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2007 DIGILAW 21 (GAU)

Sahab Uddin Ahmed v. State of Assam

2007-01-09

AFTAB H.SAIKIA

body2007
JUDGMENT A.H. Saikia, J. 1. Heard the learned Counsel for the parties. 2. Basically in the instant writ petition, the petitioner has sought for the quashment of the resolution of the meeting of the Badarpur Anchalik Panchayat (for short, 'the Panchayat') for election of the President and Vice-President held on 15.11.2006 Annexure-8 to the writ petition) and also for a direction to the respondent No. 2, the State Election Commission, Assam, Guwahati and respondent No. 3, the Deputy Commissioner, Karimganj to hold the election of the President and Vice-President of the Panchayat in question especially in accordance with law in terms of the order passed by the Hon'ble Court on 18.01.2006 in W.P.(C) No. 9005/05 mainly on two counts, namely (1) that no notice convening the meeting for election of President and Vice-President of the Panchayat as required under Section 37(1) and (2) of the Assam Panchayat Act, 1994 (for short, 'the Act') read with Rules 48 and 53 of the Assam Panchayat (Constitution) Rules, 1995 (for short, 'the Rules') was issued to the members constituting the Panchayat under Section 32(1) of the Act and (2) that the meeting which adopted the impugned resolution lacked quorum as required under Rule 48(3) of the Rules. 3. The case of the petitioner is that he, being a member of the Panchayat, was aggrieved by the impugned resolution dated 15.11.2006 by which the respondent Nos. 7 and 8 were illegally elected as the President and Vice-President respectively of the Panchayat because at the time of holding of the meeting there was only six elected members present out of eleven elected members of the Panchayat that being constituted with 12 members from the various Gram Panchayat out of which one member who was earlier elected as Vice-President meanwhile expired and virtually one third of the total members as under Section 32(1) of the Act, as required under Rule 48(3) were not present to constitute quorum, being essential, at the time of adoption of the impugned resolution. It is contended that the Panchayat was, in terms of Sub-section (1) of Section 32 of the Act, initially constituted with 26 members in total i.e., there being 12 Gaon Panchayat under the Panchayat, (i) 12 elected members from the respective Gaon Panchayats, (ii) 12 ex-officio Presidents of the Gaon Panchayat (iii) 1 Member of Parliament and 1 Member of Legislative Assembly representing the constituency which comprises the Panchayat. Due to death one member who was elected as Vice-President of the Panchayat, presently the Panchayat was constituted with 25 members and as per Rule 48(3), if one third of the total members i.e., in the instant case 8 members were not present, the meeting adopting the impugned resolution ought to have been adjourned by the Deputy Commissioner fixing another date. 4. On the other hand, in support of the election of the respondent Nos. 7 and 8, it is submitted that the election of those President and Vice-President were held within time frame and in total consonance with of the provision of law prescribed under the Act as well as the Rules inasmuch as in terms of Sections 37(1) and (2) read with Rules 48(1) and (3) of the Rules there were one third of the elected members present out of eleven existing members out of total 12 members, as one of them, being elected as Vice-President, expired and by those elected members only the President and Vice-President i.e., respondent Nos. 7 and 8 respectively were elected and as such the question of holding the meeting without quorum does not arise. 5. The stand taken on behalf of those respondents is that due notices to all the members comprising the Panchayat including the petitioner were duly sent notifying the date of convening the scheduled meeting for such election and there was, therefore, no illegality or irregularity occurred in holding the meeting and thereby electing the respondents Nos. 7 and 8 as President and Vice-President of the Panchayat respectively. 6. In the backdrop of the above submissions and in order to adjudicate the issue raised herein properly and adequately, it would be apt and relevant to refer to the provisions of law Sections32(1), 37 and 46(1) of the Act are reproduced as under: 32. 7 and 8 as President and Vice-President of the Panchayat respectively. 6. In the backdrop of the above submissions and in order to adjudicate the issue raised herein properly and adequately, it would be apt and relevant to refer to the provisions of law Sections32(1), 37 and 46(1) of the Act are reproduced as under: 32. Constitution of Anchalik Panchayat-- (1) Every Anchalik Panchayat shall consist of-- (a) one member from each Gaon Panchayat to be directly elected from the territorial constituencies of the Gaon Panchayat under the jurisdiction of the Anchalik Panchayat; (b) the President of the Gaon Panchayat failing within the jurisdiction of the Anchalik Panchayat; (c) the members of the House of People and the Members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly, the Anchalik Panchayat. 37. Election of President and Vice-President of Anchalik Panchayat: (1) The directly elected members of the Anchalik Panchayat shall elect from amongst the (directly elected) members two members as President and Vice-President respectively of the Anchalik Panchayat in a meeting (which shall be called the first meeting of the Anchalik Panchayat) to be convened by and presided by the Deputy Commissioner of the District in the manner prescribed. The Deputy Commissioner may delegate the power of Presiding over such meeting to any officer not below the rank of Class-1 Gazetted Officer. (2) If there occurs casual vacancy in the office of the President or the Vice-President the members shall elect another member from amongst the members as hereinafter provided, as the President or the Vice-President, as the case may be, in the manner prescribed. Provided that no election shall be held if the vacancy is for a period of less than one month. 46. Quorum of the Anchalik Panchayat meeting.-- (1) One third of the total numbers of members of the Anchalik Panchayat shall form a Quorum of transacting business at a meeting of the Anchalik Panchayat. It at the time appointed for a meeting a quorum is not present, the person presiding shall wait for thirty minutes, and if within such period, there is a quorum, proceed with the meeting but if within such period, there is no quorum, the person presiding shall adjourn the meeting to such hour or some future date as he may fix. He shall similarly adjourn the meeting at any time after it has begun, if his attention is drawn to the want of quorum. At such adjourned meetings, no quorum shall be necessary and the business which would have been brought before the original meeting, shall be transacted. Rule 48 of the Rules reads as follows: Rule 48. Election of President and Vice-President of Anchalik Panchavats: (1) The Deputy Commissioner or the Officer authorized by him in this behalf as under, Sub-section (1) of Section 37 of the Act, shall as soon as possible after the completion of election as under Section 32 of the Act, convene the first meeting of the Anchalik Panchayat oath taking as under Sub-rule (2) of Sub-section (1) of Section 32 of the Act, to propose and second names of persons from amongst themselves for election of a President and a Vice-President of the Anchalik Panchayat. The said Officer shall record the name of each candidate proposed for different offices and shall reject any proposal if the candidate refuses to stand for election. (5) If, only one candidate is proposed and seconded against either of the offices, the officer as under Sub-rule (1), shall thereupon declare him to be duly elected as the President or the Vice-President as the case may be, of the Anchalik Panchayat. 7. In the course of motion hearing of the instant writ petition on 29.11.06, a common reading of those provisions of law above as referred to and relied upon by the learned Counsel for the rival parties, has given rise to a question of law as regards whether all the members constituting the Panchayat as stipulated under Section 32(1)shall be permitted to vote in the election of President and Vice-President of the Panchayat following the procedure of election to those offices by the members of the concerned Anchalik Panchayat constituted under Section 32(1) of the Act as prescribed in Rule 48 of the Rules when Section 37(1) categorically speaks of permitting only the directly elected members of the Anchalik Panchayat to elect their respective President and Vice-President and in view of such conflicting statutory provisions, the valuable assistance of the learned Advocate General, Assam (for short, 'the A.G') has been required and accordingly, he is being requested to appear before this Court. To-day at the time of hearing, the learned A.G. has appeared to address the issue so raised as indicated above. 8. According to the learned, A.G., the above provisions of law especially Sections 32, 37(1) and (2) of the Act and Rules 48(1), (2), (3), (4) and (5) of the Rules need to be read harmoniously with the Constitutional provisions laid down under Article 243C particularly with that of Sub-rule (4) and (5) of 243C of the Constitution of India. 9. For the sake of convenience, it would be apt and necessary to quote the Article 243C which reads as under: 243 C. Composition of Panchayats-- (1) Subject to the provisions of this part, the Legislature of a State may, by law, make provisions with respect to the composition of Panchayats. Provided that the ratio between the population and territorial area of a Panchayat at any level and the number of seats in such Panchayat to be filled election shall so far as practicable, be the same throughout the State. (2) All the seats in a Panchayat shall be filled by persons chosen by direct election from territorial constituencies in the Panchayat area and, for this purpose, each Panchayat area shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the Panchayat area. (3) The Legislature of a State may, by law, provide for the representation-- (a) of the Chairpersons of the Panchayat at the village level, in the Panchayats at the intermediate level or, in the case of a State not having Panchayats at the intermediate level, in the Panchayats at the district level. (b) of the Chairpersons of the Panchayats at the intermediate level, in the Panchayat at the district level; (c) of the Members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly a Panchayat are at a level other than the village level, in such Panchayat. (b) of the Chairpersons of the Panchayats at the intermediate level, in the Panchayat at the district level; (c) of the Members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly a Panchayat are at a level other than the village level, in such Panchayat. (d) of the Members of the Council of States and members of the Legislative Council of the State, where they are registered as electors within-- (e) a Panchayat area at the intermediate level, in Panchayat at the intermediate level; (f) a Panchayat area at the district level, in Panchayat at the district level. (4) The Chairperson of a Panchayat and other members of a Panchayat whether or not chosen by direct election from territorial constituencies in the Panchayat area shall have the right to vote in the meeting of the Panchayats. (5) The Chairperson of-- (a) a Panchayat at the village level shall be elected in such manner as the Legislature of a State may, by law, provide; and (b) Panchayat at the intermediate level or district level shall be elected by, and from amongst, the elected members thereof." 10. It is stated by the learned A.G. that Sub-clause (4) above mentioned directly speaks of voting power of all the members whether or not directly elected including the Chair-person of the Panchayat. However, as per Sub-clause (b) of Clause 5, the Chairperson of the Panchayat at the intermediate level or district level shall only be elected by and from amongst the elected members. Therefore, to keep conformity with those Constitutional provisions allowing only the elected members to elect the President and Vice-President i.e., at the intermediate level as provided in Article 243C, provisions of Sections 37(1) and (2) has been incorporated by the State Legislature in the Act while framing the law for the Panchayat contemplated in Articles under Part-IX, particularly Article243C of the Constitution. 11. According to the learned A.G. the provision of Section 37 have been enacted in consonance with constitutional mandate permitting only the directly elected members of the Panchayat to elect their President and Vice-President by and from amongst them. 12. 11. According to the learned A.G. the provision of Section 37 have been enacted in consonance with constitutional mandate permitting only the directly elected members of the Panchayat to elect their President and Vice-President by and from amongst them. 12. In the backdrop of such constitutional and statutory provisions, summing up his submission, the learned Advocate General, Assam has stated there should not be any ambiguity in reading down the provisions of Section 32(1) and Sections 37(1) and (2) of the Act read with Rule 48 of the Rules. 13. Having considered the above provisions of law and also upon hearing the learned A.G. this Court is firmly of the view that both the Sections above mentioned as well as the relevant Rules are enacted and framed in conformity with Articles 243C(2), (4) and (5) of the Constitution and accordingly the contentions advanced by the learned A.G are accepted. 14. In the backdrop of above discussed legal position, now let us proceed to decide the issue raised herein on merit. 15. Having heard the learned Counsel for the parties at length and also on meticulous perusal of the materials available on record including the annexures appended in this writ petition, it appears that so far the issuance of notice requisitioning the meeting is concerned, notices were appeared to have been issued to all the members as the petitioner himself annexed a cyclostyled copy of the notice dated 27.10.06 issued to him notifying that a meeting of the elected members of the Panchayat was convened on 15.11.06 (Annexure-7 to this writ petition) and as such, the plea of non-issuance of notices to the parties does not hold water. As regards the second submission that there was no valid quorum for holding the meeting so as to enable to take the impugned resolution electing the respondent No. 7 and 8, it is admitted position that out of 12 elected members, the Panchayat is presently being comprised of 11 members due to death of 1 member who was Vice-President. Situated thus, in the considered opinion of this Court, out of 11 members 6 members were present, being the two third of the total members, at the time of holding the meeting in question where the impugned resolution was adopted. That being so, I do not find any illegality and/or jurisdictional error in the election of the President and Vice-President. 16. That being so, I do not find any illegality and/or jurisdictional error in the election of the President and Vice-President. 16. For the forgoing reasons, observations and discussions, this writ petition stands dismissed. No costs. Petition dismissed.