that the procedure taken by the Anchalik Panchayat regarding the No Confidence Notice against the petitioner had been approved under Section 15(3) of the Act and that the petitioner should be removed from the post of President. According to the petitioner she was not given any reasonable opportunity to furnish her explanation to the Anchalik Panchayat. Her further case is that the meeting which was earlier scheduled to be held on 18.10.2003 could not be held and thereafter she was not informed nor was she aware of any other meeting held thereafter. Upon enquiry pursuant to the issuance of the impugned order dated 6.12.2003, the petitioner could come to know that the Secretary of No. 33 Panigaon Goan Panchayat had issued a notice on 25.10.2003 to eight members of the Gaon Panchayat informing them about the meeting to be held on 28.10.2003 for discussion of No Confidence Motion against the petitioner and the said members were requested to be present in the meeting. According to the petitioner, she was not served with the said notice and was not aware of the said meeting. 4. The petitioner upon such enquiry also came to know that five members had attended the meeting held on 28.10.2003 and passed the No Confidence Motion against the petitioner. Referring to the provisions of Section 15 of the aforesaid Act, it is the case of the petitioner that since the earlier meeting notified to be held on 18.10.2003 could not be held or failed, the No Confidence Motion automatically should cancelled and no such Motion could have been allowed to be initiated and passed within the next six months. The representations submitted by the petitioner did not yield any result. Hence this writ petition. 5. I have heard Mr. G.K. Bhattacharyya, learned senior counsel appearing for the petitioner assisted by Mr. P. Sarmah, learned Advocate. None appears for the respondents. No. Affidavit-in-opposition has also been filed by any of the respondents. 6. The representations submitted by the petitioner did not yield any result. Hence this writ petition. 5. I have heard Mr. G.K. Bhattacharyya, learned senior counsel appearing for the petitioner assisted by Mr. P. Sarmah, learned Advocate. None appears for the respondents. No. Affidavit-in-opposition has also been filed by any of the respondents. 6. The short question to be decided is as to whether the second No Confidence Motion could be allowed on 28.10.2003 i.e. within six months of failure of the first No Confidence Motion on 18.10.2003. The first No Confidence Motion against the petitioner was notified to be held on 18.10.2003 by notice dated 17.10.2003. However, the same could not be held on that date. The second No Confidence Motion was held on 28.10.2003 on the basis of a further notice dated 25.10.2003. Section 15 of the Assam Panchayat Act on which reliance has been placed is quoted below (relevant clauses) : "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 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. . . . . . . . . . . . . Provided further that when a non-confidence motion is list, no such motion shall be allowed in the next six months.' (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 [Gaon Panchayat] with information to the Deputy Commissioner of the District. . . . . . . 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. . . . . . . Provided further that if it is not possible to hold the meeting for a situation due to non-attendance of the requisite number of members in such meeting or meetings as the case may be, the no confidence motion shall automatically stands cancelled and motion shall be deemed to have lost, in the event of which no such motion shall be allowed within the next six months". 7. As per the averments made in the writ petition, there are eight other members selected to the Gaon Panchayat of which the petitioner was the President. On 7.10.2003 six members of the Gaon Panchayat submitted application expressing no confidence against the petitioner. However, on 12.10.2003 and 14.10.2033, three members submitted applications withdrawing their support to the No Confidence Motion as stated in the writ petition. As per the earlier notice dated 17.10.2003 convening the meeting on 18.10.2003 to discus about the No Confidence Motion, the petitioner along with the said three members attended the venue of the meeting. In paragraph 8 of the writ petition the petitioner has named three members who did not attend the venue of the meeting and as per the information furnished by the BDO, the meting could not be held. Thus, in such a situation the second proviso to Sub-section 5 of Section 15 has been pressed into service to hold that the second No Confidence Motion held on 28.10.2003 could not have been held being within six months of failure of the first No Confidence Motion meeting scheduled to be held on 28.10.2003. 8. Thus, in such a situation the second proviso to Sub-section 5 of Section 15 has been pressed into service to hold that the second No Confidence Motion held on 28.10.2003 could not have been held being within six months of failure of the first No Confidence Motion meeting scheduled to be held on 28.10.2003. 8. On 18.10.2003, although the petitioner and three other members who would have naturally opposed the No Confidence Motion were present the venue of the meting. However, the members as named in paragraph 8 of the writ petition did not attend the meting and thus naturally the meeting could not be held due to non-attendance of requisite number of members in the meeting. In such a situation the provisions of second proviso to Sub-section 5 of Section 15 would come into play as per which the No Confidence Motion stood automatically cancelled and the motion should be deemed to have been lost. Thus as per the said provision no such motion as was allowed on 28.10.2003 could have been allowed being within six months from 18.10.2003. On this score alone the impugned order dated 6.12.2003 and the No Confidence Motion meeting held on 28.10.2003 are liable to be set aside and quashed. 9. There is another aspect of the matter. It is the specific case of the petitioner that she was not given any notice of the meeting held on 28.10.2003. Such assertion made by her has gone unrefuted in absence of any affidavit-in-opposition filed by the respondents. Proviso to Sub-section 3 of Section15 further provides that no 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. However, such opportunity is to be provided only in respect of removal of the President on ground of his misconduct or negligence or incapacity to perform his duties etc. Thus the element of the principle involving natural justice has been introduced. In the instant case, the petitioner was not served with any notice in respect of the meeting held on 28.10.2003. 10. Thus the element of the principle involving natural justice has been introduced. In the instant case, the petitioner was not served with any notice in respect of the meeting held on 28.10.2003. 10. From the aforesaid narration of fact and application of the relevant provisions of Section 15 of the aforesaid Act coupled with the fact that the averments made in the writ petition have gone unrefuted in absence of any affidavit-in-opposition on behalf of the respondents and in absence of any production of records and arguments on their behalf, I am constrained to hold that the impugned order dated 6.12.2003 conveying the approval to the No Confidence Motion held on 28.10.2003 against the petitioner towards her removal as President of No. 33 Panigaon Gaon Panchayat is illegal and liable to be set aside and quashed. Accordingly the said impugned order dated 6.12,2003 (Annexure-III to the writ petition) including the minutes of the No Confidence Motion meeting held on 28.10.2003 are set aside and quashed. Consequently, the position of the petitioner as the President of the said Gaon Panchayat gets restored with the passing of this judgment and order. 11. Writ petition stands allowed. There shall be no order as to costs.