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2006 DIGILAW 352 (GAU)

Abdul Kayam v. State of Assam

2006-04-11

AFTAB H.SAIKIA

body2006
JUDGMENT A.H. Saikia, J 1. Heard Mr. P. Upadhaya, learned Counsel for the Petitioner, Mr. K.C. Mahanta, learned State counsel appearing for the official Respondents including Respondent No. 4, the Secretary, Diju Gaon Panchayat (for short the GP') as well as Mr. B.D. Konwar, learned Counsel appearing for the newly impleaded Respondents No. 6 to 12 vide order dated 28.3.05 passed in Misc. Case No. 145/05 in this writ petition. 2. The legality and correctness of the proceeding of the meeting held on 12.11.04 under the Chairmanship of the Vice-President of the Naowboicha Anchalik Panchayat (for short 'the AP) of Nawboicha Development Block, adopting the no confidence motion against the Petitioner for his removal as President of the GP, has been assailed in this writ petition on the sole ground that the Vice President of the AP is not authorized under Section 15 of the Assam Panchayat Act, 1994 (for short, 'the Act') to convene and preside over the meeting of the concerned AP to adopt a no confidence motion for removal of the President of GP when the Act empowers the President only to convene and preside over the meeting of the AP. 3. For the sake of convenience, the relevant provision of Section 15 of the Act may be quoted as under: 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 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 preside 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 deputy 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. 4. A bare perusal of the above provision goes to show that the Secretary of the concerned GP, on the basis of a resolution expressing want of confidence passed by the majority of two-third of the total number of members of the GP against either the President or the Vice President, is required to convene a meeting for such purpose with the approval of the President of the GP. However, if no such meeting is convened within a period of 15 days from the date of receipt of such notice, the Secretary of the concerned GP shall within a period of 3 days refer the matter to the President of the concerned AP and the said President in turn shall convene the meeting within seven days from the date of receipt of the information from the Secretary of the GP and preside over such meeting. 5. Be it be noted herein that the Division Bench of this Court in a case of Mumtaz Rana Laskar and Ors. v. State of Assam and Ors. reported in 2006(1) GLT 46 in paragraphs 23,24 and 25 held that the time frame prescribed under Section 15 of the Act is not mandatory but only directory. 6. 5. Be it be noted herein that the Division Bench of this Court in a case of Mumtaz Rana Laskar and Ors. v. State of Assam and Ors. reported in 2006(1) GLT 46 in paragraphs 23,24 and 25 held that the time frame prescribed under Section 15 of the Act is not mandatory but only directory. 6. As regards the entrustment of the power of convening and presiding over the meeting upon the President of the concerned AP, it is the requirement of the law under the above provision that it shall be only the President who has been authorized to convene and preside over such meeting, as President of the AP. This view is taken only after reading the first proviso of the above mentioned section wherein it is categorically intended by the legislature that in case of inability of the Deputy Commissioner/Sub-Divisional Officer, who has been empowered to preside over the meeting when the matter regarding removal of the President or Vice-President is carried to the Deputy Commissioner level, the Deputy Commissioner or the Sub-Divisional Officer as the case may be, may depute one Gazetted Officer under him not below the rank of Class-I Gazetted Officer to preside over such meeting. No such delegation of power has been provided under Section 15 of the Act to the Vice-President of the AP in case of absence or inability of the President of the AP to convene and preside over the meeting for a removal of either the President or Vice-President of the G.P. The intention of the legislature is very much clear and loud. It appears from the provision of law afore quoted that once an authority is authorized to do certain act in terms of Section 15, that authority is only competent one to perform such act. That is why the power of Deputy Commissioner/Sub-Divisional Officer of holding the meeting needs to be delegated to other Gazetted Officer of Class-I rank in case of inability of the Deputy Commissioner/Sub Divisional Officer. But no such intention is reflected in case of delegation of power of the President of AP to the Vice-President to hold a meeting for removal of the President or the Vice President of the GP. In other words, it shall be only the President who can preside over the meeting for such removal. 7. But no such intention is reflected in case of delegation of power of the President of AP to the Vice-President to hold a meeting for removal of the President or the Vice President of the GP. In other words, it shall be only the President who can preside over the meeting for such removal. 7. On the other hand, Section 41 of the Act prescribes the powers, functions and duties of Vice-President of AP. It would be relevant and appropriate to refer the relevant provisions of Section 41 of the Act which reads as under: 41. Powers, functions and duties of Vice-President of Anchalik Panchayat. The Vice President of an Anchalik Panchayat shall- (a) in the absence of the President, preside at the meeting of the Anchalik Panchayat; (b) exercise such powers and perform such duties of the President of the Anchalik Panchayat as the President from time to time may, subject to the rules made by the Government in that behalf, delegate to him by an order in writing 8. The above provision of Section 41(b) explicitly provides that the power and duties of the president can only be performed by the Vice-President from time to time by way of delegation of such power to the Vice-President. In other words, the Vice-President may perform the duties and powers of President if such power is so delegated to him by the President by an order in writing. 9. In the backdrop of above provision of law and on perusal of the materials available on record including the pleading of the parties with the Annexures appended thereto especially the impugned proceeding dated 12.11.04 (Annexure-3 to the writ petition) and the affidavit filed on behalf of the Respondent No. 4, the Secretary of the GP, it transpires that the impugned meeting dated 12.11.04 for moving the no confidence motion against the President of the GP, the Petitioner, was presided over by the Vice-President as chairman. In the proceeding, it was recorded that 'The sitting president of the AP could not attend the meeting due to his personal inconvenience'. There is even no whisper in the proceeding itself that the President ever delegated his power and duties to the Vice-President to act in such a manner i.e., to convene and preside over such meeting in question in terms of Section 41(b) of the Act. There is even no whisper in the proceeding itself that the President ever delegated his power and duties to the Vice-President to act in such a manner i.e., to convene and preside over such meeting in question in terms of Section 41(b) of the Act. It can, therefore, be held, in considered opinion of this Court, that Section15 of the Act does not permit the Vice-President of the AP unless authorized according to Section41(b) of the Act, to convene and preside over the meeting of A.P. for passing a resolution removing the President/Vice-President of the G.P. 10. This writ petition was filed on 10.12.04 when the Respondents No. 6 to 12 got themselves impleaded vide order dated 28.3.05 passed in MC No. 145/05 and on request of learned Counsel for the parties as well as considering the urgency of the matter, this writ petition has been taken up for final hearing. However, till date no affidavit has been filed on behalf of the Respondents No. 6 to 12. 11. In view of the above discussions and observations, this Court is of the view that adoption of no confidence motion on 12.11.04 under the Chairmanship of Vice-President was illegal and without jurisdiction as the Vice-President of the AP, at the relevant time, was not duly authorized to hold and preside over such meeting and such action of presiding over meeting by the Vice-President is contrary to the mandate of section 15 of the Act. 12. Consequently, this impugned proceeding of the meeting dated 12.11.04 held for removal of the President stands quashed and set aside. 13. However, liberty is granted to the members of the GP for moving a fresh no confidence motion, if so advised, against the President i.e., the Petitioner and in turn the authority concerned shall, on receipt of such request, act in compliance of the Section 15 of the Act. 14. It is made clear that though the impugned resolution/proceeding dated 12.11.04 is set aside and quashed, the competent authority i.e., Deputy Commissioner, Lakhimpur is directed to run the GP till the fresh no confidence motion for removal of the President is moved and passed in accordance with law so as to avoid any further anomalies in functioning of the G.P. 15. In the result, this writ petition succeeds and stands allowed. No costs. Petition allowed