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2009 DIGILAW 674 (GAU)

Mariom Begum v. State of Assam

2009-09-16

I.A.ANSARI

body2009
JUDGMENT I.A. Ansari, J. 1. Putting to challenge the notice, dated 18.5.2009, issued by the President Guma Faulbari Anchalik Panchayat, informing, amongst others, the petitioner, as president of No. 31 Pazar Bhanga Gaon Panchayat, that a special meeting of the said Gaon Panchayat has been convened, in the office of Guma Fulbari Anchalik Panchayat, on 26.5.2009, at 11 p.m., on the basis of a requisition submitted by as many as seven members of the said Gaon Panchayat, expressing want of confidence, in the petitioner, as the President of the said Gaon Panchayat, the petitioner, with the help of this writ petition, made under Article 226 of the Constitution of India, contends that the notice, dated 18.5.2009, aforementioned, is wholly illegal and without jurisdiction inasmuch as Section 15 of the Assam Panchayat Act, 1994, mandates, inter alia, that a notice, expressing want of confidence in a President of a Gaon Panchayat, shall, at first, be given to the President against whom want of confidence is expressed, but no such notice was given by the requisitionists to the petitioner and without complying with this mandatory requirement, no special meeting to discuss the motion of no confidence, which the requisitionists had sought to get convened, was permissible to be convened by the jurisdictional Anchalik Panchayat. 2. The respondents herein, who had requisitioned the meeting, have resisted the writ petition by getting themselves impleaded in this writ petition and also by filing their affidavit-in-opposition. The sum and substance of the case of requisitionist, as discernible from the averments, made by them in their affidavit, read, thus: For various breach of conduct, on the part of the present petitioner, as many as seven members of the said Gaon Panchayat gave a letter, dated 27.4.2009, requesting the petitioner, as President of the said Gaon Panchayat, to convene a special meeting on the ground that the said members had lost their confidence in the petitioner as President of the said Gaon Panchayat. This letter was to be handed over to the Secretary as well as the President of the said Gaon Panchayat (i.e., the writ petitioner). However, while the Secretary received the said letter and rendered acknowledgement of the receipt thereof, the petitioner, as President, declined to receive the letter. This letter was to be handed over to the Secretary as well as the President of the said Gaon Panchayat (i.e., the writ petitioner). However, while the Secretary received the said letter and rendered acknowledgement of the receipt thereof, the petitioner, as President, declined to receive the letter. A copy of the said letter could, however, be served on the petitioner by the Secretary on 2.5.2009 and the petitioner acknowledged receipt thereof, on 2.5.2009, by putting her initial on the photocopy of the letter requisitioning the special meeting. Despite the fact that the petitioner did acknowledge receipt of the letter, dated 2.5.2009, aforementioned, she did not arrange the special meeting and it was in such circumstances that the jurisdictional Anchalik Panchayat issued the impugned notice; dated 18.5.2009, convening the special meeting, on 26.5.2009, on the subject of no confidence expressed by the majority of members of the said Gaon Panchayat in their President. After having received the notice, dated 27.4.2009, aforementioned, the petitioner, as President of the said Gaon Panchayat, avoided convening the special meeting, the President of the said Anchalik Panchayat issued the impugned notice, dated 18.5.2009, convening the special meeting on 26.5.2009. However, responding to the notice, dated 18.5.2009, which had been issued by the said Anchalik Panchayat, the petitioner applied, on 22.5.2009, to the President of the Anchalik Panchayat seeking adjournment of the said meeting on the ground of her ill-health and, in support of her illness, she also submitted a medical report. These facts, according to the requisitionists, are ample proof of the fact that the petitioner had been avoiding receipt of the letter, dated 27.4.2009, and also the calling of the special meeting in terms of the requisition given to her and it was in such circumstances that Anchalik Panchayat had to call for the special meeting. In support of their averments, the requisitionists have also brought on record a copy of the letter, dated 27.4.2009, which had been given by them to the Deputy Commissioner, Barpeta. 3. An affidavit-in-opposition has also been filed by the respondent No. 3, namely, Secretary of the said Gaon Panchayat. Supporting the case of the requisitionists, the Secretary, in his affidavit, avers that seven members of the said Gaon Panchayat had, indeed, Submitted a letter, dated 27.4.2009 to the Secretary expressing their no confidence in their President or as many as six grounds. Supporting the case of the requisitionists, the Secretary, in his affidavit, avers that seven members of the said Gaon Panchayat had, indeed, Submitted a letter, dated 27.4.2009 to the Secretary expressing their no confidence in their President or as many as six grounds. The Secretary also avers, in his affidavit, that on receipt of the letter, dated 27.4.2009, aforementioned, in the office of the said Gaon Panchayat, from one of the members of the said Gaon Panchayat, the deponent had; on the same day, communicated the information to the petitioner, but the petitioner did not acknowledge receipt of the said letter on the plea of some other urgent work; however, the acknowledgement receipt was given fry the petitioner only on 2.5.2009. The Secretary has further averred, in his affidavit, that the petitioner, as President of the Gaon Panchayat, did not take any action despite several reminders given by him to her as regards the letter, dated 27.4.2009, aforementioned and, thus, finding no other alternative, he referred the matter to the President of the said Anchalik Panchayat. 4. I have heard Mr. S.S. Dey, Learned Counsel for the petitioner, and Ms. V.L. Singh, learned Government Advocate, for the State respondent. I have also heard Mr. A.R. Sikdar, Learned Counsel for the requisitionists, who have got themselves impleaded as respondent Nos. 5 to 11. 5. Before entering into the merit of this writ petition, it may be pointed out that since at the centre of controversy, in this writ petition, lies the alleged non-compliance with the provisions of Sub-sections (1) and (2) of Section 15 of the said Act, Sub-sections (1) and (2) of Section 15 are reproduced hereinbelow: (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 Goan Panchayat. Such a meeting shall be specially convened by the Secretary of the Goon Panchayat with approval of the President of the Gaon Panchayat. Such meeting shell 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. Such a meeting shall be specially convened by the Secretary of the Goon Panchayat with approval of the President of the Gaon Panchayat. Such meeting shell 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 the 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-1 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. (2) The requisition for such a special meeting under Sub-section (1) shall be signed by not less than one third of the total number of members of the Gaon Panchayat and shall be delivered to the President or Vice-President as the case may be, of the concerned (Goon Panchayat) with information to the Deputy Commissioner of the District. 6. No amount of reading of the provisions, contained in Sub-section (1), shows that the Gaon Panchayat's members are required to personally hand over to the President of Gaon Panchayat their letter seeking convening of a special meeting to express their want of confidence in their President. 6. No amount of reading of the provisions, contained in Sub-section (1), shows that the Gaon Panchayat's members are required to personally hand over to the President of Gaon Panchayat their letter seeking convening of a special meeting to express their want of confidence in their President. Having so indicated, it must, however, be borne in mind that Sub-section (2) clearly shows that the letter; given by requisite number of members, expressing their want of confidence in their President, shall be delivered to the President with information to the Deputy Commissioner of the district concerned. 7. Thus, while it is not necessary that the members of a Gaon Panchayat, who seek the meeting to discuss the motion of no confidence against their President, must personally hand over their letter, seeking convening of a 'special meeting' to their President, it is nevertheless necessary that the members' letter, seeking convening of such a 'special meeting' be delivered to the President of the Gaon Panchayat. There is, therefore, no impediment if, in a given case, when a President of a Gaon Panchayat refuses to receive delivery of such a letter, the letter is handed over to the Secretary of the Gaon Panchayat or even to the Deputy Commissioner of the district so that the President can be informed of such a requisition and the demand, made by the members to requisition such a 'special meeting' does not get frustrated. 8. Ordinarily, therefore, a requisition for special meeting has to be, first, given to the President of the Gaon Panchayat concerned If the President refuses to receive the letter or refuses to acknowledge receipt of the letter, there is no impediment, for the members, in such a case to inform Deputy Commissioner and hand over the letter of requisition, addressed to the President of their Gaon Panchayat, to the Deputy Commissioner. In fact, even without going to their President, the members of a Gaon Panchayat may hand over such a letter of requisition to the Secretary of their Gaon Panchayat and it would, then become obligatory for the Secretary to place the letter before the President of the Gaon Panchayat so that the special meeting can be convened. 9. In fact, even without going to their President, the members of a Gaon Panchayat may hand over such a letter of requisition to the Secretary of their Gaon Panchayat and it would, then become obligatory for the Secretary to place the letter before the President of the Gaon Panchayat so that the special meeting can be convened. 9. Since the provisions, contained in Section 15(1), show that it is the Secretary of the Gaon Panchayat, who has to convene, with the approval of the President of the Gaon Panchayat, the special meeting within a period of 15 days from the date of receipt of a notice, it must be treated to mean the letter or notice given by the required number of members of the Gaon Panchayat seeking convening of special meeting must be brought, either directly by the requisitionists themselves or through some other means as indicated above, to the President of the Gaon Panchayat in whom want of confidence is expressed. When a President of the Gaon Panchayat does not, within a period of 15 days from the date of receipt of a notice of requisition, convene the special meeting, it becomes statutory obligation of the Secretary to inform, within three days thereafter, the President of the concerned Anchalik Panchayat about the said requisition and it would, then, become statutory duty of the President of the Anchalik Panchayat to convene the special meeting within seven days from the date of receipt of the information from the Secretary of the Gaon Panchayat and, in such a case, it is the President of the Anchalik Panchayat, who has to preside over such a special meeting. If the President of Anchalik Panchayat too does not take, in this regard, any action within the specified period of seven days, the Secretary of the concerned Gaon Panchayat shall give the information of the matter to the Deputy Commissioner/Sub-Divisional Officer (Civil) within three days and the concerned Deputy Commissioner or the Sub-Divisional Officer (Civil), as the case may be, shall convene the meeting within seven days from the date of receipt of the information with intimation to the Zilla Parishad and Anchalik Panchayat and it is the Deputy Commissioner or the Sub-Divisional Officer (Civil), as the case may be, or a Gazetted Officer, not below the rank of Class-I, who, on being deputed by the Deputy Commissioner or the Sub-Divisional Officer (Civil), as the case may be, shall preside over such a meeting, if in the special meeting, the no confidence motion fails, no such motion shall be allowed during the next six months. 10. In the present case, while the requisite number of members of the said Gaon Panchayat contend that they had given the letter, dated 27.4.2009, seeking convening of the special meeting to the petitioner as President of the Gaon Panchayat, but the petitioner refused to acknowledge receipt thereof, the petitioner contends that she had never been given the letter, dated 27.4.2009, aforementioned, by the members. This apart, while the Secretary claims that the letter, dated 27.4.2009, was, indeed, brought to the notice of the petitioner, but the petitioner failed to convene the special meeting within the specified time and it was, then, that he informed the President of the said Anchalik Panchayat about the fact that the petitioner had not convened the special meeting, which the members had given requisition for. However, the petitioner denies the claim of the Secretary of the said Gaon Panchayat. 11. Thus, it becomes a disputed question of fact as to whether the special meeting, in question, was sought to be convened by the Anchalik Panchayat concerned by the impugned letter, dated 18.5.2009, after the letter,-dated 17.4.2009, had been brought to the notice of the petitioner and the petitioner had avoided receipt thereof and did not convene the special meeting. There is, however, material to show that on receiving the impugned notice, dated 18.5.2009, the petitioner had submitted a medical certificate, showing her illness and expressing her inability to attend the special meeting convened by the impugned notice dated 18.5.2009. There is, however, material to show that on receiving the impugned notice, dated 18.5.2009, the petitioner had submitted a medical certificate, showing her illness and expressing her inability to attend the special meeting convened by the impugned notice dated 18.5.2009. The petitioner, however, while approaching this Court did not disclose that she had sought for adjournment of the said special meeting. What is most: crucial to note is that the petitioner did not, on receiving the impugned notice, dated 18.5.2009, and, while applying for adjournment of the said special meeting, did not give any indication that she had not been given any notice, which a President of a Goan Panchayat has to be, first, given by the members, who seek convening of such a meeting. This apart, the letter, dated 27.4.2009, which the Deputy Commissioner had received, gives prima facie an indication that this letter, dated 27.4.2009, was addressed to the petitioner as President of the said Gaon Panchayat. Thus, there are prima facie materials to show that the petitioner had received the letter, dated 27.4.2009, but avoided calling the special meeting. Whether the court believes these materials or not is not so material. What is material is that it has, now, become a completely disputed question of fact as to whether the letter, dated 27.4.2009, had or had not been received by the petitioner and, despite having received the letter aforementioned, whether the petitioner had failed to convene the special meeting within a period of 15 days as is statutorily required. Such disputed questions of fact would require making of roving enquiry and taking of evidence. A writ proceeding, under Article 226of the Constitution of India, is not an appropriate proceeding for determination of such disputed questions of fact. 12. Because of what have been discussed and pointed out above, if this writ petition is not dismissed on merit, it must, at least, be dismissed on the ground that this writ petition raises disputed questions of fact and a writ proceeding, under Article 226 of the Constitution of India, is not, in such a case, an appropriate proceeding. 13. Because of what have been discussed and pointed out above, this writ petition is not admitted and the same shall accordingly stand dismissed. 14. 13. Because of what have been discussed and pointed out above, this writ petition is not admitted and the same shall accordingly stand dismissed. 14. With the above observations and directions, this writ petition shall stand disposed of without, this Court having expressed any firm and concrete opinion on the Question as to whether the petitioner had or had not received the letter, dated 27.4.2009, as claimed by the requisitionists. 15. The interim directions, passed in this writ petition, shall accordingly stand vacated. 16. No order as to costs.