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2006 DIGILAW 363 (GAU)

Swapna Sen v. State of Assam

2006-04-13

B.S.REDDY, BROJENDRA PRASAD KATAKEY

body2006
JUDGMENT B.P. Katakey, J. 1. The Petitioner in this writ petition has challenged the proceeding of the Jamunamukh Gaon Panchayat dated 18.5.05, adopting no-confidence motion brought against her by the members of the said Gaon Panchayat, on the ground that the meeting was not properly convened by the President of the Binakandi Anchalik Panchayat, as required under Sub-section (1) of Section 15 of the Assam Panchayat Act, 1994. The writ petition is before this Court by virtue of the order dated 2nd February, 2006 passed by the learned Single Judge, referring the same to a larger Bench. 2. The facts involved in this writ petition, in brief, is that on 12.4.05 a notice of no confidence was served on the Petitioner by 7 (seven) members of Jamunamukh Gaon Panchayat, expressing want of confidence on the Petitioner, who is the President of the said Gaon Panchayat. Since the Petitioner did not convene the meeting of the Gaon Panchayat to discuss the no confidence motion, the Secretary of the said Gaon Panchayat vide communication dated 29.4.05 informed the President of Binakandi Anchalik Panchayat about non convening of such meeting by the Petitioner and requested him to convene a meeting of the Gaon Panchayat, as required under Section 15(1) of the Assam Panchayat Act, 1994 (in short 'the Act'). The President of the Anchalik Panchayat on the body of the said communication on 29.4.05 directed the Block Development Officer, who is the Secretary of the said Anchalik Panchayat, to take appropriate action, accordingly, the Secretary on 4.5.05 informed the Petitioner about convening of the meeting of the Gaon Panchayat by the President of the Anchalik Panchayat, fixing 11.5.05, for consideration of the said no confidence motion. The Petitioner at this stage approached this Court in W.P.(C) No. 3396/05, challenging the said notice. Though initially the learned Single Judge vide order dated 11.5.05 granted an interim order keeping the discussion on the no confidence motion in abeyance, the same was vacated on 13.5.05, thereby paving the way for discussion on the said motion by the Gaon Panchayat. Since there could not be any discussion on the no confidence motion on 11.5.05, as fixed vide notice dated 4.5.05, in view of the Courts order, another date being 18.5.05 was fixed for consideration of the said motion by the said Gaon Panchayat. Since there could not be any discussion on the no confidence motion on 11.5.05, as fixed vide notice dated 4.5.05, in view of the Courts order, another date being 18.5.05 was fixed for consideration of the said motion by the said Gaon Panchayat. Accordingly the meeting of the said Gaon Panchayat was held, which was presided over by the President of the Anchalik Panchayat, to discuss the motion brought by the members expressing want of confidence on the Petitioner. The said motion was passed by a majority of two third of the total number of members of the Gaon Panchayat. Hence the present writ petition. 3. We have heard Mr. Chouhan, the learned Counsel for the Petitioner, Mrs. Goyal the learned State Counsel as well as Mrs. Arfia Islam, the learned Counsel appearing for Respondent No. 5 to 12. 4. Mr. Chouhan, the learned Counsel for the Petitioner has submitted that the entire proceeding of the meeting dated 18.5.05, wherein the no confidence motion against her was adopted, is violative of the provision of the Act, as under Section 15(1) of the Act, when the President of the Gaon Panchayat does not convene the meeting for discussing the no-confidence motion brought against him, the President of the Anchalik is required to convene the meeting of the Gaon Panchayat for discussing such motion, but according to the learned Counsel, in the present case it is evident from the initial and subsequent notices dated 4.5.05 and 16.5.05 that such meeting were not convened by the President of the Anchalik Panchayat but by the Secretary of the concerned Anchalik Panchayat only. The further submission of the learned Counsel is that in any case, by notice dated 16.5.05 the date for holding such meeting was fixed as 18.5.05, thereby, giving only 2 days time, though under Section 45(4) of the Act minimum 7 (seven) clear days notice is required for holding such meeting. The learned Counsel in support of his contention has placed reliance on two judgments passed by a learned Single Judge of this Court, in Basanti Das v. State of Assam and Ors. reported in 2004 Supp GLT 717 and in Dipali Talukdar v. State of Assam and Ors. reported in 2004(Supp.) GLT 724. 5. Mrs. The learned Counsel in support of his contention has placed reliance on two judgments passed by a learned Single Judge of this Court, in Basanti Das v. State of Assam and Ors. reported in 2004 Supp GLT 717 and in Dipali Talukdar v. State of Assam and Ors. reported in 2004(Supp.) GLT 724. 5. Mrs. Goyal, learned State Counsel on the other hand, has submitted that it is apparent from the order dated 29.4.05 passed by the President of the Anchalik Panchayat that in fact he has by the said order convened the meeting of the Gaon Panchayat to discuss the motion expressing want of confidence on the Petitioner and the Secretary of the Anchalik Panchayat has issued the notice only conveying the decision of the President convening the meeting on 11.5.05, which had to be rescheduled because of the interim order passed by the learned Single Judge in another writ petition filed by the Petitioner. The learned State Counsel, therefore, submits that the provision of Section 15(1) has been complied with. 6. The learned Counsel for the Respondent Nos. 5 to 12, supporting the submission of the learned State counsel has further submitted that the issuance of notice by the Secretary of the Anchalik Panchayat on 4.5.05 and 16.5.05 was only the ministerial action taken on the basis of the decision of the President of the Anchalik Panchayat taken on 29.4.05, to convene the meeting of the Gaon Panchayat, for discussing the no-confidence motion. It has further been submitted that it is not the requirement of Section 15(1) of the Act that the President himself has to issue the notice, therefore, according to the learned Counsel, as the President of the Anchalik Panchayat vide order dated 29.4.05 convened the meeting, the requirement of Section 15(1) has been fulfilled. Mrs. Islam, countering the argument of the Petitioner regarding the notice period, has submitted that provision in Section 45 of the Act does not apply in the meeting of the Gaon Panchayat, as the said provision is applicable only in respect of the meeting of the Anchalik Panchayat. Further, according to the learned Counsel, no such notice period is stipulated under Section 15(1) of the Act, except for convening such meeting within seven days the from the date of receipt of information from the Secretary of the Gaon Panchayat. Further, according to the learned Counsel, no such notice period is stipulated under Section 15(1) of the Act, except for convening such meeting within seven days the from the date of receipt of information from the Secretary of the Gaon Panchayat. It has further been submitted that in any case, the initial notice being issued on 4.5.05, the Petitioner got more than seven days as the meeting was held on 18.5.05 only. 7. We have considered the submission of the learned Counsel for the parties and also perused the records relating to the no-confidence motion adopted in the meeting of the Gaon Panchayat on 18.5.05. 8. Section 15 of the Act provides for bringing no-confidence motion against the President and Vice President of Gaon Panchayat. It provides that when a requisition for holding a special meeting is submitted by not less than one third of the total number of members of a Gaon Panchayat, for discussing a motion expressing want of confidence on the President or the Vice President, as the case may be, the President is to convene a meeting of the Gaon Panchayat for discussing such motion, within a period of fifteen days from the date of receipt of notice and in case of failure to convene such meeting the Secretary of the Gaon Panchayat is required to refer the matter to the President of the concerned Anchalik Panchayat, within three days, who then is to convene the meeting within seven days from the date of receipt of such information from the Secretary of the Gaon Panchayat. In the event of failure of the President of Anchalik Panchayat to take necessary action in that regard, the Deputy Commissioner/Sub-Divisional Officer (Civil), as the case may be, on the basis of the information required to be furnished by the Secretary of the Gaon Panchayat within three days after expiry of seven days, is to convene the meeting within seven days from the date of receipt of the information. Such meeting, in case of convening of the same by the President of Anchalik Panchayat, is to be presided over by the President of such Anchalik Panchayat and in case of Deputy Commissioner/Sub-Divisional Officer (Civil), by such Deputy Commissioner/Sub-Divisional Officer and in case of their inability to preside over such meeting, by one gazetted officer under him not below the rank of Class-I, Gazetted officer. A Division Bench of this Court in Mamtaz Rana Laskar and Ors. v. State of Assam reported in 2006 (1) GLT 46 has already held that the prescription of Section 15(1) of the Act vis-a-vis the procedure and time table relatable to the date are directory in nature and failure on the part of the officers to maintain the time limit stipulated therein shall have no bearing whatsoever upon the resolution passed in specially convened meeting expressing want of confidence in the President or the Vice-President, as the case may be. 9. In the instant case, from the facts narrated above it appears that because of the failure of the writ Petitioner to convene of the meeting of the Gaon Panchayat for discussing the no-confidence motion brought against her by more than one third numbers of the member of the said Gaon Panchayat, the Secretary of the Gaon Panchayat referred the matter to the President of the concerned Anchalik Panchayat as required under Sub-section (1) of Section 15 of the Act on 29.4.05, on which date itself the President of the Anchalik Panchayat in turn, convened the meeting of the Gaon Panchayat directing the Secretary of the Anchalik Panchayat to take necessary action in that regard. Accordingly, the Secretary of the Anchalik Panchayat signed the notice dated 4.5.05 intimating the writ Petitioner about convening of the meeting of the Gaon Panchayat by the President of the Anchalik Panchayat fixing 11.5.05. But in view of the interim order passed by this Court in another writ petition filed by the writ Petitioner as the meeting could not be held on that day, the same had to be rescheduled for 18.5.05 and for that purpose notice dated 16.5.05 was issued. There is no dispute in the present case that the writ Petitioner has failed to convene the meeting on receipt of the notice of the no confidence, for which the Secretary of the Gaon Panchayat referred the matter to the President of the Anchalik Panchayat. 10. There is no dispute in the present case that the writ Petitioner has failed to convene the meeting on receipt of the notice of the no confidence, for which the Secretary of the Gaon Panchayat referred the matter to the President of the Anchalik Panchayat. 10. The Petitioner has challenged the procedure adopted in convening of the meeting dated 18.5.2005 wherein the no-confidence motion was adopted against her, firstly, on the ground that the notices dated 4.5.2005 and 16.5.2005 were not issued by the President of Anchalik Panchayat but by the Secretary and therefore, the meeting was not properly convened by the President as required Under Section 15(1) of the Act, secondly, on the ground that seven days notice has not been given as required Under Section 45 of the Act. 11. To appreciate the argument of the learned Counsel for the Petitioner, it is appropriate to reproduce the provisions of Section 15(1) of the Act. 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 depute 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. 12. It is evident from the said provision that the President of the concerned Anchalik Panchayat is required to convene the meeting of the Gaon Panchayat, upon receipt of information from the Secretary of the Gaon Panchayat to discuss the no-confidence motion brought against the President or the Vice-President of Gaon Panchayat, as the case may be. The meaning of word 'convene' given in the Black's Law Dictionary (Seventh Edition)) is as under: Convene, vb. 1. To call together; to cause to assemble, 2. Eccles. Law. To summon to respond to an action. In Webster's Encyclopedic Unabridged Dictionary the meaning of the word 'convene' is given as under: Convene v. Vened-vening-v.i. 1. to come together; assemble, usually for some public purpose-v. t. 2. to cause to assemble; convoke 3. to summon to appear, as before a judicial officer. 13. It therefore, appears from the meaning of the word 'convene' as given above, that the convene means to cause to assemble also. In the instant case as discussed above, the Petitioner's case is that the President of the Anchalik Panchayat did not convene the meeting of the Gaon Panchayat as the notices were signed by the Secretary of the Anchalik Panchayat only and not by its President. In the instant case as discussed above, the Petitioner's case is that the President of the Anchalik Panchayat did not convene the meeting of the Gaon Panchayat as the notices were signed by the Secretary of the Anchalik Panchayat only and not by its President. From the records made available before this Court, which has already been discussed above, it is evident that the President of the Anchalik Panchayat directed the Secretary for taking action pursuant to the information submitted by the Secretary of the Gaon Panchayat for the purpose of holding the meeting of the Gaon Panchayat to discuss the no-confidence motion. The action on the part of the President of the Anchalik Panchayat taken on 29.4.05 directing holding of the meeting of the Gaon Panchayat is therefore, convening the meeting of the Gaon Panchayat as by that order the members of the Gaon Panchayat caused to be assembled to discuss the no-confidence motion. The subsequent action on the part of the Secretary in signing notice intimating the President of the Gaon Panchayat about the date fixed for holding the meeting of the Gaon Panchayat, was only a ministerial action taken on the basis of the decision of the President of the Anchalik Panchayat. Therefore, it cannot be said that the President of Anchalik Panchayat did not convene the meeting of Gaon Panchayat as the Secretary of the Anchalik Panchayat had signed the notices. The contention of the learned Counsel for the Petitioner, therefore, cannot be accepted and hence rejected. 14. The second submission of the learned Counsel for the Petitioner is that though Section 45 of the Act provides for giving seven days clear notice for holding the special meeting, only two days notice was given as vide notice dated 16.5.05 the meeting was called on 18.5.05. The said contention of the learned Counsel for the Petitioner also cannot be accepted on two counts. Firstly, Section 45(4)of the Act relates to holding of ordinary and special meeting of the Anchalik Panchayat and not of Gaon Panchayat. In the instant case by the notice dated 16.5.05 the meeting of the Gaon Panchayat was called fixing 18.5.05 for discussing the no-confidence motion brought against the Petitioner. Section 15(1) of the Act also does not provide for giving seven clear days notice for holding such meeting. In the instant case by the notice dated 16.5.05 the meeting of the Gaon Panchayat was called fixing 18.5.05 for discussing the no-confidence motion brought against the Petitioner. Section 15(1) of the Act also does not provide for giving seven clear days notice for holding such meeting. Secondly, even assuming that seven clear days notice is required to be given, in the instant case, the first notice was dated 4.5.05 fixing 11.5.05, which had to be rescheduled because of the interim order passed by this Court in another writ petition filed by the Petitioner, refixing the date for holding the meeting as 18.5.05, after such interim order was vacated by the learned Single Judge in that writ petition, the Petitioner in fact got fourteen days time from the date of initial notice dated 4.5.05. Under the law where any time limit is fixed for holding any meeting and accordingly notice of such meeting was issued but because of the interim order passed by the Court, the same could not be held and had to be rescheduled, the period had to be reckoned from the date of issuance of the original notice. Moreover, the Petitioner cannot be allowed to take advantage of the situation arising from filing of the writ petition by her, wherein the interim order passed earlier was subsequently vacated. Therefore, the second contention of the Petitioner also cannot be accepted and hence rejected. 15. In Basanti Das (supra), on which the learned Counsel for the Petitioner has placed reliance, it was not the case that the President of the Anchalik Panchayat concerned passed any order convening the meeting of the Gaon Panchayat for discussing the no-confidence motion, but the admitted position in that case was that notices for the meeting was issued by the Executive Officer of the Anchalik Panchayat. In that view of the matter, the learned Single Judge has held that the Executive Officer of Anchalik Panchayat has no authority under the law to 'convene' the meeting. In the instant case the President of the Anchalik Panchayat has passed an order on 29.4.05, convening the meeting of the Gaon Panchayat and the Secretary of the Anchalik Panchayat in discharging his ministerial duty informed the Gaon Panchayat about the date of holding such meeting for consideration of the no-confidence motion. 16. In the instant case the President of the Anchalik Panchayat has passed an order on 29.4.05, convening the meeting of the Gaon Panchayat and the Secretary of the Anchalik Panchayat in discharging his ministerial duty informed the Gaon Panchayat about the date of holding such meeting for consideration of the no-confidence motion. 16. A learned Single Judge of this Court in Dipali Talukdar (supra) has held that the President of the Anchalik Panchayat must convene the meeting himself and permitting the Secretary to convene the meeting, be with approval of the President thereof, would not be in consonance with the requirement of Section 15(1) of the Act. It is true that the provision of Section 15(1) will be satisfied only when the meeting is convened by the President of the Anchalik Panchayat. It is also equally true that the Secretary has no power to convene such meeting. But is it the requirement of law that the President of the Anchalik Panchayat has to issue the notice himself informing about the date for holding such meeting of Gaon Panchayat, after he passed the order convening such meeting? The answer, as discussed above, is no. Once the President of the Anchalik Panchayat passes an order convening the meeting, the requirement of Section 15(1) is complied with. The mere fact that the Secretary, after such order of the President, signed the notice informing the Gaon Panchayat about the date fixed for holding such meeting, in exercise of the ministerial duty, will not amount to convening the meeting by the Secretary. Therefore, the aforesaid decisions cited by the learned Counsel for the Petitioner are not the authority in support of the proposition put forward by the learned Counsel for the Petitioner. 17. In view of the aforesaid discussion, we do not find any merit in the writ petition and hence, the same is dismissed. However, keeping in view the facts and circumstances of the case, we do not make any order as to cost. Petition dismissed