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2004 DIGILAW 510 (GAU)

Deepalimorang v. State of Assam

2004-09-02

BIPLAB KUMAR SHARMA

body2004
JUDGMENT B.K. Sharma, J. 1. The writ Petitioners are the President and Vice President of Golaghat West Zila Parishad. They have assailed the legality and validity of Annexure-IV and V letters dated 04.07.2003 and 07.07.2003. By letter dated 04.07.2003, the Deputy Commissioner, Golaghat intimated the Commissioner and Secretary, Panchayat and Rural Development Department, Assam about the no confidence motion passed against the Petitioners and requested to fill up the vacancies and by letter dated 07.07.2003, the Chief Executive Officer, Golaghat Zila Parishad requested the Executive Officer-cum-Secretary, Golaghat West Anchalik Panchayat to approach the Golaghat Zila Parishad for running the function of the Anchalik Panchayat. 2. As per the facts narrated in the writ petition, the Petitioners were elected as President and Vice-President of the aforesaid Anchalik Panchayat on 6.4.2002. There are altogether nineteen (19) Executive members of the Anchalik Panchayat. The Petitioners could come to know through a news item appeared in the issue of Assamese Daily "Amar Asom" dated 25.6.2003 that by letter dated 2.6.2003, some of the Executive Members informed the Deputy Commissioner, Golaghat and the Chief Executive Officer, Golaghat Zila Parishad, Golaghat regarding certain allegations levelled against the Petitioners. 3. Referring to the provisions of the Assam Panchayat Act, 1994, it is the case of the Petitioners that as required under the law, for moving a no confidence motion against the President and Vice President, a request is to be made to the President of the Zila Parishad, but in the instant case, no such request was made towards passing any no confidence motion against the Petitioners, who are the President and Vice-President respectively of the Anchalik Panchayat. It is the further case of the Petitioners that they were not given any opportunity in the matter of passing the impugned no confidence motion and there was no approval of the Petitioner No. 1, the President of the Anchalik Panchayat. According to the Petitioners, no such meeting was held towards passing the impugned no confidence motion against the Petitioners. According to them, the letter dated 2.6.2003 was issued by some disgruntled Executive members of the Panchayat. Apprehending action as per the said letter dated 2.6.2003, the Petitioners approached this Court by filing a writ petition which was registered and numbered as W.P.(c) No. 4524/2003. According to them, the letter dated 2.6.2003 was issued by some disgruntled Executive members of the Panchayat. Apprehending action as per the said letter dated 2.6.2003, the Petitioners approached this Court by filing a writ petition which was registered and numbered as W.P.(c) No. 4524/2003. The writ petition was disposed by order dated 17.6.2003 directing the Executive Officer, Golaghat West Anchalik Panchayat not to take any action against the writ Petitioners except in due course of law. 4. After the disposal of the said writ petition, the Senior Block Development Officer, Golaghat West Development Block by his letter dated 2.7.2003 requested the Petitioner No. 2 to attend the Block Level Vigilance and Monitoring Committee Meeting of the Block scheduled to be held on 11.7.2003. However, by the aforesaid letter dated 4.7.2003, the Deputy Commissioner, Guwahati while intimating the Commissioner and Secretary, Panchayat and Rural Development Department, Assam about passing the no confidence motion against the Petitioners requested to take necessary action to fill up the vacancies. Thereafter, by the aforesaid letter dated 7.7.2003 the Golaghat Zila Parishad requested the Anchalik Panchayat to approach the Zila Parishad for running the function of the Panchayat. 5. It is the definite case of the Petitioners that no confidence motion was passed illegally without adhering to the principle of natural justice and in violation of Section 43 of the Act. The following averments were made in paragraph 17 of the writ petition. That the Petitioners further submit that if any meeting is held by the disgruntled Executive Members of Golaghat West Anchalik Panchayat, Bokakhat for moving a No confidence motion against the Petitioners, the same has no legal force in the eye of law as no request has come from the said members to the Petitioner No. 1 as President of Golaghat West Anchalik Panchayat, Bokakhat for convening a meeting of the Panchayat for moving such No confidence motion against the Petitioners. 6. This Court while issuing notice of motion by order dated 18.07.2003 suspended the aforesaid communication dated 04.07.2003 and 07.07.2003. Thereafter, the Respondent No. 3 i.e. Golaghat Zila Parishad filed an application for vacating the interim order which is registered and numbered as Misc. Case No. 1045/2003. The writ Petitioners have filed their Affidavit-in-opposition against the said application. The Petitioners have also filed an additional affidavit. The Respondent No. 3 in its application (Misc. Thereafter, the Respondent No. 3 i.e. Golaghat Zila Parishad filed an application for vacating the interim order which is registered and numbered as Misc. Case No. 1045/2003. The writ Petitioners have filed their Affidavit-in-opposition against the said application. The Petitioners have also filed an additional affidavit. The Respondent No. 3 in its application (Misc. Case No. 1045/2003) has controverted the stand of the writ Petitioners. As per the averments made in the application, the no confidence motion against the Petitioners were passed on 17.06.2003 and 18.06.2003. It is the specific stand in the application that the Petitioners suppressed material facts and resorted to untruths and half truths while moving the writ application. According to the Respondent No. 3, the no confidence motion was passed against fee Petitioners after due observation of law as well as the provisions of the Assam Panchayat Act, 1994. However, the Petitioners suppressed the material facts and obtained the interim order. 7. Referring to the irregularities committed by the Petitioners it is the TDR case of the Respondent No. 3 that the members of the Anchalik Panchayat expressed their no confidence on the Petitioners by submitting written representation which was sent by fourteen (14) members. Such representation was submitted on 2.6.2003. In the said representation, the members requested the Ex-Officio Secretary to take necessary steps for removal of the Petitioners. Accordingly, the Ex-Officio Secretary of the Panchayat forwarded the representation to Golaghat Zila Parishad for necessary action. Pursuant thereto, the Chief Executive Officer, Golaghat Zila Parishad issued a notice dated 09.06.2003 asking the Petitioner No. 1 to attend the meeting fixed on 17.3.2003. By the said notice, she was also informed that no confidence motion against her would be discussed and decided by putting to vote. Accordingly, the said meeting was held on 17.03.2003 in which all the seventeen (17) members of the Panchayat were present beside the Petitioner No. 1 herself. A thorough discussion was held and the Petitioner No. 1 was also given opportunity to have her say in respect of the allegations against her. During the course of the meeting, the Petitioner No. 1 tendered her apology for the mistake, if any, committed by her. However, as per the demand of the members of the Panchayat, the no confidence motion was put to vote and the same was passed against the Petitioner No. 1 and all the seventeen (17) members supported the same. During the course of the meeting, the Petitioner No. 1 tendered her apology for the mistake, if any, committed by her. However, as per the demand of the members of the Panchayat, the no confidence motion was put to vote and the same was passed against the Petitioner No. 1 and all the seventeen (17) members supported the same. 8. A similar notice was issued on 9.6.2003, by the Chief Executive Officer, Ctolaghat Zila Parishad and served upon the Petitioner No. 2 by which he was informed that a general meeting would be held on 18.06.2003 for discussion on the no confidence motion made against him and asking him to appear in the meeting. The meeting was held on 18.06.2003 as scheduled. However, the Petitioner No. 2 did not appear in the meeting inspite of receipt of notice. After a thorough discussion, the no confidence motion was passed against the Petitioner No. 2 by way of putting the same to vote. All the seventeen (17) members present supported the no confidence motion. Thus, it is the case of the Respondent No. 3 that the no confidence motion was passed against the Petitioners following the due procedure and after giving them reasonable opportunity to defend themselves. Referring to the provisions of the Act, it is the case of the Respondent No. 3 that as soon as the no confidence motion was passed against the Petitioners, they stood removed from the office of the President and Vice-President of the Anchalik Panchayat. 9. In the Affidavit-in-opposition filed by the Petitioners, against Misc. Case No. 1045/2003, they have reiterated their stand that the no confidence motion was passed without following the procedure laid down under Section 43 of the Act. They denied that there was any suppression of material Fact. As regards the service of notice on the Petitioner No. 1, same has been denied. According to her, she was made to appear in the meeting held on 17.6.2003 in which the no confidence motion against her was passed. According to her, on that day while she was proceeding to the office of the DRDA, one of the members informed her about the meeting to be held and accordingly she attended the meeting and raised objection. According to her, on that day while she was proceeding to the office of the DRDA, one of the members informed her about the meeting to be held and accordingly she attended the meeting and raised objection. It is also the cases of the Petitioner No. 2 that he was not served with the notice and thus the entire exercise towards passing the no confidence motion was in violation of the principle of natural justice. The Petitioner No. 2 has filed an additional affidavit on 16.8.2004. In the additional affidavit, it is the stands of the Petitioner that twelve (12) members of the Panchayat have withdrawn the no confidence motion passed against the Petitioners and have expressed full confidence on them. By filing yet another affidavit on 21,8.2003, the Petitioners have reiterated their stand that the no confidence motion was passed in violation of Section 43 of the Act. They have also reiterated that no notice was served on them and that the Petitioner No. 1 attended the meeting under the circumstances explained in the affidavit filed on 16.8.2004. 10. I have heard Mr. N.C. Das, learned senior counsel for the Petitioners and Dr. Y.K. Phukan, learned senior counsel appearing for the Respondent Nos. 3, 4, 5 and 6. I have also heard Ms. R. Chakraborty, learned Govt. Advocate. 11. Mr. Das, learned senior counsel for the Petitioners submitted that the no confidence motion was passed in a most illegal and arbitrary manner in violation of the provisions of the Section 43 of the Assam Panchayat Act, 1994 as regards the stand of the Respondent No. 3 regarding service of notice on the Petitioners Mr. Das submitted that in fact no such notice was served on them and it was only by chance the Petitioner No. 1 appeared in the meeting and she raised objection. 12. Dr. Y.K. Phukan, learned senior counsel in his persuasive pursuits raised a preliminary objection regarding maintainability of the writ petition itself on the ground of suppression of material fact. Referring to the averments made in the writ petition, he submitted that the Petitioners deliberately withheld from the Court about the meeting held in which the no confidence motions were passed against them. Producing the records and referring to the same, Dr. Phukan pointed out that the Petitioner No. 2 received the notice dated 9.6.2003 on 13.6.2003 by acknowledging the same. Producing the records and referring to the same, Dr. Phukan pointed out that the Petitioner No. 2 received the notice dated 9.6.2003 on 13.6.2003 by acknowledging the same. He also referred to the proceedings of the no confidence motion passed against the Petitioner No.l bearing the signature of the Petitioner No. 1. He also referred to the proceedings in respect of the no confidence motion passed against the Petitioner No. 2 in which it was pointed out that inspite of service of notice on him, he did not attend the meeting. On merit of the case, Dr. Phukan submitted that the claim of the Petitioner that the no confidence motion was passed in violation of Section 43of the Act is ill founded. He submitted that the no confidence motion was passed in due compliance of the procedure laid down in Section 43. He placed reliance on the decision of the Apex Court as reported in Chancellor and Anr. v. Dr. Bijayananda Kar and Ors. AIR 1994 SC 579 13. Ms. R. Chakraborty, learned State Counsel supporting the argument advanced by Dr. Phukan submitted that there being suppression of material fact on the part of the Writ Petitioners in moving the writ petition, the writ petition is liable to be dismissed on that ground alone. She submitted that the writ petition will have to be decided as stood on the date of filing of the writ petition and that the alleged withdrawal of no confidence motion by some members of the Panchayat on a subsequent date is inconsequential. 14. I shall first deal with the preliminary objection raised by Dr. Phukan, learned Counsel for the Respondent Nos. 3,4,5 and 6 and the learned State counsel. As per the averments made in the writ petition, the Petitioners were not aware of any meeting relating to the no confidence motions and that they were never served with any notice. In fact, such a plea was also taken in the earlier writ petition filed by the Petitioners i.e. W.P.(c) No. 4524/2002 which was disposed of providing that no action should be taken against the Petitioners except in due course of law. In fact, such a plea was also taken in the earlier writ petition filed by the Petitioners i.e. W.P.(c) No. 4524/2002 which was disposed of providing that no action should be taken against the Petitioners except in due course of law. As against such plea of the Petitioners, it is the specific case of the Respondent No. 3 in its application for vacating stay that notices were duly served on the Petitioners and in fact the Petitioner No. 1 participated in the meeting in which no confidence motion was passed. In support of such a plea, the relevant records were produced during the course of the hearing. The records clearly indicate that notice was duly served on the Petitioner No. 2 and he duly acknowledged the receipt of the same by putting his signature on 13.6.2003. After such receipt of notice, if he had decided not to attend the meeting, same cannot be projected to be a case of violation of principle of natural justice. 15. Similarly, the Petitioner No. 1 after participating in the meeting pertaining to the no confidence motion against her could not have and ought not to have suppressed the same by making a statement in the writ petition that no confidence motion, if any, had been passed against her, same was behind her back. The minutes of the proceeding clearly reflects her participation in the proceeding. She also put her signature in the minutes of the proceeding. Thus both the Petitioners were duly got the notice and in fact they had full knowledge of the meetings in which the no confidence motions against them were discussed and passed, but yet they had projected their case in the writ petition to be the one of passing no confidence motion against them without any notice and hearing. It was on that basis they could obtain the interim order of this Court. 16. It is in the above context Dr. Phukan, learned Counsel for the Respondent No. 3, 4, 5 and 6 placed reliance on the aforesaid decision in Dr. Bijayananda Kar (supra). In that case, the Apex Court dealing with the question of suppression of fact held that the writ petition was liable to be dismissed on ground that the Petitioner did not approach the High Court with clean hands. Bijayananda Kar (supra). In that case, the Apex Court dealing with the question of suppression of fact held that the writ petition was liable to be dismissed on ground that the Petitioner did not approach the High Court with clean hands. In the instant case, it is an admitted position that the Petitioners had full knowledge about the meetings pertaining to the no confidence motion against them. While the Petitioner No. 1 duly participated in the meeting, the Petitioner No. 2, duly received the notice of the same. Thus it is not a case of 'no notice' or 'no hearing' to the Petitioners so as to attract the principles of natural justice. The Petitioner No. 1 even after participating in the proceeding and the Petitioner No. 2 even after receipt of notice have projected their case in Writ Petition to be one of 'no notice' and 'no hearing'. 17. Writ Petitions are decided on the basis of Statement on affidavit. When a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the Writ Petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the Respondent, from the counter affidavit. If the petition contains misleading, inaccurate statement or there are suppression of material facts, the writ court will not entertain the petition. In R. v. Kensington, Income Tax Commissioner (1917) 1 KB 486, page 506, it was held that- the prerogative writ is not a matter of course, the applicant must come in the manner prescribed and must be perfectly frank and open with the Court. It has been for many years, the rule of the Court and one which it is of greatest importance to maintain that where an applicant comes to the Court to obtain relief on an ex parte statement, he should make full and fair disclosure of material facts - facts not law. He must not mistake the law if he can help it - the Court is supposed to know law. He must not mistake the law if he can help it - the Court is supposed to know law. But it knows nothing about the facts and the applicant must state fully and fairly the facts and the penalty, by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside any action which it has taken on the faith of the imperfect. 18. In Trilokchand Motichand v. S.P. Munshi as reported in AIR 1970 SC 898 , the Apex Court held that the Petitioner has no right to move the Court under Article 32 of the Constitution for encroachment of its fundamental rights on a petition containing misleading and inaccurate statement and the Court must dismiss such petition. In State of Haryana v. Karnal Distillery as reported in AIR 1977 SC 718, the Apex Court refused to grant relief on the ground that the applicant misled the Court. The purpose of prerogative writ is to remedy a wrong and not to promote one. It will not be granted in the aid of those who do not come to the Court with clean hand. 19. In the instant case, as has been found, there is total suppression of material fact on the part of the Petitioners in not disclosing anything in respect of the meetings held on 17.6.2003 and 18.6.2003 pertaining to the no confidence motions against the Petitioners. They have projected their case with definite statement of no knowledge of the meeting, no notice of the same and no hearing in respect of the no confidence motions. As against such a stand, the records have clearly revealed that the Petitioners duly received notices and they were fully aware of the meetings and in fact the Petitioner No. 1 participated in the same. This being the factual position and the suppression of material fact on the part of the Petitioners staring on the face of it the writ petition is liable to be dismissed on that score alone. 20. A faint effort was made by the Petitioners by filing an affidavit amidst the hearing of the case making statements that the Petitioner No. 1 had to participate in the meeting under compelling circumstances. 20. A faint effort was made by the Petitioners by filing an affidavit amidst the hearing of the case making statements that the Petitioner No. 1 had to participate in the meeting under compelling circumstances. Even if such a statement made in the additional affidavit is held to be correct, the question necessarily arises as to what had prevented the Petitioners from disclosing the same in the writ petition instead of shunning the same from the knowledge of the Court. The Petitioners cannot be permitted to develop their case by filing affidavit as per the demand of the situation so as to change the very character of the writ petition as stood at the time of filing of the same. 21. Although both the writ petitions were liable to be dismissed solely on the ground of suppression of material fact, I have also considered the same on merit. The only ground urged against the no confidence motion is the alleged violation of the provision of Section 43 of the Act. Section 43 of the Act dealing with the no confidence motion against the President and Vice President of the Anchalik Panchayat provides that in the event of not convening the meeting by the Anchalik Panchayat, the Secretary of the Anchalik Panchayat shall refer the matter to the President of the Zila Parishad with intimation to the Deputy Commissioner. Thereafter, the President of the Zila Parishad shall arrange for convening the meeting. In the instant case, it is the Zila Parishad which convened the meeting on failure of the Petitioners to do the same and the no confidence motion was passed following due procedure and with due notice to the Petitioners. Thus, there is no infirmity in holding the meeting against the Petitioners. As regards the plea of the Petitioners that even after passing of the no confidence motion against them the Petitioner No. 2 was advised by the Senior Block Development Officer, Golaghat West Development Block to attend particular meeting and in the letter dated 10.7.2003 issued by the Senior Block Development Officer, he was addressed as Vice President of the Anchalik Panchayat. Suffice is to say that after passing of the no confidence motion against the Petitioners, the said letter dated 10.7.2003 was inconsequential. Suffice is to say that after passing of the no confidence motion against the Petitioners, the said letter dated 10.7.2003 was inconsequential. If for any reason the senior Block Development Officer was not aware of the status of the Petitioner No. 2 at the time of the issuance of the letter dated 10.7.2003, same will not come to the rescue of the Petitioner 22. In the additional affidavit, filed by the Petitioners on 16.8.2004, it is their plea that 12 members of the Anchalik Panchayat by their letter dated 6.12.2004 addressed to the Deputy Commissioner, Golaghat have expressed their intention to withdraw the no confidence motion passed against the Petitioners. The challenge made in the writ petition is in respect of the no confidence motion passed against the Petitioners and the same will have to be decided as it stood at the time of the filing of the writ petition. Such a challenge has been decided as indicated above. After such decision, the law will take its own course in accordance with the provision of the Assam Panchayat Act, 1994. 23. There is another aspect of the matter. The writ petition has been filed alleging procedural irregularity and violation of the provision of the Act towards passing the no confidence motion by the members of the Anchalik Panchayat. Thus it is the action of the members of the Anchalik Panchayat which is under challenge in the writ petition and yet they have not been made party-Respondents in the writ petition. There is no gainsaying that they are necessary party to the writ proceeding and yet the Petitioners have sought for a relief affecting the interest of the members of the Anchalik Panchayat who passed the no confidence motion against them, without making the party Respondents. Thus on the ground of non-joinder of necessary party also, the writ petition is not maintainable. Although the Petitioners in their additional affidavit have asserted that 12 members of the Anchalik Panchayat have withdrawn the non confidence motion against the Petitioners, but conspicuously, none of the members is party to the proceeding and they have also not come forward to support the case of the Petitioners as reflected in the additional affidavit. 24. For the foregoing reasons and discussions, I do not find any merit in the writ petition and accordingly the same stands dismissed. The interim order passed on 18.7.2003 stands vacated. 24. For the foregoing reasons and discussions, I do not find any merit in the writ petition and accordingly the same stands dismissed. The interim order passed on 18.7.2003 stands vacated. A cost of Rs. 2000/- (Rupees two thousand) only is awarded against the Petitioners to be borne by them in equal shares. Petition dismissed.