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2005 DIGILAW 44 (GAU)

Khiroda Gogi v. State of Assam

2005-01-20

I.A.ANSARI

body2005
JUDGMENT I.A. Ansari, J. 1. By this common judgment and order, I propose to dispose of Writ petition Nos. 1427/2004 and 6645/2003, for, both these writ petitions are intrinsically interlinked and the same have been heard together. 2. Le me, first, place the material facts and various stages, which have led to the present two writ petitions. 3. The petitioner herein, namely, Smti Khiroda Gogoi, being an elected member of Boginadi Anchalik Panchayat, was elected as President of the said Anchalik Panchayat and while she had been functioning as President of the said Anchalik Panchayat, she, on 27.3.2002, approached this Court with the help of her writ petition, namely, Writ petition No. 6645/2003 aforementioned, her case being, in brief, thus : Boginadi Anchalik Panchayat consists of 8(eight) elected members. The Secretary of the said Anchalik Panchayat received a letter, dated 13.8.2003, addressed to him by some members of the said Anchalik Panchayat expressing their no confidence in the petitioner and requesting him to take necessary steps for removing the petitioner from the office of the Presidentship of the said Anchalik Panchayat. This letter was supported by a separate sheet containing some allegations levelled against the petitioner. This letter was shown to have been signed by 5(five) members, but the petitioner had doubt that two of the signatures appearing on the said letter were not genuine inasmuch as these two signatures did not bear the seal of their respective Gaon Panchayats. Though the writ petitioner had not received any formal notice as is mandatorily required to be given to her under Section43 of the Assam Panchayat Act, 1994 (hereinafter referred to as 'the Panchayat Act of 1994'), she had heard that a meeting, on the issue of no confidence motion, had been convened on 28.8.2003. If the meeting was held, as was sought to be done, it would cause irreparable loss to the petitioner and the said Anchalik Panchayat, for, some projects of great importance were being pursued by the petitioner and the allegations levelled against her seeking to remove her from the office of the President of the said Anchalik Panchayat were vague, unfounded and concocted. The petitioner, therefore, sought for issuance of writ or writs canceling the impugned letter, dated 13.8.2003, aforementioned as well as the charges levelled against her. 4. The petitioner, therefore, sought for issuance of writ or writs canceling the impugned letter, dated 13.8.2003, aforementioned as well as the charges levelled against her. 4. While directing issuance of the notice of motion, on 26.8.2003, the Court, in Writ petition No. 6645/2003 aforementioned, directed the Secretary of the said Anchalik Panchayat not to take any action on the communication, dated 13.8.2003, aforementioned with further direction to the respondents to ensure that no confidence motion, if any, be processed strictly in accordance with the provisions of the Panchayat Act of 1994. 5. Some of the respondents in the said writ petition preferred Writ Appeal No. 394/2003 impugning the interim order, dated 26.8.2003, aforementioned, but the writ appeal was dismissed on 12.9.2003 and the interim order, dated 26.8.2003, was not interfered with. The private respondents, then, filed a petition seeking to get the said interim order, dated 26.8.2003, vacated. This application gave rise to Misc. Case No. 1550/2003. However, an order was passed, on 30.9.2003, in Misc. Case No. 1550/2003 aforementioned extending the interim order aforementioned and, later on, an order was passed, on 14.11.2003, whereby the Court decided to dispose of the Writ petition No. 6645/2003 as well as the Misc. Case No. 1550/2003 aforementioned together instead of considering the prayer for interference with the interim direction. 6. While Writ petition(c) No. 6645/2003 aforementioned was pending, respondent No. 4, namely, Block Development Officer & Executive Officer of Boginadi Anchalik Panchayat convened a meeting, on 17.9.2003, for discussion on the no confidence motion against the writ petitioner. In the meeting so held, a resolution was passed, under the signature of 5(five) members, expressing their no confidence in the petitioner as President of the said Anchalik Panchayat. Thereafter, the respondent No. 5, namely, Smti Bimala Borah, as the Vice President of the said Anchalik Panchayat, assumed charge of the office of the President of the said Anchalik Panchayat. It was at this stage that the petitioner, namely, Smti Khiroda Gogoi aforementioned, once again, approached this Court with the help of her Writ Petition(c) No. 1427/2004 aforementioned, her case being, briefly stated, thus : The allegations levelled against her in the letter, dated 13.8.2003, aforementioned were all vague, false and concocted. It was at this stage that the petitioner, namely, Smti Khiroda Gogoi aforementioned, once again, approached this Court with the help of her Writ Petition(c) No. 1427/2004 aforementioned, her case being, briefly stated, thus : The allegations levelled against her in the letter, dated 13.8.2003, aforementioned were all vague, false and concocted. No notice was served on her, in terms of Section 43 of the Assam-Panchayat Act of 1994, for convening of the said meeting and no notice of the meeting, which was, eventually, held, on 17.9.2003, was served on her. This apart, the impugned resolution, expressing no confidence in the petitioner, was supported by only 5(five) directly elected members, which did not constitute, in terms of Section 43 of the Act of Assam Panchayat Act, 1994, 2/3rd majority of the total number of members of the said Anchalik Panchayat and, hence, the resolution, so adopted, was void and must be set aside. 7. The State respondents have not filed any affidavit. However, the private respondents, namely, respondent Nos. 5 to 9 have contested this writ petition by filing their affidavit, their case being, in brief, thus : The charges levelled against the petitioner were all true and that the petitioner was legally removed by way of resolution, dated 17.9.2003, which was passed by 2/3rd members of the said Anchalik Panchayat expressing want of confidence in the petitioner. In this view of the matter, the removal of the petitioner from the office of the President and the assumption of the charge of the said office by respondent No. 5 aforementioned were consistent in accordance with law. 8. I have heard Dr.. YK Phukan, learned senior counsel, assisted by Mr. D. Das, teamed counsel, for the petitioner, and Mr. M. Bhuyan, learned Counsel appearing on behalf of respondent Nos. 5 to 9. I have also heard Mr. H.K. Mahanta, learned Government Advocate, Assam, appearing on behalf of the State respondents. 9. 8. I have heard Dr.. YK Phukan, learned senior counsel, assisted by Mr. D. Das, teamed counsel, for the petitioner, and Mr. M. Bhuyan, learned Counsel appearing on behalf of respondent Nos. 5 to 9. I have also heard Mr. H.K. Mahanta, learned Government Advocate, Assam, appearing on behalf of the State respondents. 9. Without entering into the controversy as to whether there is any truth in the allegations levelled against the petitioner and/or the reasons, which led to the expressing of vote of no confidence in her and/or as to whether the notice, in terms of Section 43, had been issued to, or served upon, the petitioner, what is important to note is that it is neither disputed nor in controversy that Boginadi Anchalik Panchayat consists of 8(eight) directly elected members and the resolution expressing no confidence in the petitioner was passed by as many as 5(five) of the said 8(eight) elected members. Though, at one stage of the proceeding, it was sought to be raised that one elected members of the said Panchayat, namely, Badreswar Kamar had died and, hence, the total number of the elected members of the said Anchalik Panchayat was 7(seven) and not 8(eight) at the relevant time, it has been, eventually, conceded by the respondents that the said Badreswar Kamar was alive on 17.9.2003, i.e., the date on which the resolution expressing no confidence in the petitioner was passed and that the said Badreswar Kamar died, on 11.4.2004, i.e., long after passing of the resolution, dated 17.9.2003, aforementioned. 10. The question, therefore, which falls for determination is, thus : Whether the resolution expressing no confidence in the petitioner, which was adopted on 17.9.2003, was in accordance with law ? 11. My quest for answer to the above question brings me to the provisions of the Panchayat Act of 1994. There is no dispute before me that it is Section 43 of the Panchayat Act of 1994, which lays down the procedure for removal of the President and Vice-President of an Anchalik Panchayat. 12. Section 43 of the Panchayat Act of 1994, I find, prescribes a detailed and well-knit scheme for removal of President and Vice-President of Anchalik Panchayats. The scheme for removal of the President and Vice-President of Anchalik Panchayat is, in fact, self-contained. The relevant portion of Section 43 is quoted herein below : Section 43. 12. Section 43 of the Panchayat Act of 1994, I find, prescribes a detailed and well-knit scheme for removal of President and Vice-President of Anchalik Panchayats. The scheme for removal of the President and Vice-President of Anchalik Panchayat is, in fact, self-contained. The relevant portion of Section 43 is quoted herein below : Section 43. No confidence motion against the President and the Vice President of Anchalik Panchayat. - (1) Every President and Vice-President of the Anchalik Panchayat shall be deemed to have vacated his office forthwith, if by a resolution express want of confidence in him is passed by a majority to two-third of total number of "directly elected" members of the Anchalik Panchayat.... 13. A bare reading of the relevant provisions of Sub-section (1) of Section 43, which I have quoted above, clearly indicates that a President or a Vice-President, as the case may be, of an Anchalik Panchayat shall be deemed to have vacated his office forthwith if a resolution, expressing want of confidence in the President or the Vice-President, as the case may be, is passed by a majority of 2/3rd of total number of directly elected members of the Anchalik Panchayat. The language used in Sub-section (1) of Section 43 clearly reveals that once a resolution expressing no confidence is passed by requisite number of the directly elected members, the President or the Vice-President, as the case may be, shall be deemed to have vacated his office forthwith. The language used in Section43(1) and the consequence that would ensue if a resolution of no confidence motion is passed shows that the conditions precedent for a valid resolution have to be strictly construed. When construed, thus, it becomes transparent that the opinion of the requisite number of members of the Anchalik Panchayat is one of the essential pre conditions for removal of the President or the Vice-President, as the case may be. Hence, there can be no escape from the conclusion that for computing 2/3rd majority of total number of elected 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. A fraction, howsoever small it may be, would reflect the corresponding opinion and even smallest of fraction cannot be overlooked, for, ignoring the fraction would set at naught the rigour of the language, which stands employed in Section 43(1). A fraction, howsoever small it may be, would reflect the corresponding opinion and even smallest of fraction cannot be overlooked, for, ignoring the fraction would set at naught the rigour of the language, which stands employed in Section 43(1). This cannot be the legislative intendment on an issue as grave as removal of the President or the Vice-President of the Anchalik Panchayat. I am fortified in coming to this conclusion from the decision in Jiten Saikia and Anr. v. The State of Assam and Ors. reported in 2004 (2) GLT 233, wherein, the Court has observed, thus: ... any fraction even if it is less than 5 should be read as I 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 unsealing 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.... 14. In the case at hand the total number of elected members of the said Anchalik Panchayat was, admittedly, 8(eight) at the relevant time and the 2/3rd majority thereof would mean that the resolution, expressing no confidence motion, ought to have been passed by not less than 6(six) members. The resolution, in question was, however, passed by 5(five) members. Thus, it is clear that the resolution, in question, had not been passed by requisite number of members as envisaged by Section 43(1). The resolution, therefore, adopted, on 17.9.2003, expressing no confidence in the petitioner as President, was void and must be treated as non est. Such a resolution cannot be allowed to remain good on record and must be interfered with. 15. In the result and for the reasons discussed above, the impugned resolution, dated 17.9.2003, is hereby set aside and quashed. 16. Such a resolution cannot be allowed to remain good on record and must be interfered with. 15. In the result and for the reasons discussed above, the impugned resolution, dated 17.9.2003, is hereby set aside and quashed. 16. Before parting with these writ petitions, let me point out the fallout of the decision, which I have reached in the present Writ petitions, let me refer to the proviso to Section 43(2), which reads as follows : ...Provided further that if it is not possible to hold the meeting for a situation due to non attendance of requisite number of members in such a meeting or meetings as the case may be, the no-confidence motion shall automatically stands cancelled and the motion shall be deemed to have lost, in the event of which no such motion shall be allowed within the next six months. 17. A careful reading of the above proviso shows that no confidence motion shall automatically stand cancelled if attendance of requisite number of members in the meeting, which is convened for discussing no confidence motion, is not available. In such a situation, the motion shall be deemed to have been lost and no 'no confidence motion' shall be permitted within the next 6(six) months. In other words, if a 'no confidence motion' is lost on account of the fact that the requisite number of members did not attend the meeting, then, no meeting to discuss no confidence motion shall be permitted within the next 6(six) months. 18. In the case at hand, since the meeting convened, on 17.9.2003, failed to pass resolution expressing no confidence motion in the petitioner on account of non-attendance of the requisite number of members in the said meeting, the motion shall be treated to have been lost on 17.9.2003 and for a period of 6(six) months with effect from 17.9.2003, no further meeting to discuss such no confidence motion can be held. 19. The respondent No. 5, namely, Smti Bimala Borah, who is Vice-President of the said Boginadi Anchalik Panchayat, is hereby directed to hand over forthwith to the writ petitioner the charge of the office of the President of the said Panchayat. 20. With the observations and directions contained hereinabove, these writ petitions, namely, Writ Petition Nos. 6645/2003 and 1427/2004 shall stand disposed of. 21. No costs.