Research › Search › Judgment

Gauhati High Court · body

2006 DIGILAW 57 (GAU)

Suleman Ali v. State of Assam

2006-01-10

BIPLAB KUMAR SHARMA

body2006
JUDGMENT B.K. Sharma, J. 1. The challenge made in this writ petition is in respect of no confidence motion passed against the Petitioner and thereby removing him as the President of Anchalik Panchayat, and all consequential orders thereto. 2. The Petitioner was elected as member of Kapily Anchalik Panchayat. Such election was in the month of December 2001. Subsequently, in April 2002, the Petitioner was elected as President of the Anchalik Panchayat. As per the averments made in the writ petition, some members of the Anchalik Panchayat by their notice dated 9.7.2003 addressed to the Deputy Commissioner (D.C.). Morigaon expressed their no-confidence on the Petitioner. The notice was forwarded by the Respondent No. 4 (the President, Morigaon Zila Parishad) to the Respondent No. 5 (the Chief Executive Officer, Morigaon Zila Parishad). On the basis of the notice, the Respondent No. 5 by his order dated 24.7.2003 asked the Respondent No. 6 (Executive Officer, Kapily Anchalik Panchayat) to specially convene meeting in respect of no confidence motion and to dispose of the matter. 3. Raising a grievance against such action against the Petitioner, he moved this Court by filing the writ petition being W.P.(C) No. 6286/03. An order was passed on 22.8.2003 by which it was provided that the D.C., Morigaon would not take any action on the basis of the aforesaid letters dated 24.7.2003 and 9.7.2003. However, it was also provided that no-confidence motion, if any, moved by the members of the Anchalik Panchayat should be processed strictly in accordance with the provisions of Assam Panchayat Act, 1994. 4. After the aforesaid developments, 7 members of the Anchalik Panchayat, while expressing their desire for moving no confidence motion against the Petitioner requested the President of the Morigaon Zila Parishad to convene the special meeting for the purpose. Subsequently, by yet another letter dated 21.10.2003, the said members of the Anchalik Panchayat again requested the Secretary-cum-Executive Officer of the Anchalik Panchayat to convene a meeting in respect of the no-confidence motion against the Petitioner. Thereafter by letter dated 5.11.2003 (Annexure-IV), the Chief Executive Officer, Morigaon Zila Parishad intimated the Petitioner that a special meeting would be convened on 15.11.2003 to discuss and consider the no confidence motion initiated by the said members against the Petitioner. 5. The Petitioner made a challenge to the aforesaid letter dated 5.11.2003 by filing a writ petition being W.P.(C) No. 9335/03. 5. The Petitioner made a challenge to the aforesaid letter dated 5.11.2003 by filing a writ petition being W.P.(C) No. 9335/03. The writ petition was entertained by order dated 13.11.2003 by way of issuance of notice of motion. However, no interim order was passed staying the operation of the impugned notice dated 5.11.2003, although it appears that a prayer for such stay order was made in the writ petition. The writ petition was withdrawn on 19.2.2004 as will be evident from Annexure-V order dated 18.2.2004. However, liberty was granted to approach the court once again, if so advised. 6. On 15.11.2003, a meeting was held as proposed and resolution was passed by the members expressing their no confidence against the Petitioner. A copy of the resolution dated 15.11.2003 has been annexed to the writ petition (Annexure-VI). It appears that all the members voted against the Petitioner ad all the members accepted no confidence motion against him. After such no-confidence motion was passed, the Joint Secretary to the Government of Assam in the Panchayat and Rural Development (A) Department issued the Annexure-VII letter dated 6.1.2004 to the Deputy Commissioner, Morigaon requesting him to take necessary steps to allow the Vice President of the Anchalik Parishad to take charge as the President. Based on the communication, the D.C. issued Annexure-VIII letter dated 9.1.2004 asking the Vice President to take over charge of the President till election of the President in the normal process. 7. In the aforesaid factual background of the case, the challenge made in the writ petition is the manner and method in which the no confidence motion was adopted against the Petitioner and the consequential orders passed on the same. It is the grievance of the Petitioner that while adopting the impugned resolution by way of passing the no confidence motion against the Petitioner, procedure prescribed for the same under Section 43 of the Act has been violated. According to him the requisition placed for convening the meeting to discus the no confidence motion against the Petitioner was not a valid requisition inasmuch as no intimation to the D.C. as provided under Section 43(3) of the Act was given. According to the Petitioner the President of the Zila Parishad also did not convene any meeting within the prescribed period of 7 days and in such circumstances no approval could have been given by the President of the Anchalik Panchayat. According to the Petitioner the President of the Zila Parishad also did not convene any meeting within the prescribed period of 7 days and in such circumstances no approval could have been given by the President of the Anchalik Panchayat. The basic thrust of the Petitioner in respect of the purported procedural irregularity is in respect of the method and manner of the issuance of the notice dated 21.10.2003 (Annexure-III) by which the Secretary-cum-Executive Officer, Kaiply Anchalik Panchayat was intimated about the no-confidence motion against the Petitioner on the basis of the allegations made against him. According to the Petitioner such notice was issued to a stranger and the Petitioner was in complete dark about the exercise of action taken by the members of the Anchalik Panchayat. 9. I have heard Mr. A.K. Goswami, learned senior Counsel assisted by Mr. A.K. Sarmah, learned Counsel for the Petitioner. I have also heard Ms. R. Chokraborty, learned State counsel appearing for the State Respondents. Mr. M. Bhuyan, learned Counsel for the private Respondents argued for the private Respondents. 10. As noticed above, the basic thrust of argument of Mr. Goswami, learned Counsel for the Petitioner is that the notice relating to a no-confidence motion against the President of Anchalik Panchayat, as envisaged under Section 43 of the Assam Panchayat Act, 1994 is required to be issued to the President and it is only upon his failure to convene the meeting, further necessary course of action is required to be taken. According to him the Annexure-III notice dated 21.10.2003 which is the foundation of the entire action against the Petitioner was given to a stranger. The notice was addressed to the Secretary-cum-Executive Officer of the Anchalik Panchayat. Further argument of Mr. Goswami is that, apart from the fact that the Petitioner was not addressed with the notice of no-confidence motion, he was also kept in complete dark about the exercise carried out on the basis of the said notice and as a consequence, the impugned resolution and the orders thereof towards removal of the Petitioner as the President of the Anchalik Panchayat are all liable to be interfered with. 11. Countering the above argument, Mr. M. Bhuyan, learned Counsel for the private Respondents submitted that the Petitioner having withdrawn the earlier writ petition, is precluded from agitating the same grievance by filing the present writ petition. 11. Countering the above argument, Mr. M. Bhuyan, learned Counsel for the private Respondents submitted that the Petitioner having withdrawn the earlier writ petition, is precluded from agitating the same grievance by filing the present writ petition. As regards the merits of the case, he submitted that the provisions of Section 43 of the Act do not envisage service of notice on the President himself and the Service of notice on the Executive Officer of the Anchalik Panchayat intimating about the no-confidence against the Petitioner on the basis of the allegations made in the notice itself was sufficient. As regards the plea of the Petitioner that he was not aware of the exercise and proceedings pursuant to the Annexure-III dated 21.10.2003, Mr. Bhuyan, learned Counsel for the private Respondents submitted that knowledge of the Petitioner about the proceeding stares on the face of it and the plea raised by the Petitioner is an after thought. He finally submitted that the members of the Anchalik Panchayat having exercised its democratic right towards removal of the Petitioner as the President of the Anchalik Panchayat, the writ court in exercise of its power of judicial review will be reluctant to interfere with such democratic right on the purported procedural irregularity. 12. Ms. R. Chokraborty, learned State counsel appearing for the State Respondents supported the action towards removal of the Petitioner. She submitted that the basic prescribed procedure having been followed towards removal of the Petitioner, even if there was some irregularity, the impugned action is not to be interfered with. She submitted that when the real intention of the members of the Anchalik Panchayat has been carried into operation, the Petitioner cannot raise the issue of the procedural irregularity towards frustrating the desire of the members of the Anchalik Panchayat. 13. I have given my anxious consideration to the submissions made by the learned Counsel for the parties. She submitted that when the real intention of the members of the Anchalik Panchayat has been carried into operation, the Petitioner cannot raise the issue of the procedural irregularity towards frustrating the desire of the members of the Anchalik Panchayat. 13. I have given my anxious consideration to the submissions made by the learned Counsel for the parties. I have also gone through the materials on record including the records produced by the learned State counsel, Since the basic thrust of the argument of the learned Counsel for the Petitioner is that the notice of no confidence motion was addressed to a stranger and that the Petitioner was in complete dark in respect of the exercise carried out pursuant to the said notice, for the purpose of making a cross verification as to whether any such plea was raised in the earlier writ petition, more particularly when the learned Counsel for the private Respondents submitted that the Petitioner is precluded from raising such a grievance he having withdrawn the earlier writ petition, I thought it prudent to call for the records of the writ petition being W.P.(C) No. 9335/03. 14. In the aforesaid writ petition also a challenge was made to the Annexure-III notice dated 21.10.2003. It was not the plea of the Petitioner that he was not aware of the exercise and proceedings adopted pursuant to the requisition notice dated 21.10.2003. The statements made in the present writ petition and in the earlier writ petition in respect of the said notice dated 21.10.2003 are in sharp contrast. While in paragraph-11 of the present writ petition, the Petitioner has stated that he was completely kept in dark about the exercise pertaining to the no-confidence motion requisition notice dated 21.10.2003, no such statement was made in the earlier writ petition. On perusal of the earlier writ petition, it appears that the only grievance raised by the Petitioner was that the notice ought to have been served on him as the President of the Anchalik Panchayat and not on the Secretary of the Anchalik Panchayat who according to him was a stranger. Throughout the present writ petition there was no whisper about the plea being raised in the present writ petition that the Petitioner was completely kept in dark in respect of the proceeding pursuant to the said notice dated 21.10.2003. Throughout the present writ petition there was no whisper about the plea being raised in the present writ petition that the Petitioner was completely kept in dark in respect of the proceeding pursuant to the said notice dated 21.10.2003. Even in the present writ petition, it is not the specific case of the Petitioner that he was unaware of the issuance of notice 21.10.2003. 15. The above aspect of the matter now leads us to the question as to whether the no-confidence motion requisition notice ought to have been addressed to the Petitioner as President of the Anchalik Panchayat and the same having been addressed to the Secretary-cum-Executive Officer of the Anchalik Parishad has vitiated the exercise and proceeding carried out pursuant to the said notice. Section 43 of the Act dealing with the procedure towards passing a no-confidence motion against the President and the Vice President of Anchalik Panchayat, provides for convening a meeting by the President of the Anchalik Panchayat for discussion on no-confidence motion. On its failure to convene the meeting within 15 days from the date of receipt of notice, the Secretary of the Anchalik Panchayat shall refer the matter to the President of Zila Parishad with intimation to in Deputy Commissioner. The President of the Zila Parishad shall then range for convening the meeting within 15 days from the date of receipt intimation. In case, the President of the Zila Parishad does not convene meeting within 15 days from the date of receipt of intimation, the Ex-officio Secretary of the Anchalik Panchayat within three days from the date of expiry of stipulated 15 days shall report to the concerned Deputy Commissioner or the Sub-Divisional Officer as the case may be. On receipt the information, the Deputy Commissioner/SDO, as the case may be, shall convene the meeting within 15 days from the date of receipt of the information with intimation to the Zila Parishad concerned and shall also preside over such meeting. 16. On perusal of the provisions of Section 43 of the Act, it appears that there is no specific requirement of issuance of the notice relating to confidence motion to the President. 16. On perusal of the provisions of Section 43 of the Act, it appears that there is no specific requirement of issuance of the notice relating to confidence motion to the President. The requirement to convene the meeting is the approval of the President and if the meeting is not convened by the Anchalik Panchayat within a period of 15 days from the date of receipt of the notice, the Secretary of the Anchalik Panchayat shall refer matter to the President of the Zila Parishad with intimation to the Deputy Commissioner. Thus, what is required is the approval of the President. Section 43(1) of the Act speaks of the consequence of not convening the meeting by the Anchalik Panchayat only and not by the President within a period of 15 days from the date of receipt of the notice, in terms of which it is the Secretary of the Anchalik Panchayat who shall refer the matter to the President of the Zila Parishad. 17. The matter can be viewed from another angle. Even if the contention of the Petitioner that the notice ought to have been served on him only and not to the Secretary of the Anchalik Panchayat is accepted to be a probable view, same by itself will not render the exercise and the proceeding carried out pursuant to the notice non est, when it is not the pleaded case of the Petitioner that he was unaware about the notice dated 21.10.2003. 18. Section 51 of the Act speaks of delegation of powers of the Anchalik Panchayat to the Executive Officer and Section 52 envisages that Executive Officer of the Anchalik Panchayat Shall be the Ex-Officio Secretary of the every standing committee of the Panchayat. The detailed procedure has been laid down as to the manner and method of the functioning of the standing committee and the procedure to be adopted. Provisions have also been made relating to the power of the Anchalik Panchayat. All such provisions could be found from Section 51 to Section 62 of the Act. Section 63 of the Act specifically lays down the powers and functions of the Executive Officer of the Anchalik Panchayat. On the face of such provisions in the Act, it can not be said that the Secretary-cum-Executive Officer of the Anchalik Panchayat was a total stranger. 19. Section 63 of the Act specifically lays down the powers and functions of the Executive Officer of the Anchalik Panchayat. On the face of such provisions in the Act, it can not be said that the Secretary-cum-Executive Officer of the Anchalik Panchayat was a total stranger. 19. Although notice was addressed to him which according to the Petitioner ought to have been issued in the name of the President, when there is no specific plea on the part of the Petitioner that he was unaware about the said notice and the proceeding thereof, such plea is of no consequence. It appears that after withdrawal of the first writ petition, i.e., W.P.(C) No. 9335/05, the Petitioner became wiser so as to insert a particular sentence in the particular paragraph in the present writ petition that he was completely kept in dark about the exercise of the proceeding pursuant to the impugned notice dated 21.10.2003. No such plea was raised in the earlier writ petition. 20. After the service of notice relating to no-confidence motion against the petitioner with the requisition to convene a meeting to discuss the motion, the Annexure-IV notice dated 5.11.2003 was issued by the Chief Executive Officer, Morigaon Zila Parishad intimating the petitioner that due to non receipt of approval by the Executive Officer of the Anchalik Panchayat from the petitioner, i.e., the President of the Anchalik Panchayat, a meeting had been convened on 15.11.2003 to members of the Anchalik Panchayat. On 15.11.2003 the impugned resolution was passed removing the petitioner as the President of the Anchlik Panchayat and the resolution was accepted by all the members. Thereafter, the consequential actions followed as per the provision of Section 43 of the Act. Thus, it appears that on failure of the President of the Anchalik Panchayat, i.e., the petitioner, to accord approval to convene the meeting on the no-confidence motion requisition placed by the members of the Anchalik Panchayat, the Secretary of the Anchalik Panchayat referred the matter to Zila Parsihad who in turn convened the meeting with due intimation to the petitioner. The records have revealed that the petitioner in spite of receipt of notice dated 5.11.2003 did not participate in the meeting. Once the no-confidence was passed against the petitioner, the consequence thereof as envisaged under Section 43 of the Act followed and accordingly necessary orders had to be issued. 21. The records have revealed that the petitioner in spite of receipt of notice dated 5.11.2003 did not participate in the meeting. Once the no-confidence was passed against the petitioner, the consequence thereof as envisaged under Section 43 of the Act followed and accordingly necessary orders had to be issued. 21. In view of the above, I do not find any infirmity in the proceeding to the no-confidence motion passed against the petitioner. Consequently the writ petition stands dismissed, without, however, any order as to costs. Petition dismissed.